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The opinion of the court was delivered by
Allen, J. :
The only substantial controversy in this case is as to whether the election and qualification of D. D. Parry, as the successor in office of the defendant, and his death after such election and qualification and before the expiration of the defendant’s term of office, caused a vacancy, after the expiration of the term for which the defendant was elected which might be filled by the governor by appointment. The constitution provides, in article 3 :
‘ ‘ Sec . 11. All the judicial officers provided for by this article shall be elected at the first election under this constitution, and shall reside in their respective townships, counties or districts during their respective terms of office. In case of vacancy in any judicial office, it shall be filled by appointment of the governor until the next regular election that shall occur more than 30 days after such vacancy shall have happened.
“ Sec. 12. All judicial officers shall hold their offices until their successors shall have qualified.”
The constitution fixes the time for holding general elections, but does not provide when the term of office of a person elected shall commence. Paragraph 2718 of the General Statutes provides :
“The regular term of office of all state, district and county officers, and of the justices of the supreme court, shall commence on the second Monday of January next after the election, except as otherwise provided by law.”
The plaintiff claims that the election and qualification of Parry definitely fixed the limit of Albert’s tenure of office and created a vacancy at the end of his regular term. The defendant urges that at the time of the death of Parry, the defendant was the duly-elected, qualified and acting probate judge; that he was lawfully filling the office at that time ; that an office having an incumbent legally entitled to discharge its duties, and actually so doing, cannot be said to be in any sense vacant; that the appointment made by Governor Lewelling, on the 10th day of January., was made when no vacancy existed, and is therefore inoperative.
The view we take of' this case renders it unnecessary to consider either the effect of the subsequent appointment on the morning of the 14th of January, or the nice question discussed as to whether the constitutional limit of the term of a probate, judge to two years means that the term shall be exactly two calendar years, and must always expire on the same day of the month. Albert’s term of office commenced on the 9th of January, 1893, and the appointment having been made on the 10th of January, 1895, was made after the expiration of two calendar years. Without considering the question which has been somewhat argued by counsel with reference to an alleged conflict between the terms of office fixed by the constitution, and the statute above quoted making the terms always begin on the same day of the week, we shall decide this case as though the statute were valid, and the regular term of office of the defendant continued until the 14th of January.
Under the constitution, judicial officers hold their offices until their successors.have qualified. The term “ qualify,” used in this connection, has a well-defined meaning. It means to take such steps as the statute requires before a person elected or appointed to an office is allowed to enter on the discharge of its duties. In this case, it means to file a sufficient bond to be approved by the county clerk, and take and subscribe the official oath, these being the only prerequisites required of the person elected or appointed. The successor of the defendant had been elected and qualified. He was, then, entitled to take possession of the office on the second Monday in January; and at that time, had he lived, the right of the defendant to occupy would have terminated. The rights of the parties became fixed when Parry qualified. Although the defendant had the right to fill out his unexpired term he had a right to nothing more. Parry’s right to occupy the office thereafter had become full and complete. Nothing whatever remained to be done but to assume and enter on the discharge of its duties when the day should arrive. Parry died. This event however, conferred no new right on the defendant. The election and qualification of Parry had put an end to his right to hold over. The argument that an appointment to fill a vacancy cannot be made while there is a person in possession of the office entitled to discharge its duties may appear specious at first blush, but on anything like close consideration will readily be found fallacious. Whenever it is definitely ascertained that a vacancy will certainly occur, it may be filled by appointment. A vacancy occasioned by the death of an incumbent is, of course, not known until the death occurs, but vacancies caused by resignation are usually made and accepted in advance of the time the resignation is to take effect.
In the case of The State, ex rel., v. Seay, 64 Mo. 89, a question substantially identical with that presented in this case was under consideration. It appeared that in November, 1868, Gale was elected judge of the ninth judicial circuit, his term of office commencing on the first Monday in January, 1869. In November, 1874, McCord was duly elected as his successor, received his commission, and took the oath of office. On the 2d of January, after he had qualified, hut before the expiration of Gale’s term, he died. The governor issued a writ for an election to fill the vacancy. The opinion concludes :
“ By the terms of the constitution, Gale’s term was to cease when a successor should be elected and qualified. His successor, McCord, was duly elected and duly qualified, and when that occurred Gale’s right to hold over ceased, and the death of that successor before his term commenced did not revive a right in Gale which ceased when McCord qualified.”
In The State, ex rel., v. Bemenderfer, 96 Ind. 374, it was said:
“It cannot be legally possible that when the right to an office has been destroyed, or terminated the subsequent death of the person who had been elected, and who had duly qualified, revives the right which the election and qualification had put an end to, for the right to hold over exists only in cases where there is no legally-elected and qualified successor. "When the rights of the successor vest, those of the incumbent terminate, and they do vest after election and qualification according to law.”
The case of The State, ex rel., v. Hopkins, 10 Ohio St. 509, goes further, holding that a vacancy arises on the death of the person elected before qualification. (See, also, Mechem, Pub. Off., §401.) The general current of authorities would seem to be to the effect, however, that where the death of the successor-elect occurs before he qualifies, the incumbent holds over.
We are clearly of the opinion that there was a vacancy occurring at the end of the regular term of the defendant which the governor might fill by appoint ment; and the relator, baying been duly appointed and qualified, was entitled to the possession of the office on the 14th day of January, 1895.
Judgment of ouster, and for delivery of the possession of the office to the relator will be entered. •
All the- Justices concurring. | [
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Martin, C. J.
I. On April 13, 1895, the defendant was adjudged guilty of grand larceny by the stealing, on August 19, 1894, of five head of neat cattle and one heifer, being the personal property of F. J. Gran- field; and he was sentenced to confinement and hard labor in the penitentiary for the term of five years. The information as originally filed September 17, 1894, alleged that the property belonged to S. J. Gran-field, and it was so when the defendant entered his plea of not guilty thereto September 21, 1894. The trial resulting in the conviction of the defendant did not commence until January term, 1895. At sometime after the entry of the plea, and before the commencement of this trial (the record not showing the date), the State was allowed to amend the information by changing the name of S. J. Granfield to F. J. Gran-field. The defendant claims that this was error, and he cites section 72 of the Criminal Code to support his contention. That section authorizes the amendment an information before plea, in matter of or form, without leave; and in all matters of form, at the discretion of the court on the trial, when the amendment can be made without prejudice to the rights of the defendant. We do not interpret the language of this section as a prohibition against such an amendment of a Christian name or initial with leave of the court and before trial. The State v. Beatty, 45 Kan. 492, 496, 498. As it was not shown that a postponement of the trial was necessary by reason of the amendment, we cannot say that any substantial right of the defendant was prejudiced thereby.
II. During the trial and after the State had introduced the testimony of all the witnesses whose names were indorsed upon the information, leave was asked and granted to indorse the name of William Humphrey, and he was then called and examined as a witness over the objection of the defendant. Humphrey testified that he and the defendant committed the crime ; and on his cross-examination it appeared that the County Attorney had for several days contemplated the calling of Humphrey as a witness for the State. Under these circumstances the trial should have been postponed if the defendant had requested it. The Court ought to require of the prosecuting officer the utmost good faith, and not permit him purposely to spring a surprise upon the defendant. But as no postponement was asked, it cannot be held that the substantial rights of the defendant were prejudicially affected by the ruling of the Court in this particular. The State v. Price, 55 Kan. 606, 608.
III. Certain witnesses testified to the former fair reputation of the defendant for honesty and integrity ; and, in cross-examination, they were asked whether they had not heard of the defendant being arrested once before for larcenj7, and they admitted that they had, although it would seem from their testimony that the case against him was dismissed, 1 he defendant urges that it was error 0 for the Court to allow this particular circumstance to be brought up against him in cross-examination. It is not generally permissible, after a witness has testified to the fair reputation of a defendant in a particular respect, to cross-examine as to specific acts, doings or offenses of the defendant; but, as the general reputation of any person is established by the opinions of witnesses as to the general estimation of his character, it is allowable to call their attention to reports inconsistent with such good reputation, and thus to weaken or qualify the testimony of such witnesses ; and on this principle the Court did not err in the latitude allowed in cross-examination in this respect. 3 Rice, Ev. § 376 and cases cited.
IV. The defendant requested, and the Court refused to give, the following instruction to the jury :
No. 16. “The court- instructs the jury that one William Humphrey, who is jointly charged with the defendant John McDonald in the information filed in this case, gave testimony tending to show that he and said McDonald committed the crime charged in the information. Such testimony in law, is known as that of an accomplice, but you are not to convict the defendant John McDonald upon the testimony of said William Humphrey alone, unless his testimony is corroborated by other evidence as to some material fact.”
- We see no fault in this instruction, and it was in better form than that given upon the same subject by the Court; which, treating of the testimony of an accomplice, said that the law required that it should in some way, by some fact or circumstance, be corroborated to some extent, but that such a corroboration might be a circumstance or fact; that is, maybe circumstantial or positive testimony. We think, however, that the meaning of this instruction is not substantially different from the other, and that the defendant was not prejudiced by the refusal of the former and the giving of the latter. See further as to the testimony of an accomplice, The State v. Kellerman, 14 Kan. 135, 137, and The State v. Patterson, 52 id. 335, 352.
These being all the questions urged in the brief of counsel for the defendant, the judgment of the court below will be affirmed.
All the Justices concurring. | [
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Martin, C. J.
May was arrested without a warrant in Sumner County on December 22,1895, on suspicion of having committed the crimes of burglary and larceny on the preceding day in Harvey County. He was forcibly taken to the latter county by a deputy sheriff and placed in jail until the next day when a complaint was filed before a justice of the peace of that county charging him with the commission of said crimes; and he was then arrested upon a warrant issued in regular form and was bound over to the Dis-^ trict Court where an information was filed against him on February 4, 1896. Afterward the defendant filed a special plea in abatement to the jurisdiction of the court by reason of his illegal arrest in and forcible abduction from Sumner County ; and on May 11,1896, said plea was sustained, and the defendant was discharged and permitted to go at large, and he was given time to return to the place where he had been arrested in Sumner County. The State excepted, and reserved the question for the consideration of this Court.
This ruling was erroneous. The learned trial judge was probably misled by a clause in the opinion of this Court in The State v. Hall, 40 Kan. 338, 340. In that case it was held that “an alleged fugitive from justice extradited from one state to another can be prosecuted in the state to which he has been extradited only for the offense for which he was extradited until after he has had a reasonable time and opportunity afforded him to return to the place from which'he was extradited.” And in the opinion the court said : “This rule of law is applied in cases of separate jurisdictions, whether the separate jurisdictions are cities, counties, districts, states, or foreign countries.”
The language above quoted from the opinion in the Hall case as to such separate jurisdictions as cities, counties and districts, must be regarded as dictum only,, and certainly erroneous. It may be that a person illegally arrested in another county has a civil remedy for the trespass and false imprisonment, but this does-not divest the court into which he is brought of the right to try him upon the criminal charge preferred against him.
The District Court of Harvey County had jurisdiction to try the defendant notwithstanding the irregularity or the illegality of his original arrest in Sumner-County. No other sovereignty was invaded. A warrant might have been- properly served upon the defendant in any county of the State, whose sovereignty is coextensive with its external boundaries, and the jurisdiction of whose courts for the apprehension of' alleged offenders upon proper process is not affected by county lines. His original arrest was irregular, but this does not affect the jurisdiction of the court-into which he was afterward brought by regular process of law.
The judgment of the court below must be reversed with direction to overrule the plea in abatement to-the jurisdiction of the court.
All the Justices concurring. | [
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Martin, C. J.
We are satisfied with the decision of the Court of Appeals, and will only add some observations upon the principal point at issue. The consideration paid for the lots was $1,100. It was shown by the evidence that Brake had obtained from the defendants the title to an undivided 4-9ths of four lots in block 40 and to an undivided 5-9ths of the lots in block 39, and the Court instructed the jury to assess the plaintiff’s damages at 5-9ths of the consideration paid for the lots in block 40, and 4-9ths of the consideration paid for block 39, together with interest at seven per cent, per annum from November 18,1885, the date of the deed; but the jury having returned in their verdict the amount allowed for interest, the same was afterward struck out by the Court, and judgment was rendered only for the proportionate amount of the consideration paid, the plaintiff below never having been disturbed in his possession. We think the rule of damages laid down by the trial court was correct. It was held long ago in this State that the covenant of seizin is a personal one not running with the land, and that it is broken as soon as the deed is executed if the title be bad, and an action lies thereon at once without waiting for a disturbance of the possession. Dale v. Shively, 8 Kan. 276; Scantlin v. Allison, 12 id. 85. In Dale v. Shively, supra, it was held that the measure of damages upon breach of the covenant of seizin is, as a general rule, the consideration money and interest, but where the vendee buys in the paramount title his recovery is limited to the amount paid therefor and interest; and this rule was followed in McKee v. Bain, 11 Kan. 569. These early cases were cited with approval in Scott v. Morning, 23 Kan. 253, and Chambers v. Cox, 23 id. 393. It is now contended, however, that, where a grantee receives the possession from his grantor and is not disturbed therein, and pays nothing to buy in the outstanding title and incurs no expense by reason thereof, he can recover nominal damages only on an admitted breach of the covenant of seizin. This would be to construe away by judicial decision the force and efficacy of a covenant of seizin as heretofore interpreted by our own decisions. It is said that no matter how bad the title conveyed may be, yet the true owner may not assert his right until after the statute of limitations has barred it, and thus the grantee may obtain a good title by adverse possession ; therefore he ought not to be allowed to maintain an action on the covenant of seizin until after he has been evicted or has purchased in the outstanding title. In other words, the risk of disturbance by the true owner is shifted from the grantor, who has for a consideration expressly assumed it, and it is thrown upon the grantee, for whose benefit the covenant was made. According to our Kansas doctrine, a right of action accrues immediately upon the execution of the deed with the covenant of seizin, if the title be bad, and therefore it will be barred within five years thereafter, unless saved by some exception to the Statute of Limitations. An adverse claimant may bring his action within 15 years, and sometimes even later ; and if he should succeed therein, the grantee under the covenant of seizin is without remedy ; for when he goes to his lawyer he is advised that his right of action under that covenant has been barred for several years. A construction of the covenant of seizin', broken at the delivery of the deed, which requires that the covenantee must wait until his right of action is barred unless the adverse claimant brings his suit before that time, is apparently so unreasonable as to carry its refutation with its statement. We are not authorized to construe away the covenant of seizin because there was also a covenant of warranty in the same deed, for the grantee was entitled to the benefit of both. Under the former, he had a personal right of action against the grantors as soon as the deed was made; under the latter, there could be no breach until an eviction under a title paramount or something equivalent to it. By the former, he was under no obligation to wait until the latter should also be broken, and the grantors perhaps dead or insolvent, before commencing his action for damages. To illustrate this principle take an example : A. and B. own a tract of land in equal undivided shares. A., without the knowledge of B., in consideration of $1,000, the full value of the land, makes a deed to C. with a covenant of seizin, and C. goes into possession. He afterward learns that he has the title to the undivided one-half only, and, while undisturbed in his possession, he brings his suit against A. to recover the $500 paid without consideration on the faith of the covenant that A. was seized of the full title, but he is met with the answer that the breach is only technical, and he can recover no more than nominal damages until B. asserts his title or he buys it in. C. is not prepared to pay for the half-interest a second time ; he dismisses his action or takes a judgment for nominal damages. Years thereafter, B. commences his action against C. for partition and ejectment and recovers one-half in value of the land. C. then commences his action against A. to recover damages for breach of the covenant of seizin. If he dismissed his former suit without prejudice, he is met with the plea of the bar of the Statute of Limitations ; if he took judgment for nominal damages, he is confronted with the further plea of res judicata. Thus, by a sort of legal jugglery, C. loses his $500 and A. keeps that much for nothing. Counsel say, however, that B. may never assert his title, or may do so too late, and that A., who for the sum of $500, by his covenant of seizin expressly assumed the risk, should be relieved of it, and the court should impose it upon C., who paid his $500 to be assured against it. This is a manifest perversion of the law of contracts respecting real estate as established by the decisions of this Court. If a grantorxdoes not desire to be bound by a covenant of seizin he ought not to enter into it. When he does so, the courts ought not to annul it for his profit and to the injury of the grantee for whose benefit it was made.
There are many cases in which the covenantee should not be allowed to recover the full consideration money or the proportion thereof corresponding to that part of the title which is lost. If, in the example above cited, C. should purchase the outstanding title from B. for $250, he is made whole by the payment of that amount by A. and should not recover more ; as held in Day v. Shively, supra, and McKee v. Bain, supra. If, in the foregoing example, before O. should bring his suit, A. should buy in tlie outstanding title of B. in his own name, this would inure to the benefit of O. and make good his title, as in Scoffins v. Grandstaff, 12 Kan. 467; and the damages to C. from the breach of the covenant would be nominal only. Where the only breach of a covenant of seizin and against incumbrances is an outstanding easement detracting somewhat from the market value of the land, the damages will be limited to the extent of the depreciation by reason of the easement; as in Smith v. Davis, 44 Kan. 362. Perhaps it may be said, where the title has been cured by adverse possession and the lapse of time, by estoppel, or otherwise, without cost or expense to the grantee, his recovery for a breach of the covenant of seizin should be limited to nominal damages. It may not be going too far to say that in any case where there has been a breach of this covenant, but the title has been healed, or all danger of its hostile assertion has passed away, or the covenantee has lost nothing and is in danger of no loss or liability, no-more than nominal damages are recoverable. The case of Hammerslough v. Hackett, 48 Kan. 700, comes-within the principle last mentioned. The statement-in the opinion in Scoffins v. Grandstaff, 12 Kan. 471, referring to the covenant of seizin, that “where the-grantee takes possession of the property under his deed, and retains the uninterrupted possession thereof,, without paying anything to purchase in the paramount title, he can only recover nominal damages” is obiter, and too broad. In so far as O’Meara v. McDaniel, 49 Kan. 685, is in conflict with this decision, it must be-regarded as overruled. Of course, a title maybe perfect, while the record thereof is very defective; and what we have said has reference to the actual title, and not any particular kind of evidence whereby it may be supported or defeated.
It would be bootless to review the decisions in other States upon the measure of damages on a breach, either total or partial, of the covenant of seizin, where the covenantee remains in possession. In States like Iowa and Wisconsin, where it is held that this covenant runs with the land until the damage has arisen by eviction or other actual injury, it is entirely logical to hold that no substantial damages are recoverable until after the happening of such an event. The effect of this doctrine is to abolish the distinction between a covenant of seizin and a covenant of warranty, or rather to merge the former in the latter. We think, however, that there is a broad distinction between the two covenants, which the courts cannot properly ignore. The covenant of seizin is of the present tense, and if the covenantor has not the title, there is a breach of the covenant as soon as it is made. It is strictly a covenant for title. The covenant of warranty is of the future tense, and binds the covenantor to defend the title when it shall be assailed, and to make good the loss, within certain limitations, which may then be sustained. It is essentially a covenant against the loss of possession, and a right of action upon it does not accrue until the covenantee is disturbed. The Legislature has the power, perhaps, to abolish this distinction for the future, but, this Court having recognized it from an early day, and it being well supported by the authorities, we would be loth to disregard it now, even though we thought it would be good policy for the Legislature to change the rule; but of this we are by no means convinced. As indicated before, if a grantor does not wish to be bound by a covenant of seizin, or any other running in the present tense, he ought not to make it.
The judgment ^f the Court of Appeals will be affirmed..
Allen, J., concurring.
Johnston, J., dissenting. | [
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The opinion of the court was delivered by
Johnston, J. :
The right to a review of the rulings made by the district court is challenged at the outset by the defendants in error, because a great many of the claims that were allowed before the trial were for sums less than is required to give this court jurisdiction. The estate is an entirety, and its value greatly exceeds the jurisdictional amount. It affirmatively appears that each of a large number of the claims is more than $2,000 ; but whether large or small, the claimants were all interested in the trust fund, and a final disposition of the case requires that all should be brought in. The rulings made as to the distribution, therefore, are subject to review, although the claims of some who were seeking to share in the fund may have been very small. (M. K. & T. Rly. Co. v. Haber, 56 Kan. 694.)
The next contention is that the proceeding was not properly instituted. It is said that no petition was filed, no summons or citation was ever issued or served, that no answer was ever made, and no issues formed by pleadings. The applications of the plaintiffs in error were denominated “motions,” and contained a full recital of the facts, and an explicit statement of the relief asked. These motions were verified, and notice of the time of hearing was given to the assignee, who appeared in person and by attorney, resisting the application. The parties whose claims had been allowed and designated as “contingent,” appeared in person and by attorneys at the hearing, contending that they should not be excluded from a share in the estate, and insisting that they were entitled to a pro rata distribution of the assets with all other claimants.
In the matter of the allowance and classification of claims the district court can only acquire jurisdiction to review and supervise the action of the assignee through a proceeding by way of appeal; but in respect to the condition and dis-tribution of the assets of the estate jurisdiction may be acquired upon the petition of a creditor or other person interested in the estate; and if the petition contains good cause, and is verified by affidavit, the court may cause the assignee to be cited before it to answer the allegations of the petition, and abide any order that may be made by the court in the premises, and upon the hearing the court is authorized to make such order as may be deemed fit and lawful for the enforcement of the statutory provisions concerning assignments. (¶ ¶ 376-378, Gen. Stat. 1889.) Although the applications in the present case were designated as motions, there was a substantial compliance with this provision of the statute, and the assignee, having appeared upon the notice as it was served, the failure to issue a formal citation is no longer important. Although no answer was filed, issue was in fact joined ; and all the parties being before the court, and having had a full hearing, the same as if petition and answer had been regularly filed, it is too late to raise any quéstion as to the manner in which the issue was joined. The district court, however, could not in this proceeding modify or change the decisions made by the assignee in adjusting and allowing claims. In this respect the assignee had full jurisdiction, and his decisions were final where no appeal was taken in the manner provided by law. Pie was duly appointed and qualified, a time was fixed by him for adjusting and allowing claims against the estate, and due notice of the same was given to all concerned. The claims presented were based on the contingent liabilities of the company, and upon proof offered the claims were allowed. Undoubtedly he had jurisdiction to adjust and allow claims, and within that jurisdiction his decision, in the absence of an appeal, is final, “unless a creditor or some other person interested has, after a decision is made on any such claim, asked an appeal therefrom.” (¶ 365, Gen. Stat. 1889; The State v. Kansas Ins. Co., 32 Kan. 655; Limbocker v. Higinbotham, 52 id. 700.) The plaintiffs in error could have taken an appeal from the decisions of the assignee in allowing what are called the “ contingent claims,” but, failing in this, they are concluded from questioning the allowance or classification which he made. Whether his determination was right or wrong we will not now decide, as the question is not open for our consideration. The assignee did not undertake to prescribe how or when the distribution of the assets should be made.- It is evident from the language used when the decision was made that he contemplated that a portion, at least, of the contingent claims would be paid by those who were primarily liable for them, or would be made out of the mortgage securities, and evidently he thought that dividends would only be paid upon the amount remaining after the original securities had been exhausted. The distribution, however, was left to the district court, and that court, when its jurisdiction was invoked, was competent to interpret the decision of the assignee and make out such order in the premises as would be legal and just.
The assets of the estate should be distributed upon equitable principles, and it is a recognized rule of' equity that where there are two funds to which a creditor can resort, and other creditors are limited to one ^iem’ former will be compelled to exhaust the fund upon which he has an exclusive lien, and will be permitted to resort to the other for the deficiency only. (Burnham v. Citizens Bank, 55 Kan. 545; Gore v. Royse, 56 id. 771; Wurtz, Austin & McVeigh v. Hart, 13 Iowa, 515 ; Knowles, Petitioner, 13 R. I. 90; Besley v. Lawrence, 11 Paige Ch. 581.) While the assignee allowed the claims of those who held the guarantied mortgage bonds to the full amount, payment of a part of the debts will certainly be realized from the mortgage securities. It would be inequitable to allow these claimants a pro rata dividend on the whole amount of their claims when payment of a part, if not all, of it may be received from the mortgage securities to which they have the exclusive right. It is suggested that, as these mortgages were taken for five and seven years, a considerable time will elapse before the amount of the indebtedness can be accurately known, and before dividends can be declared. It'is unnecessary to postpone the payment of any dividends until it is known how much can be realized on the mortgage securities. The court can approximately determine from information that will be obtainable how large a share of the funds of the estate should be reserved for the payment of the claims of those who hold mortgage securities. The balance may be paid out in dividends from time to time, as it is collected, to the remaining claimants. A distribution may be made among those holding the mortgage securities when they have exhausted their special liens, and then dividends should be declared upon the amount remaining unpaid, and not upon the full amount of tire claims as allowed.
To this extent the judgment of the district court will be modified.
All the Justices concurring. | [
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The opinion of the court was delivered by
AlleN, J. :
The defendant in error contends that the record does not contain all the evidence, and that the questions argued by the plaintiff in error are not raised by the record. There is no recital in the case-made that it contains all of the evidence. The record shows, after reciting the impaneling of the jury, that “thereupon the trial proceeded, and the following evidence was introduced.” Then follows testimony of -witnesses for the plaintiff, after'which it recites that “thereupon the plaintiff, haying introduced all of his evidence, rests his case.” Then it shows the filing and overruling of a demurrer to the evidence ; then that “thereupon the defendant introduced the following evidence,” and, after the defendant had rested and the plaintiff introduced rebuttal evidence, it contains the recital “that thereupon, the parties having introduced all their evidence, the judge instructs the jury.” We think the fair inference from these recitals alone would be that the testimony is all here ; but on page 78 occurs the following :
“Thereupon the plaintiff offers in evidence the deposition of George Kennedy, as agreed upon by the parties, which is marked ‘ Exhibit A/ and made a part of the files in this case.”
No deposition of George Kennedy appears in the testimony, nor is there any “Exhibit A” in the case, but just before the acknowledgment of service of the case of plaintiff’s attorney there is a paper, not identified in any manner, but apparently a copy of a very brief statement signed by George Kennedy and sworn to before the clerk. It is possible that this is what is referred to as the deposition of George Kennedy, but there is nothing to identify it as such. The case of Lebold v. Ottawa County Bank, 51 Kas. 881, does not hold that no error with reference to the introduction of testimony can be reviewed unless all of the testimony is brought to this court. It was merely held that where a claim of error is based on the facts shown by the testimony, all the testimony must be included in the record. The language used in the syllabus and opinion is perhaps not as accurate as it should have been. Where error is predicated on the admission or rejection of testimony, it is only neces sary to incorporate so much of the evidence as is necessary to clearly present the points.
The questions presented on the merits relate to the admission and rejection of testimony. In order to warrant a recovery by the plaintiff it was incumbent on him to prove that Gustav Dufresne was wanting in skill as a miner; that this was known to the defendant, or could have been known with the exercise of reasonable care; that the injury to the plaintiff was caused by the improper and unskillful act of Dufresne. To prove the tfirst of these essentials, Richard Wilson was called as a witness for the plaintiff, and, over the objection and exception of the defendant, testified as follows:
“ Q,ues. I will ask you to state if you know Gustav Dufresne? Ans. Yes, sir; I do.
“Q. Do you know his nationality? A. No, sir.
“ Q,. Can you tell from his name? A. No, I could not.
“ Q. Could you give any opinion? A. Yes, sir.
“ Q,. From his name, from his appearance, and from his conduct, have you an opinion what his nationality was? A. I have.
“Q. What? A. An Italian.
“Q,. I will ask you to state, if you know, whether or not Dufresne was a competent coal-miner, from what you have seen of his work or what you have seen of him? A. Yes, sir.
“ Q. Was he, or was he not, a competent miner? A. He was not.”
On cross-examination this witness testified :
“Q. And you don’t know, as a matter of fact, whether he was an experienced or inexperienced miner? A. From his appearance I would judge he was not.
“Q,. I am asking you from your own knowledge. A. No, sir ; I do not.
“ Q. Now, you said from his appearance he was- an inexperienced miner ; what do you mean by-that? A. He worked barefooted and naked. I never saw a miner in that way in my life before.
“Q,. Because of that, you think he was an inexperienced miner? A. Yes, sir; and from others.
“ Q. Do you know anything about the coal he took out? A. No, sir.
“Q. Know anything about how he handled his tools ? A. No, sir.
“ Q,. How he drilled? A. No, sir.
“ Q,. You judge alone from the fact that he worked barefooted and naked? A. Yes, sir.
“Q. And you want this jury to understand that this man was inexperienced because he was barefooted and naked? A. Yes, sir.
“ Q,. Without taking into consideration how he mined, or how he handled his tools? A. That is my opinion of it.”
It also appears from Wilson’s testimony that he himself did not work in the mine while Dufresne was there, prior to the time of the accident by which the plaintiff was injured, and it does not appear that he ever saw him at work in the mine. William Elwood, a witness for the defendant, testified that Dufresne was a competent and experienced miner. The jury, in answering the first question submitted to them, find that Dufresne was not a practical and experienced miner. The question we have to answer is whether where one of the main issues to be tried in the case is the competency and skill of an employee, witnesses acquainted with him, and with the special employment in which he is engaged, may give their opinions as to his qualifications. Where a question as to the skill of an individual arises incidentally- in the course of a trial, it is not uncommon for witnesses well acquainted with him and with his calling to testify directly as to his skill, but in this case it was essential to the plaintiff’s right of recovery that he should show that Du- fresne was not a fit person to mine coal because of a want of knowledge and experience as a miner. Experts are usually called to testify with reference to some particular acts or matters of which • men in general are not competent to Judge, and are permitted to give opinions on matters, concerning which their judgment is superior to that of men in other callings, because of a special line of education and experience. The expressions of opinion are allowed only with reference to those matters concerning which the generality of mankind are not supposed to have sufficient knowledge to judge from a mere statement of such facts and circumstances connected therewith as can be drawn from witnesses. In such cases those having peculiar skill and superior knowledge are permitted to aid the jury by their opinions. But the opinion here asked of Richard Wilson, who appears himself to be an expert coal-miner, is whether another man is an expert miner, and this is in a case where that is one of the main questions to be tried. We do not regard this as the proper mode of inquiry. It would be competent and proper to show what his occupation had been, how much experience he had had as a miner, the general manner in which he did his work, and to show by those who were skilled in the business wherein his work differed from that of a skillful miner. Whether proof of particular unskillful or negligent acts, accompanied by proof of notice thereof to the employer, is permissible or not, it is unnecessary now to determine. It would also be proper to show his general reputation where he worked as to skill. An employer must be presumed to know the general reputation of his employees, though he might not know of particular negligent or unskillful acts. These we deem the general principles to be gleaned from the authorities, though it must be confessed that they are not entirely harmonious. In Butler v. Railroad Co., 54 N. W. Rep. 208, it was held by the supreme court of Iowa that, “in an action for death, caused by the alleged unskillfulness of defendant’s engineer, a witness cannot testify as to the engineer’s skill, since that is an ultimate fact to be determined by the jury.” In the cases of Brabo v. Martin, 5 La. 275, and Tullis v. Kidd, 12 Ala. 648, it was held that the opinion of one witness is inadmissible as proof before a jury of the professional skill of another. On the other hand, in the case of Laros v. Commonwealth, 84 Pa. St. 200, it was held that “it is competent for one expert to testify, to the skill of another where the knowledge of the witness is derived from personal observation.” It was said in that case by Chief Justice Agnew : “If I have seen a workman doing his work frequently, and know his skill myself, surely if I am myself a judge of such work, I can testify to his skill.” We have examined the cases of Wright v. Hardy, 22 Wis. 348 ; Jones v. Angell, 95 Ind. 376 ; Olmsted v. Gere, 100 Pa. St. 127, none of which are exactly in point. Some courts hold that, for the purpose of showing incompetency, the prior acts and conduct of the person on specific occasions may be given in evidence accompanied by proof of notice to the employer. (Baulec v. Railroad Co., 59 N. Y. 356.) On the other hand, it has been held that proof of particular acts of negligence is inadmissible, and that the employer can only be made liable by proof of general reputation. (Frazier v. Railroad Co., 38 Pa. St. 104; Hatt v. Nay, 144 Mass. 186.) We think it was not proper to allow Wilson to give his opinion to the jury as to the competency of Du-fresne as a miner, and especially so as it appeared from the cross-examination that he had no personal knowledge as to Dufresne’s experience or skill as a miner.
The plaintiff was recalled as a witness in rebuttal and asked the following questions :
“ Ques. 1. You heard Mr. Elwood testify, did you? Ans. Yes, sir.
‘ ‘ Q,. 2. I will ask you if in the conversation that Mr. Elwood had with you the evening that you were hurt, that he stated to you substantially, that: ‘ I was afraid of the Frenchmen myself, they get so excited at shooting times. That is the reason I put them all in one entry.’ A. Yes, sir.”
This testimony was objected to by the defendant. The general rule is that admissions of an agent, in order to bind the principal, must be made in the course of his employment and in connection with and as explanatory of something that he does by authority of his employer. (Dodge v. Childs, 38 Kas. 526 ; U. P. Rly. Co. v. O’Brien, 119 U. S. 99.) Mere narrations of past occurrences, or admissions disconnected from any service for his employer, are subject to the objections which exclude hearsay testimony. Was the admission of the objectionable testimony above mentioned of such importance as to require a reversal of the judgment? The writer inclines to the opinion that in the imperfect condition of the record the errors are not sufficient to compel a reversal. The majority of the court, however, hold otherwise, and that where error is clearly shown with reference to a vital issue in the case, it must be presumed to have influenced the verdict, unless the record affirmatively rebuts the presumption. (Gilmer v. Higley, 110 U. S. 47.)
For the errors mentioned in admitting incompetent testimony, the judgment must be reversed and a new trial ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Martin, C. J. :
I. It is contended that all that part of chapter 239, Laws of 1889, which purports to authorize the removal of an officer is in contravention of the first clause of § 16 of article 2 of the constitution, which reads: “No bill shall contain more than one subject, which shall be clearly expressed in its title.” It is said that the title of this act authorizes only the appointment of committees of investigation of the affairs of state institutions and the conduct of officers, and does not include the power of removal. It will be observed from the statement of facts that this objection was not made before the investigating committee, but it is not too late to raise it now. We had before us the question of the sufficiency of the title of this act to justify removal in Lynch v. Chase, ante, p. 367, (40 Pac. Rep. 666, 668,) but did not find it necessary to decide it, because there was another statute under which the governor might act in removing a warden of the penitentiary. Mr. Justice Johnston, delivering the unanimous opinion of the court, said :
‘ ‘ It has been repeatedly held that § 16 of article 2 of the constitution is not to be enforced in any narrow or technical spirit, but that a liberal interpretation should be placed upon the language employed in the title to express the subject of the act. The provision, as has been held, must be applied in a fair and reasonable way, so that it will not embarrass or defeat the proper and legitimate exercise of the legislative functions. It is not necessary that the title should be an abstract of the entire act, but it is deemed to be sufficient if the title fairly indicates, though in general terms, its scope and purposes. Everything connected with the main purpose and reasonably adapted to secure the objects indicated by the title may be embraced in the act without violating the constitutional inhibition. The title in the present case, although somewhat restricted, provides for the creation of a tribunal to inquire into the affairs of state institutions and the conduct of officers. It clearly indicates that an investigation or hearing is to be had before this tribunal, and anything reasonably adapted to carry out that purpose may be fairly regarded as embraced within the title. Whether the title is sufficiently broad to justify a removal by the governor upon the coming in of the report of the committee is unnecessary to the disposition of the present case.”
It was there held that the title was broad enough to include the authority of the committee to report to the governor, and we think it not unreasonable to say that it may also fairly include the night of the governor to act upon the report, and that a member of the legislature would not be deceived or misled by this title into the supposition that no legislation would be attempted under it looking to a report of the committee and making such report effectual, either by tire action of the governor or otherwise. The main purpose of this clause of the constitution was to prevent surreptitious legislation, and we do not think that a provision of this nature for making the report of the committee effectual can truly be said to partake of such character. It is well settled that it is the duty of the courts to uphold legislation when they can do so without manifest violence to any constitutional principle, and that doubts should be resolved in favor of its validity, rather than against it; and by a liberal interpretation this legislation as to the power of removal may properly be said to be embraced within the title of the act.
II. The findings of the committee are included within the charge, though they are not so broad ; but it is contended by counsel for the plaintiff that the report does not show official misconduct. It appears therefrom that the plaintiff is, and has been since the commencement of his term of office as regent, addicted to the excessive use of intoxicating liquors, and that his conduct and example are detrimental to the best interests of the university. Webster defines “addicted” as follows: “Devoted by customary practice and he says of “addict” that it is “to apply one’s self habitually; to devote time and attention by customary or constant practice.” Worcester defines ‘f addicted ” as “ accustomed ; devoted to ; habituated; abandoned to;” and the verb “addict” as follows: “To give one’s self to ; to devote ; to apply ; to habituate ; to accustom.”
Drunkenness is the result of addiction to the excessive use of intoxicants. To say that a man is “ addicted to the excessive use of intoxicating liquors ” is, therefore, substantially equivalent to a declaration that he is guilty of habitual intoxication or drunkenness. In this state it is a misdemeanor for any man to be drunk in any highway, street, or public place, or building, or even in his own house or a private building or place, disturbing his family or others. (¶2519, Gen. Stat. of 1889.) Certain officers may be removed from office for being in any public place in a state of intoxication produced by strong drink voluntarily taken, the same being expressly declared ‘ ■' an offense against the public morals ; ” (¶ 2468, Gen. Stat. of 1889 ;) and where drunkenness becomes habitual, and the inebriate is incapable of managing his affairs, he may be placed under guardianship in the same manner as a lunatic. (Gen. Stat. of 1889, ¶" ¶ 3677, et seq.) Habitual inebriety or drunkenness has been condemned as a great immorality in all ages of the world. The wise man has depicted in gi'aphic words the woes of the winebibber; (Prov., xxiii, 20, 21, 29-32;) and the apostle to the Gentiles has classed drunkenness with other great vices. (Gal., v, 19-21; I Cor., vi, 9, 10.) It is asserted that the evidence does not show that the plaintiff was ever intoxicated, or suffering from the effects of inebriety while in the performance of his duties as regent. We do not know how this may. be, for the evidence is not embodied in the record, and we know nothing of the facts except as they appear from the report. The finding, however, is that the conduct and example of the plaintiff are detrimental to the best interests of the university. Inebriety is a. vice that cannot well be hidden. A regent might be drunk on the streets of Lawrence, but sober at the meetings of the board and while within the campus or the walls of the university, yet his example would be disgraceful and injurious. In such case it is difficult to distinguish the conduct of the man from the conduct of the officer. The finding would at least imply that the inebriety of the regent was of such notoriety and proximity as to constitute a bad example for the students and others connected with the university. This is immorality in office, within the scope and intent of chapter 239, Laws of 1889.
The motion to quash the alternative writ in the first above-entitled case will be sustained, and the demurrer to the plain tiff’s petition in the quo war-ranto case will also be sustained, and judgment will be entered for the defendants, respectively.
JOHNSTON, J., concurring.
Allex, J. :
I cannot concur in the decision of the case of Rogers v. Moore, nor in either proposition stated in the syllabus. The title to this act is: “An act providing for the appointment of committees to investigate the affairs of state institutions and conduct of officers.” The constitution says that the subject of an act shall not only be expressed in its title, but it “shall be clearly expressed.” From apparent necessities arising in the cases that have been presented the word ‘ ‘ clearly ’ ’ has been very much obscured by former decisions of this court, if not entirely eclipsed ; but, in my judgment, this decision expunges all necessity for expressing the subject in the title, or for its being included in it in any manner. It is a familiar rule that the greater includes the less, and in legislation it is undoubtedly competent to cover under a general and comprehensive title legislation not only as to minor and incidental particulars, but as to matters properly and directly connected with the main subject expressed in the title. But the less can never include the greater. The title to this act in terms covers only the appointment of committees to 'investigate. It does not even in express terms extend so far as to cover their action in making an investigation ; but in the case of Lynch v. Chase, ante, p. 367, we held that the constitutional provision ought to be liberally construed, and stretched this title sufficiently to cover legislation authorizing them to investigate and report. This is the usual and ordinary scope of the powers of a legislative committee, and this might reasonably be expected to be found in an act under this title ; but I am not aware of any instance in the legislation of this state, nor in fact, of any other state, where a legislative committee has been given the power to try and condemn a state official, and to make a report under which the governor acts perfunctorily only in making a removal, and merely carries out the will of the committee. Authority in the governor to remove from office is the principal thing to be found in the provisions of the act under consideration. The appointment of the committee, the investigation, the report, are mere preliminaries incident to the main purpose of the act, which is the removal of the officer. Of the purpose to confer any such power there is no hint or intimation in the title, or in the customs of legislative bodies in making investigations by committees. Power to remove the warden of the penitentiary is conferred on the governor in express terms in the very act providing for the appointment. Provisions for the removal of state officials by impeachment and by joint resolution are made in the constitution. The decision in the case of Lynch v. Chase, supra, was rested on the statute, which in express terms vested power in the governor to remove, and not on the act of 1889.
Nor do I think the proceedings in this case show a compliance with the statute under consideration. The charges, in order to form a basis for any proceedings under this statute, must be such as affect the official conduct of the officer. The provision contained in' § 1 of the statute authorizing an investigation is as follows :
“Whenever charges shall be made by any person or persons, and circulated within the state or presented by such person or persons in writing to the governor at any time when the legislature is not in session, and said charges shall be deemed worthy of credit, or emanating from a reliable and trustworthy source, whereby the management or adminisi ration of the affairs of any charitable, educational or penal institution, or the official conduct of any officer in charge of or otherwise connected with any of said institutions, shall be called into question upon the grounds of corruption, venality, inefficiency, misconduct, immorality, or inattention to duties, an investi gation shall be had as provided for in the second section of this act.”
Nowhere in th'% statute is there any provision for an investigation into the private character or the unofficial acts of any person holding a public office, nor is it consistent with reason or pmblic policy that such investigations should be authorized. If this be the rule, no person in a public office can ever be secure against the malice of enemies, or the jealousy and animosity of political rivals. If personal venality, inefficiency, misconduct, immorality and inattention to private duties :nay be investigated, who so pure and free from blemish that, when his conduct is viewed through the eyes of partizan political adversaries, ample cause will not be found for blasting his character, and dismissing him in disgrace from the public service? The people of the state are indeed fortunate ■when they secure men to administer their public affairs whose public acts are above reproach. If private conduct is to be made the basis of investigations, no courageous public official who boldly defies the crowd of greedy cormorants which always hovers about the public treasuries can ever be safe. No one but him who will sacrifice the interests of the public to appease those -who under one guise or another rob the people can ever be safe from attack if investigations are not to be confined to official conduct as alone authorized by the statute, but are to be extended to include all conduct of an officer, whether in any manner connected with his office or not. If so, the doings which may be investigated under the act of 1889 would include substantially every private peccadillo incident to human weakness. If the statute were to require that the officers who select the committee of investigation and the members of that committee should, before they are permitted to cast, not a stone, but mud, first see that their own garments are strictly white and spotless, and much more, if no one was permitted to make complaint on which to base an investigation unless he himself 'were free from all taint similar to the charges he makes, there would be little danger that an investigation ever would be held. However much we may desire that men should be strictly pure and upright, both in their public acts and iu the private walks of life, we all know’ that every mortal partakes, in some degree at least, of human frailty and imperfection. The legislature, therefore, has wisely confined the range of investigation to the official acts of the person charged, and this has generally if not always been considered as the only legitimate scope of investigation. Of course, the commission of crime for ivliich a party is subject to ignominious punishment is a public offense, for which a person may be removed from office, and provision therefor is made by law. ' Under a very similar statute, the supreme court of Kentucky, in the case of Commonwealth v. Williams, 79 Ky. 42, said :
“The second constitution of this state provided that clerks should be removable from office by the court of appeals for breach of good behavior. In proceeding under that provision, this court held that the inquiry must be confined to misconduct in office, and that conduct, however immoral, which did not' relate to the official action of the clerk, constituted no ground for his removal. ( Commonwealth a. Barry, Hardin, 238; Commonwealth v. Chambers, 1 J. J. Marsh, 160.)1 In the latter case, the court said, it ivas ‘ proper to separate the character of the man from the character of the officer,’ and that it had 'no power to remove a clerk for crimes committed so long as he discharged the duties of his office well.’ In this case no complaint is made that the appellee did not faith fully, hon°stly, and correctly discharge all his duties as an officer. There was, therefore, no misconduct as an officer on his part, however reprehensible his conduct as an individual may have been. It is only for misconduct in connection with his official duties that the constitution authorizes him to be removed from office upon an indictment, and, as the only misconduct charged was individual and personal, and not official in its character, the judgment must be affirmed.”
See,-also, Ledbetter v. The State, 10 Ala. 241. It is well settled also that misconduct prior to the election or appointment of one to an office does not furnish ground for an investigation or removal. ( The State v. Jersey City, 25 N. J. Law, 536 ; Commonwealth v. Shaver, 3 Watts & S. 338.)
The specifications in this case, so far as they are explicit, charge William Rogers with keeping intoxicating liquors in his committee-room while a member of the state senate, and drinking to excess, and with having been drunk at the Chesterfield hotel in Topeka. Nowhere is there a charge -which, by the most liberal construction, accuses him of being drunk when he was in fact or ought to have been attending to any duty as regent of the university, nor is it claimed that there was any proof of that kind. On the contrary, it is alleged in his behalf, and not denied, that the proof was full and uncontradicted, showing that he was always a most efficient member of the board, and was never at any time intoxicated while attending to his duties. The findings on which the action of the governor were based are signed only by those members of the committee opposed to him politically, and even their finding utterly fails to convict him of drunkenness at any time, or in any place. The utmost reach is that he “is, and has been since the commencement of liis term of office as a member of the board of regents of the University of Kansas, addicted to the excessive use of intoxicating liquors.” This is not a finding either that he is guilty of habitual drunkenness, or that he was ever drunk at all. People differ very greatly in their judgment as to what is excessive use of alcoholic stimulants. Some regard the least use as excessive. Others regard stimulants as having a proper place in materia medica, and to be taken only as poisonous drugs and powerful medicines are to be used. From these views others are entertained, varying all the way to those requiring a dram of whisky with each meal and an occasional one between times. To leave to a legislative committee the task of determining just where the line of excessive use is to be drawn short of drunkenness would be hazardous indeed where political adversaries are to be placed on trial before them. But the statute in this case lias not authorized the trial of any such question by any such committee, either in direct terms or by any necessary implication.
The following observations of that eminent lawyer, the late Judge Solon 0. Thacher, in his very able brief in this case upon this point, seem to me eminently sound and just:
“ Where shall we draw the line if anything an irresponsible, fugitive committee chooses to call ‘ excessive use’ is to justify an officer’s removal from office? We must needs come back to the plain letter of the statute and say the law deals alone with what a man does in the line of his official duty. If that conduct is ‘ corrupt, venal, inefficient, immoral, or neglectful,’ and the charges cover specifically the acts constituting official misconduct, and on such charges he is found guilty, then and not until then is he subject to removal. If any other standard is set up, then the whim of a committee, and the malice, spite or vagary of a private prosecutor takes the place of the safeguards thrown around a man’s official position, his good name and peace of mind, by both statute and deliberate judicial decrees. There is no finding that Senator Rogers was ever intoxicated since he became a regent, or- that he uses liquor while discharging his official duties.” | [
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The opinion of the court was delivered by
Allen, J. :
The appellant, Anderson Gray, and one Thomas McDonald were jointly charged with having murdered Thomas Patton, in Sumner county, on the 5th of May 1894. The defendant, Gray, was separately tried and convicted of murder in the first degree. From that conviction he has appealed to this court.
The evidence clearly shows that the gunshot which killed Patton was actually discharged by McDonald, and that Gray was not, in fact, present at the shooting. The theory of the prosecution was that Gray counseled and incited McDonald to commit the .murder. It appears that McDonald was working for Gray as a hired hand on his farm; that Patton was a tenant of Gray’s, living on a portion of his farm about half a mile distant from Gray’s house.. Both McDonald and his wife lived in the same house with Gray and his family. Gray told McDonald that Patton had made slighting remarks about McDonald’s wife. On the morning of the tragedy McDonald asked Patton with reference to what he had said. An altercation ensued, during whieh Patton struck McDonald. As Patton went away he challenged McDonald to meet him in' two hours and settle the matter. McDonald was then furnished by Gray with a Sharp’s rifle, which he took, and in company with Gray went out and practiced shooting at a target. Gray then cleaned the gun, furnished McDonald with more cartridges, and they together went to a grove lying south from Gray’s house and extending up to the road leading to the house where Patton lived. A place was selected where McDonald was to lie in ambush until Patton should come along. Gray was then called back to his house on account of a neighbor named Probst having come to see him. Shortly afterward Patton came along the road in company with one Craig, and leading a mule. As he passed near the thicket where McDonald was concealed, McDonald shot him, inflicting a wound of which he died that night. The questions of law, argued on behalf of the appellant, relate to the introduction of evidence and instructions to the jury.
The first error alleged is with reference to the admission of a dying declaration of the deceased, Patton. The shooting occurred between 9 and 10 o’clock in the morning. Patton died at nine o’clock that night. During the interval he was conscious, and believed he was about to die. Mrs. Harmon, a witness called by the prosecution, testified to having a conversation with the deceased at about half past two in the afternoon, in which he told her he had no hopes of recov ery, and that McDonald sbot him from the brush. In answer to the question, "State what he said?” The witness answered, "He said that Gray had it done.” On the application of defendant’s counsel, this answer was stricken out as not responsive to the question. After further questions as to what Patton said concerning his hopes of recovery, the witness was asked :
"Ques. Did he state to you or did you have any conversation with him as to who was concerned in the matter, or had anything to do with it, during that ■ evening? Ans. That day I did.
"Q. About what time? A. I think it was about half past two ; something near that.
" Q. A¥hat did he say in that respect? [This question was objected to as incompetent, irrelevant, and immaterial, and because no proper foundation for it had been laid. The objection was overruled, and the witness answered.] A. He said Mr. Gray had it done. Paid ‘ Gray done this.’
“ Q. State just how he said that. A. Just as I spoke it. Said ‘ Gray had this done. This was Gray’s work.’ ”
These declarations were admitted in evidence, not as a part of the res gestte, but as dying declarations. The rule as to the admission of such declarations was well stated in the case of The State v. Medlicott, 9 Kas. 257, as follows :
‘ ‘ Statements not under oath can only be admitted in evidence as dying declarations when they are made in extremis, and where the death of the person who made the declaration is the subject of the charge, and ■where the circumstances of the death are the subject of the declaration, and the person making them is in the full belief that he is about to die ; and this condition of the mind must be made clearly to appear.”
It is conceded that Patton was in extremis when the declarations were made, and without hope of recovery. It is contended, however, that only such statements of the deceased as would have been competent evidence if he were living and on the witness-stand can be given in evidence as dying declarations; that the statement that “Gray had it done ” was not the narration of any circumstance connected with the tragedy, but was a mere expression of opinion as to Gray’s connection with the matter. The rule of law is substantially as claimed by counsel for appellant. Statements of the deceased as to matters other than the circumstances surrounding the homicide or expressions of belief as to matters not within the knowledge of the dying man are inadmissible. (Whar. Crim. Ev., § 294 ; The State v. Footyou, 24 Ore. 61 ; The State v. Chambers, 87 Mo. 406 ; Matherly v. Commonwealth, 19 S. W. Rep. 977; 1 Greenl. Ev., §159.)
The rule as stated by Greenleaf is ‘ ‘ the declarations of the deceased are admissible only of those things to which he would have been competent to testify, if sworn in the cause.” It does not necessarily follow, however, that error is shown by the record of any avail to the appellant before this court. The question to which the objection was interposed is, “What did he say in that respect? ” To understand the import of this question, we go back to the preceding one, “Did he state to you or did you have any conversation with him as to,who was concerned in the matter, or had anything to do with it, during that evening?” This was answered, ' ‘ That daj?-1 did. ’ ’ The question, then, which the witness ivas called on to answer was, “What did he say in respect to who was concerned in the matter, or had anything to do with it? ” This question admitted of an answer entirely competent and proper. It did not call directly for any expression of belief or opinion. Any statement showing the presence of Gray, or showing any fact connected with the tragedy, which pointed to the guilt of Gray, such, for example, as the fact that the gun from which the fatal shot was fired belonged to Gray, would have been responsive to the question, and competent evidence; would have been a fact to which Patton might have testified, if living and on the witness-stand. Instead, however, of such an answer, the witness gave the statement quoted. No objection was made to the answer, nor any motion to strike it out, or withdraw it from the consideration of the jury. Where a proper question is asked, and an improper answer given, the only remedy of the aggrieved party is by motion to strike out. It is impossible for the court in advance to exclude an improper answer to a proper question. The propriety of the answer cannot, in the nature of things, be determined before it is given. (Hynes v. Jungren, 8 Kas. 891; Stone v. Bird, 16 id. 488 ; City of Wyandotte v. Gibson, 25 id. 286 ; City of Atchison ¶. Rose, 43 id. 605.)
Under these authorities, no error is shown in the action of the court. It is true that the question is not so carefully framed as it might have been; but as it fairly called for competent testimony, we do not think that the mere fact that a witness could possibly give an improper answer which would yet be responsive to the question a sufficient ground of itself for a reversal. The other testimony in the case renders the objectionable statement quite unimportant. The witness, Craig, testified without objection that while walking along the road toward the scene of the tragedy Patton told him about the difficulty he had had that morning, in the course of which he said, P McDonald was brought there for a game, and now he got the game and had to play his hand.” N. J. Probst, who was with Gray at the time of the shooting and went with him to the place where Patton was lying wounded, testified that “The first thing that was said [after they got there], Mr. Patton said, ‘ The coward shot me from the brush,’ and he said [he addressed Mr. Gray], ‘Gray, what did you let him have that gun for?’ ”
“Q,ues. Did he say what gun? Ans. I do n’t know whether he said. I rather think he said the ‘big gun’ ”
It does not appear that Gray made any response. It would appear from this question, which Patton asked Gray, that he recognized the gun as one belonging to Gray. There is a great deal of other evidence in the record showing that Gray was instrumental in bringing on the quarrel between Patton and McDon'ald; that he then took especial pains to excite McDonald’s fears, and make hip. believe that Patton was a desperado, who would surely take his life if he had an opportunity to do so ; that he urged McDonald to prepare himself, and to get in a position where he could kill Patton without incurring any risk of being killed himself; that it was at his suggestion that McDonald practiced shooting at a target; that he cleaned the gun afterward, and furnished the cartridges ; that McDonald’s wife protested against her husband going out to do the deed ; that Gray insisted to her that her husband would be killed if he did n’t kill Patton ; that he then went with McDonald, selected the spot where he should lie in wait for his victim ; that after the tragedy life swore before the coroner’s jury that McDonald was in the house sick at the time ; that he believed the shooting was done by Dave Patton, a cousin, with whom the deceased had had difficulty; that he. had found tracks in the grove which other witnesses who made search for them failed to find ; that he afterward changed Ms story, and said he believed Patton was shot accidentally by men who were passing along the road shooting at a rabbit or something. The conversations between McDonald and Gray were proven only by the testimony of McDonald and his wife, but Gray’s contradictory statements are shown by numerous witnesses, who appear to be entirely disinterested. Irod Dodson, a neighbor, testified that on that morning, after the quarrel between Patton and McDonald, in a conversation with Gray, “I asked him, ‘Do you think he will do what he says? ’ and lie said, ‘ Of course he will; he is that kind of a man. He has killed seven men, and he says if McDonald do n’t fix himself, why ■ he will kill him, or get him, or something like that,’ and when we went on further out to the road, or just before we went into the road, he said, ' I am going back and take my gun and take him out there in the grove, and I will practice him up, and kill the son of a bitch. If we do n’t, he will get some of us.’ ”
If the jury believed the testimony of McDonald and his wife, which they were of course at liberty to do if satisfied of its truthfulness, the evidence is overwhelming and absolutely convincing of the guilt of Gray. Even if they were to discard the evidence of both the McDonalds, and to leave entirely out of consideration this dying, declaration of Patton, which is objected to, still a very strong case remains, hardly admitting of a reasonable doubt, that Gray was the moving cause of Patton’s death. When Mrs. McDonald was on the witness-stand, she was asked :
“Ques. Now, I will ask you, Mrs. McDonald, if a short time after this shooting, I forget whether it was the morning or the evening after, but a short time afterward, if you heard Mrs. Gray in the presence of Mr. Gray and your husband say anything about who was to blame for this? Ans. Yes, sir.
“ Q,. State wliat she said. [This was objected to, but the objection was overruled, and the witness answered.] A. On Saturday evening, after this trouble > had occurred, Mr. Gray was standing in the kitchen washing his hands, and my husband and I were fixing to go up stairs. Mrs. Gray came,to the middle door that came out of the front door, and was very mad, and she says, ‘ Tom, am I to blame for all this trouble that occurred to-day? ’ And my husband did n’t say anything, for he did n’t have time. She says, ‘ Mr. Gray says I am, and if I am, when the time comes to tell anything, I will tell the truth and I will see where I send him.’ And Mr. Gray said, ‘ Shut up ; we have got you all right.' Your evidence don’t amount to anything. Go on Tom, do n’t pay any attention to her ; to what she says.’ ” .
It is contended that the law not only prohibits proof of confidential communications between husband and wife, by one of them, but also prohibits the proof of communications between them by others who were present and heard them. This contention is unsound. Communications between husband and wife are not confidential when made in the presence of third parties, and part of the statements in this case were made directly to a third party. In The State v. Buffington, 20 Kas. 599, it was held, that—
“In a criminal prosecution, where a letter previously written and sent by the defendant to his wife is not in the custody or control of either the defendant or his wife, nor in the custody or control of any agent or representative of either, but is in the custody and control of a third person, who is the prosecuting witness in the case, such letter may be used as evidence in the case by the prosecution against the defendant.”
It is not the communication between husband and wife that is privileged, but the husband and wife are incompetent witnesses to prove the communication.
The law merely seals their mouths as to communcations that have passed between them. Whatever is said in the presence and hearing of third persons has none of the characteristics or attributes of a confidential communication. There is no secrecy about it. It is then published to the witnesses, who are in no sense parties to the conjugal relation. It has even been held that a conversation between husband and wife might be testified to by a concealed listener who overheard it. (Commonwealth v. Griffen, 110 Mass. 181. See, also, Tays v. Carr, 37 Kas. 141.)
The only other claims of error in this case arise on the instructions. The defendant asked the court to instruct, in substance, that the defendant, Gray, could not be convicted unless they also found that the defendant, McDonald, was guilty of some degree of felonious homicide ; and that they could not convict Gray as an accessory before the fact of any higher grade of offense than the evidence convinced them McDonald was guilty of. The court did instruct the jury, as follows :
“You are further instructed, that before you can find the defendant, Anderson Gray, guilty as charged in this action, you must find from the evidence beyond a reasonable doubt, that the defendant, Thomas McDonald, was guilty of and committed some degree of felonious homicide as explained to you in these instructions, in the shooting and killing of Thomas Patton.”
The court refused to instruct that they could not convict Gray of any higher degree of homicide than the evidence showed McDonald to be guilty of. The question is not presented as to whether the court erred in giving the instruction quoted, but we have already held, in the case of The State v. Patterson, 52 Kas. 355, that an accessory before the fact, may be convicted, after the trial and conviction of ^ie principal, of a higher degree of offense than the principal was convicted of. We are fully satisfied with the decision in that case. It is entirely possible that one may deliberately plan a murder and cause it to be actually committed by another, either in the heat of passion or through groundless fear. Many cases may be imagined, which we shall not attempt to state, where the elements of deliberation and premeditation, and even of malice, might be absent from the mind of the actual perpetrator of the deed, yet present in the most ample degree in that of the one who planned, counseled, abetted and procured the commission of a murder. Whether it was necessary that McDonald should be proven guilty of any crime, we need not now determine. The instruction given was altogether as favorable to the defendant as the law applicable to the case.
Complaint is also made of the twenty-fourth instruction, a part of which only is quoted in the brief. The whole instruction reads as follows :
“The court further instructs the jury, that if Thomas McDonald, after having made preparations to kill the deceased, Thomas Patton, and having placed himself in ambush for the purpose of so doing, abandoned the purpose of so killing the deceased from ambush, or killing him at all, then such abandonment would be a defense for the defendant, Anderson Gray, but before the defendant, Anderson Gray, would be entitled to such defense, it must be shown to the jury that Thomas McDonald had wholly abandoned such preparations to kill the deceased, Thomas Patton, and had absolutely given up all preparation in that regard ; and i't is not sufficient to prove such abandonment, by the mere declaration of the said Thomas McDonald of such mental change, provided that you believe, beyond a reasonable doubt, that he continued in the execution of the design until he shot and killed the deceased, Thomas Patton. Before you would be justified in believing that there had been an abandon-men of such plans and preparations, there should be shown. some substantive act that the abandonment was real, and something more than his mere declaration of such change of mind.”
Counsel selects out and disconnects a part of one sentence, and contends that the court has, in effect, said that the uncorroborated testimony of an accomplice is legally sufficient to convict, hut insufficient to acquit. But the court, in the above instruction, said “It is not sufficient to prove such abandonment by the mere declaration of the said Thomas McDonald of such mental change.” The law was correctly declared in-this instruction. (1 Whar. Crim. Law, §187.)
Although the record in this case is very long, and the defense in the trial court was conducted with skill and vigor, we find it free from substantial error. The instructions given by the court are remarkably full, clear, and fair to the defendant. The jury have rendered a verdict which is sustained by competent and convincing testimony. We affirm the judgment.
All the Justices concurring. | [
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The opinion of the court was delivered by
■JohNstoN, J.:
William H. Rowan came to his death on August 24, 1889, while discharging his duties as a brakeman on a freight-train of the railroad company. It is conceded that he was knocked from the top of a freight-car by the overhead timbers of a railroad bridge located near Peabody, and that his death resulted* almost instantly from the collision. He entered the service of the company in October, 1887, and continued in that service as brakeman or extra conductor the greater part of the time until his death. For more than a year before he was killed he made frequent trips between Emporia and Nickerson, and the low bridge with which he collided is between these points. The space between the top of the rail and the under side of the overhead timbers of the bridge was 18 feet and one-quarter of an inch, and was sufficient so that a man standing erect on top of the ordinary freight-car in use could pass in safety. The standard box car owned and used by the company was 11 feet from the top of the rail to the top of the running-board, and the palace stock-cars, many of which were used, were 12 feet high, while the furniture-cars, which had been recently introduced and which were occasionally used, were 13 feet and Hi inches high. Rowan, who was about five feet high, could stand erect upon ' the standard or stock-cars and pass through the low bridge with safety, but it was not of sufficient height to permit him to pass under it while standing on the top of a furniture-car. A rule of the company provided that every brakeman must be on the top of his train in passing stations or railroad crossings, and as the train was approaching the 'station at Peabody, Rowan was properly upon the top of the train when he was killed. A considerable number of the high furniture-cars had been in use on the road of the company for more than a year before Rowan’s death occurred, and in fact he -had been a brakeman or conductor upon at least 60 freight-trains in which there was one or more of these high furniture-cars. During the time that he was employed by the company on the main line between Emporia and Nickerson he had been over this bridge practically at all times of day and night, and between these points there were two other bridges of the same height. The morning of the casualty was bright and clear, and as the train approached the station and the bridge, Rowan, the head brakeman, who was sitting on the top of a stock-car, arose and walked back over that car, and as he stepped upon the next, which was a furniture-car, the back of his head came in contact with the top of the bridge and he was knocked down and killed.
It is contended, first, that the company was free from negligence in maintaining the low bridge and in using high cars which pass over it; and, second, that under the facts of the case, Rowan had opportunity to observe the height of the bridge, and to know that it wo.uld be dangerous to pass under the same -while standing upon a furniture-car, and that he must be deemed to have had knowledge of the danger and to have assumed the risk, and was, therefore, guilty of contributory negligence in not looking when approaching the bridge, and in placing himself in a position of manifest danger.
It was the duty of the railroad company to construct and maintain its road and the bridges thereon in such a manner and condition that its employees might perform all the labor and duties required of them with reasonable safety, and a person entering the service of the company has a right to assume that this obligation has been discharged. It must be regarded as the set-, tied law of this state that the maintenance of a bridge, such as the one in question, so low as to make ib unsafe for the trainmen to perform the duties required of them, is prima facie negligence, n , . , , n and where mi urv results to an employee o ±. j from such cause the company is held liable, unless the injured employee is chargeable with contributory negligence, or with the assumption of the risks of such danger. (Railroad Co. v. Irwin, 87 Kas. 701.) Can it be said, as a matter of law, that the risk was assumed by Rowan, or that the injury was the result of his own contributory fault? It is true that he assumed the ordinary hazards that necessarily accompany his employment, and of any unusual risks of which he had been warned or had knowledge. It is contended that, as Rowan had frequently passed under this bridge and two others of the same height, be knew, or should have known, that the bridge was too low to permit him to stand upon the top of furniture-cars while passing through or under the bridge. It is insisted that but one inference can reasonably be drawn from the testimony, and therefore that the court should declare as a matter of law that no recovery can be had in the case. We are of opinion that the testimony was sufficient to send the case to the jury, and that it cannot be said that the findings of fact do not justify a recovery. When the injury and the fault of the company had been proved, the burden of showing that Rowan had knowledge of the risk, or that he failed to exercise ordinary care in the matter, rested upon the company. In the absence of evidence to the contrary, it will be presumed that Rowan was free from contributory negligence, as it is held “that a jury may infer ordinary care and diligence on the part of an injured person from the love of life or the instinct of self-preservation and the known disposition of men to avoid injury.” (Dewald v. Railroad Co., 44 Kas. 591.) As we have seen, the cars were of unequal height; those longest in use'were the lowest, and Rowan could safely pass through the low bridge while standing on top of such cars. The high cars have recently been brought into use, and it is not shown by any direct testimony that the attention of Rowan was ever called to the danger of riding through the low bridge on top of these. No telltales or cautionary signals were placed near to nor on the bridge in either daytime or night-time to warn trainmen of their approach to the bridge and to danger. It does not appear that there was any change of the rules regulating the conduct of the men when the high cars were introduced, nor that notice of any kind was given to Rowan that the space between the top of these high cars and the overhead timbers of the low bridge was insufficient to permit him to pass over the top of the cars in the discharge of his duties, as he had heretofore done. There is nothing to show that Rowan had ever been upon the top of the high cars in any position while passing under the low bridges, and nothing to indicate that his attention was drawn to the proximity of the high cars to the bridge-with which he collided. It is true, that where dangers are obvious and can be readily observed by anyone by the exercise of ordinary care and prudence in the use of his senses, a specific notice is not in all cases essential to defeat a recovery; but the testimony in this case does not convince us that we should say as a matter of law that Rowan was chargeable with a knowledge of the peril, and that his failure to take the necessary steps to avoid the injury is a bar to any recovery. It does not appear that the danger was actually known to him, and the testimony given shows that it is not easy to determine from the top of a moving train the space between the train and the top of a bridge. In Railroad Co. v. Irwin, 37 Kas. 711, it was said that —
‘ ‘ Men of experience say that it is a very difficult matter to tell exactly how high an object is above a moving train. The smoke of the engine and the swaying motion of the cars render it hard, to see and comprehend the proximity of the overhead timbers of. a bridge, and this is very well shown by the widely-differing statements of the witnesses respecting the height of the braces in question.”
The brakeman who accompanied Rowan, and who was the principal witness in the case, testified that he had been over that run for more than a year, and yet he was unable to state the distance between the ordinary freight-car and the top of the bridge, or whether he could ride on top of the train without coming in contact with the timbers of the bridge. In response to another question, he did state that from his observation it would be hazardous to undertake to ride on the top of a furniture-car, but that he had ridden with the deceased over the line so frequently without carefully observing the intervening space only tends to show that Rowan may never have observed the proximity of the top of the bridge, nor appreciated the peril there was in riding upon the top of the furniture-car. If any notice- or warning had been given that there was danger in riding on the top of furniture-cars, or if all the cars had been of the same height so that Rowan must have known that he could not stand erect while passing under the bridge, there would be ground for the contention of the company that the risk of the danger from the low bridge had been assumed, and the negligence of the company in that respect had been waived. It appears, however, that there were four grades of cars used of different heights, and it can be readily seen that the difference in height of- the several cars would easily deceive a trainman whose only information was derived by observation from the top of a swiftly-moving train. As Rowan was killed instantly, no direct testimony as to his knowledge can be obtained, and information on that point must be looked for elsewhere. While he had ridden over this section of the road for a year or more, no one has been produced to show that he liad ever ridden upon one of the high cars, nor that his attention was ever called by anyone to the risk of so doing. The jury found that he was not familiar with the furniture-cars ; also, that he was proceeding in the discharge of his duties when he was killed, and there are also findings which tend to show that he did not realize that he was approaching the bridge in question when he was killed, or comprehend the danger from riding on top of the furniture-car. So far as the testimony goes, he was not informed of the danger when the high cars were introduced ; no change of rules relating thereto was promulgated by the company; no warnings were given or signals placed on or near the bridge ; he had no actual knowledge of the risk ; and, as it is one which is not easily observed from the top of a moving train, the question of whether he was guilty of contributory negligence in not ascertaining by. measurement or accurate observation whether he could pass safely under the overhead timbers of the bridge while standing erect on the furniture-car is a question of fact rather than of law, the determination of which is necessarily for the jury. (Railroad Co. v. Irwin, 37 Kas. 701; Railroad Co. v. Mortonson, 63 Fed. Rep. 530. See, also, Osage City v. Brown, 27 Kas. 74; Railroad Co. v. McCandliss, 33 id. 366 ; Railway Co. v. Neiswanger, 41 id. 621; Dewald v. Railroad Co., 44 id. 586 ; Darling v. Railroad Co., 24 Atl. Rep.462 ; Stirk v. Railroad Co., 79 Ga. 495; Beach., Cont. Neg., §§448-451; 16 Am. & Eng. Encyc. of Law,' 465.)
Complaint is also made of the refusal of certain instructions requested by the railroad company, but an examination of the record satisfies us that those which were pertinent and important were embraced in the general instructions of the court, and that the case was fairly presented to the jury by the charge that was given.
It is also claimed that the court committed error in failing to require the jury to give a more specific and definite answer to the 96th question that was submitted to the jury. As will be seen, the question is very 'general and complex in its character, and for that reason it might have been refused in the first instance. Another objection to the question is that it omits the element of any knowledge of the risk by the employee. Aside • from that, a large number of questions were submitted to and answered by the jury, and these covered the facts of the case so fully that there is little cause for complaint in that regard.
The misconduct of the attorney for plaintiff below in the argument of the case is assigned for error. The language used by him was certainly intemperate and improper. Nothing can be said in justification of such practice, and under some circumstances the misconduct would be deemed sufficient to compel a reversal of the judgment. As counsel was proceeding with the statements to which exceptions have been taken, an objection was made by the railroad company, when counsel for plaintiff below remarked, “ I.withdraw that statement, and ask the court to instruct the jury to disregard it.” And thereupon the court stated, “Yes, that will be done.” While the remark of the court was made in the presence and hearing of the jury, no specific withdrawal was made, nor was any further notice taken of the misconduct. It was the duty of the trial court to keep counsel within the bounds of proper argument, and to promptly rebuke any attempt to bring in extraneous matters with a view of influencing or prejudicing the jury. It is generally held to be sufficient, where improper remarks are made in argument, 'that an objection is sustained by the court, and the jury are advised to disregard the objectionable remarks in their consideration of the case. Whether the action taken by the court in this instance was sufficient to cure the error may be a matter of some doubt. Assuming, however, that there was prejudice, the misconduct cannot, as the record stands, be made a ground of reversal. While one of the grounds alleged in the motion for a new trial was the misconduct of the plaintiff, it was not supported by affidavit. The statute specifically prescribes that to obtain a new trial for misconduct of the prevailing party, the motion must be sustained by affidavits showing the alleged charge to be true. (Civil Code, §§ 306, 309.) The improper remarks of counsel in argument have always been treated as misconduct, and as such it is imputable to the party for whom he appears ; but as the plaintiff below failed to sustain the charge of misconduct in the manner prescribed by statute, the objection has not been properly saved, and is therefore not available as a ground of reversal.
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 defendant was charged, by information, by the county attorney of Wyandotte county, with assaulting one Charles Reese with a deadly weapon with intent to rob him. The defendant thereupon filed his plea in abatement, alleging that he had been once placed in jeopardy for the same offense ; that on the 11th day of October, 1894, he was placed on trial in the district court of Wyandotte county, on an information charging the identical offense alleged in the information in this case; that after the jury had been impaneled and sworn, and witnesses for the state had testified, the jury was discharged by the court, on account of the illness of the wife of one of the jurors, and the case continued to the next term of the court, and that said case is now pending undetermined in said district court. To this plea the county attorney answered, admitting the commencement of the former trial, but alleging that after a legal determination by the court of the fact of the sickness of juror’s wife, and that an accident and calamity required the discharge of the jury, the case was continued to the next term of the court. The answer admits that the charge pending in the district court was for assault with intent to kill, and that it is still pending in said court. To this answer the defendant demurred. His demurrer being overruled, he was placed on trial in the court of common pleas and convicted.
While the plea alleges former jeopardy, and is insisted on as a bar to any further prosecution, it also fairly presents the question whether the court of common pleas had jurisdiction to try the defendant. It appears that the prosecution was first instituted in the district court for this identical assault, but that in the information in that case it was alleged to have been made witli intent to kill, while in this case the intent is alleged to have been to rob. Both informa-tions charge offenses under the same section of the statutes, viz. : Section 38 of the act regulating crimes and punishments. Both informations refer to the same acts, the only difference being that a different criminal purpose is attributed to the defendant. We think under this section the substantive offense is the assault. The intent with which it was committed characterizes it and determines its degree of criminality. Only one prosecution can be maintained under this section for the same assault, whatever the purpose of the defendant may have been. The case presented, then, is one of a criminal prosecution pending in the district court of Wyandotte county, on a charge of assault with intent to kill, and another prosecution subsequently commenced in the court of common pleas of the same county, charging thé identical assault with the intent to rob. The jurisdiction of the court of common pleas to try the defendant was duly challenged. Had it jurisdiction to try the case? The district courts of the state are courts of general original jurisdiction for the trial of criminal causes. By chapter 92 of the Laws of 1891, the court of common pleas of Wyandotte county was established. By the fourth section of the act it is provided :
“All indictments and informations which shall be filed in criminal actions or proceedings in said county between the first da.y of July and the last day of December, both inclusive, in each year during which said court shall be in existence shall be filed in the said court of common pleas, and shall be triable therein; and said court shall have exclusive jurisdiction of such actions.”
It would seem from this section, that it was the intention of the legislature that prosecutions should be instituted in the district court during the first half of the year, and in the court of common pleas during the last half. There is no provision in the statute for transferring criminal causes from either court to the other. It follows, therefore, that when a criminal action is rightly instituted in either court, that court will retain jurisdiction until the case is finally tried and determined. Thus, while there is a division of time for commencing prosecutions, the jurisdiction for their trial and determination is concurrent. May the state, then, having instituted a prosecution in one court, institute another prosecution for the same offense in the other court, without dismissing the action first brought? In Whai’ton’s Criminal Pleadings and Practice, § 441, it is said :
“Where a concurrent jurisdiction exists in different tribunals, the one first exercising jurisdiction rightfully acquires the control to the exclusion of the other. Hence where, after indictment, but before trial, a justice of the peace took jurisdiction of the same offense, before whom the offender was tried and sentenced, the court held that the conviction and sentence was no bar to the indictment. The same position applies to prosecutions for piracy, in which the sovereign who first tries the offender absorbs the jurisdiction.”
Bishop, in his work on Criminal Procedure, § 315, says :
"Two or more courts may have concurrent jurisdiction of an offense, in which case the one wherein proceedings are first instituted will retain it to the end, and the other is not authorized to interfere.”
The same principle is declared in The State v. Tisdale, 2 Dev. & B. 159 ; Mize v. The State, 49 Ga. 375 ; Burdette v. The State, 9 Tex. 43. Under these authorities, the jurisdiction being in the district court, the court of common pleas had no jurisdiction to try the defendant, and the conviction obtained is without warrant of law. The district court, however, has never been deprived of its jurisdiction of the case, and the proceedings in the court of common pleas, being without jurisdiction, constitute no bar to a trial in the district court. We also think the record shows that there was sufficient cause for discharging the jury and continuing the case, and that the plea of former jeopardy is not good. The judgment is reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Allen, J.:
This action was brought by John J. Harter, as administrator of Patrick J. Sweeney, against the Atchison, Topeka & Santa Fe Railroad Company, to recover damages for injuries causing the death of said Sweeney. It appears that the deceased was employed by the defendant as a switchman in its yards at Topeka ; that while so employed, on the 26th day of May, 1887, he was riding on the foot-board in front of a switch-engine ; that in passing over a switch the engine became derailed; that he jumped off in front of the engine to get out of the way; that the foot-board caught his heel; that he was thrown down, slid along on the ground, and so crushed that he died on the 28th of June following, from the effects of the injuries received. The district court sustained a demurrer to the plaintiff's evidence. The correctness of this ruling is challenged.
The only question for our consideration is whether there was any evidence tending to prove culpable negligence on the part of the defendant causing the injury which resulted in Sweeney’s death. The accident was caused by the movable rail at a switch passing by the stationary rail so as to form what is called a “lip.” The flange of the engine struck the end of the stationary rail, passed on top of it, and slid off on the^outer side. It is charged in the petition that the switch and track at' the place where the accident occurred were worn out, defective, and insufficient, and that the engineer was negligent in running at a dangerous rate of speed. There is no question under the evidence as to the fact that the accident was caused by the lip formed at the switch, and that the movable rail was thrown so far as to bring it out of line with the stationary rail to the extent of about half its width. Briefly stated, the evidence offered to show that the switch and track at the point where the accident happened were out of repair, and that the defendant knew, or could have known by exercising reasonable diligence, of its defective condition, is as follows : Pat. McTague, a switchman, testified :
“ Ques. What was the condition of these rails at the time in reference to being good, or old, or worn-out ? Ans. It was an old track — a track very little used.
“Q. What was the condition of the' switch? A. The switch, sir, was out of repair.
“ Q. Now, state whether or not the switch would throw that track so as to make it smooth — so as to make it a smooth track? A. It could have been fixed. The switch could have been fixed so as to throw these rails so they would meet even, but the switch-stand must have been loose. [ Objection.]
“Q. I will ask you whether or not if the switch-stand, and all of the machinery of the switch were properly constructed and in proper repair and condition, would, throw the switch so as to make a smooth track? A. Yes, sir ; if everything was in proper repair and good condition the track would be even. It would make an even joint.”
On cross-examination this witness testified that he did not.know anything about the condition of that switch prior to the accident.
Jacob G. Eversole, fireman of the switch-engine, testified :
“ Q. You said that this switch worked hard in the morning. Bid you throw the switch in the morning? A. I could not say whether I did or not. We all throw them ; which ever comes the handiest.
“Q,. You say it did work hard? A. Yes, sir; but I could not tell which one threw it.
“Q,. If that switch was in proper condition would the swinging motion of the engine, or any other motion, throw' it out of position half the distance or width of the rail? A. No, sir ; it would not.
“ Q,. Do you know' whether or not the switch was repaired immediately after this accident? A. They worked on the switch afterward, but my attention was called to Mr. Sweeney in getting him. I cannot say the time they repaired the switch.
“ Q. It was while you wrere getting him home? A. Yes; sir.
“ Q. Do you know' what these repairs consisted of ? A. They consisted of some new spikes in the head-chairs — what we call head-chairs.
“ Q,. What effect did the putting in of these new spikes have on that swútch? A. To fetch it into line with the rail, making it solid or stationary.
“ Q,. It would hold it in position? A. Yes, sir.
“ Q,. State "whether or not there were any spikes in there, w'here the new' spikes were placed. A. I cannot say whether there w'as or not.
“ Q,. Was there any person or persons employed by the Santa Fe railroad company at that time whose special duties it was to inspect the tracks, or see that they were in proper repair? A. Yes; they had a man for that purpose.
“ Q,. Was that a part of the duties of a switchman? A. No, sir; we had nothing to do with keeping the track in repair.”
It appears from the testimony that the ends of the rails at the switch rest on an iron plate called a ‘ ‘ head-cliair,” the stationary rails being let into slots to hold them firmly, and that part of the plate being smooth over which the movable rail slides. This witness further testified:
“ Q. It was this chair or little plate under the tracks that you call a ‘ head-chair ? ’ A. Yes, sir.
“ Q. That was fastened down with spikes as you say? A. Yes, sir.
“ Q: Judge Huron has asked you if these little pieces that were at the sides of the rails to prevent the sliding of the track too far were to get out of place, whether the movable track would remain in place. It is the design that everything shall be tight, and that the movable track shall fit up nicely to the stationary track? A. Yes, sir.
“Q,. So that if everything is in place and sound and tight the track will match, and there will be no such thing as a lip? A. Yes, sir.
“Q,. A lip could result as well from the moving of the head-chair as from the breaking of the taps? A. Yes, sir.
“Q. The spikes driven in are driven through for the purpose of holding the head-chairs solid? A. Yes, sir ; the spikes are put in to hold the head-chair down.”
John Nelson, a switchman employed in the same yard, testified :
“ Q. State to the jury what were the facts at the time of this accident as to whether or not the switch-rod had gone by the rail, if you know. A. The switch-rod had gone by one rail, and the sliding bar had gone by the other.
“ Q- The sliding rail had gone by the stationary rail? A. Yes, sir; in the shape of these pencils [indicating] , about half a rail.
“ Q. Suppose the head-chair had been in proper shape? A. There should have been a standard up here [indicating], so the rail could not have gone by.
“ Q. It could not? A. Not if in proper shape.
“Q,. Now, the head-chair is attached firmly to the head-block? A. Yes, sir.
“Q,. So if it is propeidy attached it cannot move? A. No, sir.
“Q,. Suppose the head-chair got loose, then what would occur? A. It might twist around on this end, throw this knob around, and make a bad joint on the two rails.
“ Q,. What is the head-chair fastened to the switch- • block with? A. It is supposed to have four holes through it, and is blocked with spikes.
“Q,. State whether or not you know the condition of this track at the time of the accident? A. I could not state. I had used the track. I do not think I had used it that day ; but I would not be positive, but I know when I used it before that the engine most always made a quick turn when it struck the splice of the side-rail, or stationary rail. When the front driver of the engine would -strike it the engine would jump to one side.
“Q. What caused the engine to do that, if you know? A. I observed that in throwing this slide-rail there was no curve to the slide-rail, and very little curve from the blocks to the end of the slide-rail, leaving that almost straight, and the curve of. the stationary rail started right out at the head-chair, running straight on the slide-rail and striking that rail straight, it should turn and follow the rail.
“Q,. Had you mentioned the fact of' this defect in the track or switch at this point to the proper person employed by the company to look after the track? A. No, sir; I got over it, and that was all I cared for.
“ Q,. How long, in your best judgment, was this before this accident happened in which Sweeney was hurt? A. I did not pay any particular attention to it, and therefore I cannot tell.
“Q. Was within a day or two? A. Yes, sir; it was within a day or two — two or three days.”
Andrew Varlin, the engineer of the switch-engine, testified that the engine was going between six and eight miles an hour at the time it left the track. The witnesses estimated the distance that it ran past the switch all the way from 25 to 50 feet. No witness testified to having examined the switch prior to the accident. There is no direct evidence showing in what particulars the switch was defective prior to the accident, nor is any express notice of a defect brought home to the defendant, or to any employee whose duty it was to see that the track was in proper repair.
In this state of the case, it is strenuously insisted on behalf of the defendant that the cases of the A. T. & S. F. Rld. Co. v. Wagner, 33 Kas. 660 ; A. T. & S. F. Rld. Co. v. Ledbetter, 34 id. 326, are in point, and are controlling authorities. On the other hand, it is said that negligence may be proyen by circumstances without direct evidence as to the minute particulars constituting it. In the case of A. T. & S. F. Rld. Co. v. Stanford, 12 Kas. 354, 372, it was said in the opinion, delivered by Mr. Justice "Valentine :
“ When the plaintiff has shown that one of the defendant's engines has caused one or more fires, and that the ordinary working of an engine under like circumstances does not ordinarily produce such a result, or that engines properly constructed, in proper condition, and properly managed, do not ordinarily under like circumstances produce such a result, then we think the plaintiff has made out a prima facie case of negligence; then we think the plaintiff has done enough to require the defendant to show that its engines are properly constructed, in good order, and properly managed.”
See, also, A. T. & S. F. Rld. Co. v. Bales, 16 Kas. 252. None of the cases mentioned are exactly like this. The two latter cases were both to recover damages from fires alleged to have been caused by defective engines, and the fact was commented on by this court that knowledge as to the particular defects was not within the reach of the plaintiff, and that it would be unreasonable to require in all cases proof of a definite and specific defect. In the Wagner Case, the fact is commented on that the plaintiff had full knowledge of the defect at the time he incurred the risk which resulted in the injury, and it was not shown that any other person had any notice or knowledge of it, and it is said in the opinion that it is doubtful whether there -was in fact any such defect as was claimed. The Ledbetter Case is altogether dissimilar from this. In that case the court seems to have regarded the injuries as somewhat mythical, and the defect in the cars as not satisfactorily shown. In this case it is very clearly shown, both that the plaintiff’s intestate lost his life and that it was caused by a defective joint in the rails at the switch. The weakness in the testimony is with reference to the existence of the defect prior to the accident and knowledge brought home to the defendant of such defect, or of the fact of its existence for such length of time that notice is to be presumed. The evidence showing that repairs were made immediately after the accident tended to show that a defect existed in the fastenings of the switcli-chair to the head-block, and the driving of new spikes through the chair tended to prove that it was loose. Under the cases decided by this court, cited by the plaintiff in error, namely, A. T. & S. F. Rld. Co. v. Retford, 18 Kas. 248; City of Emporia v. Schmidling, 38 id. 485 ; St. L. & S. F. Rly. Co. v. Weaver, 35 id. 412 ; A. T. & S. F. Rld. Co. v. McKee, 37 id. 603, this evidence was admissible for the purpose of showing that the defect existed at the time the repairs were made, but it did not show, nor tend to show, that the defendant had knowledge of the defect prior to the accident. There being evidence then showing that an accident, happened, that it was occasioned by the movable rail of the switch being thrown out of line with the stationary rail, thus forming a lip over which the flange of the engine passed to the top of the rail and then to the ground, and also that the chair was out of repair; it also being shown that if the chair was in its proper place, firmly fastened, and in proper order, such a lip could not have been formed, a clear showing of a defect in the track along which the switch-engine was to pass is made. This, however, is not enough to warrant a recovery against the defendant. There must be evidence fairly tending to show either that the defendant knew of the existence of the defect, or that, in the exercise of reasonable and ordinary care and diligence, the defect could have been discovered before the accident. The switch and all parts of the track connected with it were open to inspection. The evidence of McTague was that it was out of repair. The evidence of Nelson is that the engine most always made a quick turn when it struck the splice of the rails, and that this had been the case for two or three days ; of Eversóle, that the switch worked hard that morning. Different minds might be differently impressed by these facts. It is not our province to declare as a matter of law just how frequently inspections should be made, nor to express any opinion as to whether under the proof the plaintiff ought to recover. We have only to determine whether there is evidence which should have been submitted to the consideration of the jury. While there is no evidence showing that the defendant company, or its proper agents, had actual knowledge of the defect, we think there is some evidence tending to show that by the exercise of ordinary care the defect could have been discovered and remedied prior to the accident. In this view of the case it is unnecessary to consider the question as to whether the engineer was negligent in running at too great speed.
The rule that upon a demurrer to the evidence the court will not weigh conflicting testimony, but that,, if there is any competent testimony tend-i-ng to support every material averment of the plaintiff’s petition, the case must be-submitted to the jury, is too well established to require comment, or the citation of numerous authorities. (Merket v. Smith, 83 Kas. 66 ; K. C. Ft. S. & G. Rld. Co. v. Cravens, 43 id. 650 ; Benninghoff v. Cubbison, 45 id. 621.)
The order of the court sustaining the demurrer to the plaintiff’s evidence is reversed, and the cause remanded for a new trial.
JOHNSTON, J., concurring.
Horton, C. J., dissenting. | [
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The opinion of the court was delivered by
Allen, J. :
The plaintiff brought suit in the district court of Washington county against E. E. Vanhorn, Warren S. Clark, and others, to foreclose a mortgage executed on the 25th of January, 1888, by F. E. Van-horn to John T. Elwood, on a tract of land therein described, to secure the payment of $2,000 and interest. The mortgage and the debt secured thereby were assigned by John T. Elwood to Nancy E. Elwood, and by Nancy E. Elwood to the plaintiff. It appears that John T. Elwood purchased the land in controversy at sheriff’s sale on the 1st day of August, 1887, arid conveyed the same to Vanhorn January 25, 1888, which is the date of the mortgage sued on. On the 6th day of December, 1887, a judgment was obtained in the circuit court of .the United States for the district of Kansas by Thomas E. Tootle against John T. Elwood and others for $6,845. After two executions had been issued on this judgment and returned unsatisfied, an execution was issued on the 3d of December, 1888, and on the 6th of that month was levied by the marshal on the lands in controversy, which he sold to satisfy said judgment to the defendant in error. No copy of the journal entry of the judgment rendered by the United States circuit court was filed in Washington county. Two questions are presented : First, whether a judgment of the circuit court of the United States under the law as it stood prior to the passage of the act of congress of August 1, 1888, became a lien on all the lands of the judgment-debtor within the territorial jurisdiction of the court without compliance with § 419 of the code of civil procedure of this state ; second, if such lien did exist, whether the act of congress above mentioned made it necessary thereafter to file for record a copy of the journal entry of a judgment of the circuit court of the United States theretofore rendered, in counties other than that in which the judgment was rendered, in order to preserve the lien on lands therein.
Section 419 of the code of civil procedure provides :
“ Judgments of courts of record of this state, and of courts of the United States rendered within this state, shall be liens on the real estate of the debtor within the county in which the judgment is rendered from the first day of the term at which the judgment is rendered ; but judgments by confession, and judgments rendered at the same term during which the action was commenced, shall bind such lands only from the day on which such judgment was rendered. An attested copy of the journal entry of any judgment, together with a statement of the costs taxed against the debtor in the case, may be filed in the office of the clerk of the district court of any county, and such judgment shall be a lien on the real estate of the debtor within that county from the date of filing such copy. The clerk shall enter such judgment on the appearance and judgment-dockets in the same manner as if rendered in the court of which he is clerk. Executions shall only be issued from the court in which the judgment is rendered.”
It will be observed that this section provides for docketing judgments of the United States courts in exactly the same manner as those of the state courts. The extent to which judgments of federal courts should become liens on the property of the judgment-debtor was never defined by act of congress until the-passage of the act of 1888, but it had been held by the federal courts that judgments of the United States circuit and district courts became liens on the debtor’s property to the same extent as judgments of the state courts within their jurisdiction. It was also held that where provision was made for docketing the judgments of the state courts in counties or districts other ‘than.those in which the judgments were rendered, and no such provision was made with reference to federal judgments, the lien of the federal judgments extended throughout the territorial jurisdiction of the court without so docketing in counties other than where rendered. (Massingill v. Downs, 7 How. 760; Williams v. Benedict, 8 id. 107; Shrew v. Jones, 2 McLean, 78 ; Savings Bank v. Bates, 44 Fed. Rep. 546 ; Hill v. Gordon, 45 id. 276.)
The precise question whether under a statute like that in force in Kansas, placing state and federal judgments on an exact equality with reference to the manner of obtaining and extent of a judgment-lien, it was necessary that the judgment-creditor, who obtained judgment in the federal court, should comply with the state law and docket his judgment with the clerk, of the district court of the county where the debtor’s property was situated, has never been decided so far as we are able to discover. The policy of the federal government has been to adapt the practice in federal courts in common-law actions to that prevailing in the state courts, and to place suitors in state and federal courts on an equal footing as to remedies. It may well be doubted whether the lien of the federal judgment extended beyond the county in which it was rendered, unless a copy of the journal entry was filed in the office of the district clerk of the county where the property sought to be affected by the judgment-lien was located. It is not necessary in this case, however, that we should decide this question. In 1888 an act of congress was passed, which took effect on the 1st of August, containing the following provisions :
“ That judgments and decrees rendered in a circuit or district court of the United States, within any state, shall be liens on property throughout such state in the same manner and to the same extent and under the same conditions only as if such judgments and decrees had been rendered by a court of general jurisdiction of such state: Provided, That whenever the laws of any state require a judgment or decree of a state court to be registered, recorded, docketed, indexed, or any other thing to be done in a particular manner, or in.a certain office, or county, or parish in the state of Louisiana, before a lien shall attach, this act shall be applicable therein whenever, and only whenever, the laws of such state shall authorize the judgments and decrees of the- United States courts to be registered, recorded, docketed, indexed, or otherwise conformed to the rules and requirements relating to the judgments and decrees of the courts of the state.” (25 U. S. Stat. at Large, 375.)
In the case of Savings Bank v. Bates, supra, it was held that under -this act the lien of a federal judgment extended only to lands of the judgment-debtor in tbe county in which the court was held, unless the judgment was docketed elsewhere in accordance with the state statute. The judgment under which the defendant in error claims was rendered prior to the passage of the act of congress above quoted, but execution was not levied on this property until the 6th of December following, nor had any copy of the judgment entry been filed in the office of the district cleric of Washington county. The state law requiring the docketing of judgments in counties other than where rendered is in the nature of a recording act, and for the purpose of imparting notice to persons acquiring title to the land. .It is well settled that it is competent for the legislature, not only to require that instruments thereafter executed affecting the title to property shall be recorded in a particular manner, but also to require that instruments before executed shall also be so recorded, provided only a reasonable time for so doing is allowed. In Plow Co. v. William, 52 Kas. 185, it was held that—
“Chapter 255, Laws of 1889, regulating the recording of title notes, or evidences of conditional sales, applies to all instruments in writing, or promissory notes therein referred to, whether in existence at the time that act went into force, or thereafter executed, with the limitation, however, that there must be a reasonable time after the statute went into force for the holders of such notes or instruments then in existence to comply with its provisions.”
See, also, Jackson v. Lamphire, 3 Pet. 280 ; Burnes v. Simpson, 9 Kas. 658.
The statute of this state can have none the less force because passed long prior to the act of congress. In the most favorable view” to the defendant in error both acts must be treated as having been in full force and effect on the 1st of August, 1888. As the law stood then, and ever since, it was necessary in order to make a judgment of the United States circuit court a lien on the lands of the judgment-debtor, prior to actual levy, that a copy of the journal entry should be filed ■with the'clerk of the district court of Washington county. This was not done, and the land was not actually seized by the marshal until December 6, more than four months after the passage of the act of congress. We are clearly of the opinion that this afforded more than ample time for compliance with state statute, and that the lien of the federal judgment, if it ever had any (as to which we express no opinion), was lost before the execution was levied. ■ It follows, therefore, that the court erred in holding that the plaintiff had no lien on the property in controversy.
The judgment will be reversed, and the case remanded for further proceedings in accordance with the Mews above expressed.
Johnston, J., concurring.
Horton, C. J., not sitting. | [
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The opinion of the court was delivered by
Allen, J. :
The court having found against the plaintiff’s claim of the existence of a contract of any character binding his sisters to convey their property to him, the only question in the case is whether the instrument delivered by tbpm to the plaintiff shortly before their death could have operation either as a conveyance inter vivos, or as a will. We find no difficulty in reaching the conclusion that it passed no interest to the plaintiff on delivery to him. It is named a will, and in terms gives him no estate during the life of the makers, but expressly provides that he shall have that, and that only, of which they might die possessed. Neither can there be any doubt that this in strument is utterly void as a will. Section 2 of the act relating to wills expressly requires that every will shall be attested and subscribed in the presence of the party making the same' by two or more competent witnesses. This was not done. The paper was not a will, could not be probated as such, could not and did not confer any rights on the plaintiff.
The judgment is reversed, and, on the facts found by the district court, it is ordered that judgment be entered in favor of the defendants for their costs.
All the Justices concurring. | [
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The opinion of the court was delivered by
HortoN, C. J. :
The principal question presented in this case is whether the chattel mortgage executed by Epley & Shaw to Henry Beck is void as against tlie creditors of J. W. Epley. A few days after the execution of the mortgage, Epley purchased the interest of his partner, C. M. Shaw, in the mercantile business in which they were engaged. From that time to the 23d of November, 1889, 'when the goods were seized under the mortgage to plaintiffs, Epley was in the possession thereof as the owner and sold the same at retail in the usual course of business. With the knowledge of Beck, and without any objection from him, Epley had the power to use the proceeds of the sales of the mortgaged property in any manner he pleased — even for the payment of his private expenses. There was no agreement between Epley and Beck that any of the proceeds should be paid to the latter. No part of the sales were applied to pay the indebtedness secured by the chattel mortgage, or for the benefit of the mortgagee. In fact all sales were made by Epley in his own behalf and at his own discretion and with control of the proceeds reserved to himself. We have ruled that—
“A power given to the mortgagor to sell the whole of the mortgaged property would really render the mortgage nugatory and the mortgagor would still remain substantially the owner of the property. Such a power in any mortgage would be inconsistent with any supposed incumbrance granted by the mortgage.” (Rathbun v. Berry, 49 Kas. 745. See, also, Leser v. Glaser, 32 id. 546; Implement Co. v. Schultz, 45 id. 52.)
As the business of J. W. Epley, after the giving of the mortgage to Beck, was carried on for about eight months the same as before, as the proceeds of the sales were used by Epley as he saw fit for the purchase of new goods, for his personal expenses, without any regard to the mortgage debt, -with full knowledge and consent of Beck, the mortgage is void as to the plaintiffs and other creditors. The reasons for the invalidity of the Beck mortgage are fully stated in the opinions in Rathbun v. Berry, supra, and Implement Co. v. Schultz, supra, in view of the special findings of fact of the jury.
It is suggested that the plaintiffs are not attaching creditors, and that as they took their mortgage with notice of the prior mortgage, the Beck mortgage is not void as to them. It is true that they had notice of the prior mortgage when they accepted their mortgage to secure their claim; Instead of taking a lien by attachment they preferred a mortgage-lien, but when they accepted their mortgage they had notice that J. W. Epley had possession of the mortgaged property as the owner thereof, had the absolute control over the same, the absolute right to sell it as he chose, and the absolute control over the proceeds. They knew therefore that the Beck mortgage was void, and no lien upon the stock of goods.
A motion has been filed in this case to dismiss upon the ground that the case-made was not signed and allowed within the time limited by the order of the court. The record does not sustain the allegations of the motion. The case-made seems to have been signed and settled according to the provisions of the statute in the presence of the attorneys of the parties after amendments to the case had been suggested 'by the defendants.
The judgment of the district court will be reversed, and the case remanded with direction to that court to render judgment upon the findings of fact in favor of the plaintiffs and against the defendants, !. W. Epley and H. Beck.
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The opinion of the court was delivered by
MaktiN, O. J. :
The only question argued in this case is whether the court erred or not in sustaining the demurrer of the defendant to the evidence introduced on the part of the plaintiff. That evidence shows that on or about January 10, 1889, John T. Carruthers was a freight-conductor in the service of the defendant company; that he started from Horton southward with a train of about 35' cars bound for Herington via North Topeka and Topeka; that his train stopped at the roundhouse in North Topeka, and also at the registering station some distance north of the railroad bridge spanning the Kaw river ; that as the train started from there, between 1 and 2 o’clock in the morning, he got on somewhere in front of the caboose and tiren walked a distance forward on the tops of the cars ; - that, before the train got across to the south end of the bridge, he uttered a cry of distress’, which was heard by a brakeman named Foley, in the cupola of the caboose, and who, getting down quickly, and looking out, saw that the wheels of the caboose were passing over a man, afterward ascertained to be the conductor; that the train was stopped, and he was found lying across the west or right-hand rail, his head outward and the lower part of his body and limbs between the rails, with the appearance of hav ing been run oyer by several cars ; that he was badly crushed about the hips, and died from his injuries in about an hour. It further appears that in'the train were two flat cars loaded with telegraph-poles, and next behind them and about the ninth car ahead of the caboose, a Missouri Pacific car of unusual height, being about two feet above the other box cars in the train, and called in the evidence a “hay-car,” which was coupled to the flat car next ahead of it with a long crooked link ; that a short time after the injury, the train having been backed to North Topeka, another freight-conductor named Sylvester climbed upon the top of said hay-car for the purpose of giving a signal, and, when he descended at the south end on the west side he found that the iron rod on the top of the car used for a hand-hold in going up or down the ladder on the side was loose and projecting outward at the south end, the screw fastening that end of the iron rod to the wooden roof of the car not being in its place either in the wood or the iron. Sylvester further testified that he noticed on the flange of the front wheel of the south end of the west side of the hay-car a clot of blood, and a little piece of flesh about the size of the end of his thumb, and a little fuzz or piece of woolen cloth corresponding with the material in the coat and vest worn by Carruthers at the time. The tops of the cars were frosty and slippery that night. Three or four car-inspectors are employed by the defendant at Horton, whose business it is to examine all cars going out to see if they are in good and safe condition, and as many more are kept at Topeka — with duties on both sides of the river — but there is no evidence, unless this be such, whether the car was examined or not at Horton or North Topeka. It was usual for freight- conductors, on leaving the North Topeka registering station, to go forward on the tops of the cars while crossing the bridge so they might get off and register at the Y on the south side of the river, and get on again, and thus avoid stopping the train entirely on a considerable curve. Nora M. Carruthers, the widow of said John T. Carruthers, was duly appointed as administratrix of his estate, and, having qualified, she sues in that capacity. The deceased left also a daughter surviving him.
The plaintiff’s theory of the disaster is that, when the ill-fated conductor reached the south or front end of the hay-car, he could not get to the flat next ahead, loaded with telegraph-poles, without descending to the level of the platform; that, in doing so, he caught hold of the iron rod which was loose or defectively fastened and out of repair at its south end; that it gave way, and, by reason thereof, he fell and was run over. The blood, the small piece of flesh and the fuzz on the flange of the wheel near the ladder are relied on as sufficiently indicating that the primary cause of the injury was the defective hand-hold. The position in which the conductor was afterward found and the nature of his injuries would render it more probable that he fell not only between the cars, but between the rails, for he was caught on the west rail nearly midway of his body. As it is a matter of common knowledge that freight-cars extend out considerably beyond the rails, it would seem that he would not be likely to get under- the wheels in falling from the side of this high' car by the giving way of the hand-hold on its top, and therefore that this defect had no relation to the injury.
In Asbach v. C. B. & Q. Rly. Co., 74 Iowa, 248, the court held that a theory cannot be said to be estab lished by circumstantial evidence, even in a civil case, unless the facts relied upon are of such a nature and are so related to each other that it is the only conclusion that can reasonably be drawn from them, and that it is not sufficient that they be consistent merely with that theory. In the case now under consideration the blood, flesh and fuzz on the flange of the front wheel of the hay-car may indicate that the conductor -was first struck by that wheel; but it is at least as probable that he fell between the hay-car and the flat and between the rails, as that lie was precipitated from the side of the car by the giving way of the hand-hold. Still, it may be that these theories and others suggested by counsel ought to have been submitted to the consideration of the jury, if no other serious objection had become apparent.
In the amended petition it is averred that the defendant knew, or by the exercise of ordinary care ought to have known, that said hand-hold on the hay-car was loose, unfastened, unsafe, insecure and dangerous, and that it was negligence to admit the car into the train or to permit it to remain after it had been taken in ; and an averment of this nature is essential as a basis of recovery in this class of cases, as settled by repeated decisions of this court, supported by the general current of authority. A careful examination of the record fails, however, to disclose any evidence tending to justify this allegation of negligence against the defendant, unless it be the mere fact that the handhold was found to be out of repair a short time after the injury. If the conductor attempted to descend by its aid it is most probable that it was then in place and seemingly safe, otherwise he would have been negligent in using it. The screw may have suddenly pulled out of the wood by reason of slight decay around it and under the end of the fastening of the iron rod. But this is speculation only. It does not appear where the car came upon the defendant’s road beyond Horton, and we have no account of it further than North Topeka and the bridge. If it had been shown that the rod -was loose, or out of order, or the wood so decayed at the place of fastening as to render it unsafe, and this was discoverable by ordinary inspection at Horton or at the North Topeka roundhouse, then it would be a matter for the jury to determine whether the defect was known, or by the exercise of ordinary care ought to have been known, by the defendant in time to remedy or call attention of em-
ployees to it before the occurrence of the casualty. But in the absence of any such proof the district court was right in sustaining a demurrer to the evidence. The law is settled by A. T. & S. F. Rld. Co. v. Wagner, 33 Kas. 660; A. T. & S. F. Rld. Co. v. Ledbetter, 34 id. 326 ; Harter v. A. T. & S. F. Rld. Co., ante, p. 250, and the numerous cases there cited ; same case, 38 Pac. Rep. 778.
. The case of Guthrie v. Maine Cent. Rld. (Co., 18 Atl. Rep. (Me.) 295, is cited by counsel for the plaintiff as tending to establish the proposition that if a car with defective appliances is taken into a train, and an injury to an employee results from it, the company will be liable without proof of notice of the defect or its equivalent. But we do not think that case will bear such a construction, for there the draw-bar and bumpers of the car which was the instrument of the injury had been broken off before the casualty complained of, and this -was a patent defect of which the railroad company was bound to take notice.
We are also referred to C. & E. I. Rld. Co. v. Kneirim, 89 N. E. Rep. 324, decided by the supreme court of Illinois. But in that case it appeared that, although the car had just been inspected, “the nut which held the wheel on the brake-staff was off, and, from the rusted appearance of the threads of the staff — they being filled with rust — had been off for several weeks,” and the absence of the nut was the cause of the injury.
The judgment of the district court must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Joi-instoN, J. :
l' note — action burden 0SfGe
When the trial was begun the court ruled that, as there was no verified denial of the execution of the notes upon which the Elsbrees were seeking to recover nor of the indorsements thereon, the burden of proof rested upon the Farm Land Mortgage and Debenture Company. In this we think there was error. While it was alleged in the petition that the note upon which Manson Elsbree sought to recover was duly indorsed by Joseph M. Young, a copy of the same was set out in the petition, and upon it there was no indorsement. Under the code a copy was required to be attached to and filed with the pleading, and the one which was attached to the petition in this instance purports to be true and complete. It plainly contradicted and overcame the allegation of indorsement. In such a case, the statement that the note was duly indorsed cannot be regarded as a fact nor any more than a conclusion of law, and hence the unverified denial of the company put in issue the title and ownership of the note. The mortgage securing the Elsbree notes was given to Joseph M. Young in May, 1886, and nearly three years later Wahl, the owner of the land, desired to obtain a $6,000 loan to be used in discharging maturing liens upon the same land that was mortgaged to Young, and through the aid of Young the loan was obtained from the Farm Land Mortgage and Debenture Company, the company being unwilling to place the loan, unless it could have a first mortgage upon the land. Young agreed, for a consideration of $848.10, to postpone the $1,900 mortgage to the one securing the $6,000 loan. He was in possession of the notes and claimed full control of the same. For the purpose of subordinating the mortgage for the one about to be given, a writing was executed, which was probably sufficient for the purpose, if Young had been the owner of the notes or had had sufficient authority from the owners to make the agreement and release that were made. The Elsbrees claimed that there had been a bona fide transfer of the note and mortgage to them, and that Young was without the authority to make the agreement which he had attempted to make. On the other hand, the company contended that the alleged transfer from Young was a sham and subterfuge, and that it had dealt with Young as the owner of the mortgage, without notice of any adverse right in the Elsbrees. In the trial it was an important question whether the company had actual or constructive notice that there had been a transfer of the note and mortgage, and as to what transfers of title or interest in the land were shown by the public record at the time the last mortgage was executed. The burden of proof having been placed upon the company, it offered proof of -what the records showed as to the $1,900 mortgage at the time the $6,000 loan was made by the company. This was excluded upon the ground that the original mortgage was in court, and was available to the company for purposes of evidence. The production of the original, however, was not competent evidence of what the pub-lie records disclosed respecting the title or ownership of the mortgage at the timé Young attempted to postpone' that mortgage to the later one. This testimony should have been admitted, but whether its exclusion constitutes a sufficient ground for a reversal we need not now determine.
There is considerable dispute in the evidence as to the authority of Young to represent and bind the Els-brees, and much is made of the fact that their money was invested, and when collected was reinvested by him as he thought best to do, and also of the fact that he had possession of the notes. There is some contention as to the authority of one Cammon, a local agent, who acted for the company, but these conflicts must be determined by the trier of the facts. If it should finally be held that Young was not authorized to sub ordinate the $1,900 mortgage to the later one, and that the attempt was ineffectual, then we would think that the company should be subrogated to the rights of the holders of the incumbrances and liens which were discharged with the money obtained from the company. The $6,000 loan was obtained for the purpose of discharging accrued and accruing incum-brances upon the land, and the proceeds appear to have been devoted to that purpose. It seems that there was a prior mortgage of $4,000, which with accrued interest amounted to $4,952.50 that was paid from that fund. ■ There was a claim of $186.70 for unpaid taxes, which was paid out of the money received from the company; and then there was $848.10 paid to Young to secure the release and postponement of the $1,900 mortgage to that of the company, which was actually paid to Elsbree, and the amount so paid was credited upon his note.
Prom the facts developed in the present trial of the case it appears to be highly equitable that subrogation should be made if the agree-meat of Young proves to be abortive. The money was advanced by the company upon the understanding and belief that it had obtained a first lien upon the premises, and -was used as it was intended for the payment of prior incumbrances. If the company succeeds to the rights of the prior incumbrancers, it will not change the position of the $1,900 mortgage nor depreciate the security of the same. The Elsbrees, if they own the notes and mortgage, could lose nothing by the substitution. Their mortgage security is just as good after payment and substitution as it would have been if the $6,000 mortgage had not been executed and payment of the prior incumbrances had not been made. In fact they occupy a more favorable position, because $848.10 was paid upon their mortgage from the proceeds of the $6,000 loan. After deciding that the Elsbrees had a first lien, the court did not allow the Farm Land Mortgage and Debenture Company to take the places of the incumbrancers whose debts and securities had been paid and discharged from the money advanced by the company. No personal judgment was awarded to the company, nor was it decreed to have a lien of any rank upon the mortgaged premises.
We are satisfied from an examination of the record that the case should be retried, and for that purpose the judgment will be reversed, and the case remanded.
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The opinion of the court was delivered by
Houton, C. J.:
Upon the trial it was conceded, and the jury were instructed, that the note and mortgage were executed by W. H. Bliss to Mrs. C. Mackey on the 8th of April, 1890. The note was for $237, payable May 8, 1889, with 10 per cent, interest after maturity. The mortgage to secure the note contained the following provisions :
“The party of the first part [W. H. Bliss] hereby agrees to keep the property constantly insured for the benefit of the second party [Mrs. Mackey] ; and if the note or any part of the same, or any interest thereon, shall not be paid according to the terms thereof; or if the goods and chattels or any of them shall not in the opinion of the party of the second part be properly cared for or shall in the opinion of the party second part become deteriorated or damaged, or if the same or any part thereof shall be removed or sold, or any interest therein be in any manner disposed of, or any attempt be made to remove or sell the same or any part thereof by the party of the first part or any other person; or if anyone shall levy on said goods and chattels or any part thereof, then, and in any of the above events, all of the note not then paid shall become immediately due and payable, and the party of the second part, or her heirs, executors, administrators, assigns or authorized agents, may enter upon the premises where the goods and chattels may be found and take possession of the same, and may remove, sell and dispose of all the property or any part thereof in any manner they shall think fit without notice to anyone, and out of the proceeds thereof pay the amount then due on the note, together with $45 attorneys’ fees, and shall also pay out of the proceeds of the sale all the necessary costs incurred in pursuing, searching for, taking, removing, keeping, storing and selling the property, and may pay all the liens thereon having precedence over this mortgage ; and shall pay , the remainder, if any, to the party of the first part or his legal representatives.”
The jury allowed Bliss, as the value of the property, $273. They found there was due Mrs. Mackey, when the replevin suit was commenced, $129.09. Under the instructions of the court, they deducted this $129.09 from $273, leaving $143.91, to which they added interest- thereon, at the rate of 6 per cent, per annum, from August 22, 1889, making $154.34, the amount of' the general verdict.
Under the conceded facts and the findings of the jury, when Mrs. Mackey brought her action on the 21st of August, 1889, to recover possession of the goods and chattels in controversy, she was' entitled, under her mortgage, to the' possession of the same.
' On December 16, 1889, when the replevin action was called for trial, Mrs. Mackey was also entitled, under her mortgage, to the possession of the property. It appears when the case was called W/H. Bliss was present by his attorney, but neither Mrs. Mackey nor her attorneys appeared. Thereupon the case was dismissed, and the costs taxed to her. These she paid. When the replevin action was dismissed, Bliss, under the provisions of § 184 of the civil code, might have demanded that the court proceed to inquire into the right of property, and the right • of his possession thereto. This 'Was not done. The replevin case was not tried upon its merits. Bliss failed to claim a return of the property, and only a judgment f°r costs was rendered. Notwithstanding the dismissal, Bliss was not precluded of his full remedy upon the bond. One of the conditions of the bond was that the plaintiff “shall duly prosecute the action.” This is a separate and independent condition. Upon breach of that condition, Bliss was entitled to recover all the damages he had sustained. (.Manning v. Manning, 26 Kas. 98.) As Bliss was indebted to Mrs. Mackey upon his note, secured by the mortgage for about $130, she was entitled to the possession of the property at the time her action was dismissed. The amount of damages in an action on a replevin bond must depend materially upon the right of the plaintiff bringing his action to the property. But, as it appears the plaintiff had no legal title or right of possession to the property, he sustained no actual damages by the refusal of Mrs. Mackey to deliver the same to him. Cobbey on the Law of Replevin ( § 1355) states the rule thus :
“ Where the defendant had no title, he can only recover nominal damages on the bond. In an action by the obligees against the obligors in a re-plevin bond, where the title to the property was not determined in the replevin action, and the title thereto and the right of posses sion are in a person other than the obligees, they are only entitled to nominal damages.” (Brookover v. Esterly, 12 Kas. 149; Wells, Rep.,p. 254, § 458; 2 Suth. Dam. 46 ; Smith v. Whiting, 100 Mass. 122.)
On August 6, 3890, the defendant below' offered in writing to confess judgment for $1. and costs. As plaintiff was entitled to judgment on the bond for nominal damages only, he can recover no costs since the date of that offer. It ought to be observed that the plaintiff below has not appeared in this court by brief or otherwise.
Judgment of the district court will be reversed, and the cause remanded with direction to that court to render judgment upon the findings of fact in favor of plaintiff below for $1, and the costs accruing to August 6, 1890. The subsequent costs will be taxed against him.
All the Justices concurring. | [
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The opinion of the court was delivered by
Allkn, J. :
A motion is made to dismiss the petition in error on various grounds, none of which, however, are tenable. We find the petition in error sufficient, and while the clerk's certificate contains some things that are unnecessary, it is not defective. It is also insisted that the only error complained of is in sustaining an objection to testimony, and, as there is no bill of exceptions in the case, that the error has not been made to appear of record. An objection to the introduction of any testimony on the ground that the petition does not state facts sufficient to constitute a cause of action, raises only an issue of law. (Water-Supply Co. v. Dodge City, ante, p. 60 ; 39 Pac. Rep. 219.) It was held in the Case cited that no motion for a new trial was needed for the purpose of reviewing the ruling of the court on such an objection. Rulings of the court on issues of law are properly entered on the journal, as was done in this case, and no bill of exceptions is necessary. Section 705 of the code provides : “On the journal shall be entered the proceedings of the court each day, and all orders of the judge in vacation or at chambers, and also 'all judgments entered on confession or default.” Very clearly a ruling of the court on such an objection, which completely disposes of the case and ends the trial, is a proceeding that is required to be entered on the journal.
The main question in this case is whether the defendant company was bound to operate its factory at Leavenworth from October 10, 1889, to April 1, 1890, unless prevented by fire, explosion, or accident. Many authorities are cited, and many general rules are quoted on the subject of the construction of contracts. It would be a tedious and bootless task to enter into an extended consideration of the many rules to which our attention is called, which it is claimed should be observed in determining the effect of this contract. All of them amount to but little more than the proposition that it is the duty of the court to ascertain, from the language made use of by the parties, Avliat their agreement really was, and give it effect according to their mutual intentions. We do not think it necessary, either, to discuss at length the question as to how far oral evidence might be introduced for the purpose of establishing a cause of action under the plaintiffs’ petition. Generally speaking, the only purpose of such testimony, as an aid to the construction of a contract, is to afford the court information concerning the subject-matter of the contract and the situation of the parties, so that it may view the instrument in the light of such knowledge as the parties themselves had of surrounding circumstances. Such evidence is not to be received, however, for the purpose of supplying defects or omissions in the contract where there is no claim made that it does not truly embody the agreement of the parties. In this case the plaintiffs rely on the -written agreement as the foundation of their cause of action. They must stand or fall by its terms. For the defendant it is contended that the contract is drawn with great care and attention to detail; that nothing is to be inferred that is not expressed; that where the parties have carefully considered the agreement into which they have entered, have selected the terms used after careful consideration, have minutely provided for many contingencies, that no room is left for implication, and no presumptions should be indulged in which will have the effect of imposing on either party a burden which he has not expressly assumed. It is said that nowhere in the contract can there be found an express agreement by the defendant to operate its factory during the time covered by the contract; that the defendant contracted to sell no more sugar-meal feed than should be produced in its Leavenworth factory ; that the only limitation with reference to quan tity is that of 3,000 barrels per week, more than which quantity the plaintiff was under no obligation to take, but that the defendant was not bound to produce 3,000 barrels per week, nor any other quantity ; that it appeal’s that corn-meal feed was but a by-product of minor importance in its factory, a barrel being the amount produced from 7i bushels of corn, for which, under the contract, the plaintiffs were to pay but 17-J-•cents ; that it cannot be presumed that the defendant would have obligated itself to continue to operate its factory merely for the purpose of complying with its contract for this comparatively insignificant product. It must be conceded that there is much force in this reasoning. To the trial court it appeared convincing. We are not, however, satisfied with it. The defendant was operating a factory at Leavenworth. This •contract is for a very definite period, from the morning of one day to the morning of another day named. The only hint of a possible stoppage or suspension of the factory is that contained in the following paragraph :
‘ ‘ In case of the suspension of the manufacture of feed, in whole or in part in the factory of the party of the first part, by reason of fire or explosion or accident of any kind in the said works, or the machinery contained therein, the party of the first part shall not be liable in damages to the party of the second part for failure to deliver feed during such suspension of the production of feed.”
If it were not intended to bind the defendant to operate its factory, or to produce feed, this section would seem to be entirely meaningless. To break the force of the inference naturally arising from this provision, it is ingeniously argued by counsel that this provision was not made for the purpose of exempting the defendant from liability for failure to. produce feed, but to relieve it from the necessity of delivering feed which had been theretofore manufactured. We are impressed rather with the ingenuity of the argument tli an with its force. We do not think that the word ‘ ‘ deliver ’ ’ is to be singled out as the one on which the whole meaning of the paragraph turns, but that the fair and reasonable interpretation of the clause is that, if the defendant was prevented from manufacturing feed by fire, explosion, or accident, the plaintiffs should not recover damages because the defendant was prevented by such misfortune from complying with its contract. Thé contract, in its general scope, does not contemplate the production and storage by the defendant of the feed, but rather that it shall be promptly disposed of, and the necessity for so doing is recognized by that provision of the contract under which the defendant agrees' to run into the sewer or otherwise destroy whatever the plaintiffs should be unable to use. By the terms of the contract, as construed by the defendant, if no feed was produced, the defendant was not bound to deliver. Its obligation to deliver depended entirely on production. It is provided in the contract that the defendant shall furnish a man to sell and deliver feed at its factory to the retail trade in Leavenworth “during the life of this contract/’ and that the plaintiffs shall pay him $30 per month. The plaintiff assumed all outstanding retail tickets issued by the defendant, not exceeding 1,200 barrels. Can it be said that the defendant was under no obligations to produce even this? Provision was carefully made for shipments, for drafts on consignees, and for monthly settlements. Beyond all question, the plaintiffs were obligated to take and pay for 3,000 barrels per week, if so much was produced, whether they succeeded in selling the same to customers, or allowed the defendant to run it into the sewer. Beyond that quantity, they'were privileged to take whatever the factory produced, but were not bound to do so. It is evident from the terms of the contract that it would be neces- % sary for the plaintiffs to incur expense, and to make needed arrangements for the sale of this product. The provisions with reference to the quantity shows that the parties did not contemplate that the whole product could be advantageously disposed of. The defendant was assured, however, of a market for 8,000 barrels per week. Is it possible that the plaintiffs ■were not assured of any supply whatever, and that, after having incurred any amount of expense that might be necessary in finding a market for the product, it was entirely optional with the defendant whether it would operate its factory at all or not ? At the time the contract -was entered into, the defendant was operating its factory, and continued to so operate it until about the middle of January following. If it was bound to operate it one week, it was bound to operate it the full time. But it is said that a product of one barrel per day would have been a full compliance with the contract, and that even if it be conceded that an obligation rested on the defendant to operate its factory, still that substantial damages cannot be awarded because the defendant was not bound to more than a nominal compliance with the contract. On the other hand, the plaintiffs claim that they are entitled to have their damages assessed on the basis of 8,000 barrels per week ; that if the defendant had operated its factory, they were bound to take so much, and had the privilege of taking more if produced ; that the measure of their damages ought to be the amount they could have been compelled to pay for. The contract will not bear this interpretation. It is perfectly clear that the defendant was not bound to produce 3,000 barrels per week. We think the defendant was bound, however, to operate its factory in good faith; that the contract clearly contemplated that it should do so. If it had so operated, it would have produced a substantial quantity of feed. IIow much would have been so produced, we are in no position to determine. Such a factory,, however, cannot be operated in good faith and in a reasonable manner without incurring great expense and making a corresponding output. It would be folly to operate a large establishment merely for the purpose of making a nominal product. On the other hand, it is clear that the defendant did not bind itself to make the largest possible output. We think the plaintiffs are entitled to recover such damages as they are able to show resulted to them from the failure of the defendant to operate its factory in a reasonable manner, but that such damages should be computed on the least quantity that would have been produced in case the factory had been operated in good faith. The court erred in sustaining the objection to any testimony.
The judgment is reversed, and the case remanded for further proceedings in accordance with the views above expressed.
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The opinion of the court was delivered by
JohnstoN, J. :
James M. Campbell, as administrator of the estate of David G. Campbell, deceased, brought this action to recover damages for the death of David G. Campbell, alleged to have resulted from the gross negligence of the railroad company. In the petition it .was averred that on November 11, 1890, in the daytime, David G. Campbell was walking upon the railroad-track of the company, near the .village of Merriam, but not at or upon any railroad-crossing, and that while so walking, a passenger-train approached on the same track, and going in the same direction, and that the persons in charge of the train managed it in a grossly negligent, reckless, willful and wanton manner, and at a high, unusual, and reckless rate of speed, so as to run against, knock down, and run over David G. Campbell in a violent and forcible manner, causing injuries from which he died after a lapse of about 10 minutes. The answer of the railroad company was a general denial, and an averment that the injury and death of Campbell were due to l}is own negligence. When the testimony of the plaintiff was finished, the court sustained a demurrer to the same, holding it to be insufficient to warrant a recovery.
It appears that Campbell resided with his family upon a farm about one-fourth of a mile from the railroad-track and the town of Merriam, where he had resided for many years. A highway called “Main street,” running east and west past Campbell’s farmhouse, crossed the railroad-track, to the post-office and other buildings. The railroad runs north and soutli through Merriam. Between the Campbell farm and the railroad was a highway, running parallel with the railroad, from the town to Merriam park. On November 11, 3890, at about 10 o’clock a. m., Campbell came from the post-office east of the track, walked west on Main street until he arrived at the railroad-track, and then turned south toward Merriam park. The track had recently been changed, and the men were then engaged in ballasting and surfacing a portion of the track over which Campbell was walking. A passenger-train going south was due about that time, and as the line of the road was straight there was an unobstructed view for a considerable distance up and down the track. A passenger-train came from the north, traveling in the same direction that Campbell was, composed of an engine, tender, baggage-car, mail-car and four or five passenger-coaches. It did not stop at Merriam station, but as it approached Main-street crossing it gaye the usual whistle, and while running over the new track the speed of the train was somewhat slackened. When within about 364 feet of the place of accident, the engineer discovered that Campbell was walking upon the track, and several blasts of the whistle in the nature of danger-signals were given. After running a short distance further other blasts or danger-signals were given and the speed of the train was slackened, but as Campbell did not leave the track he was struck by the engine, knocked down, and the front wheel of the engine ran upon or over him. At that time the engine had come to a full stop, when the engine was backed off, releasing him. ' Campbell walked between the rails of the main track with his head down, only stopping for a moment at one time to speak with a workman who was engaged in ballasting the trakc. He did not look backward to see whether a train was following, and, although the day was clear, it appears that he did not hear the warning signals that were given. He was 65 years of age, in good health, and appeared to be in the full possession of his faculties. He lived in plain view of the railroad-track, and as he often passed along or over the road and saw trains frequently pass,over the same, he was necessarily familiar with the situation and its surroundings. A few feet away and parallel with the railroad was a highway upon which he could have walked with safety to his destination.
It is clear from the testimony that he was a conscious trespasser, and that, under the circumstances, his conduct was recklessly negligent. A railroad-track, between crossings, belongs exclusively to the railroad company, and it is well settled that all persons who venture along the same do so subject to the risks incident to so hazardous an undertaking, and, if injured by a train of the company, there is no liability unless the injury was willfully and wantonly inflicted. In Mason v. Railway Co., 27 Kas. 84, it was said that —
“A railway company has exclusive right to occupy, use and enjoy its railway-tracks, . . . and such exclusive right is absolutely necessary to enable it to properly perform its duties, and any person walking upon a railroad-track . . . without the consent of the company is held in law to be there wrongfully, and therefore to be a trespasser; and in case of an injury happening to such person while so trespassing upon it, from the movement or operation of the cars of the company over it, he is -without remedy, unless it be proved by affirmative evidence that the injuries resulted from negligence so gross as to amount to wantonness.”
See, also, Railway Co. v. Whipple, 39 Kas. 531; Tennis v. Railway Co., 45 id. 503; Railroad Co. v. Todd, 54 id. 558.
^teS-iníury -presump- We are unable to find testimony sustaining the view that Campbell’s death was due to the intentional or wanton negligence of the engineer. It is contended that Campbell was seen 500 feet ahead of the engine, and therefore the engineer should have stopped the train before reaching him. An engineer, however, is not bound to stop a train whenever he sees a person ahead upon the railroad, but has a right to assume that an adult person apparently in the possession of his faculties will exercise his senses and step out of the way of danger before the engine reaches him. The engineer is required to keep a reasonable lookout for trespassers upon the track, and to exercise such care as the circumstances require to prevent injury to them. Campbell was undoubtedly seen by the en gineer several hundred feet away ; but he was awake and moving, and appeared to be in the full possession of all his senses and faculties. Although there were some piles of ballast along the track, he could have stepped aside without difficulty ; and, as there was no apparent disability, the engineer had-a right to presume until the last moment pe -would heed the warning which had been given, and leave the track in time to avoid inj'ury. The engineer gave the usual signals for the crossing; and we have seen that as the engine approached Campbell danger-signals, or •what one witness called “screeching whistles/' were repeatedly given. The speed of the train was finally slackened, and although not in time to save his life, the conduct of the engineer does not evince a wanton and reckless disregard for human life, nor an intention to inflict a willful injury. One of the men at work upon the track testified that he saw Campbell’s danger and ran toward him shouting, and that he believes the engineer must have seen him. The action of this witness, if seen by the engineer, would do no more than to notify him that Campbell was upon the track, and from the warnings that the engineer had already given it is plain that he saw Campbell before that time. It is true that the train might have been stopped 100 feet or more away, if there had been any apparent necessity for stopping. If Campbell had been lying or sitting upon the track, apparently intoxicated or asleep, it would have been the duty of the engineer to have made an earlier effort to stop the train. Where the appearances indicate that a person upon the track is in such a condition as to be either insensible of his danger or unable to avoid it, those in charge of the train must use all available means con sistent with the safety of those oil the train to stop. The same rule is applied with reference to a young child, who is unable to understand the peril of being upon a railroad-track. In the case of Railway Co. v. Whipple, supra, a little boy, nine years of age, who was deaf and dumb, wrongfully went upon a railroad-track, and was run down and seriously injured. Those upon the train had no knowledge of the infirmities of the boy until after he was struck; and, while warnings were given and precautions taken which would have been sufficient if the person upon the track had been an adult, it was not sufficient care and attention toward an infant of tender years who might not fully comprehend his peril. It was said that the engineer must have seen that he was a child of. tender years, and that it was incumbent upon him, after he saw the boy upon the track ahead of the engine, to use reasonable care to avoid doing him any injury. In that case, however, the following language was used by the court: “If in this case the plaintiff were an adult, we might perhaps say, as a matter of law, upon the facts disclosed upon the trial, that he could not recover.” Campbell was a man of mature years, -who had the use of his faculties ; and, as he was moving and apparently capable of taking care of himself, the engineer had a right to presume until the last moment that he would leave the track and not be run over. As was said in a somewhat similar case decided by the supreme court of Minnesota :
“Even if he erred in his judgment as to the probability that the plaintiff heard the signals and would step aside before the train should reach him, and hence erred as to the time when he ought to have reversed his engine and applied the brakes, there is nothing to warrant the belief that he acted in reckless disre gard of the plaintiff’s safety.” (Johnson v. Truesdale, 46 Minn. 345.)
See, also, Railway Co. v. Judd, 36 N. E. Rep. (Ind.) 775, and cases cited; High v. Railroad Co., 112 N. C. 385; Finlay son v. Railroad Co., 1 Dill. 579; Railroad Co. v. Harman, 8 S. E. Rep. (Va.) 251; Reardon v. Railway Co., 114 Mo. 384; Beach, Contr. Neg. 394; 2 Rorer, Rids. 1027, 1032.
The train was running at a diminished rate of speed. Repeated warnings had been given, and that the engineer was endeavoring to stop and to save him is shown by the fact that the engine was stopped about the time the deceased was struck. Under the circumstances we think willful and wanton negligence on the part of the engineer cannot be reasonably inferred, and therefore the trial court correctly ruled that the evidence was insufficient to establish a liability against the company for Campbell’s death.
The judgment of the district court will be affirmed.
Allen, J. :
The evidence offered by the plaintiff tending to show gross negligence ■ on the part of the engineer is very weak, yet I am not prepared to say that it is wholly wanting. It is clear that the engineer saw the deceased on the track, and also observed that he did not heed the first signals that were given, and that he could have avoided running over him. So much being shown, I think the question should have been left with the jury to say whether or not there was gross negligence. But the proposition advanced in the opinion to which I desire to enter my especial dissent is that the engineer had a right to presume until the last moment that Campbell would leave the track, and not be run over. I am aware that this statement finds support in the authorities, but I cannot yield my assent to it. The slight inconvenience arising from the stoppage of a train is not to be weighed at all against a human life. An engineer who sees a person on the track ahead of him should take all necessary precautions to avoid killing him, and should resolve all doubts as to whether a person will take care of himself or not in favor of the person in peril. It might be wise for the legislature to prevent people from trespassing on railroad-tracks, and to impose even severe penalties on those' who do so, but the ’ mere fact that a person is a trespasser, walking along a railroad-track, in my judgment furnishes absolutely no excuse for wantonly running over him, nor for the adoption of so barbarous a rule as that the engineer may omit all precautions, and rely on the trespasser getting out of the way at the last moment it is possible for him to do so, and when it is beyond the power of the engineer to save him. | [
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The opinion of the court ivas delivered by
Johnston, J. :
In his petition Keys averred that, ever since the settlement of the section of the country in which the farm is situate, there has been a distinct natural water-course running in an easterly and north - easterly direction through his land, which conducted large quantities of water from the hills lying west and northwest of his land, and that prior to the building of the railroad the water passed freely and unobstruct-edly eastwardly from plaintiff’s land along the watercourse, but since the building of the railroad, and owing to the incomplete, inadequate and improperly-located openings for the passage of water coming down the natural water-course across the right-of-way of the railway company, and beneath its tracks, the water had accumulated and remained in great quantities over the plaintiff’s land, damaging and destroying his crops, for which he asked judgment in the sum of $3,999.
It appears that the plaintiff’s land is situated in section 31, while the railroad is constructed on section 32. Between sections 31 and 32 there is a highway, and immediately east and running parallel with the highway the railroad was constructed. The watercourse, which came from the hills on the west, was known as “Grow creek ; ” and, while there was some controversy as to the character of the stream, the testimony is sufficient to show that it should be treated and regarded as a natural water-course. The creek formerly meandered through Keys’s farm in an easterly and northeasterly direction, being somewhat crooked, and flowed out across the section-line into section 32, until it found its outlet in the Verdigris river. For the purpose of straightening the course of the creek through his- premises, Keys dug a large ditch directly east through the center of his land, which carried the water into the highway, and from that point he dug two ditches in a southerly direction along the highway until they reached tbp original channel of the creelc. After this new channel was made, the original channel of the creek through plaintiff’s premises, and which passed across the highway and under the point where the railroad was built, was completely filled up and water no longer flowed there. This was the situation when the railroad was built. It was constructed parallel with the ditches that were dug in the highway, and not across the artificial channel which was dug through Keys’s premises. Some claim is made by the railway company that the artificial channel through Keys’s land is not to be treated as a ■water-course, and that the obstruction of the same would give no right of action for the resulting injury. It appears that the ditch was dug not merely for the drainage of the land but as a channel for the flow of the water of a natural water-course. It had remained open and had been treated as a water-course for a number of years before the construction of the railroad, and therefore is to be' governed by the same rules as other water-courses. Keys, as the owner of the land, had a right to change the channel and divei’^ water of Crow creek, provided he returned the water to the same channel before it reached.the land of the proprietor below. It appears, however, that Keys did not return the water to the channel of Crow creek upon his own land, but carried it out into the highway and conducted it down the highway in ditches to the original channel. It is true, as contended, that he has no right to divert the water of the stream from its channel and precipitate it in a body upon the adjoining land to the injury of the owner. The proprietor of the adjoining land would have the right to erect an embankment across the course of the water and thus keep it off Ms land, and the party who had wrongfully diverted the water of the stream could not complain if the embankment thus made would have the effect of turning the water back upon his own land. No complaint, however, is made by the public authorities in charge of the highway by reason of the diversion of the stream and the discharge of the water into the highway ; and if the ditches dug were reasonably sufficient for the purpose, and there has been acquiesence and consent to such diversion by the public authorities, the railway company cannot complain for them nor derive any advantage from the change of the channel in the lands above its right-of-way. The turning of the stream from its original channel gave the railroad company no right to interrupt or obstruct the new channel, and if it was interrupted or obstructed to the injury of an upper landowner, he is entitled to recover for any damages he may suffer in consequence of such obstruction. The railroad, however, was not built across the ditch upon Keys’s land, nor does it appeal* from the findings of the court that it was built across the ditches constructed by him in the public highway. As we have seen, the highway lay between Keys’s land and the right-of-way of the railroad company, and we do not understand that the ditches or water-course were crossed or changed by the company in the building of its road. The case appears to have been decided upon the theory that it was the duty of the railroad company to make an opening through its embankment to carry off the water which might overflow the ditches which Keys had constructed, and because it failed to make an opening which would discharge the overflow in a body upon the land below, tlie company was held liable. Tlie court found that in time of high water, before the construction of the railroad, when there was an overflow of the stream, it flowed over the public highway, through openings under the highway, and made its escape into the original channel, and thence into the Verdigris river. The court finds, as the cause for the injury, and as a basis for the recovery which was allowed, that “the railroad grade of defendant’s railroad along the east side of plaintiff’s premises is about three or four feet high, and in times of heavy rains it dams up the mouth of plaintiff’s ditch where it emerges from his premises, fills it with mud and sediment, and the accumulated water backs up from the railroad grade and overflows nearly all of plaintiff’s premises and destroys his growing crops.” As we have seen, the railroad was not constructed over the ditch which emerges from plaintiff’s' premises, nor did that ditch reach the right-of-way of the railroad upon which its grade was constructed. There was no duty resting on the railroad company or any proprietor of the lower land to provide an outlet for the overflow of Crow creek or of the ditches into which it was turned. In changing the channel of the creek it was the duty of Keys to make the new channel sufficient not only for the ordinary flow of water in the stream, but also for such as might be reasonably expected to occur. The overflow of the stream where it emerged from Keys’s land, and which spread out over the highway and crossed the land upon which the railroad was built, was not confined to any channel, and had none of the characteristics of a water-course. Tt was practically surface-water, which is regarded as an outlaw, against which any landowner affected may fight.
“The simple fact that the owner of one tract of land raises an embankment upon it which prevents the surface-water falling and running upon the land of an adjoining owner from running off said land, and causes it to accumulate thereon to its damage', gives to the latter no cause of action against the former ; nor is the rule changed by the fact that the former is a railroad corporation, and its embankment is raised for the purpose of a railroad track, nor by the fact that a culvert could have been made under said embankment sufficient to have afforded an outlet for all such surface-water.” (Railroad Co. v. Hammer, 22 Kas. 763. See, also, Railroad Co. v. Steck, 51 Kas. 737 ; Railroad Co. v. Renfro, 52 id. 237.) •
While a landowner cannot obstruct a water-course, or divert a stream of water so as to cause inj ury to another, without being responsible therefor, it is well settled under the common law which prevails in this state that an owner has the right to obstruct and hinder the flow of mere surface-water upon his land from the land of other proprietors, and he can even turn the same back upon the land of his neighbor without incurring liability for injuries caused by such obstruction. Under this rule, Keys had no right to liavé the surface-water flow aci'oss the right-of-way of the railroad company, but on the contrary it had a right to protect itself by building an embankment without openings or waterways in order to prevent the water crossing its right-of-way, and any injury caused thereby is damnum absque injuria. (Pettigrew v. Evansville, 25 Wis. 236; Hoyt v. City of Hudson, 27 id. 656; O’Connor v. Railway Co., 52 id. 526; Turner v. Dartmough, 13 Allen, 291; Bowlsby v. Speer, 2 Vroom. 351; Swett v. Cutts, 50 N. H. 439 ; Preston v. Hull, 42 N. W. Rep. [Iowa] 305 ; Morris v. Council Bluffs, 67 Iowa, 343 ; McCormick v. Railroad Co., 57 Mo. 433 ; Abbott v. Railway Co., 83 id. 271; Jones v. Railroad Co., 34 id. 151; Schneider v. Railway Co., 29 Mo. App. 68; 24 Am. & Eng. Encyc. of Law, 903.)
As the recovery of the plaintiff below was largely based upon the failure of the railway company to provide openings for the flow of surplus water, it cannot be sustained.
The judgment of the district court will be reversed, and the cause remanded for another trial.
Allen, J., concurring.
Horton, C. J., not sitting. | [
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The opinion of the court was delivered by
Johnston, J. :
This was an action to determine and enforce the liens of several lienholders upon the sugar factory built by the Douglass Sugar Company, and is a branch of a litigation which was before this court in Manufacturing Co. v. Sugar Co., 54 Kas. 455 ; same case, 38 Pac. Rep. 556. In this proceeding, the controversy is between the Keystone Iron Works Company and the Merchants’ Bank of El Dorado, Kas. When the trial was had, the court, among other facts, found that in May, 1888, the Keystone Iron Works Company contracted with the sugar company to furnish material and machinery for the sugar factory, and in pursuance of that contract there was furnished for the construction of the sugar factory material and machinery of the value of $3,056.81. The construction of the sugar factory was begun in May, 1888, and the first of the material and machinery furnished by the Keystone Iron Works Company was furnished about June 19, 1888. Before' that time, and on the 9th day of June, 1888, the sugar company executed a mortgage upon the factory and premises of the company to N. F. Frazier, to secure the sum of $10,000, with interest at 12 per cent, per annum after maturity, and two days later the mortgage was duly recorded in the office of the register of deeds. The mortgage so executed and recorded was duly assigned to the Merchants’ Bank of El Dorado, Kas. The factory was completed about October 15, 1888, and in due time thereafter the Keystone Iron Works Company filed its statement for a mechanic’s lien. Although the material and machinery for which a lien was claimed were furnished in accordance with the original design, and were used in the construction and became a part of the sugar factory in accordance with the original plan, and although the building was commenced before the execution of the mortgage, the court held that the mortgage executed after the commencement was paramount to the lien for the material and machinery furnished by the Keystone Iron Works Company. This precise question -was before the court in Manufacturing Co. v. Sugar Co., 54 Kas. 455, where it was held that —
"The lien of parties who furnished machinery required and contemplated by the original plan of a structure erected for the manufacture of sugar, during the course of its erection, which went into and became a part of the sugar-works as originally designed, and which were fixed to and became a part of the realty, dates from the commencement of the building, and is superior to that of a mortgagee •whose mortgage was executed after the commencement of the building, but before the machinery was actually furnished.”
Findings of fact and conclusions of law were announced by the court on January 15, 1890, and the Keystone Iron Works Company applied for a new trial, and in support of the same oral and written evidence was produced. On February 1, 1890, the court granted the application for a new trial as to the time when the materials, fixtures and machinery were furnished by the Keystone Iron Works Company to the Douglass Sugar Company, and the judgment previously eirtered adjusting the Keystone Iron Works Company’s lien and fixing its priority was vacated and set aside. Afterward, a new trial was had upon this issue, when the court found, as it did in the first instance, that the lien of the Keystone Iron Works Company was subordinate to the mortgage lien of the Merchants’Bank of El Dorado. Immediately afterward, and on September 9, 1890, the plaintiff in error filed another motion for a new trial, which was overruled, and the case was brought into this court Por review on February 16, 1891. It is now contended that as the original judgment was rendered on January 15, 1890, and as the record was not filed in this court until February 16, 1891, more than a year had elapsed, and hence the plaintiff in error was not entitled to a review.
We cannot consider or review the ruling of the court made in 1890, but the plaintiff in error does not ask a review of that ruling. The decision which was then made was in fact vacated upon application of the plaintiff in error, and, the ruling being in its favor, no review was desired. The question in dispute was the precedence of the several liens, and, as between the parties to this proceeding, the controversy was whether the mortgage lien was paramount to the mechanic’s lien. The court first decided that the mortgage lien had priority over the.mechanic’s lien, but; on application of the plaintiff in error, that determination was vacated and set aside, and the question of priority was retried. The final decision was made on September 6,1890,and at that time it was held “That the findings of fact and conclusions of law by the court reached in the original hearing of this case last January were correct, and should stand.” It is contended that the determination by the court that the findings “ should stand ” indicates that the first order was not in fact set aside, but was only held in abeyance until the question was retired, and that the decision in September simply removed the suspension and left the findings and judgment in force as of the date of January 15, 1890. The record does not fairly sustain this contention. According to the language employed by the court in its order, the decision on the priority was in fact set aside, and a new trial of the issue was had. There was involved in that issue the precise point which was in controversy between these parties in the original trial, and the final order and judgment were not made from which proceedings in error could have been taken until the case was finally decided in September, 1890. The court then reinstated the finding and judgment originally made, and as the proceeding in error was instituted within a year from that time, the case is property here for review.
As the point of difference concerning the priority of liens has been determined in the case of Manufacturing Co. v. Sugar Co., 54 Kas. 455, and as no reason is seen for disturbing the rule then made, it follows that the ruling of the district court cannot be sustained. The judgment of the district court will, therefore, be reversed so far as it affects the priority of liens between the Keystone Iron Works Company and the Merchants’ Bank of El Dorado, and the cause will be remanded, with- instructions to enter judgment awarding the plaintiff in error precedence over the mortgage lien of the bank, and that the claim and judgment of the plaintiff in error shall be paid out of the proceeds of the sale of the property in accordance with that determination.
All the Justices concurring. | [
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The opinion of the court was delivered by
Allisn, J.:
Three principal questions are presented by the record which include all the various matters discussed in the briefs, and will be all it will be necessary for us to consider.
I. Did the defendant company incur the liability of a common carrier under the facts of this case? The sugar was consigned by the Louisiana Sugar Refining Company at New Orleans to the plaintiff at Wichita, and transported over the Texas & Pacific and St. Louis & San FTancisco railroads to. Wichita. It was there placed on the Y, and switched by the Missouri Pacific road over its track to the spur-track at the rear of plaintiff’s warehouse. For these services the defendant ivas paid by the St. Louis & San Francisco Railway Company $2 per car-load. All railway corporations are by statute made common carriers, and required to transport persons and property, as such, for all persons alike. (Gen. Stat. of 1889, ¶1212.) The distance over which freight is hauled, whether in car-load lots or in less quantities, whether in its own cars or those belonging to connecting carriers, can make no difference with the capacity in which the company acts. A railroad transporting a passenger or a car-load of freight one mile, using a switch-engine for motive power, is just as much a common carrier as if the distance were a thousand miles by regular freight- or passenger-train. The fact that compensation for this particular service was paid by the St. Louis & San Francisco Railway Company, while it might render that company also responsible, could not relieve the defendant company from its liability as a carrier. The defendant company -was bound to receive and transport this merchandise as a common carrier, and there is nothing in the facts of the case showing that it did receive it in any other capacity.
II. Did the defendant deliver the sugar to the plaintiff? It is earnestly insisted that when the railroad company placed the cars at the rear of the plaintiff’s warehouse, at the exact place where the plaintiff was accustomed to receive and unload its freight, it had per formed its whole duty, and that from the time it uncoupled its engine from the cars the property was in the possession of the plaintiff, and at its risk. It is shown that the plaintiff was accustomed to break the seals of the cars so placed, and remove the freight without the presence of, or special permission from, any employee of the railway company. And it is claimed that under these circumstances the defendant had fully performed all the services it undertook to perform, and was discharged from all further liability. There are authorities which give some support to this contention. (Gregg v. Ill. Cent. Rld. Co., 147 Ill. 550; P. & P. U. Rly. Co. v. Rolling Stock Co., 49 Am. and Eng. Rld. Cases, 81; Independence Mills Co. v. B.C.R. & N. Rly. Co., 34 N. W. Rep. [Iowa] 320.) We think, however, that the facts of this case fail to show a delivery of the sugar to the plaintiff. It is true that the cars were placed in the proper position for unloading, and that the plaintiff was privileged to proceed to take out the sugar as soon as it pleased to do so. But the cars were so placed on Sunday. They were consumed by fire before business hours on Monday morning. The plaintiff was under no obligation to work on Sunday, nor was it bound to receive goods in the night time, especially as it is not shown that it was accustomed to do so. The property remained in the custody of the railroad company until the plaintiff could reasonably be required to receive it. In the case of L. L. & G. Rld. Co. v. Maris, 16 Kas. 333, it was held, that —
“The extraordinary liability of a railroad company as a carrier of goods extends not merely to the termination of the actual transit of the goods to the place of destination, but also until the consignee has a reasonable time thereafter to inspect the goods, and remove them in the usual hours of business and in the ordinary course of business.”
In the opinion in that case the cases holding a different doctrine are referred to, but the court declined to follow them, deeming the better rule to be the one announced, and also that it was best supported by au thority. We still adhere to the rule laid down by this court, and think it sustained by the best-considered recent cases. (Scheu v. Benedict, 116 N. Y. 510 ; Pindell v. Railway Co., 34 Mo. App. 675 ; Railroad Co. v. Commercial Bank, 123 U. S. 727.) At the time the sugar was burned it was in the cars in which it was placed by the consignor on the track belonging to the defendant, where it was placed by its employees. The plaintiff had never in any manner taken actual charge of it, nor would it in the usual course of business open its warehouse or be ready to receive it until some hours after it was destroyed. It is not claimed that the defendant did actually deliver the sugar out of the cars to plaintiff. It cannot make a constructive delivery except at a time when the plaintiff might reasonably be required to receive it, and that could only be during business hours of a business day, where there was no custom or agreement to receive at any other time.
Ill. Original bills of lading issued by the Texas & Pacific Railway Company to the consignor, under which it is claimed that not only the receiving company but all connecting carriers were exempted from liability for loss by fire, were offered in evidence by the defendant. The court excluded them. We think they-were inadmissible under the pleadings in this case. The allegations of the petition wTere that the sugar was delivered to the defendant by the St. Louis & San Francisco Railway Company at the point of intersection of the railroads at Wichita, to be transported to the plaintiff at Wichita, and that the defendant failed to deliver. The answer consisted, first, of a general denial, and, second, of an allegation that the plaintiff’s loss, if any, occurred by reason of its own negligence. The contract for shipment from New Orleans to Wichita was not mentioned in the pleadings nor drawn in issue in the case. It was, therefore, irrelevant and inadmissible. There is much comment by counsel on the instructions, but we think no other substantial question is presented in the case. Although there would seem to be a very great hardship in imposing on the defendant, which has received but $4 for its services, a liability for a loss of $6,531.25, that liability arises from a rigid but well-established rule of the common law governing the transportation of property by common carriers, which we are not at liberty to abolish or modify.
The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
This was a foreclosure proceeding in which the mortgagors and the second mortgagee were defendants. The court determined that the mortgage first made was a prior, subsisting mortgage, and declared it to be a first lien upon the mortgaged land.
Several objections are made to the rulings of the court, but in them we find nothing of a substantial character, or which is deserving of special comment. There was abundant legal evidence to sustain the finding of the court, and the claim that the amount of recovery was too large is not available for the reason that it was not alleged as a cause for a new trial.
Under the recent act of the legislature a full opinion and syllabus are not required in every case, and are only required to be prepared and published where the decisions will add something to the jurisprudence of the state and are deemed to be of sufficient value for publication. (Laws of 1895, ch. 96, § 16.) The judgment of the district court will be affirmed. | [
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The opinion of the court was delivered by
Martin, C. J. :
The original action was brought by the defendants in error against the plaintiff in error in the court of common pleas, November 14, 1890, to recover upon a promissory note for $3,075, dated July 3, 1886, and payable to the order of S. Kingsbaker & Bros, one day after date, with interest at 6 per cent, per annum. It was indorsed after maturity to the defendants in error, and the plaintiff in error paid interest upon it to July 3, 1889. Louis Kingsbaker was a traveling salesman and a member of the firm of S. Kingsbaker & Bros., of Quincy, Ill., while Getto was a resident of Wichita; and the only defense necessary to mention was in substance that Getto and Louis Kingsbaker agreed to purchase certain lots in Wichita on joint account, the money to be obtained by draft upon S. Kingsbaker & Bros., and Getto was to pay 6 per cent, interest on one-half the amount borrowed, and the title to the property purchased was to be taken in the names of Getto and Louis Kingsbaker, and, when the lots were sold, the money borrowed was to be repaid, and the profits divided equally between Getto and Louis Kingsbaker, and that the note was given as a mere memorandum to show the amount received for Getto’s use, and that the lots had not been sold. There are some further allegations in the answer not supported by the evidence, and which we need not mention. The court ruled that the burden of proof was upon the defendant below, and he was the only witness examined on his own behalf. After the introduction of his evidence, a demurrer thereto was sustained on the ground that no defense to the note had been proved ; and the jury was instructed to return a verdict in favor of the plaintiff below for the amount ■due on the note ; and on .January 15, 1891, judgment was rendered on the verdict for $3,356.85, bearing 6 per cent, interest, and costs of suit. Getto’s evidence was in line with the substance of his answer as above stated. He testified that the understanding with Louis Kingsbaker that the borrowed money should be paid out of the proceeds of the sale of the property was at ■and before the time of the execution of the note, and that it was talked over thereafter on some of the visits ■of Louis Kingsbaker to Wichita, but there was no ■consideration for any subsequent agreement, and Getto did not really testify to any different agreement from that which was first mnáde. He stated that they expected to sell the lots in a short time, and in the spring of 1887 they did make sale of one lot for the sum of $2,500, realizing a profit thereon of $1,250 ; and Getto retained his half of the proceeds, being $1,250. At the same time they were negotiating a sale at $8,000 for the remainder of the property, for which they had paid $5,000, and he wrote to S. Kings-baker & Bros, that he would take up the note if they would send it to the State National Bank at Wichita. The title to the lots was taken in the name of Peter Getto and Louis Kingsbaker.
The evidence may be sufficient to raise the question . whether the date of maturity of the promissory note was extended by the oral agreement between (letto and Louis Kingsbaker, made prior to or concurrently with its execution, so that it would not become due until the lots should be sold, and the plaintiff in error insists that this question ought to have been submitted to the jury on the evidence. The construction of an unambiguous written contract is, however, a matter of law for the court [Warner v. Thompson, 35 Kas. 27), and there is nothing ambiguous about the note in suit. Parol evidence is inadmissible to change the terms of a written contract. All prior or contemporaneous negotiations are presumed to be merged in or concluded by it: (Hopkins v. St. L. & S. F. Rly. Co., 29 Kas 544, 550 ; Willard v. Ostrander, 46 id. 591; Safe and Lock Co. v. Huston, ante, p. 104; 39 Pac. Rep. 1035, 1036, and cases cited.) This rule does not exclude proof of a separate and independent parol contract made contemporaneously with the execution of the written agreement and not inconsistent with it. (Babcock v. Deford, 14 Kas. 408 ; Weeks v. Medler, 20 id. 57, 64.) But the evidence does not take this case out of the general rule, nor bring it within any of its established exceptions. A contemporaneous parol agreement that a promissory note, payable one day after date, shall not become due until certain lots are sold, is not separate from nor independent of the note, but is inconsistent with it.
The decision of the court below might well be sustained on another ground. If a condition had been inserted in the note that it was payable out of the proceeds of the sale of the lots, yet it would have become due in a reasonable time. (Jones v. Eisler, 3 Kas. 184, 139 ; Palmer v. Hummer, 10 id. 464 ; A. T. & S. F. Hid. Co. v. Burlingame Township, 36 id. 628, 633, 634; Smithers v. Junker, 41 Fed. Rep. 101.) And in this case, where the sale of the lots was contemplated by the next spring, and payment had often been requested and even promised, and where part of the property was sold within the time originally contemplated, and Getdo retained half the proceeds, it would be proper for the court to declare that a reasonable time had elapsed between July, 1886, and November, 1890. (Druse v. Wheeler, 20 Mich. 189, 195, 200 ; Johnson v. Agricultural Co., 20 Mo. App. 100; Bottum v. Moore, 13 Daly, 464.)
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J. :
On January 9, 1894, a judgment was rendered by the district court of Wyandotte county against several defendants, among whom were Henton Gordon and his wife, Sally E. Gordon. It was adjudged and decreed that a certain mortgage should be foreclosed, and that the mortgaged real estate should be sold without appraisement in the manner provided by law, and further that the defendants and each of them should be barred and foreclosed of all liens, title, interest or equity of redemption in or upon the real estate to be sold. In the entry of judgment the name of Sally E. Gordon was erroneously included as one of the defendants against whom personal judgment was rendered, but in March, 1894, the error was corrected by striking out her name. On July 10, 1894, an order of sale was issued upon the foreclosure judgment, under which the sheriff was proceeding to advertise and sell the real estate, when Henton Gordon brought this proceeding to enjoin the sheriff from making the sale. A temporary injunction was granted by the probate judge, and -upon motion of the defendants the injunction was dissolved by the order of the district judge, to which 'ruling the plaintiff excepted.
The plaintiff claims that under the redemption laws now in force he is entitled to 18 months after the sale to redeem his property, and he seeks to raise the question whether chapter 109. of the Laws of 1893, providing'for 18 months’ redemption, applies to mortgages executed before the passage of that act. That question ivas not before the court and could not be raised before a sale liad occurred. The judgment appears to be regular in form, and no proceeding in error has been brought to review the same. More than six months had elapsed from the rendition of the judgment before the order of sale was issued, and the correction of the clerical error by striking out the name of Sally E. Gordon did not affect the judgment of foreclosure nor lengthen the time for the stay of sale on account of the waiver of appraisement. In any view of the law the order of sale was duly issued, and it was the duty of the sheriff to make the sale regardless of what statute should be deemed applicable and controlling in the steps to be taken subsequent to the sale. Whether the sheriff after the sale would execute a deed or issue a certificate, as provided in the redemption laws of 1893, was a matter to be determined after the sale had been made and the report thereof made to the court. The plaintiff has no right to assume that the'sheriff or district court will misinterpret the law or violate its provisions. The presumption rather is that the officers will perform the duties devolving upon them and in the manner required by law.
The final objection to the sale is that the judge did not sign the record of the judgment, and therefore no order of sale could issue thereunder. The omission to observe the directory provision of the statute in regard to the signing of the record did not destroy the validity of the judgment nor justify the enjoining of the sale. Judgment affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Owsley, J.:
This is a direct appeal from jury convictions for two counts of aggravated robbery (K.S.A. 21-3427), and one count of unlawful use of a credit card (K.S.A. 21-3729). Defendant Thaddeus Jones has acquiesced in the conviction for unlawful use of a credit card and has limited his appeal to the convictions for aggravated robbery.
On January 27, 1975, two black males entered the LaSheek Hair Fashions beauty salon in Wichita, Kansas. Armed with a knife, one of the men approached the owner of the business, Faye L. Frank, and demanded money. They took a bank bag containing checks and twenty-seven dollars in cash, plus Mrs. Frank’s billfold containing between fifteen and twenty dollars, her checkbook and several credit cards. A patron of the salon was also robbed of a billfold containing five or six dollars and several credit cards.
The next day Jones and James Miller entered Michael’s Mens Wear store in Wichita. They told a salesman they needed some clothing and tried on several items. Eventually several items were selected. A salesman prepared a sales slip for $184.79. Miller presented a Master Charge card for payment. It was one taken in the beauty shop robbery the previous day. Miller said the card was issued to his uncle. As was customary with large credit purchases the salesman telephoned the Master Charge office for verification. Master Charge informed him the card was stolen and called police. Before police arrived at the store, Jones walked out. When police arrived and learned what had transpired they arrested Miller and radioed other officers to pick up Jones. He was apprehended a few minutes later and brought back to the store. Jones denied having been in the store or knowing Miller. Further, he denied any knowledge of the stolen credit card. Jones and Miller were informed of their Miranda rights en route to the police station.
On January 29,1975, Jones was placed in a line-up and the two victims identified him as one of the robbers. Police subsequently determined that his accomplice was not James Miller. Later that day charges were filed against Jones and Dennis Shaw.
I. Severance of Defendants
As his first claim of error defendant Jones states he should have been given a trial separate from codefendant Shaw.
Defendant and Shaw were charged jointly with the two aggravated robberies. Defendant faced the additional count of unlawful use of a credit card. Before trial Shaw moved for a separate trial. His motion was denied. Shaw renewed his motion at the start of trial and it was again denied. Defendant did not join in either motion or present to the court his own motion for severance. The argument has no merit for two reasons.
First, K.S.A. 22-3204 indicates that a trial court may order a separate trial “for any one defendant when requested by such defendant or by the prosecuting attorney.” This defendant did not request a separate trial and thus waived the right to make such a request. (State v. Madden, 90 Kan. 736, 136 Pac. 327.)
Second, 22-3204 does not give a defendant an absolute right to a separate trial, but leaves the matter to the sound discretion of the trial court. The defendant must show actual prejudice. (State v. Sully, 219 Kan. 222, 547 P. 2d 344; State v. Norwood, 217 Kan. 150, 535 P. 2d 996; State v. Cameron & Bentley, 216 Kan. 644, 533 P. 2d 1255.) The only prejudice alleged by defendant was the fact both defendants were black and “evidence as to one black male cannot but prejudice a jury as to another black male being tried at the same time.”
The defendants were tried on offenses which arose out of the same set of circumstances, required the same mode of trial and the same evidence. It was proper for them to be tried together. (State v. Williams & Reynolds, 217 Kan. 400, 403, 536 P. 2d 1395; State v. Ralls, 213 Kan. 249, 257, 515 P. 2d 1205.)
II. Free Transcript
Defendant complains of error because he was not provided with a free transcript of the preliminary hearing.
Defendant has failed to provide this court with a record adequate to review this point. The record contains nothing to indicate a request for transcript was ever made. It is the obligation of the appellant to designate a record sufficient to present his points to this court and to establish the error. (State v. Wilson & Wentworth, 221 Kan. 359, 363, 559 P. 2d 374; State v. Farris, 218 Kan. 136, 542 P. 2d 725.)
Assuming defendant made a motion for a transcript and it was denied by the trial court, he has failed to show his rights were prejudiced. The right of an indigent defendant to have access to a transcript of a prior hearing has been discussed by this court on several occasions. See State v. Jordan, 220 Kan. 110, 551 P.2d 773; State v. Wheeler, 215 Kan. 94, 523 P.2d 722; State v. Greene, 214 Kan. 78, 519 P.2d 651; State v. McVeigh, 213 Kan. 432, 516 P.2d 918; State v. Julian, 212 Kan. 169, 509 P.2d 1123; State v. Kelley, 209 Kan. 699, 498 P.2d 87. These cases recognize that an indigent defendant must be provided with the basic tools for an adequate defense when they are needed and available for a price to other defendants. A transcript of a prior proceeding is one such tool. However, a defendant need not be provided a transcript at the state’s expense if other viable alternatives are available. These include the use of discovery tools, readback of reporter’s notes when the reporter is readily available, and sharing transcripts which are available to the prosecution.
From the state of the record it does not appear defendant explored any of the alternatives which might have been available to him, nor does it appear the failure to provide a free transcript prejudiced his rights.
III. Defendant’s Statement
The day after defendant and James Miller were arrested in Michael’s Mens Wear store, they were placed in a line-up by the Wichita police. The two victims identified defendant as one of the robbers. After the line-up was concluded, defendant motioned to the police officer who conducted the line-up to come over to defendant. The officer walked over to him, whereupon defendant asked the officer if either he or Miller had been identified in the line-up. The officer said, “Yes.” Defendant then stated, “Miller wasn’t with me on the robbery.”
During the course of the trial the court held a Jackson v. Denno hearing outside the presence of the jury. The police officer who conversed with defendant testified and set forth the above conversation. Defendant also testified. He did not deny a conversation took place in the manner described by the officer, but did dispute the substance of his statement. According to him, he told the officer, “Man, what [are] you talking about. You all picked me and James from the line-up; me and James didn’t have nothing to do with it.”
The statement was admitted in evidence and presented to the jury. When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely, voluntarily and intelligently given and admits the statement into evidence at the trial, this court on appeal should accept that determination if it is supported by substantial competent evidence. (State v. Creekmore, 208 Kan. 933, Syl. 2, 495 P. 2d 96; State v. Smith, 216 Kan. 265, Syl. 1, 530 P. 2d 1215.) The trial court’s decision is supported by substantial competent evidence. Defendant had been read his rights and indicated he understood them. The statement was not the product of an interrogation, but resulted from a conversation initiated by defendant. On many occasions this court has stated that statements which are voluntary and spontaneous, and not the result of interrogation, are admissible. (State v. Andrews, 218 Kan. 156, 542 P. 2d 325; State v. Griffin, 217 Kan. 703, 538 P. 2d 720; State v. Wilson, 215 Kan. 28, 523 P. 2d 337; State v. Miles, 213 Kan. 245, 515 P. 2d 742; State v. Nirschl, 208 Kan. 111, 490 P. 2d 917.)
IV. Juror’s Notes
During the course of the trial, the court brought to the attention of counsel, out of the presence of the jury, that he had observed a juror taking notes. The prosecutor indicated to the court that he had also observed another juror taking notes. At the request of the prosecutor the court had the two jurors brought into chambers and advised them that note-taking was not proper and requested they surrender their notes. The jurors did so. The court asked whether any party had a motion to make. Codefendant Shaw’s counsel stated that he didn’t think anyone wanted a mistrial. Defendant’s counsel made no motion or objection to the action of the court at that time or at any other time during trial.
Defendant now argues the trial court committed error by failing to grant a mistrial or instructing the jury in some manner. The argument is without merit. First, defendant did not object to the court’s conduct. Timely objection is required to preserve a point for appeal. (State v. Faulkner, 220 Kan. 153, 158, 551 P. 2d 1247, and cases cited therein.) In any event, the fact a juror takes notes during trial does not create error per se; a defendant must show that there has been prejudice of his substantial rights. (State v. Home, 215 Kan. 448, 524 P. 2d 697; State v. Jackson, 201 Kan. 795, 443 P. 2d 279, cert. denied, 394 U.S. 908, 22 L. Ed. 2d 219, 89 S. Ct. 1019.) Defendant does not show any prejudice and since the jurors did not have the notes they had taken, defendant’s rights could not have been affected in jury deliberations.
V/ Admission of Codefendant’s Statements
The state used a police detective to relate to the jury a conversation between codefendant Dennis Shaw and Sheila Trotter. Ms. Trotter was present in the courtroom at the time the detective related the conversation. According to Ms. Trotter’s story, Shaw came to her house and asked her to provide him with an alibi for January 27, during the time of the robbery. The detective stated that Shaw told Ms. Trotter he (Shaw) and Jones had committed the LaSheek robberies. Immediately after the detective related this statement to the jury implicating Jones, the prosecutor asked if counsel could approach the bench. The trial court granted the request and excused the jury for their afternoon recess. Thereupon the court moved the conference to chambers. There the prosecutor informed the court that the witness had commented on a statement made by one defendant which implicated a codefendant. The prosecutor wanted to speak with the witness, apparently to admonish him to stay away from such conversations. The trial court noted that no objection had been made by either defendant. Defendant Jones’ counsel then stated, “About what— no objection about what? I mean, I haven’t heard anything like that before.” He then asked the court reporter to read back the statement of the witness. After detailed discussion court and counsel agreed it was hearsay as to Jones, but not as to Shaw. The court then stated that although the statement had completely slipped by Jones’ counsel, the court would admonish the jury to disregard the statement. Counsel stated he would rather that not be done because it would only draw attention of the jury to the statement. At that point the court reconvened. The jury was not admonished. It does not appear from the record that the statement was again brought before the jury.
Defendant now alleges the jury should have been admonished to disregard the statement. This specification of error has no merit. While the statement was inadmissible because it was hearsay and violated the confrontation rule (State v. Mims, 220 Kan. 726, 732-33, 556 P. 2d 387; State v. Oliphant, 210 Kan. 451, 502 P. 2d 626; Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620), defendant failed to make an objection contemporaneous with the introduction of the erroneous evidence and we cannot review the error. (K.S.A. 60-404; State v. Andrews, supra.) This is true even though the evidence introduced. infringes upon defendant’s constitutional rights. (See, State v. Fisher, 222 Kan. 76, 563 P.2d 1012.)
VI. Motion for Acquittal
As his last specification of trial error defendant asserts he should have been discharged at the conclusion of the state’s evidence. He argues the evidence is insufficient to sustain a conviction.
A motion for acquittal is tested by the rule stated in State v. Gustin, 212 Kan. 475, 510 P. 2d 1290:
“A trial judge in passing upon 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, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion.” (Syl. 3.)
The evidence in this case consisted primarily of defendant’s possession of a recently stolen credit card, his statement to police after the line-up, and the identification of two eyewitnesses who were victims in the robberies. Defendant argues the evidence was insufficient by attacking inconsistencies in the testimony of these victims. Reconciling inconsistencies and assigning weight to be given testimony is a job for the jury, not this court. We conclude the evidence was sufficient for a reasonable mind to find guilt beyond a reasonable doubt. The trial court did not err in overruling defendant’s motion.
VII. Motion for New Trial
After defendant had been sentenced and while his case was on appeal to this court, he made a motion for new trial based upon newly discovered evidence. The appeal was stayed and the case was remanded to Sedgwick District Court for a hearing on the motion. Evidence was heard and the motion was overruled. The appeal was reinstated.
Defendant argues the court erred in overruling his motion for a new trial. The evidence consisted of a letter written and sent to defendant’s counsel by convicted codefendant, Dennis Shaw. The letter stated that Shaw had committed the robberies, but Jones was not the accomplice. Shaw said he enlisted a person by the name of Robert Marks of Denver, Colorado, to assist him in the robberies-. Marks supposedly came to Wichita, helped Shaw commit the crimes and immediately left town, never contacting Shaw again. Shaw indicated he did not tell the story earlier because he felt the state’s evidence was too weak to convict.
After conviction, Shaw felt guilty about his silence and thought he should come forward. He contacted a priest at the Hutchinson Reformatory where he was incarcerated, and the priest advised him to write the letter.
The priest testified at the hearing on the motion. While he could not testify as to whether Shaw was telling the truth about Robert Marks, he did state Shaw was suffering from some sort of spiritual problem.
The trial court overruled the motion for new trial on the basis that the evidence, if heard by the jury, would not have produced a different result at trial. It concluded the evidence against Jones, particularly the positive identification by the witnesses, would have sustained the jury’s verdict even if it had heard Shaw’s story about Robert Marks. The court noted, however, that the problem would have been different if Jones had written the letter because the identification of Shaw was much weaker. The decision of the trial court must be supported on appeal unless it is shown the court abused its discretion. (State v. Wright, 221 Kan. 132, 557 P. 2d 1267; State v. Campbell, 207 Kan. 152, 483 P. 2d 495.)
The question before the trial court was whether the evidence would have produced a different result at trial had the jurors been told the story before they deliberated and decided the case. (State v. Larkin, 212 Kan. 158, 510 P. 2d 123; State v. Green, 211 Kan. 887, 508 P. 2d 883; State v. Hale, 206 Kan. 521, 479 P. 2d 902.)
In State v. Rincones, 209 Kan. 176, 495 P. 2d 1019, an inmate of the penitentiary at Lansing, one Junior Oscar Burns, wrote a letter stating he had committed the crime for which Ray Rincones had been convicted and incarcerated. The trial judge examined the trial transcript and the testimony of Burns and oyerruled the motion. This court affirmed the trial court stating that such motions should be granted with “great caution.”
It is apparent the trial court did not believe Shaw’s story would have swayed the jury to the point it would disregard the physical evidence in the case, as well as the two eyewitness identifications and defendant’s statement. The trial court did not abuse its discretion.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
A jury convicted Terry B. Brooks of four counts of kidnapping in violation of K.S.A. 21-3420, and two counts of aggravated robbery in violation of K.S.A. 21-3427. Concurrent sentences of not less than 15 years nor more than life imprisonment were imposed. Brooks appeals.
Several issues are presented, the primary question being the propriety of the action of the trial court in admitting evidence of defendant’s prior aggravated robbery conviction pursuant to K.S.A. 60-455.
The Pruitt Hardware and Garden Center in Wichita was the scene of criminal activity on the afternoon of July 19, 1975. Present in the store were the owner, John Pruitt, and two clerks, both high school girls. Three young black men entered the store and shortly thereafter two of the men brandished hand guns. One of the robbers ordered the girls to the rear of the store, forced them to lie down, and bound each one hand and foot with refrigeration tape. Pruitt was clubbed with a revolver and knocked to the floor, and then was pulled over to the cash register and ordered to open it. One of the robbers put the money from the register into a brown paper sack. Next, Pruitt was taken to the rest room, caused to lie on the floor, and taped hand and foot. A customer who entered the store was knocked to the floor, clubbed and kicked, tied with tape, and relieved of his billfold, from which nine dollars was taken.
As soon as the robbers left, Pruitt freed himself and ran outside in time to see four black men leaving the store parking lot in a white Chrysler Imperial. Pruitt, bleeding profusely from head wounds, alerted a police officer who was nearby. He gave chase and caught the Chrysler. The four occupants, one of whom was the defendant, were taken into custody. One revolver and one automatic pistol were removed from the Chrysler. The money recovered, including funds on defendant’s person, approximated the amount believed taken in the robbery. When the get-away car was stopped, defendant was in the left rear seat. A pair of sandals, identified as having been worn by one of the robbers, was found on the left rear floor of the car.
Two of the occupants of the car, Taylor and Manns, made oral statements to the police. They said that all four men, Taylor, Manns, Jenkins and defendant Brooks, planned the robbery. Manns, Jenkins and Brooks went in the store and robbed it while Taylor stayed in his car. Taylor was driving when the vehicle was stopped.
All four men were charged jointly with kidnapping and robbery. Taylor, Manns and Jenkins entered pleas of guilty on the day before trial was to commence; Brooks alone stood trial. The state was granted leave to endorse the names of Taylor, Manns and Jenkins as witnesses on the morning of trial. Taylor and Manns were called as witnesses by the state; both repudiated the statements attributed to them, and both testified that Brooks was asleep in the car during the planning stage as well as during the time the robbery took place. Both said that Brooks remained asleep in the car while Manns, Taylor and Jenkins entered the store. Detectives testified as to the earlier statements made by Taylor and Manns, implicating Brooks. Brooks did not testify. Neither Pruitt, the clerks, nor the customer could identify Brooks as having been inside the store when the robbery was committed.
Upon this state of the record, the prosecution sought to introduce evidence of defendant’s prior aggravated robbery conviction. After hearing the proffered testimony in the absence of the jury, in conformity with the rule stated in State v. Bly, 215 Kan. 168, 176, 523 P.2d 397, the trial court held the evidence admissible for the purpose of determining intent, knowledge, or absence of mistake or accident. The testimony was then repeated in the presence of the jury, and the court admonished the jury to consider it only for the limited purposes stated.
Brooks contends this was error in that intent and knowledge were not made issues in the case by the defendant, and that these would not have been issues had the state not introduced the testimony of the co-defendants. We disagree.
A criminal intent is an essential element of every crime defined by the Kansas Criminal Code. K.S.A. 21-3201. Further, while a specific intent (to deprive the owner permanently of his property) is not an essential element of the crime of robbery or aggravated robbery, State v. Thompson and Pennington, 221 Kan. 165, 558 P.2d 1079, a specific intent is an essential element of kidnapping. K.S.A. 21-3420 (a), (b), (c) and (d); K.S.A. 21-3421. The defendant’s plea of not guilty puts in issue every essential element of the charge, including the question of intent or guilty knowledge. 22 C.J.S., Criminal Law, sec. 454, pp. 1268-1269; 21 Am. Jur. 2d, Criminal Law, sec. 467, pp. 462-463. The existence of charge and plea, alone, does not justify the receipt of evidence of other crimes under K.S.A. 60-455. There must be a substantial issue, under the evidence adduced, to justify the reception of this evidence; otherwise it should be excluded. State v. Faulkner, 220 Kan. 153, 551 P.2d 1247; State v. Bly, supra, p. 176.
The evidence before the jury in this case showed that Brooks was in the car with the robbers before and after the robbery was committed. His presence in the car was conceded but his intent in being there was in question. Whether he actively planned and participated in the offense, or whether he was simply a sleeping traveler, was an issue for the jury to determine. Intent and knowledge were thus very much at issue, and we hold that evidence that defendant had recently committed a similar crime in a nearby location was properly received in evidence under the limiting instructions given.
Defendant next argues that the acts he allegedly committed do not constitute kidnapping within the statutory definition, as interpreted by this court in State v. Buggs, 219 Kan. 203, 547 P.2d 720, and thus the trial court erred in failing to grant his motion for acquittal at the close of the state’s evidence, and his motion for a new trial. The statute reads in pertinent part as follows:
K.S.A. 21-3420. “Kidnapping is the taking or confining of any person, accomplished by force, . . . with the intent to hold such person:
“(b) To facilitate flight or the commission of any crime . . .”
In Buggs, we said:
“We . . . hold that if 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 ndt be slight, inconsequential and merely incidental to the other crime;
“(b) Must ndt be cf 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.
“For example: A standstill robbery on the street is ndt a kidnapping; the forced removal of the victim to a dark alley for robbery is. The removal of a rape victim from room to room within a dwelling solely for the convenience and comfort of the rapist is not a kidnapping; the removal from a public place to a place of seclusion is. The forced direction of a store clerk to cross the store to open a cash register is not a kidnapping; locking him in a cooler to facilitate escape is. The list is ndt meant to be exhaustive, and may be subject to some qualification when actual cases arise; it nevertheless is illustrative of our holding.” (p. 216.)
We held in Buggs that the offense of robbery could have been committed where the victims were first confronted by the robbers: outside the building. But the victims were forced to unlock the door and to return to the relative seclusion of the inside of the store, and this, we held, was a taking and confinement to facilitate the robbery and rape.
Here, three occupants were herded to the rear of the store, placed on the floor, and bound with tape. The fourth was bound and left confined in the rest room. Such acts were not a necessary incident to or part of the crime of aggravated robbery. That offense could have been completed without any movement or restraint of the occupants of the store.
Moving the victims to places where they could not see or be seen, and binding them so that they could not follow the robbers or give alarm, were actions taken to facilitate escape and avoid detection. Under the principles set forth in Buggs, we hold that kidnapping was established by the evidence here, and the trial court did not err in overruling the motions.
We have carefully considered the other points raised and find them largely repetitive and without merit.
The judgment is affirmed. | [
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Prager, J.
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The opinion of the court was delivered by
Fatzer, C. J.:
This is an appeal by the plaintiff, Jarrold Ayers, in a civil action for battery from a judgment in favor of the defendant, Todd Christiansen.
The events giving rise to this action occurred on the evening of December 9, 1973, at a delicatessen and tavern known as the Leather Ball in Pittsburg, Kansas. The plaintiff-appellant was a bartender and waiter; the defendant-appellee was a patron. An incident developed during which the defendant struck the plaintiff in the face with a beer glass. The plaintiff subsequently lost his left eye. The police investigated the incident, but no criminal charges were filed. The plaintiff brought a civil action for $200,000 actual damages and $100,000 punitive damages. The defendant’s evidence was to the effect that he struck the plaintiff in self-defense to repel an assault initiated by the plaintiff. The jury returned a verdict for the defendant, and the plaintiff has appealed.
The appellant’s first specification of error is that the pretrial order of the district court prohibiting reference to a lack of criminal prosecution was violated by defense counsel during his opening statement and during his examination of witnesses.
On October 17, 1974, the plaintiff filed a motion in limine seeking to exclude any reference to the fact that the defendant had not been criminally prosecuted. The district court sustained the motion on October 21,1974, the day before trial commenced. The district court ordered that the defendant’s attorney was prohibited from asking questions of any witness or making any reference to a lack of criminal prosecution for the incident civilly complained of.
In his opening statement to the jury, the defendant’s counsel stated:
“The evidence will be from the police officers, et cetera, that this was an instantaneous proceeding of getting hit and the reaction of hitting back. . . . [The defendant’s] evidence will be that at no time did he attempt to leave the scene, and that he went to the police station as requested. . . . He stayed at the police station until approximately 3:00 o’clock that morning, and that he had no further contact with this matter until this lawsuit was filed.”
Following the defendant’s opening statement, plaintiff’s attorney moved for mistrial contending counsel’s comments had violated the district court’s order on plaintiff’s motion in limine. The district court noted that he had heard no reference to criminal prosecution and said he didn’t think the comments of counsel necessarily related to criminal prosecution by innuendo. The court took the motion for mistrial under advisement, and the trial proceeded.
The appellant contends the trial testimony of two witnesses also violated the exclusionary order made pursuant to the order in limine. A police investigator, Floyd Bradley, testified that after the evening of the occurrence, he conducted no further investigation into the matter. The defendant testified in his own behalf and was asked the following question:
“After leaving, did you have any further contact with the investigation of this matter?”
The defendant answered:
“No, sir. After we left at 3:00 o’clock, I never heard anything else about the incident at all.”
In his motion for new trial, the appellant again raised the point about violation of the pretrial order pursuant to his motion in limine. The district court denied the motion for new trial and the motion for mistrial it had taken under advisement. This ruling was essentially a fact determination within the sound discretion of the district court. We cannot say that the court abused its discretion in finding the pretrial exclusionary order made pursuant to plaintiff’s motion in limine was not violated.
The appellant’s second specification of error is that the defendant’s counsel was guilty of prejudicial misconduct in suggesting to the jury that the defendant was uninsured. The conduct to which the appellant refers occurred in defense counsel’s opening statement and in his questioning of the defendant. Pertinent parts of the opening statement follow:
“[Mr. White, defendant’s attorney]: . . . There are things about this case that enable me to likewise tell you that Mr. Christiansen is here in court defending himself on his own. No one is providing any fees or expenses for him.
“Mr Fleming: Judge, I object to that. That is totally improper.
“The Court: Sustained.
“Mr. White: If the Court please, I am entitled to explain the financial circumstances of this man.
“Mr. Fleming: Only for the purpose of touching on punitive damages.
“The Court: I think you are, but I think your statement was an improper statement.
“Mr White: The evidence will be that . . . any payments that are made in this instance on damages are his to make.
“Mr. Fleming: To which I object, Your Honor. This is improper. He is getting close to a mistrial. The only time his financial condition comes into play is in awarding punitive damages. You have already decided that.
“The Court: That is what he is discussing.
“Mr. Fleming: He is saying that they shall consider that in awarding damages.
“Mr. White: If the Court please, I doubt if it is appropriate at this time to discuss all the ins and outs of actual and punitive damages. Those will be covered in the Court’s instructions.
“The Court: I think that is true.”
K.S.A. 60-454 provides:
“Evidence that a person was, at the time a harm was suffered by another, insured wholly or partially against loss arising from liability for that harm is inadmissible as tending to prove negligence or other wrongdoing.”
It will be noted the statute does not speak to the situation now before this court — the admissibility of evidence that a person was not insured. Nevertheless, the weight of authority appears to be that evidence of no insurance or evidence of insurance is equally inadmissible on the issue of fault. See Annot., 4 ALR 2d 761 (1949). Rule 411 of the Federal Rules of Evidence makes evidence that a person was or was not insured against liability inadmissible upon the issue of whether he acted negligently or otherwise wrongly. The Advisory Committee Notes following Rule 411 state:
“The courts have with substantial unanimity rejected evidence of liability insurance for the purpose of proving fault, and the absence of liability insurance as proof of lack of fault.”
This general rule is bottomed in considerations of relevancy, probative value and prejudice. The inference of fault from the fact of insurance coverage is a tenuous one, as is its converse. Even more importantly, knowledge of the presence or absence of liability insurance may very well induce juries to decide cases on improper grounds. Fed. R. Evid. 411, Advisory Committee Notes; McCormick, Evidence, Sec. 168. In Stephenson v. Steinhauer, 188 F. 2d 432, 438 (8th Cir. 1951), it was said:
“. . . ‘The consideration as to whether or not the defendants are insured is entirely foreign to the question of negligence; but the fact must be conceded to have a bearing upon the interest of the defendants in the outcome, and to belong to that class of matter which it is proper ordinarily for the jury to consider in weighing the testimony of witnesses. Yet the disadvantage due to its prejudicial tendency is supposed to outweigh the value of the evidence as affecting the credibility and it is for this reason excluded.’ ”
In Bott v. Wendler, 203 Kan. 212, 453 P. 2d 100, we said:
“This court frowns on the practice of using one means or another to suggest to the jury that the defendant is covered by liability insurance. . . . Evidence tending to show that the defendant is covered by liability insurance is generally inadmissible because (1) it is usually irrelevant to any of the issues in the case, and (2) it may tend to influence jurors to find against defendants or to bring in excessive verdicts.”Id. at 226, 453 P.2d at 111.
But exceptions to the general rule forbidding admission of evidence concerning the presence or absence of liability insurance have been recognized where evidence of insurance was relevant to some issue other than proving fault or lack thereof. Dicks v. Cleaver, 433 F. 2d 248 (5th Cir. 1970), recognized that the general rule must give way on occasions where the fact of insurance has arguably an independent, substantive evidentiary relevance. Bott v. Wendler, supra, recognized the general rule is qualified by a number of exceptions, and where the fact of insurance is relevant to issues in the case, it can be shown. Rule 411 of the Federal Rules of Evidence expressly recognizes some of these exceptions:
“. . . [Pjroof of agency, ownership, or control, or bias or prejudice of a witness.”
In the instant case, the parties agreed that the defendant’s financial circumstances were relevant and admissible on the issue of punitive damages. In the discussion on plaintiff’s motion for mistrial following the defendant’s opening statement, the court stated:
“. . . On the punitive damage issue, if the evidence is admissible, it goes before the jury, and if it is admissible, he has a right to state it in opening statement, and I think we have all agreed his financial condition is admissible as bearing on punitive damages.”
Note, Survey of Tort Damages, 14 Washburn L.J. 466, 477 (1975) observes that there are no fixed rules by which the amount of punitive damages is to be measured. Juries should consider the nature, extent and enormity of the wrong, the intent of the party committing it, and generally, all circumstances attending the particular transaction, including any mitigating circumstances which may operate to reduce damages. Among things which can be considered are the amount of actual damages recovered, defendant’s financial condition (Witte v. Hutchins, 135 Kan. 776, Syl. 3, 12 P. 2d 724; Winans v. Chapman, 104 Kan. 664, Syl. 1, 180 Pac. 266; Townsend v. Seefeld, 102 Kan. 302, Syl. 5, 169 Pac. 1157) and the litigation’s probable expenses.
Here, the plaintiff sought punitive damages. The liability and damage issues were tried together. Evidence of the defendant’s financial condition — of which insurance was a part — was relevant to punitive damages. The jury was instructed that evidence of the defendant’s financial circumstances could be considered by them in determining the amount of any punitive damages awarded, but not in awarding actual damages. Under the facts and circumstances of the instant case, we hold that the indirect references made to insurance do not constitute reversible error.
Our decision on the foregoing two points controls other arguments the appellant raises, and it is unnecessary to discuss them.
The judgment is affirmed.
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The opinion of the court was delivered by
AlleN, J.:
Mary Nelson filed her claim in the probate court of Brown county against the estate of Elof Peterson for $3,720. The claim was allowed by the probate court. Upon appeal to the district court, a demurrer to plaintiff’s evidence was sustained and the claim denied. The court overruled plaintiff’s motion for a new trial. From these orders and judgments the plaintiff, Mary Nelson, appeals.
Elof Peterson died single, intestate and without issue on March 19, 1936, in Brown co.unty. His only heirs were his brothers and sisters and certain nephews and nieces. In 1902 Elof and his brother Carl, who was also a bachelor, were living on a farm in Brown county. The farm was owned by Elof. Mary Nelson, a married sister, was living in New York. Her husband had died, leaving her with five children. In that year Mary Nelson, bringing her children, came to the home of her brother Elof. The oldest child was twelve, and the youngest was three years of age. Later another child was born. The evidence is conflicting as to how long the children made their home with their mother, as to how much work they did about the farm or when they left.
Mary Nelson made her home with her brother, Elof Peterson, from the fall of 1902 until his death in the spring of 1936. Her claim against the estate of Elof is for services as housekeeper during .that time and in the sum of $3,720.
The sole question is whether the plaintiff is entitled to recover for the services rendered.
The questions of law involved are well settled.
First: The judgment in favor of defendants was rendered upon a demurrer to the evidence of the plaintiff. In considering a demurrer to the evidence the court takes into consideration only those facts and reasonable inferences therefrom which are favorable to the party adducing them, and not facts or inferences favorable to the party demurring. (Tilden v. Ash, 145 Kan. 909, 67 P. 2d 614; Mayse v. Grieves, 124 Kan. 754, 262 Pac. 541.)
Second: Ordinarily if a person renders services to another at the request of or with the knowledge of the recipient, there is an inference that the recipient agrees to pay therefor; the inference may, however, be rebutted by the existence of a close family relationship between the parties. The rule is thus expressed in Ayres v. Hull, 5 Kan. 419:
“It may be stated as a general principle of almost universal application that when one person does work for another, with the knowledge and approbation of that other, the law will imply a promise on the part of the person benefited thereby to make a reasonable compensation therefor. But, if the relation of the parties is such as to show some other inducement than a pecuniary one for the labor, then the law will not imply a promise to pay for such services. As where a daughter remains in the family of her father after her majority, performing her share of the ordinary labors of the household and receives in return her maintenance, and the comfort and protection of the family relations, she will, in the absence of proof of some other understanding, be presumed to have done the work gratuitously, and without the expectation of pecuniary reward.” (p. 421.)
Third: The express contract required to support the claim of the plaintiff may be established in the manner stated in Griffith v. Robertson, 73 Kan. 666, 85 Pac. 748:
“Before a daughter can recover from the estate of her deceased mother for services rendered while residing with, and as a part of, her mother’s family, it must be shown that an express contract existed between herself and mother that such services should be paid for. It is not essential that the evidence in support of such express contract shall consist of a formal offer and acceptance; it may be established like other disputed facts by any competent testimony.”
With these principles in mind we pass to the evidence. It is not denied that Mary Nelson resided in the home of her brother, Elof Peterson, from 1902 until 1936; that she performed the ordinary services of housekeeper; that she was faithful and efficient in the discharge of these duties. It is admitted that she received and enjoyed the benefits of the home of her brother Elof during all those years; that she also had the benefit of the home for her six small children until they grew up and were able to make their own way. The record fails to show any promise or understanding that she would receive wages in addition to the benefits of the home. There was no evidence of any bargain or agreement at the time she came from New York.
Carl Peterson, the bachelor brother, lived at the home of Elof and was present at the death of Elof. Carl testified he never heard his sister make a demand on Elof for wages and never heard Elof promise to pay wages to Mary; nor did he hear Elof say who was to get the farm at his death.
Joe Schmitt is a son-in-law of Mary Nelson. He had visited the place of Elof Peterson about twice a week for twenty-five years. He recalled a conversation between Elof and Mary about ten or fifteen years ago in which Mary told her brother Elof she would have to have some clothes to wear; Elof replied that "he couldn’t buy her any, he didn’t have any money.” At another time, some five or six years before Elof’s death, this witness heard Elof say, “I am going to have to leave my farm to them; . . . I want to see that the two old people are taken care of.” He also testified to a similar remark made by Elof about three hours before he died. Similar testimony was given by several other relatives of the plaintiff. Giving the plaintiff the benefit of every fact established by the evidence, and of every inference to be legitimately deduced therefrom, we think the trial court was justified in sustaining the demurrer to the evidence. In order to recover for the services, the plaintiff must affirmatively show either an express contract for remuneration existed, or that the circumstances under which the services were rendered were such as exhibited a reasonable and proper expectation that there would be compensation. (Wyley v. Bull, 41 Kan. 206, 20 Pac. 855; Robinson v. Johnson, 119 Kan. 639, 240 Pac. 962; Sherman v. Davidson, 123 Kan; 69, 254 Pac. 351; In re Erickson, 123 Kan. 491, 255 Pac. 1108; Johnson v. Lander, 140 Kan. 329, 36 P. 2d 1006.) As the evidence submitted on the part of the plaintiff failed to meet these requirements, the judgment of the trial court must be affirmed. It is so ordered.
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The opinion of the court was delivered by
Wedell, J.:
This was an action to cancel a deed and to quiet title. Cancellation was sought on the ground the deed was procured by reason of the mental incapacity of the grantor and the undue influence, coercion and fraud of the grantee and her husband. Defendants prevailed, and plaintiff appeals.
Franciska Horejsi, deceased, was the grantor. The defendant, Bertha Horejsi, a daughter of the deceased, was the grantee. The defendant H. A. Horejsi is the husband of the grantee. The defendant John Steiner is the executor of the estate of the deceased, and the defendant D. H. Kottman is a holder of a mortgage executed by the grantee. In order to relieve the mind of the reader it may be well to state at the outset that, in view of the restricted issues on appeal, the relation of the parties is of little, if any, consequence except as a matter of general interest in the circumstances.
The jury by its special answers resolved all questions of mental incapacity of the grantor and all questions of undue influence, fraud or coercion in favor of the defendant grantee. Those findings the trial court adopted, and there is competent substantial evidence to support the same.
The appellant complains concerning undue restriction in the examination of certain of his witnesses, and also as to alleged improper exclusion of certain evidence which was stricken out'and which the jury was admonished not to consider. We have reviewed the record as to each of these complaints. It is unnecessary to detail the evidence and attendant circumstances. While there might be a little occasion for argument as to a few of the rulings, in the main the rulings were proper. No showing, however, was made as required by law on motion for a new trial as to what certain of the testimony would have shown, had it been admitted (G. S. 1935, 60-3004), nor was it otherwise made a part of the record, .and of course, such rulings are not reviewable. (Elliott v. Oil Co., 106 Kan. 248, 251, 187 Pac. 692; State v. Ball, 110 Kan. 428, 432, 204 Pac. 701; State, ex rel., v. Wright, 140 Kan. 679, 683, 58 P. 2d 125.)
Complaint is made on the ground the following nonprofessional testimony was stricken:
“Q. Was she capable of understanding the nature of a contract or deed of conveyance? A. I don’t think so.
“Mr. Danner: Well, we object to this as leading and suggestive.
“The Court: The last part of that is sustained, as to deed or conveyance. The jury will disregard that part of the question and answer.”
In Coblentz v. Putifer, 87 Kan. 719, 125 Pac. 30, it was held:
“While medical experts may properly answer whether in their opinion from the conditions shown by a proper hypothetical question a person was of unsound mind, it is not competent for them to give an opinion as to whether such person had sufficient mental capacity to make a deed in controversy. Capacity to make a deed is a mixed question of law and fact for the jury to determine on proper evidence and instructions, and not for witnesses to decide.” (Syl. If 1.)
In Brown v. Brown, 96 Kan. 510, 152 Pac. 646, it was held:
i'The rule that a witness may not give a mere abstract statement that in his opinion a person was or was not capable of making a particular contract applies to nonprofessional testimony based upon personal association, as well as to that of medical experts, in reply to hypothetical questions.” (Syl. If 3.)
Appellant urges there is a distinction between the question propounded in the instant case and those contained in the cited cases. He insists the question in the Coblentz case was whether the party was “capable” of making a contract, and in the Brown case whether the party was “capable” of making the deed in controversy, while in the instant case the question was whether the grantor was “capable of understanding the nature of a contract or deed of conveyance.”
We fail to see a substantial distinction, in principle, between the opinion attempted to be elicited in the instant case and those attempted to be obtained in the cases cited. In the Coblentz case the question was whether the deceased had “sufficient mental capacity to make a deed in controversy,” and in the Brown case the question was whether the person was “capable of making a particular contract.” Here the question is whether the deceased “was capable of understanding the nature of a contract or deed of conveyance.” Appellant also contends the objection was not made on the ground the question called for a conclusion, but only because it was leading and suggestive. One difficulty with the entire complaint is that appellant’s substantial rights are in no wise shown to have been prejudiced by the ruling. Under such circumstances this court cannot reverse the judgment. (G. S. 1935, 60-3317.) See Funk v. Fish, 122 Kan. 294, 301, 252 Pac. 256, where certain testimony was excluded and testimony of similar import was admitted. In the instant case the witness had just previously been permitted to testify concerning the deceased as follows:
“She didn’t reply when my wife talked to her, and in my opinion she was feebleminded and not capable' of transacting ordinary business.”
That testimony was competent (Funk v. Fish, supra), and appellant had the full benefit of it. Assuming the proper reason was not stated in the objection to the other testimony, it still follows no prejudice is shown to have resulted from the ruling thereon.
Appellant directs our attention to the handwriting of the deceased contained on various documents and refers to what was said on the subject of manifest peculiarity in the handwriting of the deceased in the case of Gibbons v. Redmond, 142 Kan. 417, 49 P. 2d 1035. What was there said cannot properly be construed as constituting an independent finding of this court that the handwriting disclosed the testator was of unsound mind. It was intended to show there was ample evidence to support the deductions made by the witness who testified as a handwriting expert and other witnesses whose testi mony pertained to the mental condition of the testator. The trial court had there found the testator was of unsound mind, and the questions before this court were the competency of the testimony of a handwriting expert concerning those peculiarities, and whether there was substantial evidence to support the finding the testator was of unsound mind. Here the finding was the grantor had sufficient mental capacity to make the deed and that she was capable of understanding the nature and effect of the several instruments she had signed. The question of peculiarity of handwriting was one of the proper subjects for consideration in arriving at the finding of competency. The finding is supported by competent substantial evidence and hence we cannot disturb it.
It is also suggested the conduct of the trial court in restricting part of the examination resulted in discrediting a witness. In view of the entire record, we think the statement is too strong. A trial court must of necessity be vested with considerable discretion in such matters, and unless the discretion is abused we obviously cannot disturb the judgment. Moreover, what was previously said concerning failure to produce such testimony on motion for new trial applies here with equal force. In the absence of such excluded testimony in the record, we cannot say the exclusion thereof discredited or tended to discredit the witness. Were the evidence before us we might think the admission of it would have tended to discredit the witness. In view of what has been said, it follows the judgment must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Allen, J.:
The plaintiff brought an action for separate maintenance against her husband, David L. Overbay. The defendant filed a cross petition asking for a divorce from the plaintiff on the ground of extreme cruelty and gross neglect of duty. A divorce was granted the defendant and a division of the property was directed. This appeal is from that judgment.
It is contended that the testimony is insufficient to support the judgment granting the divorce. The parties were married in 1925. No children were born of this marriage. The plaintiff whs several years older than the defendant. The plaintiff had three children by a former husband, aged seven, five and three at the date of the marriage.
The evidence tended to show that the children of plaintiff were unruly, and that plaintiff could not or would not control them, nor would she permit the defendant to correct them in any manner; that the plaintiff made many attempts to > have the defendant arrested by the officers of the police department because defendant attempted to correct the children when they were conducting themselves in an improper manner. There was testimony that the police officers were called to the home, of defendant on many occasions, but that at no time was the defendant arrested; that the children would steal things and get into various kinds of trouble; that the second boy had been arrested about a dozen times, and was in fact in jail at the time of the trial. It was further shown that the parties had been separated seven times because of these differences over the children.
The chief of police testified:
“Q. Do you remember whether you or your police force were called out to the home of Mr. Overbay at different times by anyone to quell disturbances? A. Yes, sir; they were called out several times; I was out several times myself and the boys went out several times.
“Q. When you went yourself, tell the court what your finding was or what you found when you got there in regard to Mr. Overbay’s conduct. A. Well, it was practically all trouble over the children. They separated once there when they lived on South Grant and I was out there. They was separated and Dave was going to leave and they were talking about dividing up and taking his chickens, and I persuaded him to leave the chickens, and I tried to get them to go back together, but there was no show for that, and I told them if I couldn’t live a different life than they were living, I would try some way to divide up and settle up; it was no use living that way. We got tired of going out there. We were out there time after time, and almost every time it was over the children. On South Grant, I believe it was, somewhere in the neighborhood of the 1200 block, I believe that was the last time I was out— it was trouble over the boy — no, over the girl at that time, and Dave was trying to correct her. I told Mrs. Overbay I thought she was wrong; that she ought to listen to Mr. Overbay, and I wasn’t trying to take sides one way or the other, but was trying to keep them together, and I told Mrs. Overbay I thought she was wrong; that Mr. Overbay was right; that he should have something to say about the children, but it was no use, so we left them still quarreling.”
There was testimony that plaintiff frequented night clubs and beer parlors and neglected her husband and children. On one occasion defendant returned home from his work unexpectedly at 10:30 in the evening and found his wife away. He, in company with a neighbor, found her at a night club. She hardly knew the defendant and refused to return home with him. She attempted to excuse this conduct by stating that she was in the company of defendant’s brother or father. It was also shown that defendant turned over his pay checks to the plaintiff; that she was buying a home through a building and loan association; that she permitted the payments to become in arrears for seven months, and the property was conveyed to the building and loan association. At one time she gave a check when there were no funds in the bank, and the police were sent to the home to investigate the matter; the defendant made the check good.
It appears that the plaintiff had an uncontrollable temper and excitable disposition; that when the defendant returned home from his work the night of the final separation, the plaintiff had a gun in her hand at the time she was talking to the defendant. Plaintiff testified that she was not faking — -that defendant was not worth killing. As to the incident with the gun, the record shows:
“Q. You drew it on him. A. I didn’t draw it at all. I held the gun in my hand, like that.
“Q. Were you faking? A. No, I wasn’t faking; he isn’t worth killing.”
After a careful examination of all of the evidence in the case we are unable to say the judgment was not supported by sufficient evidence, or that the court committed error in granting a divorce to the defendant. (Miller v. Miller, 128 Kan. 498, 278 Pac. 717.)
Complaint is made concerning the division of the property. The home place was given to the defendant. This property was encumbered for $1,600 or $1,700, and the court remarked at the close of the testimony that “in fact, there might be some question as to whether there is any equity in the property.” The wife was given the household goods and the sum of $300, payable semimonthly. Under the facts disclosed by the testimony, we think this was a fair and just settlement.
Finding no error in the record, the judgment is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
This was an action for recovery of money alleged to be due plaintiffs from defendant Mason growing out of operations under the contract hereafter referred to. From a judgment in favor of defendant Mason the plaintiffs appeal.
Under date of January 7, 1933, plaintiffs and defendant Mason entered into a contract for operating a hatchery business at Lawrence, Kan. So far as is now important, the contract provided that plaintiffs should furnish certain equipment and capital and should have general supervision of the business. Defendant Mason was to operate the business, keep accurate account thereof, and make daily report to the plaintiffs at Ottawa, Kan. Defendant Mason was to furnish a bond of $4,000 to the plaintiffs to indemnify them against any loss occasioned by his failure to properly account for moneys received by him. Provision was made respecting payment of operating expenses, and for monthly audit, and for semiannual settlements. Either party could terminate the contract on thirty days’ notice. For his compensation, defendant Mason was to receive one half the net profits of the business, to be paid him on the specified accounting dates, and he was permitted to draw the sum of $75 per month as an expense account, providing the profits of the business equaled that amount, and the same was to be charged against and considered part of his compensation. He agreed to pay all of his compensation over $75 per month to the plaintiffs until he had paid them $2,250, and in addition one half of the working capital furnished by plaintiffs, and when he had so fully performed he should become owner of one half of the business. The contract further provided:
“It being understood, however, that in ease of the termination of said contract by either party, as hereinbefore provided, and necessary settlement and accounting therefrom, the value of said equipment, stock, fixtures, etc., shall be determined as of the date of said termination.”
In compliance with the contract, defendant Mason procured the requisite bond from the defendant surety company. Operations under the contract continued about one year, when defendant Mason gave notice of cancellation.
In July, 1934, plaintiffs brought their action against the defendants, in which, among other matters, they charged defendant Mason with failing to account for and with embezzling the sum of $636.74, and that claim therefor had been made against the defendant surety company. Defendant answered alleging that the contract was for a joint venture and the parties thereto were partners; that another action was pending between the same parties concerning the same contract and the two actions should be considered together and an accounting had. He denied he owed plaintiffs anything and alleged he had a partial ownership of the partnership property and that upon determination of the partnership interest plaintiffs were indebted to him. He prayed for an accounting and for judgment for the amount found due him on accounting.
At the trial, both of the actions referred to in defendant Mason’s answer were tried together. It was agreed that the audits called for by the contract had been made and were mathematically correct. Plaintiffs concede that for the first accounting period there were net profits and that Mason’s share was $850.90, and that he withdrew $392.67, leaving a balance due him of $57.33 on his $75 per month drawing account for that period, and that he was also entitled to be reimbursed $60 for car expense and $58.50 for boarding laborers. It was also conceded by both parties that during the second accounting period Mason withdrew $574.18, and plaintiffs contend there were no net profits justifying any such withdrawal. Under plaintiff’s theory, defendant Mason was indebted to them in the sum of $472.67.- Defendant Mason claimed the right to withdraw the $574.18, and under his figures, if there were a partnership, he was indebted in the sum only of $71.77, but if there were no partnership, he was not indebted at all and moneys were due him. After hearing some evidence as to various matters arising out of the operations, and after examining the audits, the trial court made its computation, finding there was due to defendant Mason from the plaintiffs the sum of $127.90; that Mason had not wrongfully appropriated any moneys, and that no cause of action had been proved against the defendant surety company. Judgment was rendered accordingly. Plaintiffs’ motion for a new trial was denied and they appeal.
Appellants first insist that the contract did not create a partnership between the parties to it. The trial court did not make its computation on the basis of a partnership, and we shall consider the contract only as being one for employment coupled with a right to purchase an interest in certain property. As appears from the computation hereafter stated, it would make no difference in the final result. Appellants argue that Mason, not having fully paid for a one-half interest in the property, and having of his own volition quit his employment, forfeited any portion of the net earnings otherwise applicable to the payment of the purchase price. To arrive at that conclusion, they argue that the clause of the contract above quoted is meaningless, has nothing to do with the construction of the contract and should -be ignored. The trial court gave effect to the quoted provision and so do we. It is quite evident that it was intended that either party -might withdraw from further operations under the contract by giving requisite notice. And it is quite as evident that in the event of termination by either party, it was not intended that appellants should be allowed to keep the payments of consideration made by Mason, and should not be compelled to account therefor, for there is no clause or provision to that effect. Although the quoted clause was not very complete in its terms, it was included as a part of the contract and must be given effect. We believe that it may reasonably be construed to mean that in event of termination of the contract there was to be an accounting between the parties, which was to include valuation of the property being purchased. There is no claim the property was not as valuable when the accounting was made as when the contract was entered into, and so we assume the value was constant. Although the contract provided that Mason might withdraw $75 per month if the profit for the accounting period amounted to that much, it did not provide that if earnings of a less amount were made he had no share therein, only that he had no drawing account for that period. Even though Mason withdrew moneys which under the contract should have been applied to the purchase price of one half of the equipment, in any accounting the question would finally be, What was his share of the earnings and how much did he actually receive? If there be a difference in his favor, that is what he is entitled to on an accounting.
It is conceded, and the audits show, that during the first accounting period Mason was entitled to withdraw as wages $450; that he only withdrew $392.67, leaving due to him $57.33, and on that basis the net profits for the first period were $1,701.81. For the second and final period by charging Mason with withdrawing $574.18 and by charging against the business a telephone bill of $1.10 which was Mason’s personal bill, there was an apparent deficit of $146.45. As the earnings did not justify the withdrawal, nor was the telephone bill a proper charge, there was an apparent balance of $428.83. It is conceded, however, that against this amount should be charged the balance of $57.33 due but not paid Mason as salary and not covered in the first accounting period, as well as the car expense of $60 and the board bill of $58.50 due to, but not paid, Mason. The result is an actual net gain for the last period of $253, or a total gain for the entire time of $1,954.81, of which Mason’s share was $977.40.
During the first period Mason actually received $392.67 and during the second period $574.18, and he was also chargeable with the telephone bill of $1.10, or a total of $967.95. The difference in his favor was $9.45. As he had not been paid for the car expense of $60 and the board bill of $58.50, he was entitled to that much more, or a total of $127.95.
It thus appears the conclusion of the trial court was correct, and its judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
Plaintiff brought his action to recover damages caused by alleged negligence of the defendant in the construction of a bridge and highway improvements. In response to rulings of the trial court, certain amendments were made to the petition, and thereafter a demurrer to the petition as amended was sustained. Plaintiff appeals from that ruling.
Omitting much of the detailed allegations, it was alleged in the amended petition that the plaintiff was the owner of certain lands in Clay county, Kansas, bordering on the east bank of the Republican river and immediately south of U. S. highway No. 24 (formerly No. 40), and that in October, 1934, plaintiff contracted with the state highway commission to convey to the state of Kansas for highway purposes a tract of about six acres bordering the public highway for a consideration of $851.49. This contract specified the price to be paid for the lands to be deeded and for removing fence, and further:
“Any and all verbal agreements are merged in this written contract and it is understood and agreed that the consideration for said real estate above stated is in full payment for the purchase of said real property and all other damages arising from the transfer of said property and its use for the purposes set out.”
The deed provided was duly executed and delivered. There were allegations with respect to the course of the river and the conditions of the surrounding country upstream from plaintiff’s land, and that on plaintiff’s land a strip about 180 feet wide next to the river was two to three feet higher than the lands to the east thereof, which strip was covered with underbrush and trees. It was also alleged that defendant Aldridge was a bridge contractor, and, under a contract with the state highway commission, erected a bridge upon a portion of the lands purchased from plaintiff, and in so doing carelessly, negligently and wrongfully removed the trees and underbrush from the bank of the river, and removed dirt in such manner as to lower the surface about four and one half feet; that plaintiff protested against removal of the trees and brush and the digging of the ditch; that defendant built a high fill or grade on the east side of the erected bridge for approaches to the highway, the fill being about six feet higher than it formerly was. It was also alleged that the plans and engineering under which the work was done were fundamentally defective in that it was unnecessary to cut the ditch or to remove the trees, and that efficient floodgates should have been installed to prevent water from coming through the ditch and damaging plaintiff’s land; that floodgates were practicable; that the work as planned and done was so obviously and patently defective in engineering and workmanship an ordinarily prudent man could and should have foreseen that damage would result to plaintiff’s land. It was further alleged that in June, 1935, the river went out of its banks and flooded the surrounding lands; that during said time the waters collected and flowed through the ditch and depression caused by the wrongful removal of the trees, underbrush and bank, and on to plaintiff’s land, causing the cutting of holes, and the deposit of sand, to plaintiff’s damage in the sum of $4,725; that it also damaged his barn in the sum of $200, and deprived him of ingress and egress to a part of his farm, to his damage in the sum of $1,000, and that all of the damages were proximately caused by the wrongful construction of the fill constituting the bridge approach and by the removal of the trees, underbrush and dirt to form the ditch, which, coupled with the natural bottleneck caused by bluffs along the river, caused the damages which should have been foreseen.
Appellant’s principal contention is that appellee, an independent contractor, is liable to him in damages by reason of appellee’s executing plans and specifications of the state highway commission for highway improvement abutting appellant’s lands, where the plans and specifications were so fundamentally defective and such obviously poor engineering that an ordinarily prudent man could have foreseen that the execution of such plans and specifications would cause unnecessary damage to appellant’s lands; and that he cannot escape liability merely because he completed the work and turned it over to the state highway commission before the damage occurred.
Appellant concedes that the state highway commission is immune from suit under the circumstances and that he has no cause of action against it for building the bridge and approaches, but he. argues that while a large number of courts give to independent contractors the same immunity as given the state, the rule is without sound reason to support it and the contractor should be held responsible for damages that result because the improvement was made under plans and specifications alleged to be obviously unsound as a matter of engineering practice, and that such unsoundness was known to the contractor when he performed the work.
A brief review of the statutes under which this improvement was made shows that the highway commission is authorized to enter into contracts incident to the construction of the state highway system (G. S. 1935, 68-407) after giving notice and receiving bids (G. S. 1935, 68-408) based upon plans and specifications previously prepared (G. S. 1935, 68-409), the contractor to give bond condi tioned in part that he “will faithfully perform such contract in every respect,” and also that he will pay bills for supplies, materials and labor, etc. (G. S. 1935, 68-410). It would thus appear that a contractor having undertaken an improvement was obligated by his contract and bond to perform according to the plans and specifications furnished by the state highway commission, and that he could neither change the plans nor quit the work because he believed the improvement as projected was bad from an engineering standpoint. The statutory provisions would seem to put the contractor in the same position as the state highway commission.
In connection with his argument that the contractor is responsible for carrying out an obviously unsound engineering project, appellant directs our attention to Shanks v. Pearson, 66 Kan. 168, 71 Pac. 252, and Murphy v. Fairmount Township, 89 Kan. 760, 133 Pac. 169. The Shanks case was an injunction to enjoin the road overseer from digging a deep ditch along the highway in front of plaintiff’s residence and farm, and it was there held that such officer, while acting within the scope of his authority, is vested with a very broad discretion with which the courts will not interfere except in case of fraud or where there is abuse of discretion. The real point in issue and decided was that the trial court erred in refusing testimony tending to show special injury, that the improvement was being made to subserve private and personal .ends, and further tending to show bad faith. .In the Murphy case the plaintiff sought to recover damages occasioned by an insufficient culvert, and to enjoin its maintenance. In that case there is a review of many of our decisions touching the power and discretion of highway officials in making improvements and liability therefor, and it was said:
“This court has gone only to the extent of holding that counties and townships in instances like this are not required to respond in damages for injuries already caused; not that they may be permitted to continue a nuisance or that they may not be enjoined from so doing.” (p. 765.)
It was concluded that action for damages did not lie, but that the maintenance of the insufficient culvert might constitute it a nuisance which should be abated.
Instructive as both of the above decisions are, it must be noted that they hold only that relief may be afforded by injunction in certain cases, not that the municipal authorities are liable in damages, and in neither of them was the question of liability of an independent contractor involved.
It will be observed that in plaintiff’s petition it is not alleged that defendant performed the work in a negligent manner, but on the contrary that he performed the work under plans and specifications so obviously bad and defective from an engineering standpoint that he knew or should have known that plaintiff would be damaged by the completion thereof. He further alleged that he protested against the work being done. Just why he did not then proceed by injunction to prevent a condition which was as obvious to him as to the contractor is not made to appear.
It has been repeatedly held that a contractor employed by a municipality to make a public improvement as authorized by statute and who performs the work with proper care and skill is not liable for damages resulting to abutting property owners. (43 C. J. 1111, 44 C. J. 451, and see the annotation on right of contractor with public body to immunity which latter enjoys from liability for damages, 69 A. L. R. 489.)
Although not clearly shown by the allegations of the petition, from the argument it seems conceded that the work of the defendant was completed and had been accepted by the state highway commission before the flood of 1935 occurred, the waters of which caused the damage of which appellant complains. In 14 R. C. L. 107 it is said:
“The general rule is well established that an independent contractor is not liable for injuries to a third person, occurring after the contractor has completed the work and turned it over to the owner or employer and the same has been accepted by him, though the injury results from the contractor’s failure to properly carry out his contract.”
(Also, see annotation on right and duty of highway contractor as to barricading or obstructing street, where the above rule is also stated and cases cited, 7 A. L. R. 1203,. 1211, supplemented in 104 A. L. R. 955, 966.) If it is correct that the work had been accepted by the state highway commission, then it would appear defendant was relieved from liability thereafter.
Apparently in the trial court appellee placed considerable reliance upon the fact that when appellant sold land to the state highway commission for the purposes of the improvement he conveyed without reservation, and it must be presumed that any consequent damages were paid for when the lands were purchased. (Marts v. Freeman, 91 Kan. 106, 136 Pac. 943; Devore v. State Highway Comm., 143 Kan. 470, 54 P. 2d 971.) Appellant contends the cases do not support appellee’s position. We do not deem it necessary to discuss the appellant’s contention. The contract for purchase contained the clause hereinbefore quoted. It goes beyond any presumption and is an express statement that the consideration received covered not only land taken but damages arising from its use for highway purposes.
We have examined other authorities cited by appellant covering his general contention that the state’s immunity from suit should not be extended to the contractor, who knew that the plans, if carried out, would produce a dangerous situation, and conclude they have little, if any, bearing on the matter as disclosed by the pleading under consideration.
We conclude that all the petition discloses is that under his con- • tract with the state highway commission the appellee performed according to the plans and specifications, which were a part thereof, to make certain highway improvements, all without neglect of any duty appelleé owed appellant, and that the trial court properly sustained appellee’s demurrer to appellant’s petition seeking to recover subsequent damages.
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The opinion of the court was delivered by
Wedell, J.:
Plaintiff sought to recover money judgments on two causes of action. He prevailed, and defendant appeals.
Plaintiff was placed in charge of defendant’s bulk station and service station at Topeka, in 1930. Since 1932 he had operated under written contracts similar to his present contract, which latter contract was executed on April 1,1934. It provided for a ten-day notice of termination. The parties had developed certain practices in the operation of the business which were not covered by the express terms of the written contract. On November 9, 1934, plaintiff was discharged without previous notice, unless a conversation on the previous day amounted to such notice.
The first cause of action was in the nature of an action on an account. It contained those items which were not covered by the written contract. Various of these items required an accounting, and some of them related to transactions as remote as 1932. The action was tried to a jury, which answered seven special questions. The first six answers pertain to the first cause of action. The second cause of action was for damages for plaintiff’s discharge without the notice required by the contract. Answer No. 7 pertains solely to those damages. A proper answer to that question, under the instructions, required an accounting for the seven months’ period of operation under the present contract.
The general verdict of $809.27 was a sum total of the seven amounts contained in the special answers, which were as follows:
“1. (a) Do you allow plaintiff any amount on the checks known as the two Ketter checks? A. Yes. (b) If so, in what amount? A. $275.58.
“2. Do you allow the plaintiff the sum of $39.98 as insurance on the buildings? A. Yes.
“3. (a) Do you allow plaintiff any amount on what are known as hold-out or charge-back accounts? A. Yes. (b) If so, what amount? A. $181.84.
“4. (a) Do you allow plaintiff any amount upon claims with reference to what is known as the ‘price war’ claim? A. Yes. (b) If so, what? A. $86.69.
“5. Do you allow plaintiff the item of $15.77 on tires? A. Yes.
“6. (a) Do you allow plaintiff anything on the Specification Oil Company claim? A. Yes. (b) If so, what amount? A. $81.
“7. What amount, if any, do you allow as damages on the second cause ol action? A. $128.41.”
Defendant first urges the trial court erred in overruling its motion for a new trial. The contention is based on the theory the jury was prejudiced in favor of the plaintiff, and that such prejudice was par ticularly disclosed by both the first and the last answer returned to question No. 7. It is urged the answers disregarded the instructions. Plaintiff had prayed for damages on that cause of action in the sum of $1,155.84. The jury was instructed that under the terms of the written contract plaintiff could recover damages for a period not to exceed ten days. The correctness of that instruction is not now disputed by the plaintiff. The jury originally answered question No. 7 by inserting in the answer the sum of $1,155.84. When the trial court observed this answer it advised the jury recovery on that cause of action had been limited to a period of ten days and that the jury would find the matter covered in the instructions. The jury returned for further deliberation and inserted the sum of $128.41. Defendant urges the jury, in arriving at the second answer, disregarded the court’s instructions relative to a deduction of items of expense which plaintiff, under the contract, was obligated to pay.
Under the written contract plaintiff was required to furnish and operate certain equipment at his own expense. Likewise, he was required to provide the necessary labor. Certain other operating expenses of the business were to be borne equally. Plaintiff was to receive as his commission one half of the net profits. The court had instructed the jury to answer question No. 7, on the basis of the average monthly net profits for the seven months of operation under the present contract. The burden of proof was, of course, on the plaintiff to establish his cause of action. This necessitated not only proof of the commissions to which he was entitled, but, also, proof of expenditures and the proper allocation thereof under the contract. Numerous figures, monthly statements, alleged accountings and settlements were involved. The contention of the jury’s prejudice was presented to the trial court and that court found against the contention. It had a much better opportunity to safely and accurately appraise the good faith of the jury than this court has now. In view of the complications involved in the accounting, and in view of the trial court’s rulings, we do not feel justified in disturbing the judgment on the ground urged. We have carefully examined the authorities cited by defendant and do not believe they compel a new trial under the circumstances in this case.
This was essentially an accounting case. That was true, not only of the second cause of action, but also as to numerous items involved in the six answers pertaining to the first cause of action. It is not the function of this court to make an independent accounting for the parties. We have on previous occasions definitely stated that in cases of such character this court would not disturb findings after they were approved by the trial court unless there was manifest and demonstrable error. (Farmers State Bank v. Commercial State Bank, 136 Kan. 447, 454, 16 P. 2d 543; Allen County Comm’rs v. Board of Education, 142 Kan. 770, 51 P. 2d 973.)
We shall therefore give attention only to such items as disclose manifest error on the basis of the record before us. It is also well to note that the trial court instructed separately as to the law applicable to the particular facts in each of the seven transactions involved. We find no objection to such instructions before the case was submitted to the jury and no special instructions were requested. In fact, it is only now suggested that defendant does not understand the theory on which the court instructed as to the matters involved in one of the special questions. It is not alleged the instruction was erroneous.
With the foregoing facts and principles in mind, we shall return to the particular contention that the second answer made to question No. 7 shows that the jury did not take into account the expense items for which plaintiff was liable. Plaintiff’s evidence on the subject of average net monthly commissions was conflicting. On cross-examination he testified:
“I figured up my net profit from the commission sheets introduced in evidence and it amounted to $385 per month.” (Italics inserted.)
On redirect examination he testified:
“Figuring each commission statement makes a total commission for the seven months of $2,636.75, divided by seven, gives an average of $368.09. The commission varied. Out of the average of $368.09 I had to pay my expenses.”
While the record before us is very vague on the matter of his average monthly expenses for the seven months’ period, it seems to us his own admission discloses he had at least one man employed continuously at $60 per month and that his monthly expense item for gasoline was about $20. In addition thereto, he testified concerning depreciation on his trucks and concerning tire bills, the exact amount of which expense is undisclosed. Deducting, however, only the above expenditures from the sum of $368.09, his net profits for the ten-day period could not have exceeded $90. The answer to question No. 7 is hereby reduced to that amount.
This brings us to the six remaining special answers involved in the first cause of action. Defendant contends all of those items should have been denied as a matter of law except item No. 5, which is admitted. The contention is not well taken. The practices as to the various items, together with the understanding of the parties concerning the same, presented questions of fact which were properly-submitted to the jury.
Answer No. 1 involved the Ketter account. It is conceded that plaintiff was personally liable to defendant for accounts on which defendant had refused to extend credit, and that this was an unauthorized credit account at the time the purchases were made by Ketter. The evidence, however, further disclosed that after the termination of plaintiff’s employment defendant took up the checks on this account and accepted notes not from the plaintiff, but from the customer, and not for only one half of the account, but for the entire account. The court instructed the jury concerning the law applicable to this state of facts. The instruction also dealt with the question of a new contract on the obligation made by defendant with Ketter without plaintiff’s knowledge or consent. We must assume such facts were all in evidence. No objection whatever was made to the instruction before the case was submitted to the jury, nor is it made now. Under these circumstances we cannot disturb the finding.
Answer No. 2 pertains to insurance on buildings. The written contract contained a clause on the subject of insurance, but it did not relate to insurance on buildings. This claim, however, covered insurance on buildings for several years prior to the present contract. In fact, it covered a period as far back as the year 1932, while plaintiff was operating under other contracts which had expired and were in no wise related to the instant contract. This insurance charge was prorated on a monthly basis and thus appeared on each statement which defendant sent to plaintiff, together with his monthly check. The checks represented plaintiff’s net commission or profits for the particular months. Plaintiff admitted he knew this charge was contained in the monthly statements of settlement. He accepted and cashed the checks. While it is true that the parties from time to time made adjustments on-subjects in dispute, there was no evidence plaintiff ever objected to this particular insurance charge as being an improper item of operating expense under the “operating clause” of the written contract. Over the period of at least two years it was treated by defendant and accepted by plaintiff as an operating expense. Plaintiff’s net profits were figured on that basis, with his full knowledge and without objection. Under these circumstances these items of insurance should properly have been considered as “accounts stated,” and the numerous settlements made thereon by the parties should not have been opened and set aside. (Schmoker v. Miller, 89 Kan. 594, 132 Pac. 158; McKnab-Bess Oil Co. v. Commonwealth O. & G. Co., 142 Kan. 739, 746, 52 P. 2d 363; Porter v. Price, 80 Fed. 655.)
Answer No. 3 pertains to a reserve account which was in no wise covered by the provisions of the written contract. This account seems to have been set up to absorb losses on slow accounts. It should be remembered that under the written contract plaintiff was personally liable only as to credit accounts on which defendant had refused to extend credit. The credit accounts involved under this item had been authorized by the defendant. One half of the reserve account had been retained out of plaintiff’s commissions. Under the written contract he was entitled to the entire commission on these accounts, as credit had been extended thereon by the defendant. At the termination of plaintiff’s employment all of the slow accounts had not been paid. A dispute arose as to the exact amount of commissions plaintiff had in this fund and as to whether he was entitled to whatever that correct amount might be, in view of the facts that all of these accounts had not yet been paid. The mere fact the amount of the reserve fund had been inserted in monthly statements did not settle the question of plaintiff’s right to recover his share thereof on the termination of his employment. The trial court instructed the jury on the question of determining the amount plaintiff had on deposit in this fund and also on the- question of his title thereto at the termination of the employment. No objection was made to that instruction nor were additional special instructions requested. These accounts were not owing to the plaintiff, but solely to the defendant. The jury returned a verdict for one half of this fund, which represented the amount defendant had retained therefor out of plaintiff’s commissions. In view of the issues joined and the instructions given, without objection being made thereto, no manifest error appears.
Answer No. 4 pertains to transactions between the parties over a period involving a gasoline price war between oil companies operating in and around Topeka. This dispute involves not only elements of an accounting, but also the determination of conflicting facts as to the agreement. The instruction covered these issues and no objection was made thereto. The record before us discloses no manifest error.
Answer No. 6 involves a bad account. It was submitted to defendant and rejected for credit. It thereupon became the personal obligation of plaintiff and he was entitled to no commission thereon. He attempts to show now that the credit had been authorized by a field representative. He also admits he knew that Mr. Clairborne, at the Wichita office, and not the field representative, handled all credit arrangements for defendant. The account at the time of the trial was still unpaid. It is uncontradicted that this account was charged off as an uncollected account. Moreover, plaintiff was expressly asked on trial to compare his own statement of account with that of the defendant and to point out the exact items in dispute. He listed the other five items in his first cause of action and expressly stated, “these are the only items in dispute.” It is unnecessary to discuss other facts which disclose manifest error as to this item, and answer No. 6 cannot stand.
It is finally urged plaintiff acquiesced in the termination of his employment, and that he did not attempt to mitigate the damages resulting from his discharge. The evidence on these questions was sufficient to require a submission of the facts to the jury.
It will be, and it is, the judgment of this court that plaintiff be permitted within five days from date hereof to accept the judgment as herein modified, to wit, recovery on items Nos. 2 and 6 is denied, and recovery on item No. 7 is reduced to $90. In the event plaintiff elects to accept such judgment, the judgment will be and is affirmed as modified. In the event plaintiff does not elect to accept the judgment as modified, the district court is directed to grant a new trial as to both causes of action. It is so ordered. | [
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The opinion of the court was delivered by
Thiele, J.:
Two appeals growing out of an attempt to appeal from an order of a probate court to a district court have been consolidated for consideration and decision.
Julius Zabel filed his demand in the probate court against the estate of Charles H. Johnson, deceased, and on hearing it was not allowed. He gave timely notice of appeal to the district court and filed a bond, the condition of which was:
“ . . . that if said appellant will prosecute his said appeal to effect and without unnecessary delay and that if judgment be rendered against him on appeal, they will satisfy such judgment and costs.”
In the district court the executor of the estate moved to dismiss the appeal because of claimed insufficiency of the bond, it being contended it was not conditioned as provided by statute. This motion was presented to the district court, but before decision was made Zabel asked for permission to file an amended bond. Thereupon the court denied the executor’s motion to dismiss and from that ruling the executor attempts to appeal to this court, that being the first appeal as above entitled. Under permission granted, Zabel filed an amended appeal bond, conditioned—
“ . . . that the said Julius Zabel, as such claimant, will prosecute his appeal a-nd will pay all sums, judgments, damages and costs that may be adjudged against him, said Zabel, on appeal.
“And if said Julius Zabel shall prosecute this appeal without unnecessary delay, and if judgment be rendered against said Zabel on appeal, said Zabel will satisfy said judgment, costs and damages, and in such event this undertaking shall be null and void.”
After this amended bond had been filed, the executor filed his motion to dismiss the appeal for the reason that neither the appeal bond nor the amended appeal bond was conditioned as required by law. This motion was sustained and the appeal dismissed, and from this order Zabel appeals to this court, being the second appeal as above entitled.
Referring to the first appeal, it may be observed that complaint is made because the district court refused to dismiss the appeal from the probate court. It has been held repeatedly that denial of a motion to dismiss an appeal is not a final order and that an appeal to this court from such an order does not lie. (Wiegand v. Wilson, 107 Kan. 445, 193 Pac. 1065; Clothier v. Wallace, 135 Kan. 347, 10 P. 2d 889; Marsol Credit Co. v. Blacker, 144 Kan. 632, 62 P. 2d 914; Heiman v. State Highway Comm., 146 Kan. 315, 69 P. 2d 685.) The executor’s appeal must be dismissed. The dismissal of the appeal, however, does not determine the whole matter.
Referring to the second appeal, the essence of Zabel’s complaint is that the trial court erred in holding his second appeal bond was not conditioned as required by law. The statute providing for bond on appeal from the probate court to the district court is that it shall be “conditioned that he will prosecute the appeal and pay all sums, damages and costs that may be adjudged against him.” It is the executor’s contention that the first bond did not comply with the statute because it did not specifically state appellant would pay all sums, damages and costs that might be adjudged against him, and that the second bond was not conditioned according to law because of the inclusion of the words “on appeal” in both of the paragraphs above quoted. In support of his .contention the bonds were not sufficient, the executor relies on the recent series of cases having to do with appeals from the justice court to the district court following the enactment of Laws 1931, chapter 229 (G. S. 1935, 61-1001, 61-1002, 61-1002a, 61-1003, 61-1003a), whereby the method of appeal in such cases was materially changed. See Jensen v. City of Chanute, 146 Kan. 162, 68 P. 2d 1080, arising under another statutory appeal provision, but where the above-mentioned series of cases are cited. We deem it unnecessary to specifically refer to these cases or to discuss them for reasons hereafter given, further than to here remark the appeal bonds therein mentioned all failed to comply with the statutory requirements.
It is interesting to note that insofar as the condition of a bond on appeal from the probate court to the district court is concerned that in Acts of 1859, chapter 35, section 235, appearing in the Compiled Laws of 1862 at page 546, it was provided that the bond should be “conditioned that he will prosecute the appeal, and pay all debts, damages and costs that may be adjudged against him.” (Italics ours.) In the 1868 revision the word “debts” was changed to “sums” (G. S. 1868, ch. 37, sec. 191), and in respect to the condition has never since been changed. (See G. S. 1935, 22-1104.)
The effect of the condition is that appellant will pay any judgment against him for sums, damages and costs, and the very fact of appeal would seem to mean that it is the judgment of the district court on appeal that he will satisfy. If that be true, what was wrong with either the first or second bond given? As to the first bond, the contention is made that it is insufficient on the assumption that the exact statutory language had to be used in order for it to be good.
In Jarrard v. McCarthy, 95 Kan. 719, 149 Pac. 696, a similar contention was made with respect to sufficiency of the affidavit accompanying a notice of appeal from the probate court to the district court, the affidavit stating the appeal was “made in good faith and not for the purpose of willful delay,” whereas the statutory language was, it was “not taken for the purpose of vexation and delay,” etc. In disposing of the contention it was said:
“We think the variance is immaterial. If the notice of appeal was made in good faith, then the appeal was in good faith; and since it was avowed to be in good faith and not for the purpose of willful delay, we must hold that the fair import of that recital was the same as an averment that the appeal was not taken for the purpose of vexation and delay, but because the affiant believed that the appellant was aggrieved by the decision of the court. This is in harmony with section 3630 of the General Statutes 1909, with section 581 of the civil code, and with the twentieth century spirit which pervades and ought to pervade the administration of justice.” (p. 721.)
In Hanson v. Hanson, 131 Kan. 27, 289 Pac. 474, cited by the executor, the bond offered by the appellant utterly failed to comply with statutory requirements. In Pee v. Witt, 100 Kan. 171, 163 Pac. 797, no attempt to give a bond was made; the attempt was to make a cash deposit in lieu. It was held the bond requirement was statutory, and the case was distinguished from Jarrará v. McCarthy, supra, where a bond with cash security was approved.
We are of the opinion that the effect of the statutory condition is that appellant will pay any judgment against him for “sums, damages and costs,” and that a bond conditioned he will pay such judgment and costs is a substantial compliance with the statute, and therefore that the first bond given was sufficient, unless it be for reasons mentioned on account of the inclusion of the words “on appeal” which appear in both the first and second bonds.
The executor concedes that the second or amended bond contains the statutory condition, but urges that it contains in addition the words “on appeal” and that the inclusion makes the bond bad. The argument is that the purpose of such a bond is not only to secure the appellee for the sums and judgment he may recover, and his costs, but also damages to which he may be entitled on the appeal, or that he might recover in a separate action such as for malicious prosecution. It may be observed that if such separate action would lie, it would be because of the filing of the claim in the probate court, and not because of the appeal. The statute requiring bond, moreover, was enacted in connection with prosecution of appeals and not to create a liability growing out of the institution of any action or proceeding to recover on a claim. It would appear the purpose of the statutory condition was to secure the judgment rendered on appeal, and not otherwise, and we so hold.
From what has been said it follows our conclusion must be that the first bond was sufficient, that the second bond, although unnecessary, was also sufficient, and that in the matter involved in the second appeal, the trial court erred in sustaining the motion to dismiss the appeal from the probate court.
The order of the district court dismissing the appeal is reversed. | [
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The opinion of the court was delivered by
Thiele, J.:
Defendant was convicted of having knowingly bought and received stolen automobiles, and appeals, assigning six claims of error.
He presents his first two claims of error together. They are that he did not have a fair and impartial trial, and that the verdict and judgment are contrary to the law and the evidence. Beyond mere statement of his contention, he presents no specific claim of lack of a fair trial except such as may be implied from matters which were developed on motion for a new trial, which will be considered later. There is no showing, nor any claim in and of itself, that the verdict and. judgment are contrary to law. The argument is based almost entirely on a showing that certain witnesses contradicted themselves or gave testimony inconsistent or at absolute variance with that of other witnesses, directing our attention to statements favorable to the appellant, and calling attention to the admitted criminal records of some of the witnesses. The jury saw all of these witnesses, knew of the inconsistencies and disputes in their testimony, knew also that where four or five men are engaged in working on and changing the appearance of stolen cars so that they could be sold with less chance of detection, there would be a disposition to shift blame. Unless error from another source appears, the jury’s conclusion as to the weight to be given this testimony must stand. Our examination of the record shows there is ample testimony to support the state’s claim that appellant received stolen automobiles, and kept them in a garage owned and managed by him, where their appearance was greatly changed by trading wheels, interchanging fenders, putting on new paint, altering motor numbers, etc., the cars being later sold to other persons, the proceeds going to appellant.
Appellant filed a motion for a new trial. It was denied, and thereafter a motion for rehearing of the motion for a new trial was filed and later denied. The remaining specifications all deal with claimed error in connection therewith and will be treated together.
Although the motion for a new trial contained other grounds, the one seemingly relied on, and which was the basis of the motion for rehearing, and on which the complaint made on appeal is based, was that the jury received evidence not authorized by the trial court. On the hearing of the motion for a new trial, appellant called as a witness one of the jurors and asked him about being approached by persons other than jurors, and the fact that another juror was supposed to be a personal friend of the appellant. The state’s objection was sustained. Objection was also sustained to questions as to whether certain jurors made statements in regard to relationship between appellant and one of the state’s witnesses pertaining to matters occurring before the transactions involved in the action, it being claimed the statements were outside the evidence. A third question to which objection was sustained was whether one juror had threatened another with prosecution for perjury if he failed to vote for conviction. Another juror was called, and after some questions were asked and objections sfistained, appellant’s then counsel made an oral proffer of evidence, which offer was refused, the motion was denied and thereafter a journal entry was filed covering all matters connected with the trial. This journal entry, in part, shows that after the jury returned its verdict, at the request of defendant the jury was polled, and each juror stated the verdict returned was the verdict of them and each of them. Thereafter, defendant, by other counsel, filed his motion for a rehearing of the motion for a new trial, attaching thereto the affidavits of four jurors. On the hearing of this last, motion, the state’s objection to these affidavits being received in evidence was sustained. During the hearing of the motion, appellant’s counsel offered to read these affidavits. The journal entry recites:
“But the court advised the defense that this would not be necessary as the court had a copy of the aforesaid pleadings, and was fully advised of the contents thereof.”
and, after stating the affidavits were offered:
“The proffer was refused by the court. The court then being advised in all of the premises, found that the motion should be denied.”
The affidavits covered about the same matters as were inquired about at the hearing of the motion for a new trial or of which proffer was then made. It may be here stated that in part the affidavits contain conclusions rather than statements of facts. Juror Prouty stated he was approached on the street by one Shacklett, who told him the jury would never agree because juror Adamson was a personal friend of the defendant; that he informed another juror who so accused juror Adamson, which Adamson denied; that he heard one of three named jurors make a statement that defendant Boiler had been acquainted with witness Wharry before the events complained of in the criminal action, and that such was not a part of the evidence introduced in the case and was not known to the jury until the statement was made, and also that one of the three named stated he knew of his personal knowledge that Boiler and Jackson was a crooked outfit and that other dealers told him they handled “hot” cars. Juror Adamson stated that another juror approached him and said he had heard he was a personal friend of Boiler and accused him of lying when being examined for jury service, that he had denied the charge and was threatened with prosecution for perjury “unless I pleaded guilty,” and thereafter he voted for conviction. The remainder of his affidavit is similar to that of Prouty. Juror Penner deposed that one Shorty Dickinson informed him “as long as Adamson was on the jury it would be a hung jury.” The remainder of his affidavit, as well as that of Juror Mauck, was largely corroborative of the statement that some juror said Boiler and Jackson were crooked.
Appellant insists it was error for the trial court not to receive these affidavits and on the strength of the statements therein to grant a rehearing of the motion for a new trial, and in substantial effect, that it was error not to grant a new trial. Before examining the authorities cited, we may observe that although the trial court did refuse to admit the affidavits in evidence, it made it clear it was aware of their contents. It was also fully aware that the jury, at the request of the defendant, had been polled, and that at that time each juror had his opportunity to state that the verdict did not have his approval, assuming that to have been a fact. The trial court was also aware that the statements in the affidavits were contrary to the statements made when the jury was polled, and the effect of the depositions was to impeach the verdict. It appears that under the circumstances the trial court had before it for decision whether the jurors spoke the truth when they were polled or when they later made their affidavits.
Appellant contends, however, that the affidavits show the jury considered as evidence statements made by certain of the jurors. A comparison of those statements with the evidence will be made later. Appellant relies principally upon two cases: In State v. Woods, 49 Kan. 237, 30 Pac. 520, prosecution was for statutory rape. There the jury was impelled to return a verdict of guilty because a juror made statements of personal knowledge concerning the age of the girl. The conviction or acquittal depended on the girl’s age. This court held the statement may have influenced the jury and reversed the judgment of conviction. In State v. Stuart, 129 Kan. 588, 283 Pac. 630, the syllabus reads:
“A statement by a juror to his fellow jurors of material matters outside the evidence in the case which is prejudicial in character, and as of his own personal knowledge, is misconduct which will vitiate a verdict unless a clear showing is made that no prejudice resulted from the misconduct.” (Syl. 111.)
In the opinion, however, it is recognized that all volunteer statements of jurors do not compel granting of a new trial, for it is stated:
“It is obvious that the extraneous statements brought before the jury by Gearhart as matters within his personal knowledge were prejudicial in character and naturally would have an effect upon the minds of the jury. It was the duty of the jury to make its findings upon evidence regularly introduced upon the trial and not upon the personal knowledge of jurors. A statement of fact by a juror to his fellow jurors of his personal knowledge of facts involved in the case but not in the evidence, is misconduct. Of course not every act of misconduct is ground for granting a new trial. If it be trivial, or not such as to influence the jury, the misconduct will not vitiate a verdict. If facts outside of the evidence are brought before the jury as of the personal knowledge of a juror and they are likely to have influenced the mind of other jurors, the verdict should be set aside. State v. McCormick, 57 Kan. 440, 46 Pac. 777; State v. Burton, 65 Kan. 704, 70 Pac. 640; State v. Lowe, 67 Kan. 183, 72 Pac. 524; State v. Duncan, 70 Kan. 883, 78 Pac. 427.)” (p. 589.)
In the above opinion no reference was made to State v. O’Keefe, 125 Kan. 142, 263 Pac. 1052, where the third paragraph of the syllabus recites:
“While the jury was deliberating, one of the jurors made a statement purporting to be on his personal knowledge, and which was not based on the evidence. Held, considering the nature of the statement and the facts concerning it, as stated in the opinion, not to require or to justify the granting of a new trial.”
And where, in the opinion, it was said:
“On the hearing of the motion for a new trial the affidavits of five jurors were filed concerning matters that transpired in the jury room. It is upon these affidavits that appellant relies on the point here raised. The affidavits attempted to state what caused some of the jurors, and especially juror Graham, to agree to a verdict of guilty. On this point the affidavits were not proper to be considered by the court, and perhaps were not considered. It is well settled that a juror cannot be heard to impeach his verdict by saying that he agreed to it upon consideration of matters other than the evidence and the instructions of the court. (16 C. J. 1236; State v. Taylor, 90 Kan. 438, 133 Pac. 861; State v. Dreiling, 95 Kan. 241, 147 Pac. 1108; State v. Johnson, 99 Kan. 850, 163 Pac. 462.) See, also, State v. Farrar, 103 Kan. 774, 176 Pac. 987, where earlier cases are discussed. Later cases are State v. Luft, 104 Kan. 353, 179 Pac. 553, and State v. Shoemaker, 112 Kan. 805, 212 Pac. 890.” (p. 144.)
Later cases bearing on the subject are State v. Kearney, 130 Kan. 474, 287 Pac. 261, and State v. Casebier, 130 Kan. 762, 288 Pac. 736.
An examination of the record discloses'that defendant and Jackson had been in business together, had failed, and that defendant had purchased the assets from a receiver for their business. Wharry was a witness both for the state and for the defendant. He testified he knew defendant prior to the time he had occupied defendant’s garage; that prior thereto he had been arrested for receiving stolen property, a fact known to defendant, and that shortly after he went to the garage they made arrangements for receiving stolen cars, reconditioning them and selling them. Defendant on cross-examina tion admitted he knew Wharry and that he had been accused of stealing automobiles before he and Wharry were associated together. We need not review the evidence of other witnesses that that is what was done, nor the evidence that Boiler received the proceeds from such transactions. Even had the affidavits been formally received in evidence, the statements of what certain of the jurors said went little beyond what the testimony at the trial showed; that those statements likely influenced the minds of other jurors as to what the verdict should be has not been made to appear.
On the proposition that juror Adamson was coerced, it may first be stated that in his own affidavit he says he denied the charge. 'His affidavit then reiterates the statements about Boiler’s and Wharry’s acquaintance, and about Boiler and Jackson being a crooked outfit, and concludes:
“There never was enough evidence in my opinion to justify a vote of guilty. If it had not been for this threat, I never would have.”
The fact remains, he stated to the contrary when the jury was polled. Even though the trial court may have thought the effect of the whole affidavit was simply an attempt to impeach a verdict, and it was therefore inadmissible, yet it did indicate knowledge of the contents of the affidavit. Under the circumstances, it must be held the trial court concluded that when the jury was polled defendant did not believe he had been coerced as he later stated he was (Statel v. Kearney, 130 Kan. 474, 287 Pac. 261) and that he was attempting to impeach the verdict to which he had agreed.
It may be here noted that at the trial it was admitted by the defendant that each of the cars mentioned in the information was a stolen car. The sole question was whether defendant knowingly bought and later sold the car mentioned in the particular count under which he was convicted. The jury concluded he did. While defendant succeeded in getting some of the jurors to sign affidavits of an impeaching character, he failed to convince the trial court he did not have a fair trial. Our examination of the record as abstracted fails to disclose the substantial rights of the defendant were affected by any of the matters complained of, and the judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
HutohisoN, J.:
The defendant in this action appeals from the conviction and sentence under two counts of an information charging him with the violation of the provisions of the blue-sky law (G. S. 1935, 17-1201 to 17-1251).
The first count charged him with selling- stock in a certain corporation, which corporation was not registered with the state corporation commission of the state of Kansas. The third count charged him with selling the same stock as an agent, and without being registered as' an agent with the state corporation commission of the state of Kansas at the time of the sale. The portions of these two counts with which we shall be particularly concerned in this appeal are as follows: Count 1 charged that the defendant, J. J. Svoboda—
. . on the-day of June, a. d. 1935, did unlawfully, feloniously and willfully offer and sell certain securities, to wit: Shares of capital stock of the Harris Gold Mines, Incorporated, being evidenced by certificate No. 63, dated August 16, 1935, and duly signed by the secretary and president of the Harris Gold Mines, Incorporated, to one Henry B. Cowles, said securities, then and there not being registered with the state corporation commission of the state of Kansas, and said sale, then and there being made in the course of repeated sales by the said J. J. Svoboda, of securities of the same issue, . . .”
Count 3 charges that the defendant, J. J. Svoboda—
. . then and there being an agent, on the-day of June, a. d. 1935, did unlawfully, feloniously and willfully offer and sell certain securities, and which securities are and were described as follows, to wit: Shares of capital stock of the Harris Gold Mines, Incorporated, being evidenced by certificate No. 63, dated August 16, 1935, and duly signed by the secretary and president of the Harris Gold Mines, Incorporated, to one Henry B. Cowles, the said J. J. Svoboda, then and there, at the time of said sale, not being registered as an agent with -the State Corporation Commission of the state of Kansas, . .
The corporation named in the information was incorporated in Arizona, and it is not claimed that it was registered with the state corporation commission of Kansas. Neither is it claimed that the defendant was registered as an agent with the state corporation commission of Kansas. The blue-sky law makes it a crime to sell stock of an unregistered foreign corporation in Kansas (G. S. 1935, 17-1226), and also for anyone to sell such stock without being registered as an agent (G. S. 1935, 17-1233). Two exemptions mentioned in G. S. 1935, 17-1225, are proper for observation in connection with the evidence in this case. They are stated in subdivisions 1 and 8 of the section last above cited; subdivision 1 exempts an isolated sale and makes the statute apply only to repeated and successive sales. There was evidence introduced by the state as to other sales, but under the defense made this feature will not be important or controlling. Subdivision 8 is important because so much of the evidence refers to a one-twenty-fourth interest in a mine, which is more than a one-twenty-fifth interest. That subdivision is as follows:
“Any undivided interest or certificate based upon undivided interest in all royalties, oil leases, or mineral deeds, where the interest or certificate, based upon such interest offered for sale or sold to any purchaser, is more than one-twenty-fifth of the whole royalty, oil lease, or mineral deed, or any interest given in exchange for labor, material or machinery for use in the drilling of a well on said lease.”
The rulings on preliminary motions and applications are assigned as error, but appellant’s counsel frankly admit they might not be reversible errors, and therefore we will pass them and take up the two main questions presented by the testimony, viz., the issuing of stock of a foreign corporation, organized for operating purposes, to the owner of a one-twenty-fourth interest in a mine for the lease of such one-twenty-fourth interest for operating purposes, as exempted by the blue-sky law; and second, the splitting up of such certificate of stock into smaller pieces at the request of the owner thereof as applied to a subdivided piece thereof retained by the owner.
It will be observed that the information names two dates: the-day of June, 1935, as the date of the unlawful sale, and the 16th day of August, 1935, as the date borne by the certificate said to have been sold unlawfully. Of course, any time within two years before the filing of the information, which was on May 11, 1936, would be sufficient so far as time is concerned, but the evidence seems to show a purpose in using both dates. It showed that certificate No. 16 of the same company was issued on June 20,1935, to Henry B. Cowles, trustee, for 10,000 shares, and that certificate No. 63, issued nearly two months later, was a part of the division of certificate No. 16 originally issued, and was for 2,000 shares.
The evidence showed Maude and Ralph Harris, of Wichita, Kan., were the owners of a group of gold mines in Arizona, and undertook to sell units therein of the one-twenty-fourth interest; that in the fall or winter of 1934 Henry B. Cowles met the defendant, J. J. Svoboda, shortly after the defendant became interested in the Arizona gold mines, and defendant showed him numerous letters and documents signed by the dean of the School of Mines at the state university at Lawrence, Kan., written after he had visited and inspected the mines, and giving the results of his examination and inspection thereof and commending them very highly as gold mines. Mr. Cowles testified that he paid the defendant $105 in cash and turned over to him several certificates of stock in other companies which were to be delivered to Mr. Harris or be sold and the proceeds given to him for the purchase of an undivided one-twenty-fourth interest in the Harris gold mines, which was to cost $10,000. On March 25, 1935, there was issued by Maude and Ralph Harris to H. B. Cowles, trustee, an assignment of an undivided one-twenty-fourth interest in the Arizona gold mines. The following question and answer are a part of Mr. Cowles’ testimony concerning this transaction:
“Q. Did you have any conversation with Mr. Svoboda with reference to any stock which you would get in these Harris gold mines? A. When we were having that transaction there was no stock mentioned, and I didn’t know anything about any stock being issued until the first directors’ meeting. .
The testimony also showed that two receipts were given by the defendant to Mr. Cowles for certain certificates of stock, one dated May 16, 1935, and' the other June 24, 1935. Mr. Cowles further testified that when he bought the one-twenty-fourth interest he did not know anything about any corporation, that up to the time of the directors’ meeting on June 20, 1935, he did not know about it; that the defendant never talked to him about buying any stock in a gold mine, but that he explained to him “that he wasn’t selling stock, but was selling an interest” — a one-twenty-fourth interest in the mine, and that was what he thought he was getting and did get; that the defendant told him that the stock in the operating company had no value and could not be sold to anybody, because it was worthless, and the only thing of value was the interest — the one-twenty-fourth interest.
Testimony in the case shows that on the 8th of March, 1935, an application was made to the charter board of the state of Kansas for a charter, but that was abandoned, and the Harris Gold Mines, Incorporated, was formed and organized in Arizona on March 23, 1935.
On June 20, 1935, Mr. H. B. Cowles applied to the board of directors of the Harris Gold Mines, Incorporated, to lease the one-twenty-fourth interest which he held as trustee, and his request was granted, and certificate No. 16 of that corporation, which is shown to be an operating corporation only, was issued by the proper officers in the usual manner to Mr. Cowles for 10,000 shares. The evidence of Mr. Cowles further showed that the certificates of stock which he gave to the defendant to purchase the one-twenty-fourth interest in the Arizona gold mines were insufficient in value to pay Maude and Ralph Harris the full amount of the $10,000, that they were sufficient to pay only $7,000 or 70 percent of the purchase price of this one-twenty-fourth interest. In this connection Mr. Cowles stated that he understood that he was to get as much interest in the production company as he had in the Harris Gold Mining Company.
When asked about the surrender of this certificate No. 16 for 10,000 shares and procuring a division thereof into smaller amounts, namely, two for 2,500 shares and one for 2,000 shares, making 7,000 shares in his own name and 3,000 shares in other names, Cowles said, “I surrendered that and got as much in the production com pany as I had in that.” That was 70 percent of the one-twenty-fourth interest- He also said that he had handed the secretary a list of the names of those who owned or would own 30 percent of the one-twenty-fourth interest and the proportionate amounts that each owned. When asked if the defendant had anything to do with the surrendering of the 10,000 shares of stock and issuing these three certificates he answered that it was done by the secretary at the request of the witness. He further answered that he understood there wasn’t any profit in this corporation, but the profits would go to the owners of the one-twenty-fourth interest; that he received the certificate for the 10,000 shares on June 20, 1935, and later turned that certificate back to the company for these other certificates — ■ 7,000 shares being issued to him, which included certificate No. 63 for 2,000 shares, dated August 16, 1935; that he never got anything from Mr. Svoboda in the whole transaction except the one-twenty-fourth interest, and that he did not pay anyone anything for certificate No. 63 for 2,000 shares.
The evidence showed the stock in the operating company was not given in connection with the sale of the interests in the mines, but was issued to the holders of a one-twenty-fourth interest in the mines if the owner thereof desired to lease the interest to the operating company, but the owners of the interests would receive the same income whether they leased or not. Nineteen such units had been leased and five had not.
The state calls our attention to the following decisions which have reference to a bonus in connection with a financial transaction: State v. Harper, 137 Kan. 695, 22 P. 2d 454; State v. Dobson, 140 Kan. 445, 27 P. 2d 10; and State v. MacLean, 142 Kan. 215, 46 P. 2d 879; and also to the fact that the blue-sky statute does not exempt any certificate given as a bonus.
“. . . Any security given or delivered as a bonus with any sale of securities, as such sale is herein defined, or with any other thing, shall be conclusively presumed to constitute a part of the subject of such sale and to have been sold for value.” (G. S. 1935, 17-1223 [2].)
We have no hesitancy in concluding from the evidence in this case, considered under the definition of bonus given in the statute and the interpretation of the term in the decisions above cited, that not any of the certificates of the operating or production company that came into the hands of Henry B. Cowles was a bonus or a part of the subject of the sale.
The evidence does not show that the first certificate by the mining company to Henry B. Cowles, trustee, was issued as a bonus to the sale of the one-twenty-fourth undivided interest in the mines sold by Harris to Cowles, nor does it show the defendant, as an agent, had anything to do with the issuance thereof for the lease of the interest. We know of no reason why a man owning stock in a corporation, either in his individual name or as trustee, cannot surrender the same and have it issued to him in smaller amounts, as was done in the issuance of certificate No. 63 for 2,000 shares. That could not possibly have been a sale to him by the defendant or the company when he already had and had surrendered the original and requested the issuing to him of this certificate for a smaller number of shares. There may be good reasons why he should not have had other certificates for a smaller number of shares issued to others for whom he was trustee, but that is not the charge here. This charge concerned only the issuance of the 2,000-share certificate to him, which could under no circumstances have been a sale. Much of the evidence of other witnesses than Mr. Cowles concerned the matter of the defendant selling to others small parts of this one-twenty-fourth interest purchased from Harris, which may in fact have been a violation of the statutory exemption, and even the issuance of a corresponding portion of the stock in the operating company may also have been unlawful under the statute, but again we must say, as before, that we are limited to the one charge named in the information.
It is said in 31 C. J. 845:
“Under an indictment charging a particular offense, a conviction cannot be had upon evidence of another and distinct offense. Defendant can be convicted only of the crime charged, or of any inferior degree, or of an attempt, or of any crime included in that charged. . . A conviction cannot be had on evidence of another offense of the same kind committed on the same day but not identical with that charged.”
Much feeling was also manifested by some witnesses as to the misrepresentations and the losses sustained, which probably led the trial court to give a definite instruction covering both these points, which was as follows:
“Evidence has been introduced in this case with reference to other transactions regarding the sale of interests or units in the gold mine, and with reference to the amounts paid to the defendant therefor; and also certificates of stock issued in the Harris Gold Mines, Incorporated, to such interest or unit holders.
“You are instructed that under the charge contained in the information, the defendant is not on trial for the sale of such interests in the gold mine itself, nor is he being tried for defrauding anyone, nor obtaining money under false pretenses, or any crime other than that set forth in the information, and you are hereinafter instructed as to the purposes for which such evidence is to be considered by you.”
In closing, one other matter is deserving of consideration, and that is as to the defendant's being an agent of the operating company in the sale of its stock. Very often, agency is established by the acts and conduct of the company, its officers and the alleged agent, but in the blue-sky law the term “agent” is specifically defined as follows:
“ ‘Agent’ shall mean and include every person other than a broker, employed, appointed or authorized by an issuer or broker to do anything subject to the provisions of this act.” (G. S. 1935, 17-1223 [6].)
All the evidence on the subject of the agency of the defendant, except his acts and conduct and that of the officers of the company, was positively to the effect that the defendant was never appointed or authorized to sell any shares of the company.
The statute may have been disregarded or violated by the defendant, but absolutely not in the manner or as to the sale with which he was charged.
The judgment is reversed and the cause is remanded with direction to set aside the verdict, sentence and judgment.
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Spencer, J.:
In an action for partition of farm lands in Harper, Greeley, and Wichita counties, it was determined that during the lifetime of Bertha Hoard she owned an undivided one-half interest in those lands absolute, and was the life tenant in an undivided one-half interest in the same land, with the remainder over to the plaintiffs Shelton, Rewerts, and Wunsch.
Bertha Hoard died and her life estate in the land terminated on July 17,1974. The defendant Marvin Bluhm is the executor of the will of Bertha Hoard, deceased. The defendants Elberta Whittington, Pamela A. Newell Staples, and Randall K. Newell are devisees under the will of Bertha Hoard, deceased, of the undivided one-half interest she held in fee. All of these parties will hereinafter be referred to as defendants.
The defendants Darwin R. Francis, Richard Holland, and Glenn H. Ford were the farm tenants on certain of the land so owned in common, and each has filed a disclaimer of interest as to the issues on appeal. Each was to deliver a one-third share of the crop as rent. These parties will hereinafter be referred to as the tenants.
After this action was filed, but before judgment in partition was entered, the trial court held a hearing on the issues of whether the farm tenants had the right to harvest the 1975 wheat crop which had been planted after Mrs. Hoard’s death, and whether plaintiffs or defendants were entitled to receive the landlord’s one-third share of the crop to be harvested in 1975 from the plaintiffs’ undivided one-half interest.
On March 11,1975, the trial court filed a letter decision finding that the tenants had the right to harvest the 1975 crop, and that the plaintiffs were entitled to one-half of the rent from the Í975 crop, which represented the entire crop share due the landlords from their undivided one-half interest in the lands.
On August 20, 1975, the parties announced to the court that they had agreed upon a partition of the real estate in kind and asked the court to divide the land accordingly. The court then entered its judgment partitioning the lands as agreed, and a journal entry of that judgment was filed on that date. This journal entry incorporated the previous decision of the court as to the right of the tenants to harvest the crop and the right of the plaintiffs to receive one-half of the crop rent. On that same date, the defendants filed their notice of appeal from the ruling which awarded one-half of the crop rent to the remaindermen, plaintiffs herein.
On October 3, 1975, plaintiffs filed a motion to require Bluhm, as executor of Mrs. Hoard’s will, to pay the 1974 taxes on their land. The basis of this claim was that Mrs. Hoard had received all of the 1974 income from the land when she received the rent from the 1974 wheat crop, which was harvested before her death. In a memorandum decision dated October 20, 1975, filed October 22, 1975, the court sustained this motion. An order to this effect was filed January 15, 1976, and on that same date the defendants filed a notice of appeal from that order.
Before consideration of the issues regarding entitlement to the crop rent and the payment of the 1974 property taxes, we are confronted with plaintiffs’ motion to dismiss the appeal as untimely. Plaintiffs contend that judgments as to these issues were rendered, respectively, by the letter decision of the trial court on March 11, 1975, and the memorandum decision on October 22, 1975, as neither document directed that judgment be settled by journal entry. Thus, the notices of appeal which were filed August 20, 1975, and January 15, 1976, were out of time and this court lacks jurisdiction.
Appellate jurisdiction is a matter of statute. Henderson v. Hassur, 1 Kan. App.2d 103, 562 P.2d 108. K.S.A. 60-2103(a) provides that an appeal may be taken within thirty days “from the entry of the judgment, as provided by K.S.A. 60-258. . . .” Under K.S.A. 60-258 [Corrick], a judgment in cases not involving a jury verdict is not “entered” within the meaning of K.S.A. 60-2103(a) until it is entered on the appearance docket at the judge’s direction, or until a journal entry is filed with the clerk, in which case the clerk is directed to immediately note the filing of the journal entry on the appearance docket. Corbin v. Moser, 195 Kan. 252, 403 P.2d 800. In Corbin, the court considered whether a trial court’s letter decision, not specifying the form of judgment, could be the “entry of judgment.” A second letter had directed that judgment be by journal entry and such was filed some six months after the date of the first letter. The court stated that the matter could be simply determined by an examination of the appearance docket. The record being silent in this regard, inquiry was made of the clerk of the district court who reported that the decision indicated by the first letter had never been entered on the appearance docket, and that the judge had not so directed. It followed that the judgment had not been “entered” until the later journal entry had been filed.
In this case, the appearance docket has been received from the district court. It indicates under date of March 11, 1975, “Letter from Judge Stewart,” and under October 22, 1975, “MEMORANDUM DECISION.” Neither of these notations indicates the filing of a journal entry or the form of judgment, and it does not appear that the trial judge directed the entry of either of them. We conclude that neither of the notations reflects the entry of judg ment. Under date of August 20, 1975, the appearance docket indicates “JOURNAL ENTRY OF JUDGMENT,” and under January 15, 1976, “ORDER TO PAY TAXES.” It follows that the judgments were not entered until the filing of the journal entry on August 20, 1975, and the Order on January 15, 1976. The appeals are timely.
Defendants seek to invoke the doctrine of emblements in support of their claim that they are entitled to all of the landlord’s share of the 1975 crop on all of the land. The doctrine of emblements comes into play when a life tenant of farmland dies before certain annual crops have been harvested. Under the common law, if the life tenant sows a crop and dies before it matures, the crop goes to his personal representative. Sprick v. Beach, 188 Kan. 296, 362 P.2d 24.
The rule as to the application of the doctrine of emblements with respect to claims of the estate of a life tenant and those of a remainderman to shares of a crop paid as rent is stated in Finley v. McClure, Administratrix, 222 Kan. 637, 567 P.2d 851, as follows:
“Where a life tenant leases farmland with the rent to be paid with a share of the crop to be raised on the land by the lessee and the life tenant dies after the crop is planted but before the crop is harvested, the estate of the life tenant is entitled to the entire crop rent, and the remainderman takes none of it.” (Syl. 2.)
The precise issue here presented is whether the estate of the life tenant is also entitled to the entire crop rent when the life tenant dies before the crop is planted, but after extensive preparatory work on the land has been done.
Defendants argue that the limitation of the doctrine to crops planted before the death of the life tenant is no longer justified in light of modern farming practices “where the vast bulk of the work is performed before the seed is even introduced into the seed bed. . . .” In this regard, they limit their appeal to the land in Greeley and Wichita counties, which is in the summer fallow zone. They point out that as to these lands “each crop ... in effect, uses the rains from two years and farming operations for two years. . . .”
The rule that the life tenant’s estate is entitled to the entire crop rent when the crop is planted before his death is said in Finley to be based on the rule that “under existing Kansas law his ownership in the landlord’s share of the crop attaches after the crop is planted and his inchoate interest is one which he may sell before maturity of the crop and which ripens into full ownership with such maturity. . . .” (222 Kan. at 642.) See also K.S.A. 58-2525; K.S.A. 60-1206; Pederson v. Russell State Bank, Executor, 206 Kan. 718, 481 P.2d 986. In Annotation, 47 A.L.R.3d 784 at 789, the rule is stated:
. . . Under the common law, the right to emblements in regard to annual crops does not attach until the crop has been seeded, no matter how much labor and expense may have been incurred in planning the crop and preparing the seed bed. Conversely, it is held that so long as the crop was seeded before the death of the life tenant, it matters not how little effort went into the preparation and seeding, or that it was done hurriedly and in an unhusbandlike manner with knowledge that the death of the life tenant was imminent. Of course, the care with which the crop was seeded may be indicative of whether the person was actually planting a crop or only pretending to do so.”
In Finley, the crop was planted two weeks before the life tenant’s death. In the present case, the record does not reveal the date of planting, but all are agreed that it was after the death of the life tenant. Since under Kansas law the rights of the landlord in a crop do not attach until after planting, we hold that the estate of the life tenant can have no interest in the crop planted after the death of the life tenant.
The defendants also challenge the order of the court that Mrs. Hoard’s estate pay all of the 1974 taxes on the undivided one-half interest in the land owned by the pláintiffs. We are reminded that Mrs. Hoard died July 17, 1974, and defendants refer to K.S.A. 79-1804, which provides in part:
“All taxes shall be due on the first day of November of each year. A lien for all taxes shall attach to the real property subject to the same on the first day of November in the year in which such tax is levied. . . .”
and to K.S.A. 79-1805, which provides in part:
“As between grantor and grantee of any land, where there is no express agreement as to which shall pay the taxes that may be assessed thereon, if such land is conveyed on or after the first day of January and before the first day of November, then the grantee shall pay the same; if conveyed on or after the first day of November and before the first day of the next ensuing January, then the grantor shall pay them. . . .”
In essence, defendants argue that since the 1974 taxes were not due and payable until November 1, 1974, plaintiffs as owners of an undivided one-half interest should pay the taxes on their interest.
The trial court recognized the statutes, but concluded that, in equity, the estate should pay all of the 1974 taxes since the decedent had received all of the 1974 crop rent.
Differing views have been set out at 51 Am.Jur.2d, Life Tenants and Remaindermen § 251 at 534-535:
“In some jurisdictions, the position has been taken that taxes are not apportionable, and, under such view, the life tenant or his estate is liable for taxes if he is alive on the day the taxes become a lien, although he dies before the expiration of the period covered by the taxes.
“[Likewise] [w]here a life tenant dies before a tax falls due, the view has been taken that his estate is not liable for any part of the tax, and that there is no apportionment.”
On the other hand:
“In some jurisdictions the rule has been established that if a life tenant or beneficiary dies before the expiration of a year for which taxes are levied, the tax is to be apportioned between the life tenant and the remainderman. . . .”
The rule of apportionment “by the period of possession” is supported in Simes & Smith The Law of Future Interests 2d ed., § 1693, p. 34 (1956) (recognizing contra authority), and Restatement of Property § 129, comment g.
The issue here presented is the subject of Annotations at 17 A.L.R. 1384 at 1397-1398; supplemented 94 A.L.R. 311 at 320, and 126 A.L.R. 862 at 869-870.
The case of Trust Company of Georgia v. Kenny, 188 Ga. 243, 3 S.E.2d 553 (1939) held that taxes should be apportioned between the estate of the life tenant and the remaindermen when the life tenant dies during the year. This was so even though the lien for the taxes attached on January 1. The court noted that the property there involved was located in the city and that the life tenant had not received income in advance before his death. Of interest to the present case, however, the court went on to say:
“. . . In the case of farm property, where the life-tenant dies during the taxable year and the other facts are such as to entitle the legal representative to emblements, it may be that the taxes should ordinarily be charged in whole to the life-estate, as between that estate and the remaindermen. . . .” (188 Ga. at 246.)
In the present case, there is no question that the entire 1974 crop rent went to the life tenant. The mere fact that the taxes for 1974 did not become a lien upon the land until November 1 of that year (K.S.A. 79-1804) does not prevent those taxes from becoming an equitable charge against one who has received all of the annual income from the land, even though his or her estate in the land terminated prior to the attachment of the lien. K.S.A. 79-1805 might provide a different result in the situation of a grantor-grantee, but such is not here involved. We hold that the trial court did not err in requiring the estate of Bertha Hoard to pay the 1974 taxes on the lands to which plaintiffs succeeded on July 17, 1974, since Mrs. Hoard had received all of the 1974 income from that land.
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Spencer, J.:
This is an action for damages resulting from a fire which completely destroyed the building and contents of the K-32 Bowl (a bowling alley) owned and operated by plaintiff in Wyandotte County. Judgment was entered for plaintiff and defendants have appealed.
The building in which plaintiff’s business was conducted was approximately 75 feet by 135 feet in dimension. It was of masonry construction and contained twelve bowling lanes together with all necessary equipment to operate the enterprise. Plaintiff had operated his bowling alley at this location since August, 1959. On April 8, 1971, the date of the fire, the business was being managed by John Enderle and his wife Dorothy as employees of the plaintiff.
The defendants, doing business as Midwest Bowling Equip ment Company, had been employed by the plaintiff to recoat the twelve bowling lanes at K-32 Bowl, such work to be performed on or about April 8, 1971. Recoating is accomplished by first cleaning the lanes with a solvent, in this instance Chloronite Solvent 8, applied to a towel which is then laid on the foul line and pushed and pulled the entire length of the lane. This procedure requires about one and one-half minutes for each-of the alleys. After the cleaning process, a lacquer is applied to each lane. In this case two five-gallon cans of Dura-Lastic Bowling Lane Finish No. 505 were used. Each can has a cover with a spout and seal. The cap is unscrewed, the seal removed, and the lacquer is poured into what is referred to as a pour can, after which one person takes the applicator, described as a sheepskin on a piece of metal approximately forty-four inches wide, and another takes the container of lacquer. Commencing at the pin deck the finish is applied as one pours the finish in front of the applicator being pulled by the other. The applicator is dragged onto protective paper placed at the foul line in a manner permitting the entire lane surface to be covered, but which will avoid any of the finish on the approaches. The solvent used in cleaning the lanes will not burn but the lacquer finish is a highly inflammable compound, carrying a flashpoint of fifty-nine degrees Fahrenheit. The procedures used are approved by the American Bowling Congress and are commonly used in the industry. The procedures followed by the defendants in applying these products are the accepted procedures and are substantially the procedures used by the defendants in the process of recoating the lanes at K-32 Bowl “about a dozen times” between the year 1960 and the date of the fire.
In addition to his testimony concerning damages, the fact that he had hired John Enderle and his wife Dorothy to operate the bowling alley for him, and that he had not been in the bowling alley for about one week before the fire occurred, the plaintiff testified as follows:
“The lanes at the K-32 Bowl were resurfaced at least five times. The supplies used to clean and buff the alleyways were purchased from Mr. Octavio and Mr. Sellers and they were the individuals that regularly resurfaced and recoated the alley lanes. At no time did I object to Mr. Sellers and Mr. Octavio using what has been admitted as plaintiff’s Exhibits 1 and 2, Chloronite Solvent 8 and Dura-Lastic Bowling Lane Finish No. 505. In my opinion, plaintiff’s Exhibits 1 and 2 are the products that are used in a majority of bowling alleys in the country for cleaning and resurfacing procedures. It would at least be one of the major brands used.”
The defendant Sellers testified that on the night of April 8, 1971, he had arrived at the K-32 Bowl alone in his truck in which he was carrying the materials and equipment to do the job; that when he arrived he carried the materials into the building and at that time Craig Spillman and John Enderle were there and there were thrée or four others inside playing pool. He immediately raised the masking, pushed the pins into the pit in back of the alleys, and proceeded with the cleaning process. He did not touch anything relating to any electrical outlets or electrical currents, nor did he take the plug-ins out of the pinsetters to render them inoperative, as those plug-ins were “cut off in front.” He stated also that he and his partner expected the bowling alley operator or manager to have the building in condition to commence the recoating process, the manager being the one with knowledge as to where the electrical controls were located; and that the building and equipment were under the manager’s control. Also, that it is normal and customary in the industry for the building operator or owner to have the building and equipment inside in a condition safe and ready for the recoating procedure; and that on the night of the fire at the K-32 Bowl, he and his partner relied on Mr. Enderle to have the building in a safe condition for them to do their work. He stated also that the electricity to the pinsetters and equipment had been turned off by Mr. Enderle at the control in the office area near the cash register. This defendant proceeded with the cleaning process and, at the time the defendant Octavio arrived, had cleaned six or eight lanes. His testimony was that after they had finished applying the lacquer to lane 12 he carried the applicator and some other equipment to his truck. He then returned to the building and made one more trip to the truck, taking with him the bucket and the towel that had been used for the solvent. When he returned the second time and was approximately ten feet inside the front door, he heard Mr. Enderle say: “Look what is happening on alley 12? What is that on alley 12?” He then looked down in front of the headpin on alley 12 and saw a blaze on the area where they had just finished putting on the lacquer.
The defendant Octavio testified that when he arrived at the bowling alley at about 10:30 p.m. on April 8, 1971, John Enderle and a mechanic were inside the building and there were also four or five others present who were playing pool. He testified that he then helped Sellers finish cleaning the lanes, taped paper down on each foul line to prevent any finish from getting on the approaches, after which they set the cans of finish on a protective cardboard. He testified also that just he and Sellers did the work and no one else assisted them in the recoating operation; that after they had finished the job on lane 12, Sellers had started removing the equipment to his truck and he (Octavio) had gone to the spectator seats in front of lane 4. At that time either Enderle or the mechanic (Spillman) asked what was on lane 12. He turned around and saw a spark of flame on lane 12 close to the pin deck. He stated that he was standing approximately seventy feet away from where he first noticed the flame in the bowling alley and that he had left the area where the flame started approximately five minutes before he saw it. The flame started on lane 12 where the lacquer finish had been applied, jumped to lane 11, to lane 10, reached the foul line, stopped and then started going back the same way. In a few seconds the whole place was full of flame and smoke. At this time the defendants still had some of their tools, the pour cans and empty buckets to remove from the building and the paper which had been taped onto the foul lines to be taken up before their job was completed. This witness also stated that he did not pay attention to where those who had been playing pool had gone and that it is possible they could have gone toward the place where the fire started. He also said that Spillman (the mechanic) had full access to the premises and that neither he (Octavio) nor his partner had anything to do with the maintenance, inspection or repair of the electrical system of the building, which were exclusively under the control of the plaintiff and his employees.
The only other evidence contained in the record on appeal consists of plaintiff’s exhibits 3 through 17, which are photographs of K-32 Bowl before and after the fire; narrative statements of seven persons regarding the damages sustained; and the narrative statements of three others, all of whom operate bowling alleys, and all of whom indicated that the materials used and procedures followed by the defendants in recoating the alleys at K-32 Bowl were materials and procedures normally used. It appears that neither Enderle nor Spillman, nor any of the persons who were playing pool in the bowling alley that night were called upon to provide any evidence in this cause.
It was on this record that the trial court found that there was no negligence on the part of the plaintiff; that the evidence adduced by the plaintiff established a cause of action for recovery under the doctrine of res ipsa loquitur; and concluded:
“The thing which caused the injury here was the highly flammable nitrocellulose lacquer, which was under the complete control of defendants. This was the origin of the fire. The fire causing the destruction of the property was such as in the ordinary course of things does not occur if the one having the management and control uses proper care. The circumstances furnished evidence from which the court now infers negligence on the part of the defendants.”
The defendants have specified eight points on appeal but the' real crux of this matter is whether the facts and circumstances revealed by the evidence will support application of the doctrine of res ipsa loquitur.
In 65A C.J.S., Negligence Sec. 220.25, pp. 616-617, it is said:
“As a general rule, the mere occurrence of a fire with resultant injuries does not raise a presumption of negligence either in the kindling or the management of the fire, and the doctrine of res ipsa loquitur is ordinarily held inapplicable at least in other than exceptional instances. . . .”
In the case of Worden v. Union Gas System, 182 Kan. 686, 688, 324 P.2d 501, it is stated:
“It is hornbook law that negligence is never presumed but must be established by proof; that the occurrence of injury does not establish liability; and that where direct proof is lacking circumstantial evidence may be used to prove negligence. One type of circumstantial evidence is that which courts have given the name of res ipsa loquitur. Whether the doctrine, which means simply ‘the thing speaks for itself,’ is to be applied depends on the character of the accident and the circumstances under which it occurred.”
The doctrine of res ipsa loquitur is intended to operate solely as a rule of evidence rather than as substantive law. (Bias v. Montgomery Elevator Co., 216 Kan. 341, 343, 532 P.2d 1053.) It is established in Kansas that three elements are necessary for the application of the doctrine:
“ . . . (1) It must be shown that the thing or instrumentality causing the injury or damage was within the exclusive control of the defendant; (2) the occurrence must be of such kind or nature as ordinarily does not occur in the absence of someone’s negligence; and (3) the occurrence must not have been due to contributory negligence of the plaintiff.” (Bias v. Montgomery Elevator Co., supra, Syl. 1.)
“The rationale behind the doctrine is said to be that when the defendant has exclusive control of the instrumentality he has it within his power to produce evidence of the cause of the injury, while the plaintiff is without such knowledge and must therefore rely on proof of the circumstances. . . .” (Bias v. Montgomery Elevator Co., supra, p. 343.)
(See also Arterburn v. St. Joseph Hospital & Rehabilitation Center, 220 Kan. 57, 551 P.2d 886.)
Defendants argue that there is no evidence as to the cause of the fire: It is admitted that the product applied to the bowling lanes during the time of the application was under the exclusive control of the defendants, and that just the two of them did the work and no one assisted them in the recoating process. However, defendants challenge the court’s finding that the finish was “the thing” which caused the damage. They argue that although the vapors of the finish ignited, the source of the ignition is unknown and that the source of ignition is actually the source of the fire. They point to the fact that the building contained a complicated electrical system under the exclusive control and management of the plaintiff through his manager Enderle; that neither of the defendants had anything to do with the maintenance, inspection, repair or control of the electrical system or equipment in the building; that it was normal and customary in the industry for the owner of the premises or his employees to have the building and equipment inside in a condition where it is safe and ready for the recoating procedures; that there are many causes of fire such as persons, electrical sparks, static electricity, spontaneous combustion, cigarettes, matches, overhead fluorescent lights dropping hot substances, etc.; and they say that in this case “the thing” which actually started or caused the fire remains open to speculation and conjecture.
On the other hand, plaintiff argues that “the thing” in this case was ten gallons of highly flammable nitrocellulose lacquer brought to the K-32 Bowl by the defendants, which they applied to the lane surfaces and which never was out of the exclusive control of the defendants. He contends as the trial court found that the fire would not have occurred in the absence of negligence; that there was substantial competent evidence presented to justify the inference of negligence under the doctrine which was never rebutted by the defendants; that the electricity to the pinsetters and equipment was turned off on the night of the fire by Enderle, the manager of K-32 Bowl; and that there is no evidence that the plaintiff or any of his agents or employees were at fault or contributed to the cause of the fire in any way. Plaintiff refers to the case of Travelers Ins. Co. v. Hulme, 168 Kan. 483, 213 P.2d 645, where the cause (sometimes called the foundation-fact) was found to be the defendant’s use of gasoline in the defendant’s garage wherein plaintiff’s car was destroyed while awaiting repairs.
Nothing is to be gained by reviewing the many cases in which the doctrine of res ipsa loquitur has been either applied or denied to a given statement of facts. It should be noted that we are here dealing with a rule of evidence from which the inference of negligence may be drawn, noting also that courts are reluctant in drawing an inference of negligence from the starting of fires for the reason they are frequent occurrences and in many cases result without negligence on the part of anyone. (Emigh v. Andrews, 164 Kan. 732, 736, 191 P.2d 901.)
The case at bar is readily distinguishable from Travelers Ins. Co. v. Hulme, supra, for there the foundátion-fact was determined to be the use of gasoline by the defendant, in defendant’s garage and upon the defendant’s premises, while the car and all repair equipment and the gasoline in the open container were in the sole custody and under the sole dominion and control of the defendant. Having so determined, the court then could reasonably infer negligence on the part of the defendant. In this case the lacquer finish was applied by the defendants without assistance from anyone else; however, the record before us clearly establishes the fact that they were not alone in the premises owned by the plaintiff and they did not have sole and exclusive dominion and control over those premises. Plaintiff’s manager, Enderle, was there and, according to the undisputed evidence, he turned off the electricity to the pinsetters and equipment and it was he who exercised general control of the building and contents. Also present in the building from the time this work commenced were Spillman, the mechanic evidently employed by the plaintiff to maintain the premises, and three, four or five others who were playing pool, either as customers or guests of the plaintiff. It is to be noted also that from the record before us the actual recoating of lane 12 had been completed for approximately five minutes when the fire broke out and that the defendant Sellers had made his second trip to remove equipment to his truck outside the building while the defendant Octavio had removed himself from lane 12 to the spectator seats in front of lane 4, some seventy feet away.
In the case of Querry v. Montgomery Ward & Co., Inc., 217 Kan. 104, 535 P.2d 928, it is stated:
“In many of our cases we have pointed out that the doctrine of res ipsa loquitur is a rule of evidence that permits an inference that the known act or instrument which produced the injury was a negligent act or a defective instrument, but it does not permit a further inference as to what act or instrument produced the injury. It cannot be assumed that absent negligence on someone’s part the fire in plaintiff’s apartment would not have occurred; and even if such an assumption could be made plaintiff still has the burden of showing that negligence could reasonably be attributed to defendants. Ordinarily, the doctrine applies only in those cases where the instrumentality or thing causing the injury is under the exclusive control of defendant or defendants at the time of the injury and the surrounding circumstances are such as to leave no reasonable conclusion to be drawn therefrom other than that the occurrence in question happened because of the negligence of defendants. . . .” (217 Kan. at pp. 108-109.)
In Bias v. Montgomery Elevator Co., supra, it was stated with reference to exclusive control that it was not necessary for the plaintiff to eliminate all other causes of the accident, and:
“ . . . All that is required is that the plaintiff produce sufficient evidence from which a reasonable man could say that on the whole it was more likely than not there was negligence on the part of the defendant. If the evidence establishes that it was at least equally probable the negligence was that of another, the court should refuse to submit to the jury the negligence of the defendant on the theory of res ipsa loquitur. . . . “ (216 Kan. at p. 344.)
From all of the evidence made available to this court, it would appear that the materials used by the defendants in recoating the bowling lanes were of a standard generally accepted throughout the industry for that purpose and that the procedures followed by the defendants in applying the materials were the normal and accepted procedures and had been approved by the plaintiff. There is no evidence in this record that the defendants were guilty of any act or omission in or about the premises for \Vhich they were negligent, other than what might be inferred by application of the doctrine of res ipsa loquitur, and any finding by the trial court to the contrary cannot be supported. The fire which started on lane 12 of K-32 Bowl commenced approximately five minutes after the lacquer finish had been applied and when all that was left to be done by the defendants was to remove their remaining tools, equipment and supplies from the building. At that time neither of the defendants was in the vicinity of the point where the fire commenced and neither of them had any more dominion or control of the applied finish or the premises themselves than did Enderle or Spillman or any others of the peQple who were then in the building. There has been no showing as to the whereabouts of any of those people, or whether some of them might have gone to the area where the fire started, or whether the electricity to the pinsetters and equipment which had been turned off by Enderle in the control in the office area near the cash register might have been turned on by him or another.
We cannot conclude from the evidence as revealed by this record that at the time the fire started on lane 12 the lacquer finish which had already been applied, if that was “the thing” which caused the fire, was within the exclusive control of the defendants; or in fact that the occurrence may not have been due to the contributory negligence of the plaintiff, his employees, customers or guests. It may be that the fumes from the lacquer finish were ignited by some negligent act but the evidence here is such as to establish that, if in fact there was an act of negligence, it could have been the act of any one of seven or more persons who were then inside the building, and not exclusively the act of the defendants. Consequently, the prerequisite of exclusive control was not present and the doctrine of res ipsa loquitur should not have been applied.
For additional authorities regarding the application of the doctrine of res ipsa loquitur in cases involving fire, see Munger v. Beiderwell, 155 Kan. 187, 124 P.2d 452; Wehkamp v. City of Garden City, 187 Kan. 310, 356 P.2d 826; In re Estate of Morse, 192 Kan. 691, 391 P.2d 117; Starks Food Markets, Inc. v. El Dorado Refining Co., 156 Kan. 577, 134 P.2d 1102; Kitchen v. Smith, 184 Kan. 188,334 P.2d 413; Rudy v. Whaley, 188 Kan. 118, 360 P.2d 863.
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Swinehart, J.:
This case was submitted to the trial court by the parties and attorneys stipulating that the court would have before it at the close of plaintiff’s evidence those facts found in the depositions of Ralph Gerchberg, Louise Gerchberg, Mrs. Roy Loney, Sr., Cleo Williams; interrogatories of Rodney Loney and Charles Loney; and the affidavit of Rolf Gerchberg. All the documents are of record. Additionally, it was stipulated that the plaintiff, a minor, would testify:
“. . . [H]e was attracted to the Loney property at the time and on the date in question by smoke coming from the open barrel on the Loney property; he initially saw no flames coming from the barrel and he was too short to see into the barrel without standing on his tip toes; upon coming to the barrel he picked up some papers from the stack beside the barrel and put them over the side into the barrel as he had seen Rodney Loney do; although he still saw no flames, he saw an increase in the amount of smoke coming from the barrel; he again picked up papers from the stack beside the barrel, stood on his tip toes to drop them into the barrel and as he dropped the papers into the barrel he saw flames for the first time inside the barrel, coming up the sides of the barrel; and he did not understand the danger involved in the conduct in which he was engaged; and, moreover, with the further exception that additional testimony would be presented concerning the extent, nature and gravity of the injuries and damages alleged to have been suffered by the plaintiff in this matter.”
The trial court then considered the case on these facts and defendants’ motion for directed verdict at the close of plaintiff’s evidence. The trial court sustained defendants’ motion for directed verdict under K.S.A. 60-250. The trial court found the following to be the facts and conclusions of law:
“1. On and prior to March 14, 1970, the Roy Loneys kept a-55-gallon metal barrel which they used as an incinerator and which was located on the Loney side of the concrete paved alley which lies behind the Gerchberg home located at 926 Indiana and the Loney home located at 927 Louisiana.
“2. At all times relevant hereto, Mr. and Mrs. Roy Loney owned a life estate in the property at 927 Louisiana which property was occupied by the Roy Loneys, by their son, Charles Loney, and by his son, Rodney, who is the grandson of the Roy Loneys. All of the Loneys just mentioned are defendants in this case. On March 14, 1970, Rodney Loney was ten years of age.
“3. At all times relevant hereto the home at 926 Indiana was occupied by plaintiff, Rolph Gerchberg, and his parents, Ralph and Louise Gerchberg. On March 14, 1970, plaintiff was five and a half years of age.
“4. For some time prior to March 14, 1970, plaintiff frequently played with Rodney in the Loney backyard. In order to get out of his backyard plaintiff would either climb the fence by which it was enclosed or he would exit through a gate to the driveway and then through the carport to the alley.
“5. On March 14, 1970, Mrs. Loney asked Rodney to burn the papers which had been accumulated in a box at the Loney home and when Rodney went to the incinerator carrying the box of papers, plaintiff came over and helped and watched Rodney burn papers for a while and then left to go with his mother to pick up a friend, Mark Albertson, who was coming over to plaintiff’s home to play. As plaintiff’s mother drove into the alley with plaintiff to go after plaintiff’s friend it was about 10:30 a.m. and smoke was coming from the Loney’s incinerator. When plaintiff’s mother returned with plaintiff and his friend Mark, she drove into the Gerchberg driveway off of Indiana Street and parked in the carport near the alley where she and the boys got out of the car following which she told them to play in the Gerchberg yard and went on into the house. Shortly after plaintiff left the Loney incinerator to go after his friend, Rodney left the Loney place with his father. At the time Rodney left with his father the paper placed in the incinerator by Rodney had burned down but was still smoking.
“6. About thirty minutes after plaintiff and his friend Mark arrived at the Gerchberg home on March 14, 1970, plaintiff decided to go back to the Loney incinerator after noticing smoke coming therefrom. Upon coming to the barrel used as an incinerator plaintiff tried to look in and by standing on his toes could see no flame. Plaintiff then picked up some papers from the box beside the barrel and put them over the side into the barrel as he had seen Rodney do. This produced more smoke but no flame after which plaintiff again picked up papers from the box beside the barrel, stood on his tip toes to drop them into the barrel and as he did this he saw flames for the first time inside the barrel, coming up the sides of the barrel.
“7. Shortly after plaintiff saw flames coming up the sides of the barrel, the grass in the Loney backyard and plaintiff’s trousers caught fire. Plaintiff then ran to the back screen door of the Loney home and shouted fire, fire, fire. At this time no one was at the Loney home except Mrs. Loney. Mrs. Loney was and is an elderly lady whose left eye had been removed and whose vision out of her right eye was so impaired that she could ‘see only about five feet and see who people were.’ When Mrs. Loney heard plaintiff at the door she grabbed a mop or a broom and left the kitchen via the back porch for her backyard. Prior to this Mrs. Loney asked plaintiff who started the fire and plaintiff said 1 did, Mrs. Loney, I did.’ On the day in question Roy Loney was out of the state on a preaching mission for his church.
“8. When Mrs. Loney reached her backyard there were many small fires throughout the grass in that area and she set about trying to put them out not observing that plaintiff’s trousers were on fire or that he needed help. About this time Mr. Williams, who was working on a project in his backyard, which is immediately north of Gerchberg’s, heard plaintiff cry out and observing smoke and fire, Mr. Williams hurried to the Loney backyard where he quickly removed the burning trousers from plaintiff at about which time plaintiff’s mother arrived on the scene, and with Mr. Williams’ help, carried plaintiff into the Gerchberg home. Neither Mrs. Gerchberg nor Mr. Williams said anything to Mrs. Loney nor did she speak to them while plaintiff’s trousers were being removed and plaintiff was being carried out of the Loney backyard. Mrs. Loney had been unaware that plaintiff’s trousers were on fire or that plaintiff needed help until she saw Mr. Williams and Mrs. Gerchberg in her backyard.
“9. Through the years many of the residents in the 900 block of Indiana and Louisiana including the Loneys had used incinerators of the type used by the Loneys along the alley for the purpose of burning trash. However on and for some time prior to March 14, 1970, the Gerchbergs and the Williamses had not burned trash on their premises. The Ordinances cited and relied upon by counsel are incorporated herein by reference thereto. On and prior to March 14,1970, plaintiff and other children in the neighborhood had been welcome to play with Rodney in the Loney yard.
“10. How the fire got out of the incinerator and into the grass and onto plaintiff’s pants is not clear. Plaintiff says the wind blew burning trash from the barrel which ignited the grass and his pants and, although most of the evidence places the wind velocity in the moderate category, it is likely that the burning papers got out of the barrel initially by plaintiff removing them as a reaction to the flame which he saw as he was putting more papers in when the first paper he had inserted had only increased the amount of smoke. In any event after the burning paper got out of the barrel it set fire to the grass, the remaining unburned paper in the box which Rodney had carried out, and the sticks which were used to stir the paper in the barrel to make it burn. And no doubt in his efforts to stop the fire from spreading plaintiff’s trousers caught fire as a result of which plaintiff sustained 3rd degree burns on his legs which required extensive skin grafting and other medical attention for which injuries plaintiff brings this suit for damages by his father as next friend.
“From the facts it is concluded that defendants’ motion for directed verdict should be sustained. At the time of the fire in question, which was activated and released from the incinerator by plaintiff, defendant Roy Loney was out of the state, defendants Charles Loney and Rodney Loney had been gone from the area for upwards of an hour and defendant Mrs. Roy Loney was in the kitchen of her home, unaware of plaintiff’s presence in the Loney backyard until she heard him say fire, fire, fire from the back porch screen door. In its dormant state, whatever potential for fire that remained in the Loney incinerator did not approach being an attractive nuisance, nor under the circumstances can it be said that any of the defendants committed negligence or were guilty of wanton conduct. At best plaintiff was a mere licensee when he entered the Loney backyard. After being made aware of the fire by plaintiff Mrs. Loney did all she was capable of doing in light of her extremely limited vision. Under the controlling facts plaintiff has failed to establish liability on the part of any of the defendants for the injuries sustained by plaintiff from the fire in the Loney backyard on March 14, 1970."
The plaintiff appeals the foregoing decision, claiming a total of nine trial errors. Some of them are repetitious and go to the same basic issues. We feel that appellant’s point number three is controlling:
“3. The trial court erred in finding that the defendants owed no duty of care to plaintiff as a licensee other than to be free from gross and wanton negligence because the doctrine of attractive nuisance was applicable.”
It is apparent in this case that plaintiff is not an invitee, but rather a licensee. An injured licensee in Kansas is only entitled to the occupier of the land avoiding willful, intentional or reckless injury to the individual. (Lemon v. Busey, 204 Kan. 119, 461 P.2d 145, and Graham v. Loper Electric Co., 192 Kan. 558, 389 P. 2d 750.) Negligent injury to a licensee will not create a cause of action unless it is equivalent to willfulness or wantonness. A mere licensee takes the premises as he finds them, and assumes all risks incident to the condition of the premises.
Plaintiff in this case is barred from recovery unless facts show he comes within one of the exceptions to the traditional classification system which is now established law in Kansas. One of the exceptions to the rule relates to an attractive nuisance and said exception is stated as follows in Brittain v. Cubbon, 190 Kan. 641, 378 P. 2d 141, Syl. 2 and 3:
“The attractive nuisance doctrine is based upon the negligence of the proprietor who fails to protect young children attracted to his premises by some dangerous thing or place artificially created, and where he should have anticipated that the children would be lured into the danger. (Following Galleher v. City of Wichita, 179 Kan. 513, 296 P. 2d 1062, Syl. 3.)
“One of the essential elements of the doctrine of attractive nuisance is that the danger present must be of a latent character, but a latent or concealed danger extends to things hidden from the appreciation of persons injured, as well as to things hidden from the eye.”
Restatement (Second), Torts § 339 p. 197 (1965) deals with “Artificial Conditions Highly Dangerous to Trespassing Children” in the following manner:
“A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
“(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
“(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
“(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
“(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
“(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.”
In Brittain v. Cubbon, supra, at page 646, the Kansas Supreme Court cited with approval 38 Am. Jur., Negligence, § 142, pp. 802-804, as follows:
“. . . While the doctrine has been variously stated, courts which accept it generally are in substantial accord with the proposition that one who maintains upon his premises a condition, instrumentality, machine or other agency which is dangerous to children of tender years by reason of their inability to appreciate the peril therein, and which may reasonably be expected to attract children of tender years to the premises, is under a duty to exercise reasonable care to protect them against the dangers of the attraction. Within the limitations hereinafter considered, the doctrine is for the benefit of a meddling, as well as of a trespassing, child. The result of such doctrine is that one is negligent in maintaining an agency which he knows, or reasonably should know, to be dangerous to children of tender years, at a place where he knows, or reasonably should know, children of tender years are likely to resort, or to which they are likely to be attracted by the agency, unless he exercises ordinary care for the protection of such indiscreet and youthful persons.”
Further, at 57 Am. Jur. 2d, Negligence, § 124, p. 475:
“. . . In any case, children, wherever they go, must be expected to act upon childish instincts and impulses; and others who are chargeable with a duty of care and caution toward them must calcuate [sic] upon this, and take precautions accordingly. If they leave exposed to the observation of children anything which would be tempting to them, and which they, in their immature judgment, might naturally suppose they were at liberty to handle or play with, they should expect that liberty to be taken.” (Footnote omitted.)
The facts in this case indicate that the defendants have used this 55-gallon barrel for a long period of time to burn trash; that they have authorized and directed their ten-year-old grandson to burn said trash; that oftentimes plaintiff, five and one-half years of age, had been invited over to play in the yard and had done so on many occasions; that on the day of the accident the grandson had burned papers at the trash barrel, commencing about 9:00 to 9:30 a.m., and plaintiff was there and watched. At approximately 10:30 a.m., plaintiff left with his mother to pick up a friend. Shortly after the plaintiff left, defendant grandson (Rodney) and his father left, leaving the fire in the barrel unattended.
Between 11:00 and 11:30 a.m., plaintiff returned home with his mother and was soon back in defendants’ yard, attracted by the smoke coming from the barrel. The contents of the barrel were still smoldering and smoking. Plaintiff initially saw no flames in the barrel. He proceeded to pick up papers from a stack near the barrel and place the papers in the barrel. He still saw no flames. He proceeded to place more papers into the barrel, and at this time, while standing on tiptoes, he first noticed flames coming up the sides of the barrel. Soon thereafter, the fire somehow spread to the grass where plaintiff was standing and to plaintiff’s pants legs, causing his injuries. Plaintiff’s testimony, which must on appeal be accepted as absolute truth, was that he “did not understand the danger involved in the conduct in which he was engaged.”
The plaintiff’s stipulated evidence in this case was considered by the trial court on a motion for directed verdict, as provided for in K.S.A. 60-250, and not as a motion by the defendants for an involuntary dismissal, as provided for in K.S.A. 60-241 (b). When plaintiff’s evidence is so considered by the court, the general rules of law provide that the same shall not be sustained unless the evidence is insufficient to support a verdict for a party against whom it is directed. The court must consider the evidence and all inferences that may be drawn therefrom in the light most favorable to the plaintiff. (Carter v. Food Center, Inc., 207 Kan. 332, 485 P.2d 306.)
The evidence in this case as presented to the trial court, when challenged by a K.S.A. 60-250 motion on the theory of attractive nuisance as applied to the liability of an occupier of land to a licensee thereon when said licensee is a five-and-one-half-year-old child, is sufficient to support a verdict in favor of plaintiff against defendants. We feel the court’s action in sustaining defendants’ motion was improper. We are not saying the doctrine of attractive nuisance must be found controlling. Rather, we simply hold that there is sufficient evidence to require that the attractive nuisance question be submitted to the jury for resolution.
The plaintiff’s points on appeal relative to public policy and violation of provisions of the fourteenth amendment are considered by the court and found to be without merit, when viewed in light of recent supreme court decisions finding that the traditional classification rules and related exceptions are still viable, and should not, at this time, be set aside and held for naught.
The remaining question of error raised by appellant goes to whether or not the appellees’ conduct herein constituted gross and wanton negligence. If it did, appellees would be liable under Kansas law to appellant, even though a licensee. (Graham v. Loper Electric Co., supra; Backman v. Vickers Petroleum Co., 187 Kan. 448, 357 P. 2d 748.) This issue has been considered, and it is found after examination of the stipulated evidence and the law, as previously set forth herein, that the trial court should be affirmed in its conclusion of law that appellees’ acts did not constitute gross and wanton negligence.
Taking the evidence as presented by plaintiff and considered in accordance with rules applicable to a motion for directed verdict under K.S.A. 60-250, it appears that the court erred in sustaining said motion. The judgment is reversed and the case is remanded for further proceedings in accordance with the opinions expressed herein.
Parks, J., dissenting: As I understand the holding of the majority, it is that the smoldering fire in the incinerator could be found by a jury to be an attractive nuisance. I disagree.
As the majority notes, an essential element of the doctrine of attractive nuisance is that the potential for injury must be of a “latent” character, i.e., it must be such that children will not see or appreciate the danger involved. I cannot place a trash fire in that category, especially when confined to an incinerator. Children far younger than the five-and-one-half-year-old plaintiff are expected to appreciate the dangers of fire. Neither can I find that it fits the other accepted requirements that the “nuisance” be unusual and especially attractive to children.
Our supreme court has faced this problem on several occasions. In Bruce v. Kansas City, 128 Kan. 13,276 Pac. 284, the court held that a smoldering fire in the city dump was not an attractive nuisance. Had it been one, the city would have been liable for injuries sustained by a five-year-old boy who was burned in the hot ashes. Similarly, in Rhodes v. City of Kansas City, 167 Kan. 719,208 P. 2d 275, when a six year old was burned, a smoldering fire under a pile of debris was held not to be an attractive nuisance.
Most persuasive, in my view, is Rose v. Board of Education, 184 Kan. 486,337 P. 2d 652. There, a six-year-old boy, on a school playground, stepped into live coals resulting from the burning of a stump, which was left unextinguished and unattended. The court found that leaving the stump burning and unattended might well have been negligence, but fell short of the maintenance of a nuisance. The court emphasized that it was dealing with an isolated instance of a temporary nature as opposed to a condition created and maintained for an extended period of time.
The most nearly comparable case in which a fire was found to be, at least potentially, an attractive nuisance is Carter v. Shelly Oil Co., 191 Kan. 474, 382 P. 2d 277. There, a bare majority of the court found a burning oil slush pit could be an attractive nuisance and a petition so alleging was not demurrable. The child there was attracted by an oily rope protruding from a slush pit, became entangled in it, and because of the steep sides and crumbly bank, fell in. Here we have no rope, and no vertical sides or crumbly banks creating a virtual trap. Even there, three members of the court felt that because it was an open fire the danger was patent and no attractive nuisance existed.
Courts in other jurisdictions generally hold, for various reasons, that a controlled fire is not an attractive nuisance. Thus, the West Virginia court held:
“A controlled fire used to destroy trash and other refuse, is not a dangerous instrumentality or agency such as is required to be guarded against the possibility that children may be attracted thereby and suffer injury therefrom.” (Harper v. Cook, 139 W. Va. 917, 82 S.E. 2d 427, Syl. 3 [1954], following Tiller v. Baisden, 128 W. Va. 126, 35 S.E. 2d 728 [1945].)
The Colorado Supreme Court reached a similar holding in Dunbar v. Olivieri, 97 Colo. 381, 50 P. 2d 64 [1935]. At page 386, the court said:
“. . . [I]t is obvious that in the present case, under the evidence before us, the injured boy was not attracted by anything heretofore deemed by this court to be such a nuisance. Neither his own testimony nor any other in the record brings the case at bar within the attractive-nuisance principle. The rubbish-burning device was on the defendant’s premises. . . .”
In Dunbar, the Colorado Supreme Court quoted from Hayko v. Colo. & Utah Coal Co., 77 Colo. 143, 146, 235 Pac. 373, 374, 39 A.L.R. 482 [1925]:
“ ‘It will not do to say that every attractive thing is sufficient to charge a defendant with negligence in enticing children to trespass, because there is nothing that can be said not to be attractive to a child. . . . While he owes a duty to one invited, and some attractive agencies may amount to an invitation to a child, yet such an agency must invite to trespass and not merely after trespass, and must be an unusual thing, unusually, extraordinarily attractive. . . .’ ” (Dunbar v. Olivieri, supra at 386.)
In Goss v. Shawnee Post No. 3204, V.F.W. ofU.S., 265 S.W. 2d 799 (Ky. 1954), the court said:
“Under our construction of the rule we find that such a commonplace thing as a small controlled trash fire on one’s own property does not constitute an attractive nuisance. It will not do to say that every attractive thing is sufficient to charge a defendant with negligence in enticing children to trespass because most things are alluring to infant children and subject to their curiosity.” (p. 801.)
As to common dangers existing in the order of nature, it is the duty of parents to guard and warn their children, and, failing to do so, they should not expect to hold others responsible for their own want of care. But, with respect to dangers specially created by the act of the owner, novel in character, attractive and dangerous to children, easily guarded and rendered safe, the rule is, as it ought to be, different. (See Tavis v. Kansas City, 89 Kan. 547, 553, 132 Pac. 185.)
In the case at bar, there was nothing novel or. dangerous about the incinerator or its use. The plaintiff had been there earlier that day and had watched and helped Rodney Loney. The fire was wholly on defendants’ own property and to reach it plaintiff came under circumstances that made him a licensee. Therefore, the defendants owed him no duty to guard him from the fire. (Lentz v. Schuerman Building & Realty Co., 359 Mo. 103, 220 S.W. 2d 58 [1949].) The fire in its dormant stage was not dangerous until it was activated by the plaintiff.
Under the facts and circumstances of this case, the doctrine of attractive nuisance is not applicable. I would affirm for the reasons stated herein, and hold that the trial court properly sustained the motion for a directed verdict.
Harman, C.J., and Foth, J., join in the foregoing dissent. | [
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Abbott, J.:
This is an action to enjoin the construction of an accessory building in a zoned residential area of Lyons, Kansas. A building permit was granted to Fundenberger by the city of Lyons allowing construction of a building having dimensions of 40 feet by 58 feet. The north half of the building was to be 21 feet high from the ground to the peak of the roof, and the south half was to be 17 feet high. A neighbor, Aubrey Rickard, appealed to the Board of Zoning Appeals, requesting cancellation of the building permit. The zoning board heard evidence and denied the appeal. Appellee filed this injunction action. All parties requested the trial court to consider the matter as an appeal from the zoning board of Lyons, Kansas, and the case was thereafter so considered. The district court heard and considered evidence and reduced the size of the building appellant could construct. The appellant has brought the matter here for review.
The appellant raises three issues on appeal: (1) Whether the district court erred in conducting a trial de novo rather than limiting itself to the evidence submitted to the Board of Zoning Appeals; (2) whether the trial court exceeded its scope of review of an administrative body’s decision; and (3) whether the district court erred in applying a “preponderance of the evidence” standard.
The trial court did not err by not limiting itself to the evidence submitted to the Board of Zoning Appeals. No record was made of the proceedings before the Board of Zoning Appeals. Had a record been made, it would have been admissible in the district court. The district court, however, is not limited to evidence presented to the Board of Zoning Appeals. The court’s authority to hear evidence in matters of the nature presented here is well defined in Kansas.
“The trial in district court then is de novo in the sense the court may take its own evidence and is not necessarily limited to the evidence presented before the administrative board. The power to receive and consider such evidence, however, is not to be employed for the purpose of enlarging the scope of judicial review— the test being, the evidence must be relevant to the limited issue before the court on appeal; namely, the reasonableness and legality of the order appealed from. . . .” Rydd v. State Board of Health, 202 Kan. 721, 732, 451 P.2d 239.
In Keeney v. City of Overland Park, 203 Kan. 389, 454 P. 2d 456, the Supreme Court held that all relevant evidence as to the reasonableness of the action is admissible unless limited by the various exclusionary rules, stating:
“Parties attacking the reasonableness of an ordinance should not be precluded from the presentation of relevant evidence showing unreasonableness, even though such evidence was not presented to the governing body. This is not meant to imply that the hearing in district court should be a retrial on the merits of the zoning application, irrespective of whether or not a record was made of the city council’s proceedings; neither does it imply that a party may lie in wait and .ambush the other side at the district court hearing. The district judge remains armed with his usual discretion in admitting or rejecting evidence, and his rulings will not be disturbed unless substantial rights of a party are thereby affected.” (p. 394.)
In Strader v. Kansas Public Employees Retirement System, 206 Kan. 392, 402, 479 P. 2d 860, the court said, “[A] party appearing before an administrative body cannot produce his evidence piecemeal. He cannot produce part of his evidence before an administrative agency and then produce the balance on judicial review. . . .”
Appellant does not allege error from the admission of any specific testimony. All of the evidence taken and considered by the trial court was relevant to the issue of the reasonableness of the Board of Zoning Appeals’ actions, and the trial court did not abuse its discretion in admitting the same. This is particularly true where a specific objection to the evidence was not made. This does not mean, however, that the district court can substitute its judgment for that of the Board of Zoning Appeals. The Board of Zoning Appeals was, in effect, the trier of facts and had the responsibility of weighing controverted evidence and arriving at a judgment on the merits as to entitlement to a building permit.
The scope of judicial review by the district courts and the appellate courts is the same and has been stated to be:
“The rules for judicial review of municipal zoning ordinances and determinations are well established. ‘It must be understood that the governing body has the right to prescribe zoning, the right to change zoning and the right to refuse to change zoning’ (citation omitted). The power of the district court, in reviewing zoning determinations, is limited to determining (1) the lawfulness of the action taken, that is, whether procedures in conformity with law were employed, and (2) the reasonableness of such action. In making the second determination, the court may not substitute its judgment for that of the governing body and should not declare the action of the governing body unreasonable unless clearly compelled to do so by the evidence (citations omitted). ‘There is a presumption that the governing body acted reasonably and it is incumbent upon those attacking its action to show the unreasonableness thereof’, by a preponderance of the evidence (citations omitted). . . .” (Highway Oil, Inc. v. City of Lenexa, 219 Kan. 129, 132, 547 P. 2d 330.)
In reviewing a district court’s judgment, this court, for the purpose of determining whether the district court observed the requirements and restrictions placed upon it, will make the same review of the administrative tribunal’s action as does the district court. (Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P. 2d 828; Swezey v. State Department of Social and Rehabilitation Services, 1 Kan. App. 2d 94, 562 P.2d 117.)
The lawfulness of the action taken by the Board of Zoning Appeals from a procedural standpoint was not attacked. The sole question before the district court was the reasonableness of the Board of Zoning Appeals’ action in refusing to cancel the building permit. The burden was on the plaintiff-appellee to produce evidence to overcome the presumption of reasonableness and “clearly compel” a finding of unreasonableness. (Keeney v. City of Overland Park, supra; Paul v. City of Manhattan, 212 Kan. 381, 511 P. 2d 244.)
The district court heard evidence on the question of reasonableness from appellee, appellee’s wife, a real estate expert, appellant, appellant’s wife, and four neighbors. Appellee and his wife objected that the building would block their view, that the foundation would interfere with drainage in the block, that the building would decrease the value of their property, and that it would create a fire hazard in that it was of frame construction and located one-half block south and one-half block west of the nearest fire hydrant. The realtor testified that the building would decrease the value of appellee’s home by $5,000 due to its size, location, and the type of material to be used.
Appellant testified that the accessory building contained fewer square feet than his home; that all of the homes in the block were of frame construction other than the brick home of appellee. He denied that the building would be a fire hazard and that it would affect drainage. Appellant testified he would use the building to store five motorcycles, a camper, a race car, antique cars, and miscellaneous other items he owned; and he would use it as a place to work on his race car, but that it would not be used commercially.
Two neighbors testified they had small children and did not object to the structure; one of them testified it would not be a fire hazard or create a drainage problem. On rebuttal, two other neighbors testified they objected because of the location, size and potential drainage problem.
The district court found that any structure built must be compatible with the other structures in the R-l area in size, material used, and the purposes for which it is to be used. The court found the proposed structure did not fit into the general character of the neighborhood. The trial judge then stated, “The Court believes that it has a large measure of discretion to grant or refuse an injunction in cases such as the one before the Court.” (Citing cases.)
The appellant was then restrained from building the structure as planned, but the court determined appellant could build a structure 34 feet by 26 feet with 14-foot sidewalls.
Appellant requested a new trial and modification of the judgment. The trial judge modified the size of the structure by increasing the length of the structure to 35 feet. The trial judge, for the first time, then made a finding that the action taken by the Board of Zoning Appeals of Lyons, Kansas, was unreasonable.
It is important to note that the material from which the building was to be constructed was not in violation of any city ordinances; that the building did not exceed permissible height requirements; nor was there any contention that the structure violated any maximum lot coverage regulations.
The district court, for its authority to limit the size of the structure, relied upon a portion of the zoning ordinance defining the purpose of the R-l area, which reads as follows:
“This district is composed of residential areas of the city plus certain open areas where similar development appears likely to occur. The regulations for this district are designed to stabilize and protect the essential characteristics of the district, to promote and encourage a suitable environment for family life and to prohibit activities of a commercial or industrial nature. To these ends, development is limited to single-family residence, plus certain additional uses such as schools, parks, churches, and certain public facilities which serve the residents of the district.” (Zoning Regs. [1976], City of Lyons, Kansas.)
Neither party raises any question concerning the authority of the appeals board or the district court to deny a building permit or limit the size of an accessory building under this ordinance, nor do they challenge the language as being so vague and uncertain as to be left to the whim or caprice of the appeals board.
The law in Kansas is clear that neither a trial court nor an appellate court can substitute its judgment for that of the Board of Zoning Appeals in matters other than law or essentially judicial matters, and neither court can declare the board’s actions unreasonable unless clearly compelled to do so by the evidence. (Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, 539 P. 2d 1; Neeley v. Board of Trustees, Policemen’s & Firemen’s Retirement System, 205 Kan. 780, 473 P. 2d 72.)
The Board of Zoning Appeals, by not canceling the building permit, determined that the building was not incompatible with “a suitable environment for family life” and did not destroy “the essential characteristics of the district.” In a similar situation where a zoning question came before our Supreme Court, the court said: “The most that could be said from the standpoint of plaintiff and those he represents is that the matter may be fairly debatable. That being so, the court may not substitute its judgment for that of the city in order to change the decision on the debate. . . .” (Arkenberg v. City of Topeka, 197 Kan. 731, 738, 421 P. 2d 213.)
From the record it is clear the trial court exceeded the permissible extent of judicial review and substituted its judgment for that of the Board of Zoning Appeals of Lyons, Kansas. That it could not do.
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Rees, J.:
This is an action for breach of contract. The case was tried to the court and judgment was entered for the plaintiff. Both parties appeal. The defendant asserts that the trial court erred in its finding that he breached the contract. Plaintiff contests the amount of the judgment.
Plaintiff is a buyer and distributor of popcorn. His business office is in Garden City. He operates a plant at Stratford, Texas. Defendant is engaged in farming and it appears that he is the operator of land in Thomas County. The written contract that is the subject of this lawsuit was entered into by the parties in 1973.
It was agreed by the parties that in 1973 defendant would raise 380 acres of popcorn and the plaintiff would buy the crop. Plaintiff was to provide seed popcorn at a stated price. Plaintiff was to purchase the popcorn crop, shelled and delivered by defendant to plaintiff’s plant at Stratford, Texas, at a price of $4.75 per hundredweight. The popcorn was to be delivered by defendant upon plaintiff’s order. Plaintiff was to order delivery of one-third of the crop by March 30, 1974, one-third by June 30, 1974, and the balance by September 30, 1974. The contract included other terms that dealt with the quality of the popcorn to be delivered, payments to be made by plaintiff to defendant for storage and transportation, interest to be paid by plaintiff on the popcorn held in storage by defendant from the time of harvest to the time of delivery, and other matters. The particular provisions of the contract that give rise to this litigation are as follows:
“12. Baker agrees to pay Grower for the above corn when delivered and in addition thereto, agrees to pay storage fees, in and out charges, transportation charges, and the accrued interest on each bushel or cwt. of corn as delivered.
“13. It is further understood and agreed that if Baker, for any reason, fails, neglects, or refuses to pay Grower for said popcorn along with the heretofore specified charges at the time of delivery, then, and in that event, the remaining undelivered popcorn in Grower’s possession shall, at Grower’s option, be released by Baker for Grower to retain or dispose of as he sees fit.”
The requirement for payment on delivery was made a part of the contract at defendant’s request.
Some time in January, 1974, plaintiff telephoned defendant and asked that he begin delivery to the Stratford plant. The first truckload was delivered at about 5:00 P.M. on Saturday, February 2, by defendant and his employee, Boucher. Plaintiff’s plant manager, Martin, gave a weight ticket to defendant. A second truckload was delivered on Monday, February 4, by Boucher. Martin gave a weight ticket to Boucher. On neither occasion did defendant or Boucher ask Martin for payment for the popcorn delivered and Martin did not offer to pay.
During the week of February 4, Martin telephoned defendant and asked when further deliveries would be made. Later that same week, plaintiff telephoned defendant and asked about the delay. Defendant told Martin and plaintiff that he was having equipment problems and that Boucher had been ill. In neither of the telephone conversations was there any discussion of payment. On Monday, February 11, defendant sent a written notice of termination of the contract claiming that plaintiff had breached the contract by failing to pay on delivery as required by paragraphs 12 and 13. Upon receipt of the notice of termination on or within a few days following February 12, plaintiff sent checks to defendant in payment for the two loads that had been delivered. After sending the notice of termination, defendant entered into a contract with a third party for the sale of the balance of the 1973 popcorn at a price of $8.00 per hundredweight. This contract was performed by defendant’s delivery of 1,600,000 pounds of popcorn.
Martin testified that he made no payments for popcorn at Stratford. The practice was that copies of weight tickets were sent to plaintiff’s Garden City office where checks were written and mailed. At the time of defendant’s two deliveries, Martin would accumulate weight tickets and send them to Garden City so that they would arrive on Monday mornings. He did not know when he had sent the weight tickets for the February 2 and 4 deliveries.
Defendant testified that at the time he made his contract to sell the balance of his 1973 crop, to the third party, popcorn was selling for $8.00 ánd the commodity market price was between $7.00 and $7.25. He further testified that after the 1974 harvest popcorn was selling for around $14.00. Plaintiff testified that he had to pay $10.30 for some replacement popcorn. The trial court awarded damages of $52,000. This amount represents the value of 1,600,000 pounds at $3.25 per hundredweight, the difference between the parties’ contract price of $4.75 and an $8.00 price.
The trial court’s findings were in part as follows:
“2. That the defendant knew or should have known that the plaintiffs business office was located in Garden City, Kansas, and that in the normal course of events payment would be made from that office. That Garden City, Kansas, is on a direct route from the plaintiff’s grain receiving facilities in Stratford, Texas, to the defendant’s farm and that nothing prevented the defendant or his agents, servants and employees from stopping off on their way back from delivering the grain and requesting payment or obtaining payment from plaintiff’s business office in Garden City, Kansas. That the evidence discolses [sic] that any request for payment would have been promptly handled and that the plaintiff had ample funds with which to make the payment and the only reason payment was not made was the failure of the defendant to request it.
“3. That between the time that the contract for the production of the popcorn was entered into and the time for delivery the price of popcorn had risen sharply and that it was greatly to the defendant’s financial advantage if he could in some way get out of his contract for the sale of popcorn.
“The Court concludes that the parties are under a duty to deal fairly with each other in good faith and that the defendant breached this duty by declaring a termination of the contract upon a technical pretense and that therefore as a matter of law the plaintiff is entitled to recover the damages suffered.
“The Court further concludes that to interpret the contract to require immediate payment without request or demand upon delivery of the grain to the processing facility in Stratford, Texas, would result in an unconscionable and unenforceable contract and that the contract should not be so interpreted. . . .”
Defendant raises three issues on appeal.
First, defendant argues the district court erred in considering evidence extrinsic to the written contract in violation of the parol evidence rule. Our consideration of defendant’s argument is hindered by defendant’s failure to specify what evidence was admitted and considered by the trial court in contravention of the parol evidence rule. The record before us reveals no objections by defendant to the admission of any evidence. K.S.A. 60-404 provides as follows:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.”
Our examination of the district court’s journal entry of judgment does not indicate that the court permitted extrinsic evidence to contradict the terms of the contract between the parties. The applicable parol evidence rule is embodied in K.S.A. 84-2-202, which provides that written terms of a sales contract “. . . intended by the parties as a final expression of their agreement. . . may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement . . .” Defendant has not brought to our attention any evidence considered by the court of prior or contemporaneous agreements contradicting the express terms of the contract.
Defendant next contends that the district court erred in finding that defendant’s termination of the agreement was a breach of his duty to perform and enforce the contract in good faith. Defendant argues that he was under no good faith obligation in terminating the contract and, even if he was, the termination was made in good faith.
K.S.A. 84-1-203 provides as follows:
“Every contract or duty within this act imposes an obligation of good faith in its performance or enforcement.”
K.S.A. 84-1-201(19) defines “good faith” as “honesty in fact in the conduct or transaction concerned.”
Defendant maintains the good faith obligation of K.S.A. 84-1-203 is not applicable because termination of a contract is not “performance” or “enforcement” of a contract. Under the facts of this case, we disagree. The termination clause in paragraph 13 of the contract does not permit termination at will but only upon failure of plaintiff to pay on delivery. Defendant’s right to terminate and retain or dispose of undelivered popcorn is an insepara ble incident of enforcement of substantive provisions of the contract. We believe that only tortured reasoning could exempt defendant’s exercise of the termination clause from the good faith obligation of K.S.A. 84-1-203, and we decline to do so.
There was substantial competent evidence in the record to support the district court’s finding that defendant had breached his obligation of good faith. His failure on delivery of either load of popcorn to the Stratford plant to demand payment, his failure in the subsequent telephone conversations with plaintiff and Martin to demand payment, and his hasty resale of the popcorn to another buyer at a price nearly double the contract price, provided the trial court with ample evidence upon which to find an absence of good faith. The finding was one of fact and is not to be overturned where supported by substantial competent evidence. McGilbray v. Scholfield Winnebago, Inc., 221 Kan. 605, 561 P.2d 832.
Defendant’s final argument is that the district court erred in employing the “unconscionability” concept of K.S.A. 84-2-302 as a device for interpreting the contract. Defendant maintains the district court misused the unconscionability concept to shape its view of the content of the contract. We cannot agree. The findings of the district court indicate only that the court determined defendant’s interpretation of the contract would lead to an unconscionable result. The contract provision permitting termination upon failure to pay on delivery was subject to multiple permissible interpretations. Defendant’s interpretation of the contract was not the one adopted by the court and therefore the court’s statement as to unconscionability was dictum and we need not belabor the point. Even so, termination clauses which are exercisable upon minimal notice and are so one-sided as to lead to absurd results have been held to be unconscionable. See Ashland Oil, Inc. v. Donahue, 223 S.E.2d 433 (W.Va. 1976).
Plaintiff, as cross-appellant, cites as error the district court’s computation of damages. Plaintiff argues the district court erred in refusing to permit evidence of a fluctuating market price for popcorn between $10.50 and $20.00 per hundredweight for the purpose of establishing plaintiff’s damages.
Regardless of what may have been designated by the parties, the record fails to disclose any proffer of evidence by plaintiff to establish the $10.50 to $20.00 prices. K.S.A. 60-405 provides:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge, or indicated the substance of the expected evidence by questions indicating the desired answers.”
The evidence supporting an $8.00 price was at least as substantial as any other price shown by the record. The question of the market price of the popcorn at the time of breach is one of fact and not to be overturned where supported by substantial competent evidence. McGilbray v. Scholfield Winnebago, Inc., supra.
The measure of damages applied by the trial court, the difference between the contract price and the market price at the time plaintiff learned of defendant’s nondelivery and repudiation, is a proper measure of damages and is the substance of K.S.A. 84-2-713.
The parties having failed to show prejudicial error, the judgment is affirmed. | [
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Foth, J.:
This appeal raises the constitutionality of the small claims procedure act (K.S.A. 61-2701 et seq.) as it existed from January 10, 1977, until April 27, 1977. The issue arises because during that period neither party to small claims litigation was entitled to appear by or with counsel at any stage during which evidence was introduced, and no trial by jury was obtainable.
This lawsuit was commenced on November 11, 1976, in the former magistrate court of Reno county. In her petition Mrs. Windholz sought out-of-pocket expenses and compensation for inconvenience and embarrassment allegedly caused by a defective permanent wave administered by the defendant’s beauty shop. As contemplated by the act, an informal trial to the court was held on December 21, 1976, with no attorney present for either side. During the trial both parties alluded to out-of-court statements made by declarants not present, and a good deal of hearsay was admitted on both sides. The matter was taken under advisement.
On January 18, 1977, the trial judge rendered his decision awarding plaintiff judgment for $100. The order recited that either party could appeal to the district court within ten days and receive a trial de novo. Three days later the order was amended to recite that any appeal would be to this court. Such an appeal was duly taken by the defendant, primarily raising the constitutional issues. We are not concerned with and do not reach the merits of Mrs. Windholz’s claim for damages.
A bit of legislative history will explain how the issue comes up and why the trial judge entertained a brief period of confusion. At the time the case was filed and tried the judge presided over the magistrate court of Reno county, a court of limited jurisdiction having jurisdiction of cases under the small claims procedure act. Under former K.S.A. 1975 Supp. 61-2709, appeals in small claims cases were governed by “the code of civil procedure before courts of limited jurisdiction.” By referring to that code we find that under former K.S.A. 1975 Supp. 61-2103 the appeal was to the district court, where the case was to be tried “as if originally filed therein.”
The 1976 legislature, as part of the court unification process, amended 61-2709 to provide that appeals in small claims cases should be taken as prescribed by “the code of civil procedure for limited actions.” The change was necessary because effective January 10, 1977, there were no more courts of limited jurisdiction. Magistrate courts were abolished, and the trial judge in this case became on that date an associate district judge. Referring again to the code governing limited actions we find that under K.S.A. 61-2102(a) appeals from district magistrate judges were to a district judge or associate district judge, but appeals in actions heard originally by a district judge or associate district judge were taken directly to the court of appeals. Since the trial judge here had become an associate district judge by the time he decided the case, the statutes in effect at that time provided for appeals from his decisions to come directly to this court. Hence, both parties were denied the trial de novo in district court previously available, with the attendant right to counsel and to a jury trial on demand.
Appellant argues she was thus denied due process of law. We must agree. As has frequently been stated, the minimum elements of due process are notice and a hearing. And in judicial proceedings at least, a hearing includes the right to counsel. In Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, the Court discussed the basic elements of due process. Describing the meaning of the opportunity to be heard, the court stated: “Historically and in practice, in our own country at least, [a hearing] has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.” (Id. at 68-9.)
Powell was a criminal case, but other cases indicate that the language cited applies to civil hearings as well. For example, in a quiet title action, the Tenth Circuit stated that the “right to a hearing includes the right to the assistance of counsel of his own choice, if requested.” (Roberts v. Anderson, 66 F.2d 874, 876 [10th Cir. 1933].) See, also, Mendoza v. Small Claims Court, 49 Cal. 2d 668, 321 P.2d 9 (1958); Brooks v. Small Claims Court, 8 Cal. 3d 661, 105 Cal. Rptr. 785, 504 P.2d 1249 (1973).
The exclusion of counsel from the small claims proceeding is not fatal where a trial de novo with counsel is available. As stated in the leading case of Prudential Ins. Co. v. Small Claims Court, 76 Cal. App. 2d 379, 382, 173 P.2d 38, 167 A.L.R. 820 (1946):
“There can be little doubt but that in both civil and criminal cases the right to a hearing includes the right to appear by counsel, and that the arbitrary refusal of such right constitutes a deprivation of due process. [Citations omitted.] But that does not mean that the Legislature cannot create a small claims court where informal hearings may be held without the assistance of counsel, as long as the right to appear by counsel is guaranteed in a real sense somewhere in the proceeding. .' . . The defendant has no legal cause for complaint because if he is dissatisfied with the judgment of the small claims court he has a right of appeal to the superior court where he is entitled to a trial de novo. [Citation omitted.] In that court he and the plaintiff can, of course, appear by counsel. This satisfies the due process requirement.”
See also, Foster v. Walus, 81 Idaho 452, 347 P.2d 120 (1959).
Appellant’s second constitutional argument is that the requirement of appeal directly to the court of appeals denied her the right to trial by jury. Again we agree. Our cases state the familiar rule that a civil litigant is entitled to a jury trial if the action is essentially a legal rather than an equitable action. Hasty v. Pierpont, 146 Kan. 517, 72 P.2d 69; Hindman v. Shepard, 205 Kan. 207, 468 P.2d 103; Board of Education v. Scoville, 13 Kan. 17; Nusz v. Nusz, 155 Kan. 699, 127 P.2d 441; Estey v. Holdren, 126 Kan. 385, 267 Pac. 1098. Since this is a proceeding for the recovery of money, it is clearly an action at law, not equity. Board of Education v. Scoville, supra; Hasty v. Pierpont, supra. Hasty indicates that the right to jury trial cannot be absolutely denied regardless of the supposed justification. In that case the plaintiff had sued to recover attorney fees and had moved for the appointment of a referee to hear the facts, asserting that a complicated accounting problem was presented. Denying a writ of mandamus to compel the trial judge to decide plaintiff’s motion, the court recognized defendants’ right to a jury trial and commented that “[t]he constitutional provision is not directed at trial efficiency, but to protect the individual from oppression.” (146 Kan. at 520.)
The guarantee of trial by jury, like the right to counsel, can be fulfilled if a trial de novo is available at the district court. In Capital Traction Co. v. Hof, 174 U.S. 1, 43 L.Ed. 873, 19 S.Ct. 580 (1899), the Court held that the right to a common-law jury trial as guaranteed by the Seventh Amendment to the United States Constitution is not violated by a statutory provision allowing the primary trial of civil cases of a moderate amount by a justice of the peace, where the statute also allowed the parties the right to appeal to a court of record where a common-law jury could be had. The Minnesota Supreme Court applied the same reasoning to uphold a statute establishing a “conciliation court” where the losing party could appeal and get a trial by jury. Flour City Fuel and Transfer Co. v. Young, 150 Minn. 452, 185 N.W. 934 (1921).
Our research indicates that in every case where summary procedures for settling small claims have been challenged either for failure to permit counsel or to provide an opportunity for a jury trial, the only basis for sustaining their constitutionality was the availability of those essential elements through a trial de novo on appeal.
It should be observed that the 1977 legislature, recognizing the problem, amended 61-2709 effective April 27, 1977, to provide that all appeals in small claims matters are to be heard de novo by a district judge or an associate district judge other than the judge who originally heard the case. An appeal lies to this court only after such a trial, with counsel authorized and a jury available on demand as provided in K.S.A. 61-1716. In the meantime, appellant’s case having been decided without the benefit of counsel or the opportunity for a jury trial, the resulting judgment cannot stand.
In view of our holding on the constitutional questions we need not reach appellant’s evidentiary issues. The judgment is reversed and the case is remanded to the district court for a new trial, by jury if demanded. | [
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Spencer, J.:
This is an appeal from a judgment which vacated and set aside an order of garnishment.
Plaintiff obtained judgment against defendants Merle J. and Emma M. Stovall. Thereafter, the Stovalls were divorced and Emma married Archer B. Medlin. The Medlins established a joint checking account at The Towanda State Bank and each of them signed the bank signature card. Thereafter, and upon application of the plaintiff, an order of garnishment was issued to the garnishee, which answered stating that Emma had a checking account with that bank in the amount of $411.52. Three days thereafter, Emma moved to vacate the order of garnishment, which motion was overruled by the county court. Emma appealed to the district court, which heard the matter and entered judgment sustaining the motion to vacate and to set aside the order of garnishment, and assessed costs to the plaintiff.
At the outset of the trial, plaintiff moved to dismiss the appeal for the reason that the defendants had failed to pay the docket fee of $35 as required by K.S.A. 60-2001, and for the further reason that there was no surety on the appeal bond as provided by K.S.A. 61-2102.
Plaintiff argued to the trial court that the language of K.S.A. 61-2102 that “[u]pon filing the notice of appeal and such security for costs as may be required, the appeal shall be deemed perfected,” required that, in order to have an effective bond, there must be both a principal and a surety on that instrument.
The record reveals that, in conjunction with the notice of appeal from the county court to the district court, a bond on appeal was filed whereby Archer B. Medlin bound himself to pay all costs of the appeal. The bond was approved as evidenced by the following statement over the signature of the county judge:
“Being fully satisfied as to the sufficiency of the above surety, the above bond is taken and approved by me this 20 day of August, 1975.”
In the case of Underwood v. Allmon, 215 Kan. 201, 523 P.2d 384, it was held:
“Under the provisions of K.S.A. 1973 Supp. 61-2102 governing civil appeals from a county court to the district court, the filing of an appeal bond to secure the costs is not mandatory and is necessary to perfect an appeal only when required by the judge of the county court from which the appeal is taken.” (Syl. 1.)
With the acceptance and approval of the bond on appeal by the county judge in the form presented, no further security was required in order to perfect the appeal.
With respect to the failure to pay the docket fee prior to the hearing in the district court, the record reveals that, in response to an argument by plaintiff in support of the motion to dismiss on this ground, the trial judge said:
“The Court feels that is right. I will give you a certain amount of time to get it paid.”
to which the defendants responded:
“. . . We will make provisions to pay the docket fee today. . . .”
and the matter went on to trial. The argument here is based on K.S.A. 1975 Supp. 60-2001(a), which provided:
“No case shall be filed or docketed, whether original or appealed, without payment of a docket fee in the amount of thirty-five dollars ($35) to the clerk of the district court.”
In Avco Financial Services v. Caldwell, 219 Kan. 59, 547 P.2d 756, it was held:
“The time within which a docket fee is paid is secondary to actual payment. Since payment of the docket fee affects only the clerk of the district court, and an adverse party is not affected by the time of the payment of the docket fee, it should not be regarded as jurisdictional.” (Syl. 1.)
We hold that the trial court did not err in denying plaintiff’s motion to dismiss for failure to pay the docket fee prior to trial or for the alleged omission in the appeal bond.
Plaintiff argues that notwithstanding the issue being litigated was simply whether or not the funds in the joint checking account were subject to garnishment, the court nevertheless allowed Emma to testify, over objection, to certain matters totally irrelevant and immaterial to that issue. This concerned such things as substantive portions of Emma’s divorce decree; that her former husband was to pay for the automobile upon which the plaintiff had a lien and which plaintiff subsequently repossessed; and that Emma received alleged unfair treatment when the automobile was repossessed by plaintiff. Plaintiff contends that such testimony was offered solely for the purpose of prejudicing plaintiff in the eyes of the court and suggests that the strategy was an unqualified success as was evidenced by certain remarks of the trial judge as shown in the record.
As stated in State v. Brown, 217 Kan. 595, 538 P.2d 631:
“Admissibility of evidence is largely within the discretion of the trial judge, subject to exclusionary rules. . . .
“In discussing relevancy, we have frequently said that to be admissible in the trial of a case evidence must be confined to the issues, but it need not bear directly upon them. To render evidence of collateral facts competent, there must be some natural, necessary or logical connection between them and the inference or result which they are designed to establish. . . .” (217 Kan. at 599.)
There is some testimony in the record to indicate that plaintiff’s judgment was an outgrowth of the loan to the Stovalls prior to their divorce, and it is difficult to perceive how the testimony of which plaintiff complains was relevant to the issue of whether the funds in the joint account were subject to garnishment. However, this was a trial before the judge and as stated in State v. O’Neal, 204 Kan. 226, 461 P.2d 801:
“. . . When there is no jury to be misled by the evidence diere is a strong presumption on appeal that the trained mind of the trial judge was not led astray by such evidence and that proper limitations on weight and probative force were applied. . . .” (204 Kan. at 230.)
Even as we concede that the disputed testimony is presumed to have been considered by the judge and did enter into his decision per Supreme Court Rule No. 116, 214 Kan. xxxvii (now Rule No. 165, 220 Kan. LXVI), the record before us rebuts that presumption and we must conclude from the record that, in the final analysis, the decision of the trial judge was based on the sole fact that Mr. Medlin was the owner of the funds deposited to the joint account. In Bott v. Wendler, 203 Kan. 212, 453 P.2d 100, it is said:
“. . . K.S.A. 60-259 is couched in discretionary language, and the overriding rule is that the granting of a new trial on the grounds of surprise or newly discovered evidence is discretionary on the part of the district court, and it will not be reversed unless a clear abuse of discretion is shown. . . .” (203 Kan. at 229.)
We find no clear abuse of discretion and hold there was no error in denying the. motion for new trial.
After the hearing, the trial judge issued his opinion letter dated October 14,1975, to counsel, which contained his findings of fact as follows:
“I have read the citations which you gentlemen provided me and find that the garnishment of the bank account held by the Towanda State Bank in the joint account of Archer B. Medlin and Emma Maye Medlin should be set aside. From this ruling it is obvious that I do not reach the same conclusions as the author of the note in the Washburn Law Journal and frankly I was more impressed with the cases set forth at 11 A.L.R. 3, Page 1487 under the section heading of ‘Where the Funds in the Act Belong to the Husband Alone.’ I feel that this is the situation here and that the funds in said bank account are the property of Mr. Medlin and that the account was established as a joint account for the convenience of Mr. Medlin when he was on the road driving a truck. It is the Court’s recollection that it has been at least 6 months since Emma Medlin has been employed and that any loan made by the Liberty Loan Corporation of Hutchinson, Kansas was made primarily to Archer Medlin in March of 1975 and was not in fact made to Emma Medlin.” (Emphasis added.)
We have not been favored with an appellee’s brief. However, the status of the account created by Archer and Emma Medlin at The Towanda State Bank as a “joint account” has not been challenged at any stage of these proceedings. We accept the fact that it is a joint account, which by the depositor’s contract with that bank is subject in whole or in part to the demand of either of the depositors or the survivor of them. As stated in Eastman, Administrator v. Mendrick, 218 Kan. 78, 542 P.2d 347:
“The doctrine of joint tenancy and its application to personal as well as to real property has been recognized in this state for many years. . . . Running through all of our cases, commencing with Simons v. McLain, 51 Kan. 153, 32 Pac. 919, is the concept that the grand incident of joint tenancy is survivorship, by which the entire tenancy, on the demise of any joint tenant, descends to the survivor or survivors and at length to the last survivor. . . . It is so well-established by our many cases that the question whether a joint tenancy bank savings account is created in the name of a depositor and another must be determined on contract principles. . . . (218 Kan. at 81-82.)
“. . . Prior Kansas decisions, dealing with the incidents of joint tenancy, are reviewed in In re Estate of Foster [182 Kan. 315, 320 P.2d 855, and it is pointed out that the rights of joint tenants become vested by the conveyance; that each holds one and the same interest; and that nothing descends to the survivor, nor does he acquire any new title or estate by virtue of the death of the other grantee, but that such survivor takes the whole estate by the original conveyance.” (218 Kan. at 84.)
Most of the decisions by our supreme court which have considered joint accounts have involved attempts by the estate of a deceased depositor to secure the funds against the claim of the other joint depositor. Malone v. Sullivan, 136 Kan. 193, 14 P.2d 647; Eastman, Administrator v. Mendrick, supra; In re Estate of Woods, 218 Kan. 630, 545 P.2d 307, and cases cited therein. Where the intent is clear, e.g. from an unambiguous signature cajd, it has been held that the joint depositor takes the funds. Johnson v. Capitol Federal Savings & Loan Assoc., 215 Kan. 286, 524 P.2d 1127. However, where the intent is not clear, parol evidence is admissible, which might show that the funds should go to the estate of one of the depositors. In re Estate of Woods, supra, at 632-633.
None of the Kansas authorities cited, dealt with the precise question here presented and plaintiff argues that since as an incident of joint tenancy ownership each depositor is the owner of the whole of the fund (In re Estate of Foster, supra), Emma must be considered the owner of the whole and the whole should be subject to garnishment by her judgment creditor. In support of this position, plaintiff cites the case of Park Enterprises, Inc. v. Trach, 233 Minn. 467, 47 N.W.2d 197 (1951), wherein the whole of the account held jointly between husband and wife was sub jected to garnishment by the creditor of only one of the depositors. It was noted there that the defendant was entitled to withdraw any part or all of the account and that plaintiff was in effect subrogated to that right. Plaintiff suggests that the logic expressed in Park Enterprises, Inc. v. Track, supra, be adopted in this case.
As noted, the issue here involved is one of first impression in Kansas. We are not concerned as to whether it is a joint account and with the rights of survivorship upon the death of one of the joint owners, but rather with the rights of living joint depositors, both of whom have equal rights to the account and neither of whom sought by any overt act to assume total ownership of the account prior to the order of garnishment. The debt for which judgment was granted against Emma existed prior to her marriage to Archer and prior to the establishment of the joint bank account.
Under the circumstances, three possibilities exist as to the garnishment of the account by the judgment creditor of Emma: (1) none of the funds can be garnisheed, (2) all of the funds can be garnisheed, or (3) funds to the extent of Emma’s equitable interest in the account can be garnisheed.
As to the view that none of the funds can be garnisheed, v/e find the following in Annotation 11 A.L.R.3d 1465, 1468:
. . There are, however, a few cases holding for various reasons that a joint bank account is not so garnishable, principally in jurisdictions that recognize tenancies by the entirety in personal property and consider that one was created as to the account sought to be garnished.”
It is noted that Kansas no longer recognizes as such tenancy by entirety. Stewart v. Thomas, 64 Kan. 511, 68 Pac. 70. See also K.S.A. 58-501.
Plaintiff’s view that all of the funds can be garnisheed does find support in Park Enterprises, Inc. v. Track, supra. However, as indicated in Annotation 11 A.L.R.3d 1465, this is not the majority rule. Plaintiff quotes from the annotation that “[i]n any event, most courts are agreed that a joint bank account is garnishable at the behest of a creditor of one of the depositors.” (11 A.L.R.3d at 1468.) However, this statement is qualified as follows:
“In jurisdictions where joint bank accounts are held vulnerable to the process of the creditor of one depositor, garnishment to the extent of the debtor’s equitable ownership of the funds seems to be the general rule. . . .” (11 A.L.R.3d at 1468-1469.)
Indeed, it appears that the Minnesota case is the only authority for the full amount view.
This leads to the view that limits the garnishment to the extent of the debtor’s equitable interest. This is the general rule. See 11 A.L.R.3d at 1473. This view finds implicit support in the recent case of Schierenberg v. Hodges, 221 Kan. 64,558 P.2d 133. In that case, a wife, separated from her husband, transferred funds from a joint account she maintained with him to another joint account with her brother. A short time afterward, she died and her husband brought an action to recover the funds, alleging fraud. The trial court granted summary judgment for the brother. Our supreme court reversed, restating the rule that absent fraud, one spouse may make an inter vivos transfer of his or her own personal property to another person without contravening the statutory rights of a surviving spouse, but noting:
“. . . The plaintiff’s deceased spouse may well have lawfully transferred the funds in question; the funds may have come from her earnings, or they may have been accumulated solely by the plaintiff. Such questions have not been litigated or determined. We conclude that the court should not have sustained the motion for summary judgment.” (221 Kan. at 66.)
We gather from the foregoing that if funds in the account were accumulated solely by one of the joint owners, our court would consider it a fraud for one of the joint owners to expropriate those funds to the exclusion of the other.
We adopt the view that the account is garnishable only to the extent of the debtor’s equitable interest, and that parol evidence was properly allowed to establish that interest. Such does not conflict with the rules disallowing parol evidence in those cases where the nature of the account itself is in question. Agrelius v. Mohesky, 208 Kan. 790, 494 P.2d 1095. Here, the issue is the extent of one joint tenant’s interest in the account during the lifetime of both tenants. Allowing parol in such a case finds support in Schierenberg v. Hodges, supra.
“. . . [Ujnder well-established rules of appellate review this court disregards any conflicting evidence or inferences which might be drawn therefrom and accepts as true the evidence, and all inferences to be drawn therefrom, which support or tend to support the findings of the trial court. . . .” (Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, 371, 548 P.2d 719.)
Findings of the district court cannot be disturbed without a showing of lack of substantial competent evidence. In re Estate of Barnes, 218 Kan. 275, 280, 543 P.2d 1004.
Among cases which hold to the general rule that the account is garnishable to the extent of the debtor-depositor’s interest, it has been held that where the showing is that the debtor has no interest, the account is not subject to garnishment. See Spear v. Farwell, 5 Cal. App. 2d 111, 42 P.2d 391 (1935); Properties, Inc., v. Trust Co., 152 Ohio St. 430, 89 N.E. 2d 638 (1949).
Had it been determined that all or some part of the funds in the joint account did in fact belong to Emma, garnishment of her interest in that account would have been proper. However, on the basis of the court’s finding that all of the funds were in fact Archer’s, the trial court did not err in setting aside the order of garnishment.
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Abbott, J.:
This is a direct appeal from a jury verdict wherein the defendant, Robert R. White, was found guilty of felony theft (K.S.A. 21-3701 [a]).
Defendant alleges trial error in denying a new trial (1) for the exclusion of evidence offered by two defense witnesses as to previous bad conduct on the part of a state witness; (2) because the defendant was misled and prejudiced in his defense by the fact evidence was presented at the preliminary hearing that the crime was committed on March 28, 1975, when in truth and fact the crime was actually committed on April 1, 1975, and all evidence at the jury trial went to April 1, 1975; and (3) for failure to find that an affidavit of Sandal Porter concerning events of April 1, 1975, constituted new evidence sufficient to support the granting of a new trial.
The defendant was charged with felony theft of jewelry from his employer, Henry’s, Inc. The complaint and warrant both charged the theft took place on or about April 1, 1975. At the preliminary hearing, the personnel director of Henry’s testified on direct examination the theft occurred on April 1, 1975. On cross-examination the personnel director changed his testimony and testified the theft occurred on March 28, 1975.
The defendant was bound over for trial on the felony theft charge. An information was duly filed alleging the theft occurred on or about April 1, 1975. The case was set for trial.
During the time the case was pending trial, a defense witness, Mrs. Sandal Porter, moved to Colorado. Counsel for defendant requested that Mrs. Porter voluntarily return to Kansas to testify, but she refused. Counsel attempted to obtain the witness’s attendance at the trial through the Uniform Act to Secure Attendance of Witnesses from Without State (K.S.A. 22-4201, et seq.). Colorado declined to issue the necessary order to Mrs. Porter. Defendant’s counsel then arranged to take Mrs. Porter’s deposition in Colorado.
The state of Kansas was represented by a Colorado prosecutor at Mrs. Porter’s deposition, and the defendant by his Kansas counsel. Examination of Mrs. Porter at the deposition was limited to events supposedly occurring on March 28, 1975.
Mrs. Porter testified that she recalled the date because she, her husband, and the defendant were preparing to go to Denver, Colorado, the following day to find a new home; that during the evening hours she saw the defendant and Rick Hildebrandt when they returned from Henry’s where defendant and Hildebrandt were both employed. Mrs. Porter further testified she helped unload the car and did not see a box the size and shape of the one stolen from Henry’s either in the car or in the defendant’s possession. Mrs. Porter did not testify concerning any events that occurred on April 1, 1975.
At the trial, all witnesses testified that the theft took place on April 1,1975. The personnel manager of Henry’s admitted he had erroneously testified at the preliminary hearing that the theft took place on March 28, 1975. His explanation was that an insurance form had the erroneous date on it, and when he checked Henry’s records and files prior to testifying at the preliminary hearing he did not realize the form he read was in error. He testified the remainder of Henry’s file uniformly listed April 1, 1975, as the date of the theft.
Defendant readily concedes that generally the state need not prove the offense occurred on the date alleged in the pleadings as long as the evidence shows the alleged crime was committed within the statute of limitations. However, defendant claims he was prejudiced by the discrepancy between the testimony given at the preliminary hearing as to the date of the crime and the testimony at the trial, in view of having been forced to take an out-of-state deposition of a reluctant witness in the interim.
Defendant’s counsel maintains that under the circumstances he was entitled to rely on the testimony given at the preliminary hearing as to the date of the theft. In addition, defense counsel states he contacted the bonding company which had been furnished the report from Henry’s containing the erroneous date, and the bonding company also gave him the date of March 28, 1975, as the date the theft occurred. The record does not disclose whether counsel contacted the second insurance carrier involved or reviewed Henry’s files or the police reports, all of which would have readily disclosed the theft occurred on April 1, 1975.
We are unable to agree with appellant that he could reasonably rely on the erroneous testimony given on cross-examination, which was contrary to the witness’s direct testimony, and the information given defense counsel by the one insurance carrier, or that he was misled or prejudiced by the erroneous testimony.
“Where a defendant is not misled or prejudiced in making his defense by the allegation concerning the date of the crime charged, that date is unimportant, and a conviction may properly follow upon sufficient proof of the commission of the offense at any time within the provisions of the statute of limitations.” (State v. Sisson, 217 Kan. 475, Syl. 3, 536 P.2d 1369.)
In State v. Robertson, 190 Kan. 771, 378 P.2d 37, the complaint alleged the crime was committed on September 8, 1960. At the preliminary hearing, several defense witnesses testified the offense occurred on August 8, 1960. The defendant’s attorney, who had not participated in the preliminary hearing, requested a new preliminary hearing so that he would be properly advised as to the date the state intended to rely on. This motion was overruled.
The witnesses, at the trial, testified the burglary was committed on September 8,1960, the date alleged in the complaint. All three witnesses said they had been mistaken at the preliminary hearing. Several witnesses testified on behalf of the defendant, and the defendant himself took the stand and denied he committed the burglary. The Supreme Court in affirming the conviction noted the witnesses satisfactorily explained the “discrepancy” in their testimony and were subjected to cross-examination at the trial; that only one burglary was committed, and it was committed on the date defendant was charged in the complaint with having committed it; and defendant was fully apprised at the preliminary hearing of the nature of the evidence which would be used against him. The Supreme Court found defendant was not prejudiced by the discrepancy.
In State v. Jones, 204 Kan. 719, 466 P.2d 283, the defendant was charged with committing statutory rape on April 12, 1968. All testimony at the preliminary hearing went to April 12, 1968, as the date of the offense. The defendant established an alibi for April 12,1968, and the state then amended the complaint to allege the crime was committed between the 6th and 12th of April 1968. Defendant objected to the indefinite period of time in the amended information, but the trial judge refused to force the state to elect a specific date. When the defendant was tried, the victim testified the incident occurred on a Sunday evening. Defendant contended on appeal the date of the offense was ascertainable since the victim testified it happened on a Sunday evening during the seven-day period, and that defendant was first aware of the alleged date during the course of the trial and had no opportunity to establish an alibi defense.
The Supreme Court affirmed the conviction in Jones, supra, stating the discrepancy in dates was explained by the evidence at the trial and that although defendant objected in various ways to the indefinite date stated in the amended information, he did not require the state to elect or select the actual date it was relying on. The court went on to say defendant had competent counsel who had ample opportunity to prepare for trial, and “[u]nder the circumstances we cannot say the appellant was prejudiced by the allegation that the crime occurred within a seven day period. . . .” (p. 726.)
Defendant in this case was well aware that the original complaint and warrant for arrest alleged April 1, 1975, as the date the offense occurred, and that the information filed after the testimony was given at the preliminary hearing continued to charge that the crime was committed on or about April 1, 1975.
Other evidence given and available to defendant from witnesses who testified at the time would have put a reasonable person on notice that the preliminary testimony as to the date of the alleged offense was erroneous.
Very damaging to defendant’s position is a sworn affidavit filed in the trial court by defendant’s counsel in an unsuccessful effort to have Sandal Porter ordered back to Kansas to testify. The affidavit was filed after the preliminary hearing and prior to trial. Although Sandal Porter was not ordered to return to Kansas to testify through the Uniform Act to Secure Attendance of Witnesses, her testimony was subsequently taken for use at the trial by defendant’s counsel, who filed the affidavit. The affidavit reads in part:
“[H]e has reason to believe that Sandal Porter was present at times material to the offense charged, specifically late in the afternoon of April 1,1975, in the presence of Rick Hildebrandt and the defendant. At such time she made certain observations and had certain conversations which are material to the issues in this case.”
The defendant, Robert R. White, along with Rick Hildebrandt, Mike and Sandal Porter and their three infant children, Diana Howland (the defendant’s sister), and John Holland (Diana Howland’s boyfriend) occupied the same house.
Rick Hildebrandt testified for the state and against the defendant. Mike Porter did not testify. Diana Howland testified at the trial she lived at the Porter home in late March and did not see a brown box containing men’s costume jewelry in the house or in either Hildebrandt’s or the defendant’s possession. John Holland did not testify insofar as we can ascertain from the record.
Rick Hildebrandt testified he was in Cimarron, Kansas, at his grandmother’s funeral on March 27 and 28, and that he attended services for his grandmother on the night of March 27 and morning of March 28. Hildebrandt rode to Cimarron with his mother and sisters. He returned to Wichita late on March 31 with the defendant and Mike and Sandal Porter. The defendant and the Porters had gone to Denver, Colorado, on the 29th and returned on the 31st of March. This testimony is important for two reasons. First, Sandal Porter testified in her deposition that she was present when the defendant and Rick Hildebrandt came home from work at Henry’s the evening of March 28, 1975. The personnel director at Henry’s testified that Rick Hildebrandt did not work the 27th and 28th of March and was off due to his grandmother’s funeral. Henry’s time records supported the personnel director’s testimony. Second, Sandal Porter testified, as did the defendant, that Hildebrandt and defendant had been Easter shopping prior to going to the Porter home. However, Sandal Porter testified in her deposition the date was March 28, 1975, and the defendant testified it was April 1, 1975. Hildebrandt testified they had not been shopping and that Easter had passed. Our calendar indicates Easter was on March 30, 1975.
Defendant testified he recalled the day the theft occurred. He verified he helped unpack the jewelry. He testified the box was reported missing after lunch and denied he had stolen the box of jewelry. The defendant thus knew what day the jewelry was taken and knew that store personnel, including himself, had been interviewed concerning the theft on the day following the theft. Thus, defendant knew he was enroute to Colorado on March 29, knew the theft did not occur on March 28, and could not have been misled or prejudiced. Defendant’s employment was terminated on the following Friday, three days after the theft.
The appellant had authority under K.S.A. 22-3201 (5) to request a bill of particulars in order to clarify any discrepancy that may have existed between the information and testimony at the preliminary hearing prior to his conviction. No motion for a bill of particulars was filed. By proceeding to trial on the information under the facts of this case, the defendant waived any right he may have had to require the state to file a bill of particulars. (State v. Cory, 211 Kan. 528, 506 P.2d 1115.)
When a defendant or his counsel has actual or constructive knowledge of the date a crime occurred, and when there is a discrepancy between the testimony at the preliminary hearing and the pleadings regarding the date the crime occurred, if the defendant does not request a bill of particulars or make pretrial discovery, the defendant is not misled or prejudiced thereby.
Appellant next contends he is entitled to a new trial on the grounds of newly discovered evidence based on an affidavit of Sandal Porter. The affidavit of Sandal Porter was obtained after trial.
“The granting or denial of a motion for new trial on the ground of newly discovered evidence rests largely in the sound discretion of the trial court. It must be shown to the trial court’s satisfaction that the alleged newly discovered evidence was not within the knowledge of the defendant at the time of his trial {State v. Williamson, 210 Kan. 501, 506, 502 P.2d 777) and that such evidence could not with reasonable diligence have been produced at the trial (State v. Oswald, 197 Kan. 251, 256, 417 P.2d 261). See also State v. Collins, 204 Kan. 55, Syl. 7, 460 P.2d 573.” (State v. Lora, 213 Kan. 184, 194, 515 P.2d 1086.)
Because we have concluded that the defendant was not misled or prejudiced by the discrepancy between the testimony and the information and that defendant could not reasonably rely on the erroneous testimony, we have no difficulty concluding the trial court did not abuse its discretion in refusing to grant a new trial on the grounds of newly discovered evidence. The appellant has the burden of showing that the evidence which he claims to be newly discovered could not have been produced at trial had the defendant used reasonable diligence. (State v. Arney, 218 Kan. 369, 373, 544 P.2d 334.) With reasonable diligence, such evidence could have been produced at the trial.
Appellant argues on appeal that the trial court erred in excluding certain testimony proffered at trial. Appellant advanced the defense theory that Rick Hildebrandt had an equal opportunity and access to the property that was stolen. Appellant then attempted to offer evidence that Hildebrandt had a propensity to steal and offered evidence of two alleged specific instances of theft, not to impeach Hildebrandt’s testimony, but to show a trait of his character. Defendant offers no authority other than a reference to K.S.A. 60-446 in support of his position.
The testimony of Robert Howey, a former roommate of Rick Hildebrandt’s, was proffered. Howey testified he shared a room with Hildebrandt from November 1972 through January 1973. During that period, Howey cashed a check for twenty dollars one day and “at some point” during the following morning discovered ten dollars was missing. Howey testified that only Rick Hildebrandt was present in the apartment the night before. When questioned by Howey, Hildebrandt denied any knowledge of the missing ten dollars. On cross-examination, Howey agreed he did not know what happened to the ten dollars and that as far as Howey knew the money could have gone anywhere.
The second incident was related by John Dabrow, executive director of the West Branch YMCA in Wichita. Dabrow testified Hildebrandt worked at the front desk of the YMCA about one year prior to Dabrow’s testimony. While Hildebrandt was employed at the YMCA, sixty dollars disappeared. Hildebrandt told Dabrow he loaned it to someone and paid the money back to the YMCA over a period of time. Although Hildebrandt exercised unauthorized control over the YMCA’s money, he was not fired over the incident and no criminal charges were brought against him.
The evidence offered was inadmissible. K.S.A. 60-446 allows evidence to be admitted which proves character or a trait of a person’s character by proof of specific instances of the witness’s conduct. However, K.S.A. 60-447 limits the scope of K.S.A. 60-446 by requiring that the “specific instances” be evidence of conviction of a crime which tends to prove the trait to be bad.
“Where a character trait is relevant, specific instances of conduct (other than evidence of conviction of crime) which tend to prove the trait to be bad is inadmissible.” (State v. Gregory, 218 Kan. 180, Syl. 6, 542 P.2d 1051.)
The evidence offered did not go to general reputation, nor did it go to criminal conviction, and was therefore inadmissible.
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Swinehart, J.:
This is an appeal from a judgment upon a jury verdict in favor of the plaintiff, based upon assault and battery, and malicious, deceitful, fraudulent and oppressive actions by the defendant toward the plaintiff. A judgment included actual and punitive damages, for the total sum of $55,000.
The defendant doctor appeals on four grounds: (1) that the trial court erred in overruling defendant’s objections to the admission of the testimony of four female witnesses, and the testimony of Dr. Conard, Dr. Stockwell, Dr. Holman and Dr. Baum; (2) that the trial court erred in that it abused its discretion under K.S.A. 60-445 and K.S.A. 60-455 in admitting into evidence the testimony of said witnesses as to previous civil wrongs; (3) that certain instructions given by the court prejudiced the jury against the defendant and deprived him of a fair trial; and (4) that the verdict of the jury awarding damages was so excessive as to indicate passion and prejudice on the part of the jury.
A synopsis of the evidence is necessary for an adequate understanding of the legal questions raised. Plaintiff, Patti Hubin, was a dental assistant by training, and was approximately 19 years of age at the time this action was filed. She filed this suit against Dr. Earl W. Shira, a practicing dentist, for alleged assault and battery and fraud. Hereafter, Patti Hubin will be referred to as the appellee, and Dr. Shira as the appellant.
Appellee was, at the time of the incident complained of, a recent graduate of the Kansas Institute for Medical and Dental Assistants in Wichita, Kansas. Late in February of 1973, the appellee was placed in a one month internship with Dr. Allen Reynolds, a dentist, as completion of her formal training. Dr. Reynolds and the appellant in this action were associated in the practice of dentistry in Dodge City, Kansas. This internship was scheduled for the entire month of March of 1973. During the last week of the internship, the appellee and Dr. Reynolds had talked about her remaining as a dental assistant, and they reached an agreement by which she would work for him following her internship.
The last day of the internship was a Saturday, March 31, 1973. Dr. Shira did not normally practice on Saturday, but came to the office about noon to pick up his mail. Appellee worked that Saturday morning until about noon, at which time she left the office by way of the back door, which led to the parking area where her car was parked. She had difficulty starting her car at that time, and returned to the office where she called her sister and made arrangements for her sister to pick her up. At about this time, the appellant was completing the task of collecting his mail, and was journeying towards the parking lot where the appellee’s car was stalled. Appellant noticed that appellee was having difficulty starting her car, and offered his assistance. Appellant was eventually successful in starting the vehicle.
Testimony as to what happened next was in serious dispute. First, we will outline appellee’s version, as indicated by her evidence at the trial. While appellant was working with appellee’s car, they got to talking. Dr. Shira asked if Miss Hubin was interested in some outside employment. Miss Hubin expressed interest, and a 1:30 meeting was scheduled for that afternoon at the dental office.
The parties met that afternoon as agreed. Appellant informed appellee that he was doing some tests for research relating to the cause of decaying teeth, and inquired if she would be willing to engage in such testing, that if she was interested, she would be paid $20.00 per test for a total of twelve tests. Appellee agreed to participate.
Upon agreeing that the present was as good a time as any to commence the first test, the parties proceeded into the doctor’s operatory where the appellee was asked to chew some red wax, and her temperature was taken. Appellee was then directed to go into appellant’s private office and remove her clothing so that further examination and tests could be conducted. Shortly thereafter, appellant walked into the private office carrying a small black bag, which contained, among other things, glass slides, a thermometer, pencil and paper. At this time he took a tape measure and measured the appellee’s neck, shoulders, bust, hips and legs, and recorded this information on a piece of paper. The appellee was then directed by the appellant to lie down on the floor on a blanket.
Appellant then began to perform what appellee believed to be a Pap test, but she shortly discovered that he was not doing what he was supposed to be doing, as she could feel he was using his hands in a fashion she thought to be improper. Although appellee was aware that she and the appellant were the only ones in the dental offices, she did not make any overt movements or actions to stop the proceedings at this point, though she was becoming apprehensive.
Appellant soon asked her if there was something wrong, that she was “not getting stimulated,” to which appellee responded that she did not have to get stimulated to participate in such a test. Appellant insisted that she did, that it was really important. Miss Hubin tried to get up, but was told by Dr. Shira to lie back down. Dr. Shira informed the appellee that it often helps a woman to become stimulated if you kiss her breasts. He then leaned down on top of her, and she raised up and said, “I don’t want it,” and he put his hands on her shoulders and said, “We’re not finished yet.” He also informed appellee that he had had a vasectomy. Again, Miss Hubin told appellant to forget it, that she did not want it, that she didn’t need his money, and that she was not going to take these tests. Finally, Dr. Shira gave in, and allowed Miss Hubin to get up. He watched appellee get dressed, and then permitted her to leave.
Appellee testified that she was shocked at the activities and actions of appellant, and that she had no idea what he was going to do. Appellee’s testimony further indicated that she became extremely upset and distraught over this action, so much so that she was temporarily unable to relate to her sister what had happened because of her embarrassment and humiliation. The evidence further indicates that the entire incident caused Miss Hubin to seriously distrust dentists, and, consequently, she was unable to find employment as a dental assistant for several months. In short, the evidence indicated that Miss Hubin suffered both physically and emotionally.
The appellee called as witnesses in her behalf those witnesses whose testimony is objected to by the appellant. The female witnesses all testified to similar experiences with the appellant doctor, either as employees or patients of said doctor. For example, one of the female witnesses testified that she had been hired by appellant right out of high school. Dr Shira had conditioned the employment on her participation in certain tests. Her narrative testimony illustrated the nature of the tests:
“He said he would have to have vaginal smears and that he wanted to do a complete examination of [me] and take pictures of this and take pictures of taking the vaginal smears. These tests were going to have to be taken as a condition of [my] employment.”
The remaining three female witnesses had been patients of the appellant. Each had been subjected to a breast examination by the appellant. In each instance, Dr. Shira had advised them that there was a medical interrelation between their mouth area and their breasts. Each had become suspicious and complained.
Several of the doctors who testified on behalf of Miss Hubin did so as family physicians of certain of the female witnesses. Their testimony regarded complaints they had received from these ladies regarding Dr. Shira’s conduct. For example, Dr. Baum testified that he was the physician of one of the female witnesses, and that said witness had, several years before, brought in a prescription which Dr. Shira had given her for her breasts. Dr. Baum testified that he checked her breasts, and found no real reason for that prescription.
Others of the doctors testified as to conversations had with fellow doctors concerning Dr. Shira. For example, Dr. Holman testified as to a discussion he had with Dr. Stockwell: “Well, Dr. Stockwell said that it had been brought to his attention that several young ladies had had bad experiences [with Dr. Shira].” Dr. Holman also testified that he, in his capacity as an officer in the local medical society, had confronted appellant with these complaints, and that appellant had categorically denied them.
The thrust of Dr. Shira’s version of what happened on that Saturday afternoon was that after he started Miss Hubin’s car, he saw her no more. He admitted returning to his office shortly after 1:00 p.m., but stated the purpose of his return was to keep an appointment he had with a Mr. and Mrs. Eugene Smith, some patients. (Mr. Smith testified that no such appointment existed.) Dr. Shira categorically denied that he so much as saw Miss Hubin that afternoon.
Appellant further testified that at the time the alleged assault and battery occurred (approximately 1:30 p.m.), he was just getting home from the Smith appointment no-show. He specifically recalled the time, because his daughter had been waiting for him so she could use his car. After getting home, and after his daughter took the car, Dr. Shira spent most of the remainder of the afternoon shopping with his wife. Dr. Shira’s testimony along these lines was, in all respects, corroborated by his wife, Betty, and his 18-year-old daughter, Penny. Likewise, Mrs. John Sherer (a former employee of Dr. Shira) and her husband both testified that they “saw both Dr. and Mrs. Shira at the Mini Mall, a shopping center in Dodge City, Kansas, on March 31, 1973, at about two o’clock” in the afternoon.
We will first consider appellant’s points on appeal 1 and 2 together, as they deal with the court’s alleged error in overruling defendant’s objections to the admission of the testimony of the four female witnesses and the testimony of Dr. Conard, Dr. Stockwell, Dr. Holman and Dr. Baum, in that such testimony was improperly admitted by the trial court in violation of K.S.A. 60-445 and 60-455. The appellant, as each of the witnesses proceeded to testify, duly objected, stating that this evidence was generally irrelevant and immaterial and should not be admitted, and further objected to this testimony on the grounds that it was prejudicial to the appellant’s cause of action, and that such prejudice outweighed any probative value the testimony might have. Appellant also asserts that such testimony was improper because it could cause a jury to infer a disposition on the part of the appellant herein to commit sexual offenses.
K.S.A. 60-445 reads as follows:
“Except as in this article otherwise provided, the judge may in his or her discretion exclude evidence if he or she finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered.”
At this point, it needs to be stressed that the record is abundantly clear that during the course of pretrials, the names of the witnesses here involved were called to the attention of the appellant, and that the general nature of their testimony was known by appellant’s counsel long before trial. Further, the court requested briefs from the attorneys regarding the admissibility of this evidence, and concerning the feasibility of giving an instruction covering the admissibility and limitation of the use of this evidence by a jury. The attorney for the appellant failed to submit such a brief.
Thus, we hold that the trial judge’s admission of this testimony in no way unfairly or harmfully surprised appellant.
K.S.A. 60-455 reads, in pertinent part, as follows:
“. . . [Ejvidence that a person committed a . . . civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit . . . civil wrong as the basis for an inference that the person committed another . . . civil wrong on another specified occasion but, subject to K.S.A. 60-445 . . . such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
This particular section of the statute has had extensive litigation in Kansas. However, this specific question as it relates to a civil matter is one of first impression. Here, we have a civil action dealing with alleged improper sexual activities and fraudulent conduct on the part of the appellant in seeking acquiescence on the part of the appellee to participate in the activities. Regarding civil actions, the Kansas court spoke to this matter in the case of Frame, Administrator v. Bauman, 202 Kan. 461, 449 P.2d 525. The court there cited 32 C.J.S. Evidence, Sec. 578, page 703:
“The trial court has a wide discretion with respect to the admission of evidence of similar acts or occurrences as proof that a particular act was done, or that a certain occurrence happened.”
The court, in Frame, supra, further stated:
“In a civil action, the trial court has wide discretion with respect to admitting evidence of similar acts or occurrences as proof that a particular act was done or a certain occurrence happened, and its ruling in connection therewith will not be disturbed on appeal in the absence of a showing that its discretion has been abused.” (Syl. 3. Emphasis supplied.)
The court at syllabus 4 of Frame, supra, also stated:
“The trial court, in ruling upon the admission of evidence of similar acts in a civil case, pursuant to K.S.A. 60-455, may take into consideration not only the extent of similarity, and the presence or absence of modifying conditions, but also the inconvenience resulting from trial of collateral issues which lengthen the trial itself and the possibility of surprise which might result to the opposing litigant to his prejudice.”
Also, the Kansas Court has spoken relative to cases involving improper sexual conduct or activity on the part of the defendant. Though these cases have generally been criminal matters, the court apparently has taken the position that a broader, open-door view is proper so far as the admission of evidence of this nature is concerned, when given for the purpose of showing intent or plan of operation. (State v. Hampton, 215 Kan. 907, 529 P.2d 127; State v. Gonzales, 217 Kan. 159, 535 P.2d 988.) Also, the element of fraud is here involved, and in civil actions involving fraud, evidence of past conduct of a similar nature is proper. In Culp v. Bloss, 203 Kan. 714, 457 P.2d 154, the court said:
“In civil actions involving fraud, evidence of the same or similar fraudulent representations made to others than the plaintiff is competent and relevant for the purpose of establishing the elements of motive and intent to defraud under the provisions of K.S.A. 60-455.” (Syl. 3)
As can readily be seen, the evidence here offered and admitted by the trial court, and objected to by the appellant, does not' fall within the realm of the exclusion part of K.S.A. 60-455. We believe that no abuse of discretion is shown by the admission of such evidence. We are convinced that, in a civil action, evidence of prior civil wrongs is clearly admissible when, as here, such evidence is offered to prove motive, opportunity, intent, preparation, plan and knowledge. We feel that the spirit of 60-455 mandates the admission of such evidence. Our feelings find support in the very recent case of State v. Henson, 221 Kan. 635, 562 P.2d 51, where a situation similar to this case existed. Henson was charged with murder and had sexually assaulted his victim. During the trial, the judge had allowed testimony as to prior civil wrongs which were sex-related. The court had little difficulty in affirming the lower court’s admission of such testimony. The court examined the similarities between the past civil wrongs and the crime itself. The court said:
“. . . Finally, and most probative of all of these similarities because of its highly individualistic character, there is evidence from which it may be inferred that each attack was partially motivated by or connected with sexual desires.” (p. 645)
If the admission of such evidence is perfectly proper in a criminal case (where the defendant’s liberty is at stake), so much more is the appropriateness of such evidence existent in a civil case.
We next consider whether the court erred in giving instructions numbered 1 and 17. Number 1 was given to the jury prior to the commencement of the presentation of evidence by the appellee. Number 17 was substantially the same, and was given in the body of the instructions at the close of all of the evidence. Instruction number 1 read as follows:
“Ladies and gentlemen you are instructed that under Kansas Code of Civil Procedure certain evidence is permissible to be introduced in the trial of this case to show that on other occasions, the defendant committed other acts similar to those set forth in the petition in this case, and in this connection, you are instructed that even if you believe such evidence and testimony to be true, it is not to be considered by you as any evidence of the commission of the acts of the defendant which are complained of by the plaintiff and that such evidence standing alone, is insufficient to support any verdict for the plaintiff.
“This evidence is received and is to be considered by you only for its value, if any, as circumstances bearing upon the question of the defendant’s intentions, motives, opportunities, preparations, plan, knowledge, identity or absence of mistake or accident, as such matters relate and are relevant to the complaint of the plaintiff.
“This evidence should be considered along with all of the other evidence for that purpose only and should be disregarded for any other purpose.”
The rule in Kansas as to instructions to be given regarding K.S.A. 60-455 evidence was well stated in State v. Bly, 215 Kan. 168, 523 P.2d 397:
“7. The limiting instruction should not be in the form of a ‘shotgun’ which broadly covers all of the eight exceptions set forth in 60-455. An instruction concerning the purpose of evidence of other offenses should only include those elements of K.S.A. 60-455, which appear to be applicable under the facts and circumstances. Those elements which are obviously inapplicable should not be instructed upon. . . .” (p. 176)
The record in this case further indicates that the appellant failed to object to the instructions of which he now complains, and that he failed to offer any substitute instructions to be used by the court. In Hagood v. Hall, 211 Kan. 46, 505 P.2d 736, the court said at syllabus 1:
“Instructions to the jury become the law of the particular case and are controlling on appeal unless they are objected to either directly or by requesting substitute instructions.”
Also, in Franklin v. Northwest Drilling Co., Inc., 215 Kan. 304, 524 P.2d 1194, the court said:
“. . .A party on appeal may not be heard to complain of an instruction given by the trial court to which no objection was made unless it is erroneous as a matter of law. . . .” (p. 309)
It should be further noted that in Patte v. Kottwitz, 219 Kan. 308, 548 P.2d 480, the court said:
“. . . [T]his court has ruled that whether the trial court erred in giving an instruction over objection is not reviewable unless all the instructions given are made a part of the record, except where the challenged instruction is a clear and prejudicial misstatement of the law. . . .” (p. 309)
As has previously been stated, objection was not made by the appellant to these instructions, nor have all the instructions been presented in the record on appeal.
The court finds that such an objection to this instruction as being improper and prejudicial has not been shown by the appellant, that the instruction as given was not a clear misstatement of the law, and that the substantial rights of the appellant were not prejudiced. Therefore, no error is shown.
The final question on appeal raised by the appellant was whether or not the verdict was excessive. Here, the appellee was awarded $20,000 actual damages and $35,000 punitive damages. The appellant contends that the verdict was so excessive as to indicate passion and prejudice on the part of the jury.
The rule in this regard was most recently stated in Kirk v. Beachner Construction Co., Inc., 214 Kan. 733, 522 P.2d 176, as follows:
“Where the charge of excessive verdict is based on the passion or prejudice of the jury and depends for support solely on the size of the verdict, the trial court will not be reversed for refusing a new trial, nor will a remittitur be ordered, unless the amount of the verdict in the light of the evidence shocks the conscience of the appellate court.” (Syl. 1)
The verdict does not shock the conscience of this court, but in fact seems reasonable and justified in light of the evidence and the financial circumstances of the defendant.
The appellant has failed to meet his burden of proof on the four questions of alleged error by the trial court.
Judgment is affirmed. | [
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Abbott, J.:
This suit was brought by plaintiff-appellant alleging she was injured in an automobile collision. The trial court directed a verdict for plaintiff on the issue of liability. The jury awarded plaintiff no damages. Judgment for defendant-appellee was entered on the verdict, plaintiff’s post-trial motions were overruled, and plaintiff appeals.
On August 4, 1971, the plaintiff, Betty Lou Johnson, was a passenger in a car driven by her daughter, Brenda.
Brenda was taking plaintiff to her doctor’s office for a hormone shot. The car was proceeding south and had stopped in response to a traffic light when the accident occurred. Plaintiff’s car was the second or third one from the traffic light in the outside lane of traffic. Plaintiff was sitting in the right, front seat, and at the moment of impact she had turned to check on a baby in the back seat. Defendant was also proceeding south in the inside lane, and was in the process of changing lanes when she struck the left rear and left side of the vehicle in which plaintiff was riding. Defendant was subsequently charged with and pled guilty to driving while under the influence of intoxicating liquor or drugs.
Defendant-appellee has not appealed from the trial court’s directing a verdict on the question of liability, thus a detailed reassertion of the facts of the accident is not necessary.
Defendant-appellee did contest the alleged injuries from the outset with great vigor, expertise, and success. The controversion of facts begins at the scene. Plaintiff testified she was nervous and upset at the scene, cried, and experienced pain. Her daughter verified her testimony. The investigating officer testified he marked the traffic report as a no-injury accident. He would have paid particular attention to any injuries since the defendant had been drinking. The officer testified there were no injuries reported to him, but he did not talk to plaintiff.
Plaintiff’s husband, Joe Johnson, Jr., was called, and he went to the accident scene. Mr. Johnson testified his wife was hysterical, but she did not complain of pain in any part of her body. He further testified that since the accident she had quite a change in mental attitude, cannot do her housework, limps, apd is very irritable. On cross-examination, he admitted that prior to the accident his wife complained of headaches, pain in her back which radiated to her legs, dizziness, and occasional fainting spells.
Brenda, plaintiff’s daughter, testified her mother can no longer travel, sit for a long time, do her housework, stay up any length of time, becomes upset very easily, walks with a limp, and wobbles. On cross-examination, Brenda admitted she moved away from home seven days after the accident, and that her mother had complained of fainting and blackout spells “once in awhile” prior to the accident. Two neighbors testified that since the accident plaintiff could no longer get around, couldn’t do her housework, and wasn’t cheerful anymore.
Plaintiff went directly to her doctor’s office. The doctor’s nurse gave her a hormone shot, and then checked her over. The nurse called Dr. Miller, who had a prescription delivered to her home. Plaintiff readily admitted, “I didn’t know whether I was hurt or not. I thought maybe I was just shook up. . . .” She took the medicine, used a heating pad and an analgesic. The following Monday, plaintiff returned to Dr. Miller’s office complaining of headaches, pain in the neck and back, and bruises on the left thigh and foot as a result of the accident. She was examined, medication was prescribed, and X-rays were ordered. Dr. Miller made a diagnosis of “whiplash injury with contusions and abrasions, contusions of the left thigh and of the left foot.”
Plaintiff continued to see Dr. Miller on almost a monthly basis and complained of headaches and pain in her back and neck. The X-rays Dr. Miller caused to be taken five days after the accident showed minimal arthritic changes. In November of 1971, plaintiff was hospitalized for bilateral vein ligations. Plaintiff also complained of headaches and back pain. X-rays revealed minimal degenerative changes, including a narrowing of L-5, S-l inter-space. No mention of the accident was made in the hospital records. In November of 1972, plaintiff was admitted for tension headaches and menopausal depression, and she also complained of headaches, dizziness, blurred vision, weakness on left side, shortness of breath, and having “passed out.” A neurologist, Dr. Drake, was called in, and it was his opinion that there was no organic cause for her symptoms and that she was normal from a clinical neurological standpoint. No mention of the automobile accident appears in the hospital records and the accident was not mentioned to the neurologist. Dr. Miller testified that the hospitalization in November 1972 was the result of the accident.
In February 1973, plaintiff was again admitted to the hospital and placed in traction. She continued to suffer neck and back pain and was hospitalized on June 14, 1973. An orthopedic surgeon was consulted, and traction and physical therapy were continued. On July 6, 1973, Dr. Duane Murphy, a board-certified orthopedic surgeon, performed a laminectomy and fusion. Plaintiff was again hospitalized for pain and discomfort in November 1973. Both Dr. Miller and Dr. Murphy testified at the time of trial that her condition was permanent and that she would require future medical treatment, including hospitalization. Bills totaling $8,470.02 for medical treatment, hospital care, drugs and medical appliances were introduced into evidence over defendant’s objection.
Dr. Miller testified that the injuries which plaintiff received in the accident of August 4, 1971, caused her present condition, and certainly could have aggravated any pre-existing condition. On cross-examination, Dr. Miller noted he had treated plaintiff since 1956, and prior to August 4, 1971, plaintiff had complained of backaches, low back pain that radiated into her legs, headaches, dizziness, nervousness, loss of sex drive, depression, fainting, hurting all over, tenseness and nausea.
On direct examination, Dr. Murphy testified that in his opinion plaintiff’s condition was caused by the accident, but on cross-examination the doctor admitted that he wasn’t told by anyone that for eleven years prior to the accident plaintiff had complained of back pain, headaches, and dizziness.
Defendant offered no medical or lay testimony concerning plaintiff’s physical condition and relied solely on cross-examination of plaintiff’s witnesses to contravene testimony elicited on direct examination.
The trial court instructed the jury in pertinent part:
“The issues of the defendant, Lois A. Meade’s negligence and its connection with the accident in question are removed from your consideration. You are instructed that the defendant, Lois A. Meade was negligent and that her negligence caused plaintiff injury and damage.
“The only issue remaining for you to decide is the amount of damages, if any, that plaintiff is to be awarded for injuries and damages proven by her to have resulted from the accident in question.” (Emphasis supplied.)
No objection was made to the instruction by plaintiff at the trial and the instruction is not questioned on appeal. We do note the words “and damage” were added to paragraph one of the above instructions, and the words are shown in PIK Civ. 6.05 as optional, which would lead one to the conclusion the trial judge found as a matter of law plaintiff was entitled to damages. In the very next sentence of the same instruction, however, the trial court altered PIK Civ. 6.05 basically by the use of the words “if any” after the word “damages.” The two sentences are in obvious conflict and, at best, are confusing to the jury.
The jury returned a verdict and found “the amount of actual damages to be awarded to plaintiff to be in the amount of $ none.”
Appellant raises a single point on appeal, which is that the trial court erred in not granting a new trial on the issue of damages. It is appellant’s position that the evidence was uncontradicted that plaintiff was injured, suffered pain, incurred expenses for medical and hospital care and treatment, and that the jury could not return a verdict for plaintiff and find no damages.
The law is well settled that ordinarily the assessment of damages in personal injury cases is exclusively the province of the jury (Domann v. Pence, 183 Kan. 135, 325 P. 2d 321), and the jury is presumed to have acted fairly, reasonably, intelligently, and in harmony with the evidence (Henderson v. Kansas Power & Light Co., 188 Kan. 283, 362 P. 2d 60).
The granting of a new trial generally rests in the sound discretion of the trial court, and its decision will not be disturbed absent a showing of abuse of discretion or other manifest error (Henderson v. Kansas Power & Light Co., supra). A jury, however, may not arbitrarily nor from partiality nor caprice disregard uncontradicted or unimpeached testimony, nor may it disregard the only evidence upon a material question in controversy by returning a verdict in direct opposition thereto (Lorbeer v. Weatherby, 190 Kan. 576, 376 P. 2d 926). “In the absence of a statute to the contrary, the general rule is that where a verdict awarding damages is so inadequate as to indicate passion and prejudice on the part of the jury, a new trial should be granted.” (Corman, Administrator v. WEG Dial Telephone, Inc., 194 Kan. 783, 402 P. 2d 112, Syl. 1.)
Appellant is faced with a negative verdict as contrasted to an affirmative one. The Kansas Supreme Court considered a negative finding against a plaintiff in In re Estate of Johnson, 155 Kan. 437, 125 P. 2d 352, stating:
“. . . As the. trier of the facts, it was the province and duty of the court to determine what weight and credence it would give to the testimony of the witnesses on both sides of the case. Of course, a jury or court cannot arbitrarily or capriciously refuse to consider the testimony of any witness but, on the other hand, it is not obliged to accept and give effect to evidence which, in its honest opinion, is unreliable, even though such evidence is uncontradicted. (State, ex. rel., v. Woods, 102 Kan. 499,170 Pac. 986; Potts v. McDonald, 146 Kan. 366, 69 P. 2d 685; State v. Jones, 147 Kan. 8, 11, 75 P. 2d 230; Briney v. Toews, 150 Kan. 489, 494, 95 P. 2d 355; Johnson v. Soden, 152 Kan. 284, 103 P. 2d 812.)
“Plaintiff contends this court has frequently reversed a trial court on findings of fact where there was no evidence to support the findings made. That is true where there were affirmative findings of fact unsupported by the record. Here, however, we have a negative finding of fact — a very different thing. (Potts v. McDonald, supra, p. 369.) Here the court, after hearing all of the evidence, was convinced the claim should not be allowed, and so found. The court quite apparently either did not believe the testimony offered in support of plaintiff’s claim or the evidence was not sufficiently clear and convincing to persuade the court concerning the validity of the claim.
“Appellate courts cannot nullify a trial court’s disbelief of evidence {Kallail v. Solomon, 146 Kan. 599, 602, 72 P. 2d 966), nor can they determine the persuasiveness of testimony which a trial court may have believed. The appearance and demeanor of a witness, which appellate courts never have the opportunity of observing and which cannot be transmitted to the cold records of this court, may be, and sometimes are, far more persuasive than positive testimony.” (pp. 439-440.)
We would have little difficulty affirming the trial court in this case were it not for the fact plaintiff received bruises above and below her left knee in the accident which were not only uncontroverted but acknowledged by defense counsel in his closing argument to the jury. Plaintiff also received prescription drugs from the doctor the day of the accident, had X-rays taken, and obtained additional prescription medicine on the following Monday. Both plaintiff and her doctor testified the initial medicine, the doctor visit and X-rays were a result of the accident. No evidence was introduced in direct contravention, and defendant’s cross-examination, even in its broadest form, did not directly controvert the first office visit, X-rays, and prescriptions as being necessitated for any reason other than the accident.
While this court will not weigh the evidence, it may determine that there is or is not sufficient evidence to support the verdict. A review of the record reveals that, other than as stated in the preceding paragraph, the weight and credibility of the appellant’s evidence could be questioned by the jury and rejected.
Appellee suggests the trial court instructed the jury that it need not find plaintiff suffered any damages by instructing the jury “[t]he only issue remaining for you to decide is the amount of damages, if any, that plaintiff is to be awarded for injuries and damages proven by her to have resulted from the accident in question” (emphasis supplied), and that plaintiff did not object to the instruction. We do not agree with appellee’s contention any more than the contention that the preceding sentence in the instruction “that her negligence caused plaintiff injury and damage” (emphasis supplied) amounted to a direction to the jury that it must find damages for the plaintiff. The trial judge obviously intended the instructions to allow the jury to determine whether plaintiff’s alleged injuries were proximately caused by the accident that defendant was responsible for as a matter of law and, if so, to fix the amount of damages. The jury performed its task, the trial court approved the verdict and entered judgment. We are now called upon to decide whether or not the jury could determine that one is not damaged by receiving bruises, and whether or not the jury could ignore the uncontroverted evidence concerning the two medical prescriptions, X-rays, and one office visit.
The Supreme Court has ordered a new trial a number of times because of inadequacy of damages. Although factually dissimilar to the present case, of interest are: Bracken v. Champlin, 114 Kan. 882, 220 Pac. 1027; Russell v. Newman, 116 Kan. 268, 226 Pac. 752; Burt v. Orr, 120 Kan. 719, 244 Pac. 1044; Daniels v. Hansen, 128 Kan. 251, 276 Pac. 819; Henderson v. Kansas Power & Light Co., supra; Lorbeer v. Weatherby, supra; Levy v. Jabara, 193 Kan. 595, 396 P. 2d 339; Timmerman v. Schroeder, 203 Kan. 397, 454 P. 2d 522.
It is important to note we are not involved with merely nominal damages. Some actual damages were proven in establishing that plaintiff incurred medical expenses as a result of the accident for the office visit, two prescriptions, and X-rays taken on August 9, 1971.
The Wisconsin Supreme Court, in Schulze v. Kleeber, 10 Wis. 2d 540,103 N.W. 2d 560 (1960), granted a new trial after it found a jury’s totally negative verdict “perverse” in light of defendant’s liability and the fact that plaintiff had sustained at least some bruises and sought medical attention for them.
The Supreme Court of Nebraska reversed a negative jury verdict where undisputed evidence showed plaintiff had suffered severe labor pains, although premature birth was avoided by medical treatment. (Friesen v. Reimer, 124 Neb. 620, 247 N.W. 561 [1933], See, also, Ambrozi v. Fry, 158 Neb. 18, 62 N.W. 2d 259 [1954].)
The Texas Court of Civil Appeals granted a new trial when the jury awarded no damages for pain and suffering contrary to all evidence where the jury had been instructed it could award damages for injuries “if any” and pain and suffering “if any.” (Bolen v. Timmons, 407 S.W. 2d 947 [Tex. Civ. App. 1966].)
New York considered a case wherein liability was admitted and the jury awarded no damages. Defendant had offered no medical testimony and relied on showing slight impact and plaintiff’s activities since the accident. The court held “some injury was sustained” and ordered a new trial on the issue of damages only. (Waldbillig v. Poitras, 29 App. Div. 2d 595, 285 N.Y.S. 2d 352 [1967]. See, also, 116 A.L.R. 820; and 49 A.L.R. 2d 1301, sec. 5, p. 1331, and cases cited therein.)
“A finding of no damage by the trial court cannot be sustained where the evidence unquestionably shows some damage. . . .” 22 Am. Jur. 2d, Damages sec. 399, p. 535.
At first glance, it may seem unfair to grant plaintiff a new trial where she will have a second chance to be awarded damages for medical problems this jury did not believe were proximately caused by the accident. The jury, however, by ignoring the undisputed and unimpeached evidence, has clearly given an indication of partiality, passion, or prejudice by arbitrarily returning a verdict in direct opposition to the evidence. That verdict cannot stand. The trial court abused its discretion in not granting a new trial. The judgment is reversed with direction to grant a new trial on the question of damages only.
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Swinehart, J.:
This is an appeal from the trial court’s order terminating alimony payments made pursuant to a separation agreement between the parties and incorporated into a decree of divorce.
The divorce action was tried on September 10, 1971, with both parties appearing by their respective attorneys. At that time plaintiff-appellee withdrew his petition with the approval of the trial court and the trial proceeded on the cross-petition of the defendant-appellant as a default matter. During that trial, the parties presented to the court a written property settlement agreement which had been executed by the parties on that date. The divorce decree approved by the parties’ attorneys stated that the court approved and confirmed the agreement, and specifically stated that the agreement constituted a part of the decree. Relevant portions of the agreement for the purpose of this appeal are as follows:
“7. Husband agrees to pay to wife in addition to the items above set forth, the further sum of Seventy-eight Thousand and no/100 dollars ($78,000.00), to be denominated as alimony in 121 consecutive monthly installments, the first payment to be made on October 1,1971, in the sum of $644.62 with the remaining 119 payments to be made on the first of each month in the sum of $644.62 and the 121st payment in the amount of $645.60. No interest shall accrue on said payments so long as they are made when due.
“THIS AGREEMENT shall be and become in full force and effect upon its approval by the District Court of Sherman County, Kansas in the above entitled matter and is not subject to modification, except as herein provided or as hereafter mutually agreed.”
The appellant remarried on February 11, 1976, and in March, 1976, the appellee filed a motion to reduce or terminate the monthly alimony payments set out in the property settlement agreement. This motion was heard by the trial court, and on March 17, 1977, the trial court terminated Mr. Rasure’s duty to make monthly alimony payments to Mrs. Wright, defendant-appellant.
The trial court, in its opinion dated March 17, 1977, and filed the same date, relied upon the law set forth in the cases of Herzmark v. Herzmark, 199 Kan. 48, 427 P.2d 465, and Beck v. Beck, 208 Kan. 148, 490 P.2d 628. The appellee husband also relies on these cases in support of the trial court’s order terminating the alimony payments. In Herzmark, supra, the Supreme Court upheld the trial court’s order terminating alimony payments when the wife remarried. Alimony, the court declared, means sustenance and support, and the court pointed out the inherent inequity of requiring the former husband to provide support for a woman who is entitled, by virtue of her present marital contract, to the support of another man. The court held that proof of a valid remarriage makes a prima facie case which requires the court to end alimony in the absence of proof of some extraordinary circumstances justifying its continuance. Herzmark is cited with approval in the Beck case.
However, both the appellee and the trial court have overlooked a significant distinction between the case at hand and the line of cases cited above. The alimony provision in the present case formed part of a property settlement agreement approved by both parties and the court, and incorporated into the divorce decree.
A brief examination of K.S.A. 60-1610, the statute governing divorce and related matters, and case law interpreting it will reveal why this fact is so significant. K.S.A. 1976 Supp. 60-1610(d) and (e) are basically the same as the laws set forth in the 1971 supplement at subsections (c) and (d), and henceforth we will refer to these paragraphs as they presently exist in the statutes as subsection (d) dealing with maintenance and alimony and (e) dealing with separation agreements.
K.S.A. 60-1610 provides that a decree of divorce shall make provisions for the custody, support and education of minor children, and that the court may modify or change any order in connection therewith at any time, and shall always have jurisdiction to make any such order to advance the welfare of the minor child. Pursuant to subsection (c) the court has the right to divide the real and personal property of the parties. Subsection (d) provides that the court may award either party an allowance for future support to be denominated as alimony and the court may modify the amounts or other conditions for the payment of any portion of the alimony originally ordered and not already become due. However, said modification is limited where it has the effect of increasing or accelerating the liability for the unpaid alimony beyond what was prescribed in the original decree unless consented to by the party liable for said alimony. Subsection (e) provides that where the parties have entered into a separation agreement which the court finds to be valid, just and equitable, it shall be incorporated in the decree, and the provisions on all matters settled thereby shall be confirmed in the decree, except that any provisions for custody, support or education of minor children shall be subject to the control of the court in accordance with the other provisions of this article. Matters settled by such agreement, other than matters pertaining to custody, support or education of minor children, “shall not be subject to subsequent modification by the court except as the agreement itself may prescribe or the parties may subsequently consent.”
In this case it is undisputed that we have a written agreement entitled “property settlement agreement” dated the 10th day of September, 1971, and executed by the parties on the same date. During the course of the trial, said agreement was marked as Exhibit A and received in evidence by the court. The trial court approved said agreement, confirmed said agreement, and ordered that it be constituted a part of the decree of divorce. The agreement stated that it “shall be and become in full force and effect upon its approval by the District Court of Sherman County . . . and is not subject to modification, except as herein provided or as hereafter mutually agreed.” This agreement executed by the parties did not provide for any type of modification, and there has not been a mutual agreement for the modification requested by the appellee. It would therefore appear that the court has no jurisdiction, for K.S.A. 60-1610(c) “division of property” does not grant the court continuing jurisdiction over matters settled by a contractual property settlement even though subsection (d) “maintenance” specifically authorizes the court to modify alimony payments.
Case law interpreting subsection (e) makes clear that matters settled by a contractual separation agreement which is subsequently adopted by the court as part of the divorce decree are not subject to later modification except as the agreement itself provides or by consent of the parties. Spaulding v. Spaulding, 221 Kan. 574, 578, 561 P.2d 420; Rice v. Rice, 219 Kan. 569, 573, 549 P.2d 555; Curtis v. Curtis, 218 Kan. 130, 542 P.2d 330; Cheek v. Kelley, 212 Kan. 820, 512 P.2d 355; Drummond v. Drummond, 209 Kan. 86, 92, 495 P.2d 994. This prohibition against subsequent modification extends equally to property division and alimony. “If an agreement concerning alimony is present, [K.S.A. 60-1610(e)] bars modification by the courts absent any provision for modification in the agreement, and absent the consent of both parties.” Rice, supra, 573; emphasis supplied.
Both statutory and case law dictate a result contrary to that reached by the trial court. We therefore reverse the court’s termination of the appellee’s duty to make alimony payments to the appellant.
We next consider the appellee’s contention that an alimony award to a wife pursuant to K.S.A. 60-1610 results in a denial of due process to a husband because the statute has unequal practical application. Without belaboring the distinction between due process and equal protection, we can dispose of the appellee’s claim by pointing out that such a claim must fail unless the alleged injury is the result of a demonstrated state action: the 14th Amendment provides “nor shall any State deprive any person of life, liberty, or property, without due process of law. . . .” (Emphasis supplied.) Here, the appellee’s claim of denial of due process stems from a freely and voluntarily executed contract between himself and his ex-wife. He therefore cannot be heard to complain that he is being denied due process when his own contract is enforced by the court.
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Foth, J.:
The issue in this case is whether time spent under supervised probation must be credited as time served on the sentence in the event probation is revoked. The question has not been litigated under the present sentencing code. The trial court denied appellant’s motion to correct his sentence by crediting him for time served on probation. We affirm.
On September 13, 1973, the appellant pleaded guilty to the felony of giving a worthless check, a violation of K.S.A. 21-3707. The court sentenced him to a term of from one to five years and placed him on probation. In January, 1974, he was arrested for violating that probation, probation was revoked, and he was sent to the Kansas Reception and Diagnostic Center. In April, 1974, appellant was again released on probation. In August, 1974, he was again arrested for violating the terms of the probation and, after the probation was revoked by the court, placed in the custody of the Secretary of Corrections. Appellant was given credit for time spent in custody pending disposition of the case, including time spent at Kansas Reception and Diagnostic Center, and asks only that he be credited for time spent on probation.
Appellant first argues that our statutes require that time spent on probation be credited on the sentence. Our review of the statutes, however, leads us to conclude that the legislature did not intend that probation time be counted toward service of the sentence. K.S.A. 22-3716(2) provides that “[i]f the violation [of probation] is established, the court may continue or revoke the probation or suspension of sentence, and may require the defendant to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed.” (Emphasis added.) The emphasized language on its face authorizes the court to require service of the sentence in full, without regard to time spent on probation. The authority to require service of “any lesser sentence” would permit the court to give consideration to time spent on probation, but does not require it. Although the statute is very specific in authorizing alternative dispositions if the violation is established, it is silent concerning mandatory credit for time served on probation. Following generally accepted rules of statutory construction, the court presumes that such silence was not due to mere oversight but rather was the intended result of the legislature.
This presumption is strengthened by the fact that the legislature explicitly provided for credit in three other situations. K.S.A. 21-4614 requires that credit be given for all time spent in jail prior to conviction, and K.S.A. 22-3722 requires that any time served on parole be counted toward fulfillment of the sentence. K.S.A. 22-3716 provides that the court may count toward completion of the term of probation any time between the issuing of a warrant for probation violation and the arrest. Following the maxim expressio unius est exclusio alterius, the court concludes that the legislature intended to exclude credit on the sentence for time served on probation.
Alternatively, appellant argues that the constitutional prohibition against double jeopardy requires that credit be given for time on probation. Appellant accurately points out that the double jeopardy clause of the Fifth Amendment applies to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 23 L.Ed.2d 707, 89 S.Ct. 2056 (1969). Appellant urges as controlling here the proposition of North Carolina v. Pearce, 395 U.S. 711, 23 L.Ed.2d 656, 89 S.Ct. 2072 (1969), that the guarantee against double jeopardy is violated when punishment already exacted for an offense is not fully credited on one’s sentence. This case, however, is distinguishable from the Pearce case in that Pearce did not involve the imposition of a single scheme of rehabilitation relating to the same conviction, but rather a resentencing upon reconviction after the original conviction had been set aside and a new trial ordered. Imprisonment clearly is punishment and time served on a prior conviction for the same offense must be credited toward fulfillment of the sentence. As the Kansas Supreme Court has indicated, however, probation represents a grace period during which the defendant has the opportunity to demonstrate that rehabilitation can be achieved without incarceration. See, In re Patterson, 94 Kan. 439, 146 Pac. 1009; In re Henry Millert, Petitioner, 114 Kan. 745, 220 Pac. 509; In re McClane, 129 Kan. 739, 284 Pac. 365. The court stated in In re Millert, Petitioner, supra at 747, “The term of parole [by the court] is orte of probation, offered the delinquent as a substitute for punishment in the usual way. One who accepts the substitute does so subject to all the conditions imposed by law and by the court.” When the petitioner in that case failed to satisfy all of the conditions of parole he was subject to confinement under the original sentence “precisely as though no parole had been granted.” (Id.) See also, In re McClane, supra, where the court refused to allow credit for time served in jail as a condition of probation; and Bowers v. Wilson, 143 Kan. 732, 56 P.2d 1212, where the court denied petitioner credit for time spent on probation.
Other courts presented with this issue have held, as we do, that the guarantee against double jeopardy does not require that time spent on probation be counted toward service of the sentence. Gillespie v. Hunter, 159 F.2d 410 (10th Cir. 1947); State v. Fuentes, 26 Ariz. App. 444, 549 P.2d 224 (1976); State v. Wills, 69 Wis. 2d 489, 230 N.W.2d 827 (1975); State v. Tritle, 15 Ariz. App. 325, 488 P.2d 681 (1971).
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Abbott, J.:
This is an appeal by plaintiff-appellant from a judgment denying recovery under a travel accident. insurance policy for the death of an insured student pilot who was killed while receiving instruction in a dual-control aircraft.
Plaintiff is the father of the insured student pilot, Steven G. Walker, and the designated beneficiary in the insurance policy in issue. Prior to his death, Steven G. Walker purchased a travel accident policy from appellee. The policy provided in pertinent part for indemnity for loss of life caused by accident “[wjhile the insured is riding as a passenger (and not as an operator) in, boarding or alighting from any air, land or water common carrier . . .” A “common carrier” is defined in the policy as “any air . . . vehicle licensed to carry passengers for hire.”
Walker was taking flying instructions from American Aviation, Inc. At the time of his death, he had logged 32.5 hours of flight time as a student pilot. He had soloed but was not a licensed pilot, nor was he qualified to obtain a pilot’s license.
At approximately 2:45 p.m. on July 26, 1974, Walker departed Kansas City Municipal Airport, Kansas City, Missouri, in a dual-control aircraft with his flight instructor, Joseph D. Earl. No flight plan was filed. Some thirty minutes after takeoff, permission was requested of the control tower operator to make touch- and-go landings. One touch-and-go landing had been completed when several witnesses observed the aircraft near the south end of runway 18 climbing out of takeoff, southbound from Kansas City Municipal Airport. The takeoff appeared normal until the aircraft reached an altitude of several hundred feet when the aircraft entered a climbing right turn. Almost immediately, the nose of the aircraft dropped sharply to the right, went into a spin, and crashed into the dry river bed. Both Walker and Earl died in the crash. Earl’s body was found in the right front seat where the flight instructor normally sits with one set of the dual controls available. Walker’s body was in the left front seat where the student pilot normally sits with the other set of dual controls available to him. No evidence was offered, nor available, as to which person was actually flying the aircraft at the time it crashed. The purpose of the fatal flight was for Walker to learn to operate the aircraft, to practice operating the aircraft, or to actually operate the aircraft.
American Aviation, Inc., was licensed to give flight instructions. It was not licensed to carry passengers for hire in any capacity other than to give flight instructions. The aircraft that crashed was owned by American Aviation, Inc., and it would have been eligible to be used as an air taxi had American Aviation, Inc., been licensed to conduct an air taxi service.
At the time of the accident, American Aviation, Inc., charged $15 an hour for the use of the plane and $7.50 an hour for the instructor. It was possible to rent the plane without an instructor if the pilot were properly qualified and licensed to operate without an instructor. Walker was not qualified to operate the aircraft on the date of the accident without a flight instructor along. Earl was the pilot in command. A student pilot cannot be a pilot in command when a flight instructor is in the aircraft with him. Both pilots log all of the flight time when the student pilot is receiving instruction.
The trial court found that Steven G. Walker . . was not riding as a passenger in any common carrier as defined in the insurance policy at the time he sustained injuries and resulting death. . . .” and denied recovery under the travel accident insurance policy.
The insurance contract was entered into in Missouri, and the loss giving rise to this lawsuit occurred in Missouri. The substantive law of the state of Missouri will be applied and all parties so agree.
Three of the alleged errors appellant relies on as grounds for reversal of the judgment can be considered together. The errors alleged are that the trial court erred (1) in construing the insurance policy as limiting and excluding coverage afforded to the insured, (2) in finding and holding that the airplane in which plaintiff was receiving flight instruction for hire was not a common carrier as defined in the insurance policy, and (3) in finding and holding that the deceased, Steven G. Walker, was riding as an operator and not as a passenger at the time he sustained injuries and resulting death.
An insurance policy can be construed only when the language of the policy is equivocal, indefinite, or ambiguous (44 C J.S., Insurance, Sec. 290, p. 1139). If the language is clear or unequivocal, there is no occasion for construction (Barrett Plaza, Inc. v. Northwestern Mutual Ins. Co., 411 S. W. 2d 265 [Mo. App. 1967]).
Appellant relies on Linam v. Murphy, 360 Mo. 1140, 232 S. W. 2d 937 (1950), and Lange v. Nelson-Ryan Flight Service, Inc., 259 Minn. 460, 108 N. W. 2d 428 (1961), to support his contention that the insured was a passenger and not an operator. The Linam case involved an agency question relating to the liability of the instructor pilot for injuries the student pilot received in a plane crash. While on a training flight, the instructor pilot took control of the plane and despite the objections of the student pilot “buzzed” two towns, a bridge, and a dam at an altitude lower than that of tree tops. The flight ended when the aircraft hit a power line. The Missouri court held that the instructor pilot had the right to take over the controls and that the instructor pilot and his employers were liable for the instructor pilot’s negligence. The undisputed evidence was that the instructor pilot had exclusive control of the plane and his negligence was the sole proximate cause of plaintiff’s injuries. A cursory reading of Linam, supra, reveals the word “passenger” is used but once in the entire opinion, and then only when the court stated: “We repeat that the liability of the owner or operator of an airplane to paid passengers, guests or student pilots is to be determined by the general principles relating to negligence. . . .” (Underscoring supplied.)
In Lange, supra, the issue was one of permissible inferences for liability. The court simply held that if there was negligence in the plane’s operation, the pilot in command, like a ship’s captain, or a surgeon, is responsible for that negligence. The Lange case states a distinct minority view and probably is the Only case in the United States so holding. (Udseth v. United States, 530 F. 2d 860 [10th Cir. 1976].)
Appellant also relies on Braly v. Commercial Casualty Ins. Co., 170 Kan. 531, 227 P. 2d 571. Bralyheld that an employee could be a passenger on an employer’s elevator and that whether such conveyance was a passenger elevator, within the meaning of that term as used in the policy, was one of fact and properly submitted to the jury. The trial judge heard the evidence and considered the stipulations in this case and found against appellant, and there is sufficient evidence to support the trial court.
The court, where the policy is not ambiguous, should not impose risks not assumed by the insurance company under the guise of liberal interpretation of the wording of the policy. “Words employed in contracts of insurance are to be construed according to the meaning of the terms used, and are to be taken and understood in their plain, ordinary and usual sense, so as to give effect to the intention of the parties. . . .” (Youse v. Employers Fire Ins. Co., 172 Kan. 111, 238 P. 2d 472, Syl. 1.)
There is no ambiguity in the meaning of the word “passenger” or the phrase “and not as an operator” when read in context with the entire insuring agreement. The term “passenger,” when construed in accordance with the ordinary and popular meaning of the entire policy language, limits the term to mean a nonoperator of an aircraft (Paul Revere Life Ins. Co. v. First National Bank in Dallas, 359 F. 2d 641 [5th Cir. 1966]) whom a common carrier, as defined in the policy, has contracted to carry from one place to another and has, in the course of the performance of that contract, received the person in its care. (Black’s Law Dictionary 1280 [4th ed. rev.].)
Likewise, the phrase “and not as an operator” is not ambiguous. An operator takes an active part in operating the aircraft as opposed to the passive role of a passenger. The term “operator” denotes something less than a pilot in command or actual pilot.
A student pilot taking a flying lesson from a qualified instructor and logging time as a student pilot is participating as an operator of the aircraft and is not a passenger within the meaning of the insurance policy. (Kinard v. Mutual Benefit Health & Accident Ass'n, 108 F. Supp. 780 [W. D. Ark. 1952]; Travelers Ins. v. Warner, 169 Colo. 391, 456 P. 2d 732 [1969]; Smith v. Prudential Insurance Company of America, 300 S. W. 2d 435 [Mo. 1957]; Ohio Cas. Ins. Co. v. Gantt, 256 Ala. 262, 54 So. 2d 595 [1951]; and Spiess v. United Services Life Insurance Company, 348 F. 2d 275 [10th Cir. 1965].)
The insurance policy’s definition of a “common carrier” borders on being ambiguous. The policy defines the term “common carrier” as meaning “any air, land or water vehicle licensed to carry passengers for hire.” An aircraft is certified airworthy by its manufacturer and that certificate is updated by periodic inspections and maintenance. The type of use made of the plane determines inspection and maintenance schedules. The requirements for inspection and maintenance for an aircraft used as an air taxi and an aircraft used to train student pilots are the same. Thus, the aircraft involved could have been used as an air taxi had it been owned by or leased to one holding a license to conduct an air taxi service. Pilots and companies are licensed to transport persons and cargo. American Aviation, Inc., was not licensed to transport passengers for hire. It was not licensed to conduct an air taxi service. Walker could not have employed American Aviation, Inc., to fly him around on a pleasure flight or from point A to point B. The deceased insured could, and did, employ American Aviation, Inc., to teach him to fly, and it was in the process of doing so. According to Walker’s pilot log, he had 10.4 hours of solo time, and he would have been able to fly without his instructor actually being in the aircraft had it not been for the fact that he had not flown for over ninety days. Walker had studied aviation licensing requirements and was well aware of federal licensing requirements. How to determine the intention of the parties to an insurance contract is clearly stated in Gowing v. Great Plains Mutual Ins. Co., 207 Kan. 78, 483 P. 2d 1072, as follows: “In determining the intention of the parties to a contract of insurance, the test is not what the insurer intends the printed language to mean, but rather what a reasonable person placed in the position of the insured would have understood the words to mean.” (Syl. 2.) We look only to what a reasonable man in Walker’s position would have understood and have no difficulty in concluding Walker well understood he was not in an aircraft licensed to carry passengers for hire and well understood he was not a passenger but was participating as an operator. Plaintiff’s own witness, who was a professional pilot and federal aviation examiner, testified that a student pilot while in the aircraft is participating in the operation of the aircraft. It is apparent to any reasonable man that Walker would not have paid the fee he paid merely to be a passenger with no right to participate in the operation of the aircraft.
It is not necessary to ascertain who was actually at the controls of the aircraft when it fell from the sky. In the absence of direct evidence, the party who must prove which of the two pilots was flying a dual-control aircraft at the crucial time has an impossible burden. Thus, we are not called upon to decide, and do not decide, whether an insured has the burden of proof to show he comes within the risk insured against as opposed to the insurer’s clear duty to prove an insured falls within an exclusionary clause in a travel accident policy.
Appellant further alleges trial error in failing to make findings and rulings on the material issues consistent with the evidence and in overruling plaintiff’s motion to alter and amend and make additional findings, all as set forth with particularity in appellant’s motion to the trial court. We have examined the motion and are of the opinion the trial judge correctly ruled thereon on all material points. Many of the requested findings of fact are immaterial to this decision, and a specific finding of fact in appellant’s favor would be of no benefit to him.
The trial judge did not err in finding the deceased insured was not riding as a passenger, as opposed to an operator, in a common carrier as defined in the insurance policy at the time the insured was killed in the aircraft accident.
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Rees, J.:
This lawsuit involves two causes of action. Plaintiff, as conservator of her mother, asserted a wrongful death action by reason of the death of her father, George W. Utter. As administratrix of her father’s estate, plaintiff also asserted a survival action for pain, suffering and medical and hospitalization expenses. K.S.A. 60-1801. Both causes of action arise out of fatal injuries sustained by George W. Utter when he was run over by his own car. The case was tried to a jury which returned verdicts against the defendant, $25,000 on the wrongful death claim and $11 on the survival claim. After allowing credit as discussed later in this opinion, judgment for $24,000 was entered in the wrongful death claim and no dollar judgment was entered on the survival claim. Defendant appeals contending it is not liable. Plaintiff cross-appeals from denial of a new trial on the amount of damages on the survival claim.
On May 9, 1966, Utter took his 1962 Mercury automobile to a local Aamco franchisee, Three B’s, a Kansas corporation. By a written franchise agreement, Three B’s was licensed by Aamco to do business as “Aamco Transmissions.” The franchisee’s name was not publicly displayed at its place of business. The only name on the sign outside was “Aamco Transmissions.” Utter ordered installation of an “Aamco Custom Rebuilt Transmission with Lifetime Guarantee.” The transmission was installed and the car was delivered to Utter on May 10, along with an “Aamco Transmissions Service Guide” which included, among other things, the written Aamco Transmissions Lifetime Guarantee.
Trouble with the new transmission developed immediately. One of Utter’s daughters drove the car and reported that when it was started the car “would automatically jump into reverse all by itself . . .” Utter took the car back to Three B’s on May 14 for repair and the car was redelivered to Utter the same day, ostensibly cured of its problem. After returning home with the car, Utter told his wife he was going to do some work on it. With the car in his driveway, Utter started the engine, walked around to the front of the car and lifted the hood. As he was adjusting the carburetor, the car backed away from him down the driveway. A neighbor saw Utter walk along beside the car as it backed toward the street and saw him reach into the car in an apparent attempt to turn off the ignition. In trying to stop the car, Utter was knocked down and run over by the left front wheel. Mrs. Utter, inside the house, witnessed the accident and ran to her husband’s side. The driverless automobile continued to run in reverse, made a complete circle and ran over both Mr. and Mrs. Utter. Finally, the neighbor was able to get inside the car and stop it by turning off the engine.
Mr. and Mrs. Utter were taken to a hospital. Mr. Utter died of his injuries on May 23. There was testimony that Mr. Utter was in great pain prior to his death. Several witnesses heard him say the automobile had been in park when he started it but it had jumped into reverse.
Plaintiff sued Aamco and Three B’s. Prior to trial, a settlement was made with Three B’s. In consideration of payment of $1,000, plaintiff, as conservator for her mother, covenanted not to sue Three B’s for wrongful death. In consideration of payment of $14,000, plaintiff, as administratrix, covenanted not to sue Three B’s on any other claim. Plaintiff expressly reserved the right to sue Aamco in either of her capacities. The action as to Three B’s was dismissed with prejudice.
Trial against Aamco was upon the theories of breach of implied and express warranties. The jury returned its verdict for plaintiff. After some initial uncertainty, the district court reduced the wrongful death recovery by $1,000 because of the Three B’s settlement and disposed of the $11 verdict on the survival claim by crediting against it the $14,000 payment made by Three B’s.
Now on appeal Aamco raises three arguments relating to warranty. It contends there was no substantial competent evidence that it expressly or impliedly warranted the quality or performance of the transmission installed in the Utter car. Aamco also argues that even if a warranty existed, there was no substantial competent evidence it was breached. Aamco’s last contention is that there was no substantial competent evidence that a breach of warranty caused Utter’s injury and death.
The Aamco Transmissions Lifetime Guarantee was supplied by Aamco to Three B’s for issuance to purchasers. The text of the guarantee is as follows:
“All AAMCO Custom Rebuilt Transmissions and AAMCO Custom Exchange Torque Converters are guaranteed against any defects of material and workmanship for the lifetime of the car; providing: (1) that the ownership of the car remains the same, and (2) that it is delivered to any registered AAMCO Transmission Shop in the United States each year, including the current year, for service within 30 days of the Service Date indicated below. The charge for each service is $13.75, payable at the time of service, and it covers the replacement of transmission fluid and all preventive adjustments necessary to keep the transmission in good operating condition.”
At the top of the guarantee the words “AAMCO TRANSMISSIONS” appear in bold type. Nowhere on the guarantee is Three B’s name.
The Aamco Transmission Service Guide given Utter with the guarantee extolls the virtues of Aamco transmissions and the care and skill with which each transmission is installed and serviced. The service guide assures the purchaser of “prompt service in any of the hundreds of Aamco Transmission Centers coast-to-coast.” It includes a picture of the Aamco national headquarters in Philadelphia. The service guide was given to the Three B’s by Aamco for issuance to transmission buyers. Three B’s name does not appear on it.
The order form for the purchase of an Aamco Custom Rebuilt Transmission with Lifetime Guarantee signed by Utter has the words “AAMCO TRANSMISSIONS” prominently printed thereon and there is no mention of Three B’s, although the address of Three B’s does appear.
There was considerable evidence concerning Aamco advertís ing. The franchise agreement between Aamco and Three B’s required Three B’s to use Aamco advertising materials and sales promotions and to contribute to national advertising by Aamco. Aamco sent Three B’s mats for newspaper advertisements and tapes for radio spots. Three B’s used the materials to run advertisements in local newspapers and on local radio stations. The advertisements praised Aamco Transmissions with their “Coast-to-Coast Ironclad Guarantee” without naming Three B’s.
Under these circumstances, we hold there was substantial competent evidence that individually and directly Aamco expressly warranted the installation and performance of the transmission sold to Utter.
Advertising may be the basis of or form a part of an express warranty. 67 Am.Jur.2d, Sales §436 (p. 598); General Motors Corporation v. Dobson, 338 S.W.2d 655 (Tenn. 1960). Lack of privity between a buyer and a manufacturer who advertises is no hurdle. In a widely-known treatise, it is said:
“Manufacturers constantly extol and represent the quality of their products on labels, on billboards, on radio and T.V., in newspapers and magazines, in brochures made available to dealers who are expected to disseminate them to prospective purchasers, and so on. Should a lack of privity of contract bar recovery by a consumer, who in reliance on the manufacturer’s advertising representations purchases and uses his product and suffers resultant harm? The answer, of course, seems obvious. While there are still some apparently die-hard courts, an increasing number of cases are holding or recognizing that under such circumstances a consumer can recover for breach of an express warranty despite a lack of privity.” 2 Frumer and Friedman, Products Liability, § 16.04 [4] [a], p. 3-223.
Assuming the possible relevance of K.S.A. 84-2-313, we do not find it to inhibit our approval of the jury finding that an express warranty existed in this case. In the official U.C.C. comment to the statute, it is said:
“Although this section is limited in its scope and direct purpose to warranties made by the seller to the buyer as part of a contract for sale, the warranty sections of this Article are not designed in any way to disturb those lines of case law growth which have recognized that warranties need not be confined either to sales contracts or to the direct parties to such a contract. . . .”
Aamco argues that it has no warranty liability for the transmission sold Utter because it was not the manufacturer and there was no evidence it contained Aamco parts. Aamco custom rebuilt transmissions of the type sold to Utter and the public are used transmissions that are rebuilt with new parts by Aamco’s franchisees. Aamco does not require its franchisees to buy all their stock of parts from Aamco. Therefore, Aamco reasons nothing ties it to any warranty, express or implied.
Even though we disagree with Aamco’s argument that the record does not include evidence that Aamco parts were incorporated in the Aamco custom rebuilt transmission sold to Utter when it was rebuilt, we do find sufficient evidence that Aamco expressly warranted the performance of the installed transmission whether or not it contained Aamco parts.
Aamco maintains that even given the existence of a warranty, there was no evidence that such warranty was breached. Aamco argues that there was no evidence of a specific defect in the transmission or that any defect existed at the time the transmission or any of its incorporated parts left Aamco’s control.
Aamco misinterprets the express warranty. In Huebert v. Federal Pacific Electric Co., Inc., 208 Kan. 720, 494 P.2d 1210, the Kansas Supreme Court discussed the scope of express warranties by manufacturers as follows:
“. . . A manufacturer may by express warranty assume responsibility in connection with its products which extends beyond liability for defects. All express warranties must be reasonably construed taking into consideration the nature of the product, the situation of the parties, and surrounding circumstances. However, defects in the product may be immaterial if the manufacturer warrants that a product will perform in a certain manner and the product fails to perform in that manner. Defects may be material in proving breach of an express warranty, but the approach to liability is the failure of the product to operate or perform in the manner warranted by the manufacturer.” (p. 725.)
The Court quoted favorably from Hansen v. Firestone Tire and Rubber Company, 276 F.2d 254 (6th Cir. 1960), as follows:
“ ‘In an action of the present character, the burden of proof resting upon the plaintiff entails merely demonstration that the goods did not have the properties warranted. In the absence of controverting evidence adduced by the defendant, which convinces the jury that the goods were as warranted, plaintiff should prevail. Hertzler v. Manshum, 228 Mich. 416, 200 N.W. 155. The plaintiff is not required to show the technical causation of the goods’ failure to match their warranty. Nor is it necessary that the manufacturer’s negligence be shown as the cause of such failure.’ ” (p. 725.)
In the present case, Aamco warranted the performance of the Aamco custom rebuilt transmission. Plaintiff’s burden was only to demonstrate that it did not perform in the manner warranted. Proof of a specific defect was not required.
Finally, Aamco argues that even if a warranty existed and the warranty was breached, it was not proved that the breach caused Utter’s injuries and death. Aamco maintains the causal connection between breach and injury was severed by the independent work done by Three B’s and the fact defective performance was discovered by Utter.
Again Aamco has placed an unduly restrictive interpretation upon the scope of liability under the express warranty. Aamco warranted both the performance of the transmission and the workmanship of its franchisee. The defense that Utter had unreasonably used the automobile with knowledge of its alleged harmful condition was rejected by the jury. Plaintiff established her right to recover when she showed to the jury’s satisfaction the transmission did not perform as warranted.
Aamco’s next area of contention relates to the covenant not to sue given by plaintiff to Three B’s. Aamco argues that plaintiff’s settlement with Three B’s, implemented by the covenant not to sue, had the effect of release of Aamco from liability. We disagree.
Aamco relies on Jacobson v. Parrill, 186 Kan. 467, 351 P.2d 194, Graham v. Barber, 192 Kan. 554, 390 P.2d 23, and similar cases. Those cases stand for the proposition that where the liability of a master or principal is vicarious and based solely upon the action of his servant or agent, the exoneration of the servant or agent removes the foundation for imposition of liability upon the master or principal. Here Aamco’s liability is not vicarious. It is direct. It arises out of Aamco’s own personal warranty.
Aamco’s final argument is that the full $15,000 paid by Three B’s in settlement should be credited against the $25,000 wrongful death verdict. The problem with Aamco’s argument is that plaintiff brought two separate and independent claims against both Three B’s and Aamco. The settlement with Three B’s of the wrongful death claim involved only $1,000. Aamco is entitled to only that amount as a credit against the wrongful death verdict.
The survival claim and the wrongful death claim are separate and distinct causes of action. Farm & City Ins. Co. v. American Standard Ins. Co., 220 Kan. 325, 552 P.2d 1363. Aamco is not entitled to have payment on one claim applied to the other.
By her cross-appeal, plaintiff contends it was error to deny her motion for new trial as to damages on the survival claim. She argues that the $11 verdict was inadequate as a matter of law. The record includes conceded and undisputed evidence of substantial pain and suffering prior to Utter’s death, as well as hospital and medical expenses in specific amounts that total in excess of $2,200.
There is no fixed standard or hard and fast rule for measuring the adequacy or inadequacy of a verdict in a personal injury action, and such determination depends upon the facts and circumstances of each particular case. Lehar v. Rogers, 208 Kan. 831, 494 P.2d 1124; Hildebrand v. Mueller, 202 Kan. 506, 449 P.2d 587. The necessity of a new trial because of inadequacy of the verdict is discussed in Timmerman v. Schroeder, 203 Kan. 397, 454 P.2d 522. In this case, the jury verdict, contrary to the court’s instructions, did not afford recovery for undisputed proven loss. Plaintiff is entitled to a new trial limited to the amount of damages to which plaintiff is entitled on the survival claim.
The wrongful death judgment is affirmed. The survival claim judgment is affirmed as to liability and vacated as to damages. The case is remanded for new trial in accord with this opinion. | [
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Parks, J.:
Marian Ruth Ausherman Chavez (executrix) moved this court to be substituted as plaintiff after the death of her father, William S. Ausherman, on April 24, 1977. This court so ordered on June 21, 1977. For clarity, we will continue to refer to William Ausherman as plaintiff.
Plaintiff appeals from the trial court’s order granting summary judgment in favor of defendants Stump and Saums.
Plaintiff William Ausherman first employed attorney Harry Saums to represent him in 1961. Thereafter, on June 15, 1967, Ausherman, with the legal advice of Saums, entered into an agreement to sell certain stock to Lee Stump for $35,000. After the agreement was executed, Ausherman became disenchanted with the contract and on April 24, 1973, he refused to honor the stock purchase. He and his new attorney (who had replaced Saums as Ausherman’s legal counsel) refunded the $35,000 purchase price to Stump. Stump, however, decided to enforce the contract and Saums, as his attorney, returned the refund check to Ausherman’s attorney.
On May 7, 1973, Saums on behalf of Stump filed an action in the Republic County district court, naming Ausherman as defendant. A memorandum decision in favor of Stump was rendered on August 20, 1974.
Ausherman filed suit against both attorney Saums and Stump in the Sedgwick County district court on March 22, 1976. He alleged that (1) Saums had violated his fiduciary and contractual relationships with Ausherman by filing the Republic County lawsuit as Stump’s counsel, and (2) Stump had tortiously interfered with the Ausherman-Saums contractual relationship.
After examining the file, pleadings, and a certified copy of the transcript made in the Republic County case, the trial court held that the action against defendant Stump was a tortious claim and was barred by the statute of limitations, K.S.A. 60-513(a) (4). We agree.
A tort action shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury. Such an action must be brought within two (2) years. (K.S.A. 60-513.)
In general, a cause of action accrues, so as to start the running of the statute of limitations, as soon as the right to maintain a legal action arises, the true test being at what point in time the plaintiff could first have filed and prosecuted his action to a successful conclusion. (Johnston v. Farmers Alliance Mutual Ins. Co., 218 Kan. 543, 548, 545 P.2d 312; Yeager v. National Cooperative Refinery Ass'n, 205 Kan. 504, 470 P.2d 797.)
In Ausherman’s answer filed in the Republic County district court (Case No. 12,580), he stated that he and his then attorney presented a check to Stump on April 24, 1973. By his own statements Ausherman implied that substantial injury occurred when Saums returned the check on behalf of Stump. Any cause of action which plaintiff had against Stump could have been brought after that date.
This case is virtually controlled by Malone v. University of Kansas Medical Center, 220 Kan. 371, 552 P.2d 885, not cited by the parties. In that case, the court said:
“A breach of contract may be said to be a material failure of performance of a duty arising under or imposed by agreement. A tort, on the other hand, is a violation of a duty imposed by law, a wrong independent of contract. Torts can, of course, be committed by parties to a contract. The question to be determined here is whether the actions or omissions complained of constitute a violation of duties imposed by law, or of duties arising by virtue of the alleged express agreement between the parties.” (p. 374.)
Where, as here, the controlling facts are based upon written or documentary evidence by way of pleadings, admissions, depositions and stipulations, the trial court has no peculiar opportunity to evaluate the credibility of witnesses. In such a situátion, this court on appellate review has as good an opportunity to examine and consider the evidence as did the court below, and to determine de novo what the facts establish. (American States Ins. Co. v. Hartford Accident & Indemnity Co., 218 Kan. 563, 572, 545 P.2d 399; Koch, Administratrix v. Prudential Ins. Co., 205 Kan. 561, 470 P.2d 756; In re Estate of Bernatzki, 204 Kan. 131, 460 P.2d 527.)
Accordingly, we disagree with the trial court’s ruling that the two-year statute of limitations does not apply to Saums. Where a contractual relationship exists between persons and, at the same time, a duty is imposed by or arises out of the circumstances surrounding or attending the transaction, the breach of the duty is a tort. (Malone v. University of Kansas Medical Center, supra; Yeager, supra; 74 Am.Jur.2d, Torts § 23, p. 641.)
When an act complained of is a breach of specific terms of the contract, without any reference to the legal duties imposed by law upon the relationship created thereby, the action is in contract (see Price, Administrator v. Holmes, 198 Kan. 100, 422 P.2d 976, and Juhnke v. Hess, 211 Kan. 438, 506 P.2d 1142), but where as here the gravamen of the action is a breach of the legal duty and not of the contract itself, the action is in tort.
From our examination of the record, we are satisfied that plaintiff’s alleged cause of action against defendant Saums must be interpreted as founded in tort. Applying the Yeager test, the cause of action against Saums accrued on or before May 7, 1973.
We conclude that plaintiff’s action against both Stump and Saums is barred by the statute of limitations. Not having brought his action until more than two years from the time of the torts, his remedies were barred by K.S.A. 60-513(a) (4). Accordingly, we find it unnecessary to consider other points of error raised by the plaintiff.
The trial court’s ruling that the defense of the two-year statute of limitations does not apply to Saums, was erroneous. However, if the trial court renders a correct judgment under the facts and the law, the judgment will not be disturbed merely because wrong reasons are given for its rendition. (Boldridge v. Estate of Keimig, 222 Kan. 280, 564 P.2d 497; Wallace v. Magie, 214 Kan. 481, 522 P.2d 989.)
The judgment is affirmed. | [
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Parks, J.:
This is an action to set aside a deed from a father to one of his adult sons. The trial court entered judgment in favor of the plaintiff (another son) declaring the deed void because of the confidential relationship that existed between the grantor and grantee at the time ihe deed was executed.
The facts may be summarized as follows: William C. McConachie (Will) and Lucille McConachie (Lucille), husband and wife, raised two sons, Gale R. McConachie, plaintiff, and William Eugene McConachie (Gene), grantee-defendant, on a 170-acre farm northeast of Ottawa, Kansas. The farm is the subject of this lawsuit.
Gale left the farm in the 19.30’s and through the years has been employed as a court reporter, private secretary and public stenographer. At the time of trial he was self-employed in the field of office services in Puerto Rico, where he had lived for 15 years. Prior to 1967 Gene had lived at the farm from time to time but was most often away from home employed as a bartender.
Early in 1967 Gene and his wife Edith moved to the farm to reside with and care for Will and Lucille. Gene rented 42 acres of pasture and barn lots from his father and raised cattle and sheep. Both Gene and Edith had jobs away from the farm. In the fall of 1968 Gene and Edith moved to an apartment at the Ottawa Country Club where they assumed managerial duties. This employment lasted until January 1970 when they returned to the farm and resumed care of Lucille and Will.
Gale did not live on the farm at any time after he left in the 1930’s. However, he did return during the fall every year or two to visit the family for two weeks during his mother’s lifetime. Such visits occurred in 1964, 1966, 1967, 1969, at his mother’s funeral in 1971, and at his father’s funeral in 1973. Gale corresponded regularly with members of the family, particularly with his mother., Lucille, and his sister-in-law, Edith. In addition, he called his parents six or seven times a year for holidays or birthdays.
After Gene and Edith returned to the farm in 1970, they began to assume more duties and to occupy it more as their own home. Gene negotiated some of the rentals for tenant farmers while Will continued to oversee others. Following Lucille’s illness (beginning about 1970), Edith cooked, laundered and generally kept house. Edith and Gene also expended time transporting and caring for Lucille and Will. Will did not drive his car after 1970. Edith and Gene therefore shopped for groceries and drove Lucille and Will to appointments — doctor, barber shop, voting, bank.
The trial court specifically found Will could dress, shave, eat his meals at the table and care for himself up to a short time prior to his death. This conclusion was based, apparently, on Edith’s letters. Her letters indicate that Will was confused at times, often forgetting his wife’s death or reliving his childhood.
First mention was made of the deed in question at a family dinner in early 1973. Someone observed how the family had grown, and Will stated a desire that Gene and Edith stay on the farm. Marilyn Shockey, a legal secretary from Oklahoma who later married Edith’s son, Bill Holland, was one of the dinner guests. She observed that Edith and Gene had taken good care of the place and Will could be assured of their staying if he deeded the farm to them. The next morning Marilyn suggested to Will again that he “really should take care of” the deed mentioned the night before. Will stated, “That would be all right.” Marilyn then volunteered to have the deed drafted by her employer in Oklahoma and returned to Will. Around March 1, 1973, Marilyn and Bill returned with the deed. Marilyn testified the deed was not read to Will in her presence, and no mention was made of Gale.
Gene and Edith arranged for the signing of the deed after it had been in Will’s possession two or three weeks. Edith called their own banker and arranged for him to meet with them that evening to notarize Will’s signature. Will patronized a different bank, and the banker involved was not acquainted with Will. After the banker’s arrival, Gene, who was in possession of the deed, excused himself and summoned his father. Will appeared five or ten minutes later. The deed was placed in front of Will at the dining room table, and Will was asked if he knew what he was signing. Will replied that he did. At no time during the signing was the deed read to Will or explained to him. After Will signed it, the banker acknowledged the signature, affixed his notary seal and left. Edith promptly mailed the deed to Marilyn in Oklahoma City. Marilyn’s employer opened the envelope and instructed Marilyn to send the deed to Ottawa for recording. This transaction occurred approximately six months before Will’s death at the age of 92.
Earlier disposition of the property described in the deed had been discussed and, apparently, attempted. One neighbor since 1928 who had frequent conversations with Will, testified Will had indicated an intention for Gene to have the farm since the 1950’s. The neighbor said this statement had been repeated as many as 10 to 12 times during the years — the last time occurring after Lucille’s death.- However, a will dated June 30,1965, left all real estate first to Lucille and then to the brothers in equal parts.
Earlier in 1953 a letter from Lucille to Gale stated Lucille and Will had deeded the property “to you boys.” The understanding was that if the farm was to be divided any other way the boys would have to agree to it. About that time Gale indicated to his parents they might deed him a smaller portion of the acreage and deed Gene the bulk of the farm ground. Lucille wrote Gale in 1957 that she and Will might deed Gale 79 acres and the contents of the house. Will wrote Gale in 1960 that a will leaving the property to the brothers jointly was filed in the lawyer’s vault. Gale testified that he saw another deed in which he and Gene were named grantees in September 1971 (the time of his mother’s death).
A letter from Lucille to Gale, written July 6, 1971, reflected Lucille’s belief that Gene was “determined to get the place at any cost.”
It was only after their father’s funeral on September 26, 1973, that Gale discovered the existence of the deed in controversy. He told Gene he thought they ought to have the deed to them recorded (referring to the earlier joint deed). Gene then told Gale he had bought the farm from their father for $10.00. At the same time, Gene handed Gale certificates for 581 shares of United Income Fund and stated Gale could have them. These shares were appraised in Will’s estate at $7,233.45. The 170-acre farm was appraised as of date of death at $76,500.00. The remainder of Will’s estate included a checking account balance of $2,186.97, a 1949 Ford Coupe valued at $50.00, and household furniture, furnishings and personal effects valued at $550.00.
The trial court found that the facts of Gene and his wife having lived in the farm home for more than five of the last six and one-half years of Will’s life, having assisted Will in handling his financial affairs and managing the farm, and the fact of Will’s advanced age and infirmity, had resulted in a confidential relationship. This finding is uncontroverted.
The basic issue is whether the grantee, who occupies a confidential relationship with the grantor, has the burden of showing by convincing evidence that (1) the act was that of the grantor and did not occur at a time when there was influence bearing upon the will of the grantor so potent as to destroy his free agency and to substitute the will of another, (2) the grantor clearly understood and comprehended what he was doing, and (3) the transaction was either for valuable consideration or that the grantor was given the benefit of independent advice regarding the consequences.
In Frame, Administrator v. Bauman, 202 Kan. 461, 468, 449 P. 2d 525, the court said:
“It is for the trial court to determine, in the first instance, whether the presumption of undue influence existing by virtue of a confidential relationship has been satisfactorily overcome by the party on whom the burden rests. That court bears the responsibility of weighing conflicting evidence and assessing the credibility of witnesses.
“Under familiar rules, our responsibility on appeal is to ascertain whether the findings of the trial court are supported by substantial competent evidence. (Cersovsky v. Cersovsky [201 Kan. 463, 441 P. 2d 829].) In making this determination, we are required to consider the evidence in its most favorable aspect in relation to the party who prevailed in the court below. Riedel v. Gage Plumbing & Heating Co., 202 Kan. 538, 449 P. 2d 521.)”
The rule is clearly stated in Syl. 5 of Frame, Administrator v. Bauman, supra:
“Where a transaction has been entered into between persons, one of whom stands in a confidential relationship to the other, the burden rests upon the person occupying such status to show that the transaction was conducted in good faith and did not result from the exercise of undue influence on his part.”
Following the rule expressed in Frame, Administrator v. Bauman, supra, the trial court found in this case that the deed was void and must be cancelled and set aside for the reason that the defendant, who had a confidential relationship with his father, had failed to establish by clear and convincing evidence that the execution of the deed was the will and desire and freely formed intention of his father and that the grantor clearly understood what he was doing.
The trial court detected evidence of Will’s increasing physical infirmity and mental deterioration. There was no evidence that the deed was ever read or explained to Will, and it is clear that he was not the initiating party. He merely replied once that a deed “would be all right,” and another time that he knew what it was. All parties involved in procuring, notarizing or recording the deed were members, or soon to become members, of the interested family, or were agents of that family. Finally, the $10.00 consideration paid by Gene was a nominal figure in relationship to the appraised value of $76,500.00 for the farm.
In reviewing the record it is clear the trial court found that the defendant had failed to carry the burden of rebutting the presumption of undue influence.
The defendant cited Hotchkiss, Administrator v. Werth, 207 Kan. 132, 483 P. 2d 1053, to support his position. The facts in the Hotchkiss case are different from the case at bar in that, prior to the execution of the deed, the grantor had discussed business matters with his accountant, had conferred in detail with the manager of the Federal Land Bank Association of Larned concerning the transaction in question, had been examined by his family physician and certified to be fully competent to execute a deed and to transact his business affairs, and had conversed with his banker concerning the transaction at the time the deed was executed and acknowledged.
It is apparent that the facts in Hotchkiss could be found sufficient to rebut a presumption of undue influence under the previous Kansas decisions. However, in comparing the Hotchkiss analysis to the case at bar, we ■ do not find the mitigating facts which would rebut a presumption of undue influence.
We disagree with the assertion of appellant that Hotchkiss, supra, required a showing of actual rather than presumed undue influence. As we read the case, the court simply stated that it found no substantial evidence in the record to support a finding or conclusion that the deed was procured through undue influence exerted by the grantees or anyone else.
Furthermore, it is our opinion that under the facts and circumstances of this case, there was sufficient evidence to warrant the application of the rule requiring independent advice, and to question whether the father exercised his own free will in executing the deed.
Accordingly, we hold that the findings and conclusions made by the trial court are supported by the record.
In view of our decision, other points raised on appeal need not be discussed.
The judgment is affirmed. | [
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Harman, C.J.:
This is an appeal from an order by way of summary judgment dismissing a motion pursuant to K.S.A. 60-260 (b) which requested relief from a divorce decree directing movant to pay support for a child born during the marriage, who was not movant’s natural or adoptive child.
Certain facts are undisputed. The case had its inception with the marriage December 20,1968, of appellee Donna L. Besse and appellant Tommy L. Besse. Appellee gave birth to the child in question, Vance Reid Besse, on February 26, 1969. Both parties knew at the time of their marriage that appellant Tommy was not the biological father of the child. Tommy was listed as the father in the child’s birth certificate issued March 18,1969 (in one of his answers to interrogatories Tommy states this was done with his permission — in another he states he never gave consent to be named the father on the birth certificate).
On August 23, 1972, appellee Donna filed her petition for divorce alleging, among other things:
“4. That one child was bom to plaintiff and defendant, to-wit: Vance Reid Besse, born February 26, 1969.”
She sought temporary and permanent custody of the child and temporary and permanent child support. Tommy filed his answer in which he stated:
“THIRD: Defendant admits the birth of Vance Reid Besse as alleged in paragraph 4 of plaintiffs Petition.”
January 12, 1973, the parties executed a written property settlement agreement which provided for monthly child support to be paid by Tommy for the minor child. Each of the parties was represented by legal counsel. This instrument was filed in the trial court January 19, 1973, at which time the action was heard and divorce was granted. The decree found that one child, Vance Reid Besse, had been born to the parties, that appellee should be awarded its custody and appellant should pay $95.00 per month toward its support as provided in the settlement agreement, which was specifically approved. At this hearing both parties were present in person and by their attorneys.
For one year after the divorce appellant paid the support money agreed upon. Then he quit. On February 10, 1975, appellant filed a motion seeking relief from the January 19, 1973, decree under K.S.A. 60-260 (b) (3), (4), (5) and/or (6) on the ground he was not the natural or adoptive father of Vance Reid Besse and alleging that his duties toward the child were only those of a stepfather.
Thereafter, by means of answers to interrogatories to each of the parties the facts already related were established. Further appellant stated the facts upon which he relied for relief to be:
“I am not Vance Besse’s father, and can prove it if needed. Donna L. Besse has admitted this in her answers to Interrogatories. I never gave my consent that I be named as father of Vance Reid Besse on the birth certificate. Donna and I had no agreements about the child before we got married or afterwards. I was willing to marry Donna and assume the duties of a step-parent to her child, but I never really discussed the child with Donna because it was a sore subject. My lawyer, Tom Reid, strongly urged me to be named as the real father of Vance Reid Besse for the best interests of the child; and that it would not help to bring this matter up in court because every child must have a father. After about a year, I got fed up with having to pay support for someone else’s child, and I stopped paying it. Donna L. Besse knows who the child’s father is, and she has told me who it is.”
Thereafter appellee filed her motion for summary judgment which was sustained by the trial court. Appellant’s principal argument for relief appears to have been that both parties’ conduct at the time the divorce was granted constituted fraud upon the court. The trial court also stated it would entertain no further motions and it assessed appellee’s attorney fees against appellant.
In its oral statements the court concluded that 260 (b) was not provided in order to relieve a party from free, calculated and deliberate choices he had made; that a party remains under a duty to take legal steps to protect his interests; that appellant’s motion was not made until more than two years after the judgment complained of and this was not within a reasonable time as required by law. The court also commented it almost appeared that appellant was “playing games” with the court in that he had known everything relevant to the issues at all times and had been represented by counsel. It also commented upon the desirability of finality in litigation after parties have had their day in court.
Appellant now raises several points but in view of our ultimate determination not all need be discussed. In Neagle v. Brooks, 203 Kan. 323, 454 P. 2d 544, the court held:
“A motion for relief from a final judgment under K.S.A. 60-260 (b) is addressed to the sound discretion of the trial court, and upon appeal its action is reviewable only for abuse of discretion. [Syl. 3] The broad language of K.S.A. 60-260 (b) (6) authorizing relief for ‘any other reason justifying relief from the operation of the judgment’ gives the courts ample power to vacate judgments whenever such action is appropriate to accomplish justice. This power is not provided in order to relieve a party from free, calculated and deliberate choices he has made. The party remains under a duty to take legal steps to protect his interests. [Syl. 5] A motion for relief from a judgment under K.S.A. 60-260 (b) (6) must be made within a reasonable time.” (Syl. 6.)
Based upon the facts the trial court had before it at the time it dismissed the motion, we cannot declare it abused sound judicial discretion. Indisputably, the parties were aware of their predicament at all times. Shortly after his birth Vance Reid Besse had been officially registered as their offspring. They went into court with counsel and at their direction the court made provision for the minor child of the marriage, as it was required by law to do. Appellant kept his part of the bargain for a year. Then he “became fed up” but he waited for more than another year before doing anything about it. We cannot fault the trial court for the action taken.
However, there is more to the story which in this peculiar instance needs to be taken into account. On January 21, 1976, nearly six months after the trial court’s dismissal of appellant’s motion, there was filed in the same court a petition by Robert Stanley Klein and appellant, case No. 15,725. Named as defendants were appellee Donna L. Nelson, formerly known as Donna L. Besse and Donna L. Waltner, Vance Reid Besse and the Kansas State Registrar of Vital Statistics. In the petition Klein stated he was the natural father of Vance Reid Besse. The petition went on to plead much of the factual matter we have already related. The relief sought was an order determining plaintiff Robert Stanley Klein to be the father of Vance Reid Besse, with appropriate amendment of Vance’s birth certificate pursuant to K.S.A. 65-2409, and that appellant Besse be relieved of the duty of support of the minor child. At oral argument of this appeal counsel for the parties advised that action was still pending in the trial court.
At stake in these two actions are matters of importance in the lives of four young persons (including the minor). At the time of entry of the judgment appealed from here it appears the trial court did not have before it all the facts respecting the paternity of the minor. At that time it does not appear any father had been identified nor was there anyone on the scene willing to be so identified, as is the case now. To that extent the whole matter seems worthy of a second look.
In Neagle v. Brooks, supra, the court quoted approvingly certain principles applicable to relief under 60-260 (b), including these:
“ ‘. . . Equitable principles may be a guide in administering relief.
“ ‘The Advisory Committee [on the Rules of Civil Procedure] has referred to “the teaching of experience that courts will not permit technicalities to prevent them from remedying injustice.” Laudable as is the goal of remedying injustice Rule 60 (b) requires the courts to strike a balance between that goal and the desire to achieve finality in litigation. . . .’ ” (p. 327.)
In addition to the broad power available to a court under 260 (b) (6) for “any other reason justifying relief from the operation of the judgment”, we also note the last ground in 260 (b) (5) which allows relief if “it is no longer equitable that the judgment should have prospective application”. This latter proviso is authority for relief because of changed conditions since the judgment was rendered. In similar vein, under K.S.A. 60-1610 (a) a court may modify or change any order respecting the custody and support of minor children who have been involved in a divorce action in order to advance their welfare and best interest. “The support of children, like their custody, is a matter of social concern. It is an obligation the father owes to the state as well as to his children” (Grimes v. Grimes, 179 Kan. 340, 343, 295 P. 2d 646).
To the end that the minor child may have his father named once and for all we think it just and proper that the trial court reconsider its judgment herein after a full evidentiary hearing on all aspects together with and in the light of the issues in case No. 15,725 pending before it. Accordingly the judgment is vacated and the cause remanded for such reconsideration. | [
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Rees, J.:
This action is another round in litigation involving oil and gas royalty owners and producers in the Hugoton-Anadarko area. Plaintiff royalty owners seek interest on royalties held in “suspense” by their producer after it sold gas but before the sale prices were finally determined by the Federal Power Commission. The trial court awarded interest. Defendant producer has appealed from the award. Plaintiffs have appealed from the amount of the award arguing it was insufficient.
The Hugoton-Anadarko area is a rate-making area within the jurisdiction of the Federal Power Commission (hereafter FPC). It encompasses Kansas and parts of Texas and Oklahoma. The plaintiff class is comprised of certain royalty owners under oil and gas leases with defendant Amoco covering lands in all three states. Amoco is a natural gas producer whose sales are at rates subject to regulation and approval of the FPC.
On various occasions since 1958, Amoco filed with the FPC requests to increase the sale prices for its gas. Amoco filed with the FPC gas purchase contracts as rate schedules. Pending final determination by the FPC of the lawfulness of a requested price, Amoco was permitted to charge and it collected from its purchasers the new higher requested price subject to an obligation to refund any excess above what was ultimately deemed to be a lawful rate by the FPC. Surety bonds were required by the FPC to insure repayment by Amoco to gas purchasers of any portion of the rates later declared to be unlawful. While Amoco’s sales to its purchasers were at the requested new increased rates, payments to royalty owners remained at the old lesser rates until such time as the new rates gained final FPC approval.
FPC proceedings and related court proceedings extended over a period of many years. The result has been to give to producers for extended periods of time the use of money (known as “suspense money” or “suspended royalties”) which was ultimately owed to the royalty owners. See Lightcap v. Mobil Oil Corporation, 221 Kan. 448, 562 P.2d 1. The evidence disclosed that Amoco had used the suspense moneys for its own business purposes.
On September 18, 1970, the FPC issued Opinion No. 586 approving lawful rates and setting ceiling rates for the sale of natural gas produced in the Hugoton-Anadarko area. Opinion No. 586 became final on October 28, 1972, when the case of In re Hugoton-Anadarko Area Rate Case, 466 F.2d 974 (9th Cir, 1972), upholding the opinion, became final. Following the latter date, Amoco began the laborious task of computing the amounts of suspended royalties due the royalty owners that had accrued since 1958. In January, April and August, 1973, Amoco made payouts in a total amount exceeding one million dollars to royalty owners. The payouts did not include interest and the failure to pay interest on the suspended royalties is the basis of this action.
Suit was filed on February 28, 1974, in Grant County, Kansas. The class representative is a resident of Grant County and has a royalty interest in land there. The district court certified the action as a class action and found that there were questions of law and fact common to the class. The class was limited, with some exclusions not here relevant, to all persons who were, in or before 1973, entitled to gas royalties under Amoco leases in the Hugo-ton-Anadarko area and who received payment during 1973 of suspended royalties as a result of FPC Opinion No. 586. The class totals approximately 6,000 royalty owners in Kansas, Oklahoma and Texas, excluding those royalty owners who opted out of the class after receiving notice of the suit. The interests of all members of the plaintiff class arise out of “proceeds” leases. See Lightcap v. Mobil Oil Corporation, supra.
The action proceeded to trial. The district court held that Amoco was not entitled to the free use of the royalty owners’ share of the increased sale proceeds during the years of suspension and that Amoco was liable for interest on the suspended royalties. The plaintiff class was awarded judgment for interest on the suspended royalties at the rate of six percent, compounded annually, from time of receipt until the date of judgment, January 8, 1976. We affirm the trial court’s general award of interest but modify the award in a manner dealt with later.
The heart of Amoco’s appeal is the argument that as a matter of law the plaintiff class is not entitled to interest on the suspended royalties. Amoco argues that the royalty claims of plaintiffs remained unliquidated and not due until FPC Opinion No. 586 became final and therefore the plaintiff class is not entitled to interest on the suspended royalties attributable to any time prior to that date.
When the briefs on this appeal were filed, the question whether prejudgment interest on suspended royalties was recoverable by royalty owners was still an open one in Kansas. Our Supreme Court has since resolved that issue. In Lightcap v. Mobil Oil Corporation, supra, an award of six percent interest on suspended royalties in circumstances similar to those of the present case was affirmed on equitable grounds. Lightcap is controlling as to an award of prejudgment interest on suspended royalties under Kansas law.
Amoco contends that Texas and Oklahoma law as to prejudgment interest differs from that of Kansas and that those states would not permit the award of interest on suspended royalties.
Amoco has not established to our satisfaction the need to apply to this case any law other than the law of Kansas. Amoco offers no guidance as to what choice of law rules apply or how the choice of law problems should be characterized. The general rule is that the law of the forum applies unless it is expressly shown that a different law governs, and in case of doubt, the law of the forum is preferred. 16 Am.Jur.2d, Conflict of Laws, Sec. 11, p. 25.
Even if we were inclined to find that Texas law has application to the claims of the Texas members of the plaintiff class, we are satisfied that Texas law would permit recovery of prejudgment interest on suspended royalties. In the very recent case of Stahl Petroleum Company v. Phillips Petroleum Company, 550 S.W.2d 360 (Tex. Civ. App. 1977), the Texas Court of Appeals awarded interest on suspended royalties. The Stahl case also arose out of the Hugoton-Anadarko area and the issuance of FPC Opinion No. 586. The Texas court concluded that the terms of the royalty contract and the Texas interest statutes required the payment of prejudgment interest on the suspended royalties. Federal cases also have construed Texas law as permitting the award of interest on suspended royalties. Phillips Petroleum Company v. Adams, 513 F.2d 355 (5th Cir. 1975); Phillips Petroleum Co. v. Hazlewood, 409 F.Supp. 1193 (N.D. Tex. 1976); Fuller v. Phillips Petroleum Co., 408 F.Supp. 643 (N.D. Tex. 1976).
Our examination of Oklahoma case law fails to indicate to us that the courts of that state would not permit prejudgment interest under the facts of this case. Unlike Kansas and Texas, Oklahoma seemingly has no decision directly answering the issue here concerned. However, several Oklahoma decisions hold that interest may be awarded on equitable grounds where necessary to arrive at fair compensation. Smith v. Owens, 397 P.2d 673 (Okla. 1963); Robberson Steel Co. v. Harrell, 177 F.2d 12 (10th Cir. 1949); First Nat. Bank & T. Co. v. Exchange Nat. Bank and T. Co., 517 P.2d 805 (Okla.App. 1973).
We necessarily conclude that interest on suspended royalties may be recovered for the period of time such royalties remain in the control of and are available for use by oil and gas producers during the pendency of FPC proceedings and related litigation regarding the determination of applicable lawful rates.
Amoco next argues that the district court of Grant County, Kansas, lacked jurisdiction to adjudicate the claims of those members of the plaintiff class who are not Kansas residents and whose royalty interests do not relate to Kansas realty. Amoco does not dispute the exercise of in personam jurisdiction over it by the district court.
Amoco relies heavily upon Texas and Oklahoma venue statutes and cases construing those statutes which place the proper venue for an action concerning an interest in land in the county where the land is situated. It is argued that a royalty interest is an interest in land and therefore the Texas and Oklahoma venue statutes compel maintenance of any action involving a royalty interest to be in the local forum. Accordingly, Amoco maintains that the district court of Grant County lacked jurisdiction over the claims of those members of plaintiff class who are non-resident royalty owners and whose land is outside Kansas. We are asked to remand for the purpose of dismissing the petition as to the claims of such non-resident class members.
Amoco confuses the concepts of jurisdiction and venue. The two terms are not synonymous. The fact that an action involving an oil and gas lease would be maintained in the county where the land is situated under Texas and Oklahoma venue statutes if the action were initially brought there does not deprive the courts of another state of jurisdiction to hear the matter if the action is transitory. Venue is not a jurisdictional question but a procedural one. 77 Am.Jur.2d, Venue, Sec. 1, p. 832. The fact an action is tried in a county other than that declared by a venue statute as the proper county for its trial does not go to jurisdiction and does not invalidate the judgment. 77 Am.Jur.2d, Venue, Sec. 45, p.893.
The present action is a transitory action and the trial court, having in personam jurisdiction over the defendant, rendered a valid in personam judgment on behalf of the non-resident members of plaintiff class.
If the action is transitory, then a court hearing the matter has jurisdiction if it has in personam jurisdiction over the defendant. 20 Am.Jur.2d, Courts, Sec. 121, pp. 476-7; Farha v. Signal Companies, Inc., 216 Kan. 471, 532 P.2d 1330. The transitory nature of a cause of action based on contract is not affected by the fact that real property is incidentally involved. 20 Am.Jur.2d, Courts, Sec. 127, p. 480. The fact that an oil and gas lease is involved in an action will not alone make it local in nature. In Schindler v. Ross, 182 Kan. 277, 320 P.2d 813, it was held that an action to recover oil payments mistakenly made under an oil and gas division order was a transitory action and in personam jurisdiction over defendant was sufficient.
In Raynolds v. Row, 184 Kan. 791, 339 P.2d 358, our Supreme Court stated as follows:
“. . . Where the decree sought will act upon the person of a defendant rather than upon the real property, the location of the land indirectly affected is immaterial, and the action is considered to be transitory and may be brought wherever the defendant may be served with summons. . . .” (Syl. 1.)
In Roberts v. Cooter, 184 Kan. 805, 339 P.2d 362, the court said in part:
“. . . An action on a contract is in its nature transitory, not necessarily local, and it is not material that the subject of the contract is realty if the title thereto is not drawn into question or the realty is only incidentally and not directly affected. . . .” (p. 812.)
The action brought by the plaintiff class was transitory even though some of the leases involved covered land outside Kansas. The subject matter of the action is Amoco’s obligation to pay interest on the plaintiff class' money held and used by defendant over a period of several years. The title to realty is not drawn into question, nor is the recovery of any estate in realty in issue. The real property which is covered by the oil and gas leases is only incidentally affected. In personam jurisdiction over the defendant was sufficient to allow the district court of Grant County, Kansas, to render a valid judgment.
Amoco also argues the district court lacked jurisdiction to adjudicate the claim of the non-residents because they do not have the necessary “minimum contacts” with Kansas. Amoco relies upon the line of United States Supreme Court cases beginning with Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878), and running through Hanson v. Denckla, 357 U.S. 235, 2 L.Ed.2d 1283, 78 S.Ct. 1228 (1958), that deal with the “minimum contacts” due process requirement for the exercise of in personam jurisdiction. Amoco reasons that since some members of the plaintiff class are Texas and Oklahoma royalty owners having no apparent contacts with Kansas, the courts of this state lack jurisdiction to determine their claims. We do not agree.
The classic statement of the “minimum contacts” requirement for the exercise of in personam jurisdiction over non-residents is found in Internat. Shoe Co. v. Washington, 326 U.S. 310, 90 L.Ed. 95, 66 S.Ct. 154 (1945), as follows:
“Historically the jurisdiction of courts to render judgment in pers'onam is grounded on their de facto power over the defendant’s person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff, 95 U.S. 714, 733. But now that the capias ad respondendumhas given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.’ . . .” (p. 316.)
That a defendant must have certain “minimum contacts” with the forum to permit the exercise of in personam jurisdiction consistent with the Due Process Clause is established law. We are unaware of any corresponding requirement that plaintiffs have “minimum contacts” with the forum, beyond the contacts which are present in this case, to permit the exercise of in personam jurisdiction by the forum court on their behalf. On the contrary, in Hansberry v. Lee, 311 U.S. 32,85 L.Ed. 22,61 S.Ct. 115 (1940), the United States Supreme Court recognized that due process is not offended by the presence of non-residents of the forum state in a plaintiff class. The court said in part:
. . Courts are not infrequently called upon to proceed with causes in which the number of those interested in the litigation is so great as to make difficult or impossible the joinder of all because some are not within the jurisdiction ... In such cases where the interests of those not joined are of the same class as the interests of those who are, and where it is considered that the latter fairly represent the former in the prosecution of the litigation of the issues in which all have a common interest, the court will proceed to a decree. . . .
“. . . [T]his Court is justified in saying that there has been a failure of due process only in those cases where it cannot be said that the procedure adopted, fairly insures the protection of the interests of absent parties who are to be bound by it. . . .” (pp. 41-42.)
Amoco next argues that the plaintiff class was unmanageable because differing questions of law were before the district court as to the right of recovery of various members of the class. Amoco contends that the plaintiff class’ right to recover interest depends upon the application of the law of three states: Kansas, Texas and Oklahoma. It is alleged that the relevant statutes and case law of the three states would lead to differing results and thus destroy the commonality of “questions of law or fact” required by K.S.A. 60-223(a)(2) (1973 Supp.).
As indicated earlier in this opinion, prejudgment interest on suspended royalties has been expressly approved by case law in Kansas and Texas, and we see no reason to believe it would not also be allowed by an Oklahoma court. The differing results Amoco complains of have not been manifested in the case law.
Amoco has expressed an overly restrictive interpretation of the commonality requirement of K.S.A. 60-223(<z). Federal cases decided under corresponding federal statute [Federal Rule 23(a)(2)] show the commonality requirement has been liberally construed. Sommers v. Abraham Lincoln Federal Savings & L. Ass’n., 66 F.R.D. 581 (E.D. Pa. 1975); Fertig v. Blue Cross of Iowa, 68 F.R.D. 53 (N.D. Iowa 1974); Watson v. Branch County Bank, 380 F.Supp. 945 (W.D. Mich. 1974).
We hold that there were questions of fact or law common to the plaintiff class, and the class was not unmanageable.
Amoco contends the acceptance of the payout of the suspended royalties in 1973 by the royalty owners bars any later claim for interest. It is argued that acceptance of the principal amount extinguished the debt and with it any right that may have existed to recover interest. This argument is in the nature of accord and satisfaction. To constitute an accord and satisfaction, there must be an offer in full satisfaction of the obligation accompanied by acts, declarations, or such circumstances that the party to whom the offer is made is bound to understand that if he accepts it is in full satisfaction of and discharges the original obligation. Lippert v. Angle, 215 Kan. 626, 527 P.2d 1016. There must be a complete meeting of the minds that there is full satisfaction and discharge of the claim. Sanders v. Birmingham, 214 Kan. 769, 522 P.2d 959.
During the 1973 payouts, Amoco unilaterally mailed out checks to the plaintiff royalty owners with the following notice:
“Area rates have recently been established by the Federal Power Commission for gas sales in the Hugoton-Anadarko area, and certain portions of price increases which were previously suspended have been approved. This check is settlement for your portion for the period indicated. Subsequent to this period, regular monthly settlement has been based on the applicable increased rates.”
As the trial court correctly pointed out, the payout of suspended royalties did not include an accounting of the rates involved nor did it contain any indication whether or not interest was included. We are unable to find as a matter of law that there was a meeting of the minds that the claims were fully satisfied and discharged.
Amoco argues that the Oklahoma members of the plaintiff class are not entitled to recovery by reason of Okla. Stat. Ann., Title 23, Sec. 8 (West), which provides: “Accepting payment of the whole principal, as such, waives all claim to interest.” We do not agree.
An identical statute has been held to have no application where the conditions of payment are such that the creditor has no opportunity to assert his claim for interest at the time of payment. McConnell v. Pacific Mutual Life Ins. Co., 205 Cal.App.2d 469, 24 Cal. Rptr. 5. The individual members of plaintiff class had no practical opportunity to assert their claims for interest at the time of payment under the circumstances of Amoco’s payout.
We have stated in regard to choice of law that Amoco has failed to establish the need for .application of the law of Texas and Oklahoma as to the right to recover interest on suspended royalties. Likewise, the facts disclosed by the record and Amoco’s arguments fail to establish the necessity of application of the cited Oklahoma statute.
Our conclusion with respect to the Oklahoma statute, a damages statute, is consistent with the following statements in Phillips Petroleum Company v. Adams, supra:
“Phillips has done the [royalty owner] no wrong so that the [royalty owner] cannot claim interest as an item of damages, . . . [T]he [royalty owner] can claim interest from Phillips only as ‘compensation allowed by law for the use ... of money.’ . . .” (513 F.2d at 365.)
We believe it proper to consider the claims of plaintiff class as analogous to situations involving application of the so-called “United States Rule.” That rule provides that in applying partial payments to an interest-bearing debt which is due, in absence of an agreement or statute to the contrary, the payments should first be applied to the interest accrued and any surplus applied to reduction of principal. Jones v. Nossaman, 114 Kan. 886, 221 Pac. 271; 45 Am.Jur.2d, Interest and Usury, Sec. 99, p. 88. Under the facts of the present case, the payouts for suspended royalties by Amoco in 1973 are held by us to have been applied first to payment of accrued interest, the surplus applied to reduction of the principal amount of the suspended royalties, with the result that an unpaid portion of the principal obligation was left due and owing. Since the 1973 payouts did not fully satisfy the principal obligation owed by Amoco, the obligation was not extinguished, and the acceptance of the partial payment did not bar this later action.
We hold that the district court had jurisdiction over the parties and the claims of plaintiff class and acted correctly in granting an award of interest on the suspended royalties.
The only question remaining is whether the district court awarded interest at the proper rate.
Plaintiff class argues the trial court erred in fixing the rate of interest at six percent and that seven percent is a more equitable figure in light of economic inflation during the years the suspended royalties were held by Amoco. We do not agree. The six percent rate has ample support in the statutory case law of Kansas, Texas and Oklahoma. However, we do find it necessary to modify the award of interest in certain particulars.
The district court’s award of interest was as follows:
“10. The statutory rate of interest herein in Kansas, Oklahoma and Texas is six per cent per annum and is allowed as the proper rate of interest to be applied to the suspended royalties herein from time of receipt until date of judgment herein with interest compounded on an annual basis.”
We believe equitable principles (the basis for allowance of interest as held in Lightcap) require the award of six percent per annum simple interest from the date of receipt by Amoco until the date of payout to the plaintiffs. Applying the “United States Rule,” after the payout there was still an unpaid principal amount due equal to the total principal due plus accrued interest, less the amount of the payout. (Assuming proper calculation, this amount, although principal, would equal the accrued interest to the date of payout.) We therefore further hold that equitable principles require six percent per annum simple interest be awarded on the unpaid balance of the principal amount owed from the date of payout until the date of judgment. From the date of judgment, January 8, 1976, interest should be awarded at the statutory judgment rate on the then total of the unpaid balance of the principal and the accrued interest thereon.
Our application of the “United States Rule” principle is consistent with the following statements in Fuller v. Phillips Petroleum Co., supra:
“. . . When the interest is not paid, the debtor simply gains the use of that amount representing interest, and he should not be able to achieve such use without paying for it. . . . Because the interest in this case was not paid by Phillips when it paid the principal sum (‘sustainable’ moneys), such interest then became a part of the principal and, as above indicated, the Fullers are as much entitled to their interest as to their principal and they are entitled to interest upon interest . . .” (408 F. Supp. at 648.)
The case is remanded for further proceedings in accord with this opinion. | [
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Parks, J.:
This is an action brought pursuant to the Kansas Consumer Protection Act, K.S.A. 1975 Supp. 50-623, etseq. (since amended, K.S.A. 50-623, et seq.). The trial court rendered judgment for the plaintiff, James A. Bell, in the total sum of $3,305 ($2,000 civil penalty, $1,000 attorney’s fees, and $305 actual damages). The defendant, Kent-Brown Chevrolet Company, appeals. This appeal brings the act before our appellate courts for the first time.
On August 16, 1974, plaintiff purchased a 1974 Open Road van from the defendant for $6,170, less a trade-in. Defendant represented to the plaintiff that the vehicle was new. After delivery of the vehicle, it was discovered by the plaintiff that it had been damaged. He became aware of the damage when he noticed repainting on the side and paint flaking off the right rear corner. While installing trailer lights and taking the panel out of the inside, the plaintiff found body putty. In order to discover part of the damage to the vehicle, plaintiff had to remove an interior wood panel and a seat bench. Additional damage included a replacement bumper, a bent brace for the bumper, and file marks which indicated that the sliding door on the right side had been repaired. Plaintiff was advised by defendant that some of the damage could be repaired under warranty and offered in the alternative to give him another 1974 Open Road van of the same model and style. The substitute vehicle offered by defendant was found not to be equivalent to the one plaintiff had purchased, thus it was rejected by the plaintiff.
The trial court found as a matter of law, and as a part of its conclusion, that the failure to disclose the damages was a deceptive practice and that when the vehicle was sold to the plaintiff it had been altered materially different from the representation as a new vehicle.
In order to determine this case, it is necessary to examine certain sections of the Kansas Consumer Protection Act. They read, in part, as follows:
K.S.A. 1975 Supp. 50-623:
“This act shall be construed liberally to promote the following policies:
“(b) To protect consumers from suppliers who commit deceptive and unconscionable sales practices.”
K.S.A. 1975 Supp. 50-626:
“(a) No person shall engage in any false, misleading, deceptive or unconscionable trade practice in the sale, lease, rental or loan or in the offering for sale, lease, rental or loan of any goods or services,
“(b) Deceptive acts and practices include, but are not limited to, the following, each of which is hereby declared to be a violation of this act:
“(1) Representations that:
“(C) goods are original or new, if they are deteriorated, altered, reconditioned, repossessed or second-hand or otherwise used to an extent that is materially different from the representation.”
In lieu of setting forth the provisions of K.S.A. 1975 Supp. 50-624, we would simply state that the defendant qualifies as a “person” under subsection (h), and the vehicle sold constitutes “goods” under subsection (e) of this statute.
The first issue presented to this court is whether defendant’s representation that the vehicle was “new,” when in fact the vehicle had been damaged and thereafter repaired, constitutes a deceptive consumer sales practice under the Kansas Consumer Protection Act.
Defendant contends that the legislature, in enacting the Kansas Consumer Protection Act, was attempting to protect consumers from conduct intentionally done by suppliers. It argues that since the trial court found no evidence of any willful nondisclosure on its part, there was no violation of the act.
K.S.A. 1975 Supp. 50-626 (b) (1) (C) specifically declares it to be a violation of the act to make representations that goods are new, if they are deteriorated, altered, reconditioned or otherwise used to an extent that is materially different from the representation.
The Kansas Comment to K.S.A. 1975 Supp. 50-626 says:
“1. Subsection (a) generally prohibits any deceptive practice in a consumer transaction. . . . The acts and practices listed in subsection (b) are treated as per se deceptive, and are merely illustrative of the acts and practices which violate the act as set forth in the broadly worded subsection (a). . . .” (Emphasis added.)
In connection with the argument that its representation did not constitute a violation of the act, the defendant further contends that it had no actual knowledge of the damage prior to being advised by the plaintiff.
The trial court in the present case found that the defendant knew or should have known, by any reasonable visual inspection of the vehicle prior to the sale and delivery, that this vehicle had been damaged and repairs had been made.
Unlike many statutes, i.e. criminal statutes, a careful analysis of the act reveals that it imposes no requirement of intent or prior knowledge on the part of a supplier.
Under the circumstances, we cannot say that the trial court erred in finding that the defendant violated the Kansas Consumer Protection Act.
The second issue presented is whether there was evidence to support the trial court’s finding that when the vehicle was sold to the plaintiff it had been altered materially different from the representation of a new vehicle.
A review of the record clearly indicates that the evidence is undisputed that the vehicle had been damaged prior to the sale and delivery to the plaintiff; that Mr. Paporello represented the vehicle as new when he sold it to the plaintiff; that the trial judge made a personal inspection of the vehicle at the time of trial; that Mr. Peterson, area service manager for Chevrolet Motor Division of General Motors, testified that the brace had been pushed in and pulled loose from the outer body panel, and further that such damage was caused by an impact of being hit on the right rear quarter of the vehicle.
The case was tried to the court and under such circumstances the court is the finder of facts. The extent of our review is set forth in Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, Syl. 4, 548 P. 2d 719:
“Upon appellate review this court accepts as true the evidence, and all inferences to be drawn therefrom, which support or tend to support the findings in the trial court, and disregards any conflicting evidence or other inferences which might be drawn therefrom. Where findings are attacked for insufficiency of evidence, or as being contrary to the evidence, this court’s power begins and ends with determining whether there is evidence to support such findings. Where the findings are so supported, they will not be disturbed on appeal. It is of no consequence there may have been contrary evidence adduced which, if believed, would have supported different findings. (Following Farmers State Bank of Ingalls v. Conrardy, 215 Kan. 334, Syl. 1, 524 P. 2d 690.)”
We are convinced that there was sufficient evidence to support the trial court’s finding that the vehicle had been altered materially from the representation that it was a new vehicle.
Now we turn our attention to defendant’s complaint that the award of a $2,000 civil penalty pursuant to K.S.A. 1975 Supp. 50-636 is excessive, and that the trial court erred in awarding attorney’s fees in the amount of $1,000.
K.S.A. 1975 Supp. 50-636 (a) provides:
“The commission of any act or practice declared to be a violation of this act shall render the violator liable for the payment of a civil penalty, recoverable in an individual action, including an action brought by the attorney general or county attorney or district attorney, in the sum of not more than two thousand dollars ($2,000.00) for each violation.”
K.S.A. 1975 Supp. 50-634 (c) provides:
“Except for services performed by the attorney general, the court may award to the prevailing party a reasonable attorney’s fee limited to the work reasonably performed. . . .”
We interpret these statutes to mean that the award of civil damages and attorney’s fees is purely discretionary with the trial court. The court is restricted to a maximum of $2,000 for civil penalties and limited to the award of attorney fees based on the work reasonably performed.
Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. (Stayton v. Stayton, 211 Kan. 560, 562, 506 P. 2d 1172.)
After consideration of the facts and circumstances contained in the present case, we are unable to find anything which would justify a conclusion that the trial court abused its judicial discretion in awarding the civil damages and attorney’s fees to the plaintiff.
Defendant maintains that the court erred in awarding actual damages in the amount of $305 to the plaintiff. We find that the defendant is correct in this assertion.
K.S.A. 1975 Supp. 50-634 (b) provides:
“A consumer who suffers loss as a result of a violation of this act may recover, but not in a class action, actual damages or a civil penalty as provided in K.S.A. 1973 Supp. 50-636 (a), as amended, whichever is greater.” (Emphasis added.)
It is obvious in reading this statute that the prevailing party is not entitled to both actual damages and a civil penalty. Inasmuch as the civil penalty is greater than the actual damages incurred by plaintiff, we hold it was error for the trial court to award the plaintiff $305 as actual damages.
In view of our decision, other points raised on appeal become immaterial and need not be discussed or decided.
The judgment below is affirmed (a) insofar as the allowance of a $2,000 civil penalty to plaintiff, and (b) insofar as the allowance of fees in the sum of $1,000 to plaintiff for his attorney’s fee. It is reversed insofar as it required defendant to pay actual damages in the sum of $305 to plaintiff. This case is remanded to the trial court for further proceedings in accordance with the views herein expressed. | [
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Harman, C.J.:
This is a proceeding involving termination of a police officer’s employment. The trial court held the officer’s discharge by a civil service commission was unlawful and the city has appealed.
Despite several violations by appellant’s counsel of the rules relating to appellate practice in the preparation of his brief and the record on appeal, which appellee urges as grounds for dismissal of the appeal, we proceed directly to the merits of the case with this admonition; These rules are designed to aid in a just and expeditious disposition of an appeal; counsel is requested to heed them.
The proceeding was initiated on January 23, 1976, when the Topeka chief of police suspended appellee John W. Parton as a Topeka police officer and filed a complaint and hearing request with the police and fire department civil service commission of the city of Topeka alleging that Parton should be dismissed from his employment because he had committed multiple offenses of adultery. The basis for termination was, and has been throughout this entire proceeding, that the conduct complained of was in violation of city code section 2b-235, which provided:
“Employees who willfully violate City Personnel Rules and/or Departmental Regulations may be suspended without pay for not to exceed fifteen (15) calendar days for any given offense; provided, however, no person shall be suspended until he first has been given a reprimand in writing warning him that continuation or repetition of the offense will result in suspension or discharge; provided, further, that certain offenses, including, but not limited to, drinking on the job, assault, willful refusal to obey an order or offenses of a like nature shall be cause for immediate suspension and filing of charges before the Civil Service Commission.”
On February 11, 1976, the commission denied Parton’s motion to dismiss, ruling that adultery came within the purview of city code section 2b-235 as an offense of a like nature to those specified therein. Apparently on the same day the commission issued a second order terminating him on the basis of a violation of that ordinance by reason of the alleged acts of adultery. This order, which is not contained in the record on appeal in this court, was appealed by Parton to the district court.
There Parton requested that the district court determine certain questions of law in advance of trial, including these:
“2. Is Section 2b-235 of the City Code of the City of Topeka a valid and enforceable ordinance, and in particular:
“a. Does it permit termination of a police officer for the reasons alleged herein?
“b. Does the phraseology such as ‘offenses of a like nature’ render the ordinance vague, uncertain and unenforceable?
“c. Can the acts alleged against this officer constitute such an offense under Section 2b-235 as to constitute grounds for immediate suspension in filing the charges and be defined as an offense of a like nature to those itemized thereon, to-wit: drinking on the job, assault or willful refusal to obey an order?”
The district court conducted a hearing upon the request and thereafter ruled that section 2b-235 of the city code was so vague, indefinite, and uncertain as not to inform a citizen with reasonable precision as to what acts it intended to prohibit; that the phrase “or offenses of like nature” was not sufficient reasonably to apprise the officer that the acts alleged to have been committed by him were prohibited; that Parton could not be discharged from his employment with the Topeka police department; that he was entitled to all benefits lost as a result of his suspension; and further
. . that Section 2b-235 of the City Code of the City of Topeka insofar as it pertains to these proceedings is so vague, indefinite and uncertain as to be unenforceable as against John W. Parton for the acts alleged against him.”
Appellant argues several points upon appeal. We shall examine them although the record on appeal does not indicate that appellant presented all to the trial court as should' have been the case in order to make them reviewable here. First appellant says the trial court exceeded its authority in setting aside appellee’s dismissal. The basis for this contention is the assertion that the trial court never considered the commission’s dismissal order. This would not affect the scope of judicial review, which is well established and was stated in Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, 539 P. 2d 1, thus:
“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.” (Syl. paragraph 3.)
The trial court ruled in effect that the commission had acted unlawfully in applying city code section 2b-235 as it did. That ruling was within the court’s authority.
Next appellant asserts the trial court erred in making any ruling prior to receiving and considering a complete transcript of the proceedings before the commission. The court’s ruling was one solely of law (validity of the ordinance under which appellant was proceeding as applied to the misconduct alleged against appellee) and the propriety of the review did not depend upon consideration of any particular evidence before the commission. The record before the trial court was sufficient for it to determine controlling questions of law. Similarly for his third and fourth points appellant asserts the trial court should have had before it evidence which was heard by the commission that appellee had knowledge that prior disciplinary action had been taken against another officer for similar conduct and that this should have been taken into account in determining whether adultery fell within the category of “offenses of a like nature” under ordinance 2b-235. Assuming that appellant’s facts are true, although the record on appeal is deficient of any showing that they were, and appellee denies them, the court made its determination from the language of the ordinance and the allegation of misconduct against appellee. Like a penal statute, a regulatory ordinance must be clear, definite and certain, so that the average person should be able with due care, after reading it, to understand and ascertain whether he will incur a penalty for particular acts or courses of conduct. If he cannot reach such a determination from examination of an ordinance, it is void for uncertainty (56 Am. Jur. 2d, Municipal Corporations, Etc., § 367). Resort to the type of extrinsic evidence urged by appellant here would have been improper in view of the particular procedure which appellant chose for terminating appellee’s employment. This is not to say dismissal might not have been accomplished by proceedings under another ordinance or law.
By way of summation we may note that the trial court’s order did not declare the ordinance in question invalid in its entirety but only as it was sought to be applied with respect to the particular misconduct charged against appellee. What the court did was to apply the familiar doctrine of ejusdem generis, explained in Trego WaKeeney State Bank v. Maier, 214 Kan. 169, 519 P. 2d 743, as follows:
“The rule of ejusdem generis is a well known maxim of construction to aid in ascertaining the meaning of a statute or other written instrument which is ambiguous. Under the maxim, where enumeration of specific things is followed by a more general word or phrase, such general word or phrase is held to refer to things of the same kind, or things that fall within the classification of the specific terms.” (Syl. paragraph 4.)
It needs little or no exposition to demonstrate that the trial court was correct. The specific offenses named in the ordinance were drinking on the job, assault and wilful refusal to obey an order— types of misconduct relating to an officer’s discharge of his official duties. Obviously adultery does not belong in the category, and in fact appellant has not challenged the propriety of the order in this respect.
The burden is on appellant to demonstrate error in the trial court’s ruling. This has not been done.
The judgment is affirmed. | [
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Abbott, J.:
This is an appeal from an order of the district court of Shawnee County granting judgment to Betty A. Swezey, reinstating her to her former position with payment of such salary as has been lost by reason of her dismissal.
Betty A. Swezey, hereinafter referred to as Swezey, was a clerk-typist II at the time her employment was terminated. She had been employed at Topeka State Hospital for nearly 14 years by Social and Rehabilitation Services of Kansas, hereinafter referred to as SRS.
This case involves an intended joke prepared by Swezey as a private joke. None of the parties seriously question the fact Swezey intended her action as anything other than a joke.
This unfortunate incident started on New Year’s Day, January 1, 1974, when Swezey decided to prepare some gifts for her friend, Mary Lou Mapes, who was leaving for a two-month training program in Chicago. Swezey prepared a sack full of gifts, some real and some joke gifts. Among the joke gifts was a set of Topeka State Hospital patient records purporting to show Mary Lou Mapes as a patient. The records were official Topeka State Hospital forms that had been completed in a jocular manner. The blank forms were the property of Topeka State Hospital, and Swezey was not authorized to use them in this manner.
The completed record was patently false, and would have been instantly so recognized by anyone having knowledge of the treatment of mental illness or the reputation of Topeka State Hospital. Swezey used the real names of doctors and nurses employed at Topeka State Hospital, and in some cases signed the names of Topeka State Hospital personnel.
The fake patient record, along with other gifts, was given to Mary Lou Mapes at a private luncheon attended only by Mary Lou Mapes and Swezey. Mary Lou Mapes was to leave for Chicago the following Saturday at 6:00 p.m. She had decided that during the time she was in Chicago, she would leave the fake record with Swezey. On the day she was to leave, she was still running errands at 3:00 p.m., and time was growing short. She decided to leave the fake record with a friend, Julie Jordan, who was to attend a meeting the following Friday night which Swezey also was to attend. It was the intention of Mapes to have Jordan give the record to Swezey at the Friday meeting. Jordan also was to substitute as a speaker for Swezey on Monday evening preceding the Friday meeting, and Swezey had material in her possession to be delivered to Jordan for distribution to those attending the Monday evening meeting. When Mapes arrived at the Jordan house, Julie Jordan was taking a nap and Mapes gave the material to Julie’s husband, along with a message for Julie. The message became garbled and Julie Jordan took the fake patient record to the Monday evening meeting and circulated it among those in attendance. Two employees of Topeka State Hospital inspected the record and recognized the name of Mary Lou Mapes as being a person whom they believed to be a defendant or potential defendant in a lawsuit being brought by a friend and co-employee at Topeka State Hospital. Both employees testified they did not hear an announcement that the record was a fake and meant as a joke. Mrs. Jordan testified that she, her husband, and a third person had announced at the time the record was circulated among the 12 to 15 people in attendance that it was a fake and intended as a joke.
The following morning, the record was delivered to Topeka State Hospital authorities. In due time, Swezey learned that the hospital administration was interested in who drew up the record, and she stepped forward and readily admitted her part. She attempted to see Dr. E. G. Burdzik, superintendent of Topeka State Hospital, but was unable to arrange an appointment. On January 14, 1974, Dr. Burdzik personally handed a letter to Swezey notifying her of SRS’s intention to dismiss her “for the good of the service” under the provisions of K.S.A. 1976 Supp. 75-2949. Both parties agree that the letter fully complied with the notice requirements of K.S.A. 1976 Supp. 75-2949. At the same time, Swezey gave a letter to Dr. Burdzik which for the first time presented her side of the story to Dr. Burdzik. Dr. Burdzik and Swezey met at 4:00 p.m. on January 22, 1974 for approximately one hour to discuss the issue of Swezey’s dismissal.
The following morning, January 23, 1974, Dr. Burdzik deliv ered a letter to Swezey terminating her employment effective at 12:00 noon that same day. Dismissal was “for allowing defaming material to be circulated in public which brought discredit to state employees, Topeka State Hospital and the State of Kansas, and misuse of state property. . . .”
On February 1, 1974, Swezey appealed to the Civil Service Commission and hearings were held on March 19 and April 19, 1974. The Civil Service Commission heard evidence and sustained the dismissal of Swezey. Swezey then appealed to the Shawnee County district court. Judge Carpenter examined the record, and in a comprehensive and well-reasoned memorandum ordered that Swezey be reinstated and paid such salary as had been lost by reason of her dismissal.
SRS appeals and relies on three points, to wit:
“1. The District Court erred in failing to remand the matter to the Civil Service Commission for further hearing proceedings.
“2. The District Court erred in misapprehending the facts and the law as to the publication of the mock patient chart and in ruling that there was ‘insufficient competent evidence to establish just cause for terminating the employment of Betty Ann (Sic) Swezey “for the good of the service” as provided by K.S.A. 75-2949.’
“3. The District Court erred and exceeded its judicial authority in substituting its judgment on an administrative matter and in basing that judgment on a record that the Court had already declared to be defective.”
Points 2 and 3 will be considered together. A brief review of applicable law concerning appellate review of an administrative agency’s decision would be useful at this point. The leading case on that issue is Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P. 2d 828, where it was said:
“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.” (Syl. 1.)
This court has the same record before it that the district court had, so this court will make the same review required in Foote, supra, to wit:
“In reviewing a district court’s judgment, as above, this court will, in the first instance, for the purpose of determining whether the district court observed the requirements and restrictions placed upon it, make the same review of the administrative tribunal’s action as does the district court.” (Syl. 2.)
Later, in Shapiro v. Kansas Public Employees Retirement System, 211 Kan. 452, 507 P. 2d 281, the court held that:
“Whether there is any evidence to support the findings of an administrative agency, or whether the findings are contrary to the evidence, presents a question of law which is always open to review by the courts.” (Syl. 7.)
Neither this court nor the district court is to determine the weight or credibility of the testimony of witnesses. These matters are properly left to the commission’s discretion.
There is no contention the commission acted fraudulently nor that its action was not within the scope of its authority; thus, it leaves only the questions of whether the commission’s action was arbitrary and capricious, and whether it was supported by substantial competent evidence.
K.S.A. 1976 Supp. 75-2949 requires a statement in writing specifically setting forth the reasons for a proposed dismissal. The appointing authority relied on two points in its letter of dismissal to Swezey, to wit: (1) Allowing defaming material to be circulated in public, which material brought discredit to state employees, Topeka State Hospital and the State of Kansas; and, (2) misuse of state property.
Where a statute sets forth the procedure for dismissal and requires that the cause of dismissal be stated in writing, the written statement so made is conclusive of the cause of removal. People v. Martin, 19 Colo. 565, 36 Pac. 543 (1894).
Our Supreme Court has not construed that portion of K.S.A. 1976 Supp. 75-2949 which reads, “for the good of the service.” The general principle is found in 15A Am. Jur. 2d, Civil Service §§ 61, 63, wherein it states:
“A statutory requirement that dismissal from the classified service be for ‘the good of the service’ has the effect of limiting the valid exercise of the power of dismissal for cause.” (p. 87.)
“, . . Legal cause for disciplinary action exists if the facts found by the commission disclose that the employee’s conduct impairs the efficiency of the public service, but there must be a real and substantial relation between the employee’s conduct and the efficient operation of the public service; otherwise, legal cause is not present.” (p. 90.)
and, in 63 Am. Jur. 2d, Public Offiders & Employees § 202, wherein it states:
“Instead of enumerating particular causes for the removal of public officers, their superiors in authority may be empowered to remove them for ‘cause.’ The phrase ‘for cause’ in this connection means for reasons which the law and sound public policy recognize as sufficient warrant for removal, that is, legal cause, and not merely cause which the appointing power in the exercise of discretion may deem sufficient. It has been implied that officers may not be removed at the mere will of those vested with the power of removal, or without any cause. Moreover, the cause must relate to and affect the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public.” (p. 752.)
15A Am. Jur. 2d, Civil Service § 61, p. 86, states:
“[T]he dismissal of a civil service employee for minor offenses is not favored.”
In order to affirm the dismissal of a classified civil service employee, a legal cause must exist; and where no legal cause exists, the dismissal will be held to be arbitrary and capricious.
The record was given to Mary Lou Mapes at a private luncheon, attended only by Swezey and Mapes. Mapes did tell Swezey she would show the record to her two elderly aunts with whom she lived. It is apparent from the testimony that the record was not meant to be circulated in public and that it was not circulated with Swezey’s permission. There is no evidence of willful circulation in public and no evidence that Swezey could have reasonably foreseen the record would be circulated in a public meeting.
We pause to note that for many years the Menninger Foundation and Veterans Administration have conducted performances, which were open to the public, wherein good-natured fun was poked at individuals on their staffs and at the psychiatric community. Similar performances are a common practice within many professional groups. Perhaps such events help relieve tension and serve a useful purpose for those who work in demanding and responsible, high-pressure positions. In any event, life surely must be less pleasant for those who are unable to see any humor in their jobs and in the events which occur in connection with their chosen professions.
In this case we have two employees, each of whom had been employed at the same institution for 14 or 15 years. Over the years they shared many humorous events, a number of which would have no meaning to anyone other than themselves. Many of the charts would have no meaning and, in fact, make no sense other than to the two persons involved. There is no evidence that the record was malicious or was intended to be malicious, nor is there any mention of a real patient. All of the persons who testified on the subject readily admitted they knew immediately upon picking up the record it was a fake and a joke. Why else would you have a picture of the three little pigs fastened to a chart and prescribing a lethal dose of medicine? Perhaps the sense of humor would not appeal to everyone, but no one contends the record was intended to be anything but humorous.
Our research has failed to find a case where a civil service employee has been terminated on comparable facts and counsel has not cited any to the court.
Legal cause for dismissal exists if the facts disclose the employee’s conduct is of a substantial nature and directly impairs the efficiency of the public service, but there must be a real and substantial relation between the employee’s conduct and the efficient operation of the public service; otherwise, legal cause is not present. Nothing in the record indicates this incident was of a substantial nature directly affecting the rights and interests of the public. Nor do we find that Swezey’s conduct impaired the efficiency of the Topeka State Hospital. Legal cause for Swezey’s dismissal is not found on the issue of public circulation of the record, and was not “for the good of the service” as required by K.S.A. 1976 Supp. 75-2949; nor is there evidence substantially supporting the administrative order.
We now turn to Swezey’s misuse of state property. Misuse of state property referred to a single set of state forms which ordinarily would be found in a patient’s record at Topeka State Hospital. Courts have affirmed the dismissal of a civil service employee where notable quantities of property and personnel were used for personal gain on a recurring basis, causing delay and postponement of official work. (Lee v. Department of Highways, 138 So. 2d 36 [La. App. 1962].) The record was prepared at home and did not involve the use of state time or personnel, nor did it involve personal gain. The misuse or waste of state property is not condoned by this court, but' is viewed as an offense which is no more serious than the misuse of a paper clip, rubber band, or a few sheets of paper. It is not the type of conduct which would justify the dismissal of a permanent classified employee who has 14 years of service. We note Swezey was neither charged with nor convicted of any crime concerning her use of the forms. Each case of alleged misuse of state property relied on for the dismissal of a permanent classified civil service employee must be considered on its own set of facts. The misuses of state property on this set of facts does not amount to a legal cause, and thus the dismissal was not “for the good of the service” as required by K.S.A. 1976 Supp. 75-2949.
We now turn to appellant’s final point that the district court erred in failing to remand the matter to the Civil Service Commission for further hearing proceedings. Both parties agree there were due process deficiencies in the Civil Service Commission hearing. The district court so found and there was no appeal from that portion of the district court judgment. Appellant urges that the matter be remanded for further proceedings. Appellee urges that appellant had the burden of proof insofar as making out a prima facie case as to the reasonableness of the appointing authorities’ action in dismissing appellee; and, so to speak, the appellee’s argument is that appellant, having failed, should not be permitted to try again. It should not now be allowed another turn at bat, thereby receiving six strikes rather than the customary three.
Appellant introduced and offered all of the evidence it desired to introduce and rested. All of the evidence was considered by the Civil Service Commission and all of the evidence was before the district court. No one alleges the SRS was denied due process of law in presenting its case. SRS was not denied the opportunity to offer evidence, nor was SRS prejudiced in any way from presenting its case. It was appellee who was denied the right to fully cross-examine SRS’s witnesses, who was denied the right to introduce evidence on her behalf, and to rebut evidence considered by the commission.
This court will not require the parties to do a useless act. SRS had its day in court and presented all the evidence it desired to present. We assume the appellee, Swezey, would not offer evidence adverse to her interest; therefore, there is no point in sending the case back to the Civil Service Commission for further hearing to afford the employee a due process hearing when SRS has failed, as a matter of law, to sustain its burden of proof that the dismissal of the employee “for the good of the service” was reasonable.
The determination made by the trial court was within the scope of its review in considering administrative decisions (Strader v. Kansas Public Employees Retirement System, 206 Kan. 392, 479 P. 2d 860, cert, denied, 403 U.S. 914, 29 L. Ed. 2d 692, 91 S. Ct. 2240 [1971]) when it determined there was insufficient competent evidence to establish just cause for terminating the employment of Betty A. Swezey, and as a result thereof the board’s action constituted arbitrary, capricious and unreasonable conduct.
The district court properly concluded Betty A. Swezey was entitled to be reinstated and be paid such salary as had been lost by reason of such dismissal as provided in K.S.A. 1976 Supp. 75-2949.
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Larson, J.:
This is the appeal of Jerry Allen Horn from the upward departure sentence entered after he pled guilty to seven sex crimes with a 10-year-old boy.
Horn’s arguments revolve around the procedure involved in impaneling a jury to consider whether a fiduciary relationship existed between Horn and the victim as an aggravating factor to justify an upward durational departure sentence.
The record reflects that Horn was charged with three counts of aggravated criminal sodomy with a child under the age of 14 years, a severity level 1 person felony in violation of K.S.A. 21-3506; three counts of aggravated indecent liberties with a child under the age of 14 years, a severity level 3 person felony in violation of K.S.A. 21-3504; and one count of sexual exploitation of a child, a severity level 5 person felony in violation of K.S.A. 21-3516. At his arraignment, Horn pled not guilty.
Horn moved to suppress the confession that he had given to a detective of the Lenexa Police Department, contending it was the result of mentally coercive tactics. Prior to trial, the State filed a notice of its intent to ask for an upward durational departure sentence based on the aggravating factor that the offenses involved a fiduciary relationship between Horn and the victim.
On the morning of trial, with a jury waiting to be called, Horn changed his plea from not guilty to guilty. There was no plea agreement. In great detail and at great length, the district court questioned Horn as to his wishes and concluded Horn was knowingly and voluntarily entering a plea of guilty to all seven charges.
The record reflects Horn understood that if a departure was granted, the sentence could be 492 months in prison. Horn was 68 years old and had an undergraduate degree in electrical engineering. He understood that by his guilty plea he was admitting that he committed the acts set forth in the amended complaint. The State provided a factual basis for the pleas. Horn agreed with the factual basis. Horn had no questions prior to the court’s acceptance of his guilty pleas.
The district court then considered the State’s motion for an upward durational departure sentence based on the existence of a fiduciary relationship between Horn and the victim, 10-year-old C.T.P. Both counsel discussed with the court the necessity of having the claimed upward departure factor determined by a jury but also agreed that Horn could waive a jury trial. Defense counsel stated they were prepared for a departure hearing before a jury.
The prosecution and defense argued about whether the evidence of the sexual activity between Horn and C.T.P. could come into the hearing or whether it was so prejudicial that the evidentiary value was outweighed. The district court considered the discussion an additional motion in limine to exclude the evidence and then denied the motion. The court decided the jury was entitled to know that the defendant had pled guilty to certain crimes, stating one could not divide out that part of the relationship between Horn and C.T.P.
A jury was selected, and the court gave preliminary instructions which set forth the elements of the crimes pled to, a definition of “fiduciary relationship,” and the normal and usual instructions given requiring proof beyond a reasonable doubt and a unanimous verdict.
Witnesses testifying before the jury consisted of a teacher who had received a note from C.T.P. complaining of bad touches, C.T.P.’s mother, C.T.P., an interview specialist who had interviewed C.T.P. and authenticated the tape of that interview, which was played before the jury, C.T.P.’s father, and a detective who had interviewed C.T.P. and his mother and had taken pictures of the inside of Horn’s apartment which were admitted into evidence.
C.T.P.’s mother testified to the outstanding relationship the family had with Horn, who had become more than a friend but like a family member. He was at their home on weekends and took the boys (C.T.P. and his twin brother) to music lessons, home from church, go-carting, waterskiing, to the lake, to camp outs, and to his home for overnights. Horn took the boys flying in a small plane, and on Saturdays went out for lunch and played games like laser tag and paintball. Horn became a part of the family and at one point, said he had spent about $3,000 entertaining the boys. C.T.P. always had extra money, which he said came from Horn. C.T.P. testified as to his involvement with Horn, and this testimony was much like his mother s. He did not testify as to any of the sex crimes forming the basis for the complaint and plea of guilty-
The interview specialist testified her interview with C.T.P. was recorded, and the State sought to admit it into evidence. The defense renewed its pre-evidence objection to any evidence of the sexual activity, argued the evidence was cumulative, and did not address the fiduciary relationship. The court overruled the objections, finding that the “sexual conduct is clearly relevant to this proceeding.” The video was admitted and viewed by the jury.
C.T.P.’s father testified to essentially the same information as his wife concerning the family’s relationship with Horn. He said he had expected Horn to exercise a normal duty of care to protect others but admitted there was no formal or written agreement regarding medical treatment or care of the boys.
The police officer testified he interviewed C.T.P. and was present at the investigator’s interview. He authenticated photographs of Horn’s apartment, including rockets, guns, a ferret, and photographs of the boys. The officer also interviewed Horn, and over defense objections a video of that interview was admitted into evidence and shown to the jury.
After the State rested, the defense moved for acquittal, or more accurately, presented a motion contending the State had failed to establish a prima facie case showing a fiduciary relationship. The motion was denied.
Horn did not present any evidence or testimony, although he was in no manner prevented from doing so.
The parties had a jury instruction conference, and Horn objected to an instruction defining fiduciaiy relationship to which the district court added a sentence. This will be discussed in more detail as an issue in this appeal.
The juiy was instructed, counsel for both parties argued, and the matter was submitted to the jury. The jury returned a verdict finding that a fiduciary relationship was established on each count of aggravated sodomy and aggravated indecent liberties.
At sentencing, the court heard testimony from Horn’s pastor, Horn’s two daughters, and the victim’s parents. The court imposed a sentence of234 months, double the standard (mid-box) sentence, on each of the three counts of aggravated sodomy, and 59 months, again double the standard sentence, on each of the three counts of aggravated indecent liberties. The sentences were imposed consecutive to each other and totaled 1,088 months, but pursuant to K.S.A. 21-4720, Horn received the maximum sentence under the law of 468 months (double the base sentence).
The court discussed all the evidence before it as justifying the sentence but did not make a specific statement that the departure factor was substantial and compelling.
Horn has filed a timely appeal raising a multitude of issues which we will consider as raised.
Horn first argues it was error to impanel a jury to consider the existence of an upward departure factor because there is no statutory authority for such action when a defendant enters a plea.
Horn additionally contends that in the absence of specific statutory authority, impaneling the jury violated the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and §§ 5 and 10 of the Kansas Constitution Bill of Rights.
Horn did not raise any constitutional issues before the district court. Constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. State v. Alger, 282 Kan. 297, 304, 145 P.3d 12 (2006). Horn recognizes that he did not raise this issue below but argues consideration of the issue is properly based on the exception that consideration of the theory is necessary to serve the ends of justice and to prevent denial of fundamental rights. See State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007). This is the case with several other constitutional issues first raised on appeal, which we will reach to protect Horn’s fundamental rights.
The history of the right to have juries consider any fact that increases a criminal penalty beyond die statutory maximum is well known. It originated in Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and was followed in Kansas by State v. Gould, 271 Kan. 394, 413, 23 P.3d 801 (2001), where K.S.A. 2000 Supp. 21-4716 was struck down for allowing upward departure criminal sentences based only on a judge finding one or more aggravating factors by a preponderance of the evidence. This was followed in 2002 by amendment of K.S.A. 21-4716 and K.S.A. 21-4718 (L. 2002, ch. 170, secs. 1 and 2) by the Kansas Legislature to provide direction and procedure for jury trials convened to consider upward departure requests which must be proven beyond a reasonable doubt.
Horn first contends that the reference to a jury in the departure hearing statutes is to the “trial jury,” which he translates into an argument that only the “trial jury” can hear an upward departure question and its corollary conclusion that a defendant is not subject to an upward departure when a defendant enters a guilty plea because the statute does not cover such a situation. We do not agree.
This issue and many of the issues in this appeal require us to interpret a statute, which is a question of law over which we have unlimited review. See State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). In reviewing the language added by the legislature in order to comply with Apprendi and Gould, we apply various rules of statutory construction which are hereinafter stated.
An appellate court’s first task is to “ascertain the legislature’s intent through the statutory language it employs, giving ordinary words their ordinary meaning.” State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007). When construing statutes to determine legislative intent, appellate courts must consider various provisions of an act in pari materia, with a view of bringing the provisions into workable harmony if possible. State v. Breedlove, 285 Kan. 1006, 1015, 179 P.3d 1115 (2008). As a general rule, courts presume that the legislature does not intend to enact useless or meaningless legislation. Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 631, 132 P.3d 870 (2006).
The direction to provide the guarantees required by Apprendi are found in K.S.A. 21-4716(b), which states: “Subject to the provisions of subsection (b) of K.S.A. 21-4718, and amendments thereto, any fact that would increase the penalty for a crime beyond the statutory maximum, other than a prior conviction, shall be submitted to a jury and proved beyond a reasonable doubt.”
The procedure to be followed is set forth in K.S.A. 21-4718(b)(2)-(7) which was added to the existing statute by the 2002 Kansas Legislature.
K.S.A. 21-4718(b)(2) states that in considering the imposition of an upward departure sentence:
“The court shall determine if the presentation of any evidence regarding the alleged fact or factors that may increase the penalty for a crime beyond die statutory maximum, other than a prior conviction, shall be presented to a jury and proved beyond a reasonable doubt during the trial of the matter ox following the determination of the defendant’s innocence or guilt.” (Emphasis added.)
We do not see how the italicized wording can apply only where guilt is determined by a trial. It is equally applicable where guilt is determined based on a plea.
K.S.A. 21-4718(b)(4) specifically provides that the jury in an upward departure sentence proceeding may be waived. If it is, the upward departure sentence proceeding is to be conducted by the court.
The court has the right, in the interest of justice, to determine that a separate departure sentence proceeding is to be held. K.S.A. 21-4718(b)(4). The evidence to be considered must be relevant, and only evidence known to the defendant prior to the upward departure sentence proceeding is admissible. K.S.A. 21-4718(b)(5). K.S.A. 21-4718(b)(6) requires the court to provide the jury with oral and written instructions to guide its deliberations. The requirement for a unanimous vote finding existence of a factor beyond a reasonable doubt is set forth in K.S.A. 21-4718(b)(7).
We do not find Horn’s argument that the holding in State v. Kessler, 276 Kan. 202, 73 P.3d 761 (2003), requires us to find the district court erred in impaneling a jury to be persuasive. Kessler was a case tried in district court between the date Gould was decided and prior to the legislature enacting the amendments which we have previously referred to in this opinion. The Kessler court held that although the district court had held a separate hearing to obtain a juiy determination of the aggravating factors beyond a reasonable doubt, there was no existing statutory authority for an upward durational departure sentence which required the sen tence to be vacated because the court had no authority to enter such a sentence. 276 Kan. at 217.
In our case, there is valid legislative authority for the district court’s actions, which did not exist in Kessler. Kessler does not require the district court’s actions to be reversed.
When we read all of the provisions added by the 2002 Kansas Legislature which are now found in K.S.A. 21-4716 and K.S.A. 21-4718, it is apparent that the reference to “trial jury” in K.S.A. 21-4718 was not intended to limit the ability of the State to ask for upward durational departures only to situations where not guilty pleas were entered and a jury trial was held to determine guilt or innocence. Horn’s due process rights were protected by the district court, and the consideration of the upward departure factor reached by a unanimous jury by applying a beyond a reasonable doubt standard is constitutionally valid under both Apprendi and Gould.
On this issue, we finally point to the decision of State v. Cody, 272 Kan. 564, 35 P.3d 800 (2001), where Cody pled guilty to criminal charges, and the court imposed an upward departure sentence based on Cody’s admissions, rather than based on facts found beyond a reasonable doubt by a unanimous jury. In reversing the sentence, the Cody court held that under Apprendi, a plea of guilty to the elements of a criminal offense does not constitute either an admission or a waiver of his or her due process rights. 272 Kan. 564, Syl. ¶ 1; see State v. Kneil, 272 Kan. 567, 35 P.3d 797 (2001).
Horn’s due process rights were recognized and protected by the procedure followed in this case. All applicable issues were considered by the jury, and the court had valid authority to enter the upward durational departure sentence in this case.
Horn next makes three related arguments concerning the use of the existence of a fiduciary relationship as an aggravating factor in entering an upward durational departure sentence.
The first is that the aggravating factor of the existence of a fiduciary relationship is unconstitutionally vague and overbroad because it is undefined, fails to give notice, and encompasses a wide scope of individuals. As with Horn’s first issue, it is questionable if it was raised below. Although he admits the magic words “vague and overbroad” may not have been used, he contends that he raised the issue when he argued that the Kansas Supreme Court had not defined “fiduciary relationship.”
Despite the paucity of authority and argument made below and on appeal, we consider this issue as a part of our obligation to protect Horn’s fundamental rights. The question of whether a statute is constitutional is a question of law over which an appellate court has unlimited review. The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be struck down, it must clearly appear that it violates the Constitution. In determining constitutionality, it is a court’s duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, unless its infringement of the superior law is clear beyond a reasonable doubt, it should be upheld. City of Wichita v. Hackett, 275 Kan. 848, 853, 69 P.3d 621 (2003); State v. Whitesell, 270 Kan. 259, Syl. ¶ 1, 13 P.3d 887 (2000).
Under K.S.A. 21-4716(c)(2), there is a nonexclusive list of aggravating factors that the district court can rely on as compelling reasons for an upward departure sentence. Among these factors is: “The offense involved a fiduciary relationship which existed between die defendant and the victim.” K.S.A. 21-4716(c)(2)(D).
A two-part test is used to determine whether a statute is unconstitutionally vague. First, we consider whether the statute conveys a sufficiently definite warning of the proscribed conduct when measured by common understanding and practice. Second, we consider whether the statute adequately guards against arbitrary and discriminatory enforcement, which embodies the requirement that a legislature establishes minimal guidelines to govern law enforcement. State v. Rupnick, 280 Kan. 720, 737, 125 P.3d 541 (2005).
A statute is not invalid for vagueness or uncertainty where it uses words of commonly understood meaning. State v. Rose, 234 Kan. 1044, 1046, 677 P.2d 1011 (1984). The heart of the test for vagueness is a commonsense determination of fundamental fairness. Hearn v. City of Overland Park, 244 Kan. 638, 642, 772 P.2d 758, cert. denied 493 U.S. 976 (1989).
There have been a few Kansas cases that have applied the fiduciary relationship as an aggravating factor. See, e.g., State v. Martin, 285 Kan. 735, 175 P.3d 832 (2008) (fiduciary relationship between mother and 16-year-old son, she handed a loaded gun and urged him to shoot at an occupied house, which he did, as she drove by); State v. Ippert, 268 Kan. 254, 995 P.2d 858 (2000) (defendant father victimized his children who were dependent on him for support and protection); State v. Sprinkle, 31 Kan. App. 2d 45, 48, 59 P.3d 1039 (2002), rev. denied 275 Kan. 968 (2003) (no fiduciary relationship between police officer convicted of nonresidential burglary and victim because there was no direct, personal relationship of some duration with the victim that would have led to a relationship of trust).
The Kansas Supreme Court cited Ippert in Gould in recognizing a fiduciary relationship may be a factor for supporting an upward departure. Gould, 271 Kan. at 413. Justice Abbott in his Gould dissent recognized the validity of a fiduciary relationship when he wrote:
“We have defined ‘fiduciary relationship’ as follows:
“ ‘The term “fiduciary relationship” refers to any relationship of blood, business, friendship, or association in which one of the parties places special trust and confidence in the other. It exists in cases where there has been a special confidence placed in one who, in equity and good conscience, is bound to act in good faith and with due regard to the interest of the one placing the confidence. A fiduciary has the duty to act in good faith.’ Hawkinson v. Bennett, 265 Kan. 564, Syl. ¶ 4, 962 P.2d 445 (1998).” 271 Kan. at 415.
The existence or absence of a fiduciaiy relationship is to be determined on a case-by-case basis as is shown by the results in Ippert, Martin, and Sprinkle. The term “fiduciary relationship” is not vague or overbroad. Properly instructed, a jury of persons of common intelligence can determine whether a fiduciary relationship exists under the facts in a given case.
K.S.A. 21-4716(c)(2)(D) is not unconstitutionally vague or overbroad.
Horn next argues that the existence of a fiduciary relationship is not an appropriate factor for crimes of aggravated indecent liberties and aggravated sodomy. He claims this results in lesser sen tences in cases of stranger molestation than might be entered in family molestation cases.
This is an argument to be presented to the legislature and not to this court. In effect, he asks us not to follow Ippert, which we have no right or authority to do unless there is an indication our Supreme Court is departing from its position. See State v. Singleton, 33 Kan. App. 2d 478, 488, 104 P.3d 424 (2005). As Ippert said: “A fiduciary relationship existing between the defendant and the victim is a statutory factor that may be considered when sentencing any person, including a parent, under the provision of [the aggravated indecent liberties statute].” (Emphasis added.) 268 Kan. 254, Syl. ¶5.
Finally, Horn argues the district court failed to consider whether the existence of a fiduciary relationship was a proper factor to consider in this case. Horn suggests there should have been a pretrial hearing to determine if the fiduciary relationship factor should be utilized.
This argument was not made below, and we are obligated to presume that sufficient findings were made to support the court’s actions. See Dragon v. Vanguard Industries, 282 Kan. 349, 356, 144 P.3d 1279 (2006). The trial judge gave the matter proper consideration and stated: “I can’t decide whether there is a fiduciary relationship as a matter of law,” having heard no evidence on the issue. The judge correctly ruled it was a matter to be considered by a jury as is mandated by Apprendi and Gould.
The district court is not required to make a pretrial analysis of whether a fiduciary relationship is a proper factor to be presented to the jury. It is one of the nonexhaustive mitigating and aggravating factors listed in the sentencing guidelines, which is sufficient. See K.S.A. 21-4716(c)(1)-(2).
Next, Horn argues the district court abused its discretion in admitting evidence of the sex crimes he perpetrated upon and committed with C.T.P. He argues this evidence should have been prohibited or tightly limited during the sentencing proceedings. Horn maintains the evidence of the sex acts was highly prejudicial because of the extreme danger that a jury will lower its burden of proof or wish to increase tíre sentence based on the nature of the crimes instead of focusing on the existence of the aggravating factor.
When reviewing a trial court’s decision to admit evidence, an appellate court first determines whether the evidence is relevant. Once relevance is established, an appellate court must apply the evidentiary rules governing the admission and exclusion of evidence as a matter of law or in the exercise of the trial court’s discretion, depending on the contours of the evidentiary rule question. When the issue involves the adequacy of the legal basis for the trial court’s decision, the issue is reviewed using a de novo standard. State v. Gunby, 282 Kan. 39, 47-48, 144 P.3d 647 (2006). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. State v. Reed, 282 Kan. 272, 280, 144 P.3d 677 (2006).
All relevant evidence is admissible. K.S.A. 60-407(f). “Evidence is relevant if it has any tendency in reason to prove any material fact. K.S.A. 60-401(b). To establish relevance, there must be some material or logical connection between the asserted facts and the inference or result they are intended to establish. [Citation omitted.]” Gunby, 282 Kan. at 47. The party asserting the trial court abused its discretion bears the burden of showing such abuse. State v. Edgar, 281 Kan. 30, 38, 127 P.3d 986 (2006).
Admitting evidence of the sex acts, which became a part of the relationship between Horn and his victim, is not like, admitting prior crimes evidence to show a propensity to commit the crime currently charged.
In this case, evidence of Horn’s sex acts with C.T.P. is relevant to the issue of whether there was a fiduciary relationship because they tend to show the extent of the relationship. The sex acts tend to prove material facts relevant to the fiduciary relationship. See K.S.A. 60-401(b). The sexual interaction is relevant as a large component of the lengthy relationship. The district judge correctly analyzed the issue when it said: “Because I don’t believe you can separate the relationship generally from the fiduciary duty that is a part of the relationship. I don’t think you can eliminate all evidence of a sexual relationship.”
The district court did not abuse its discretion in admitting evidence of the sex acts between Horn and C.T.P. as evidence supporting the establishment of a fiduciary relationship between the parties.
Horn next argues, for the first time on appeal, that his rights of confrontation under the Sixth Amendment to the United States Constitution were violated when the district court allowed the video of C.T.P.’s statements to be played when C.T.P. had not testified about the crimes at the sentencing hearing. C.T.P. did testify at the departure hearing about his relationship with Horn, but he did not testify concerning any of the specific sexual activity.
When the prosecutor moved to admit the videotape of the statements C.T.P. made to Jennifer Coughlin, an interview specialist at the Sunflower House, defense counsel objected. But, the objections were that the sexual activity was not relevant, it was cumulative, and there were no statements on the tape that in any way touched on any fiduciary issue. The district court overruled the objection, finding the evidence of sexual conduct was relevant to the proceeding.
Horn recognizes the State is correct in pointing out that our long-time rule is that a party may not object to evidence on one ground at trial and on a different ground on appeal. See State v. Engelhardt, 280 Kan. 113, 127, 119 P.3d 1148 (2005). While we are not obligated to address this issue, we do so briefly because it has no merit.
The State makes two convincing arguments why there is no Confrontation Clause violation here. First, there is case law that the Crawford v. Washington, 541 U.S. 36, 53-54, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), confrontation requirements are not applicable to postconviction proceedings. See United States v. Luciano, 414 F.3d 174, 178-79 (1st Cir. 2005); United States v. Rondeau, 430 F.3d 44, 47 (1st Cir. 2005).
Even more important is the fact that C.T.P. testified at the departure hearing. He was cross-examined by defense counsel. Even after the video was admitted, defense counsel had the opportunity of cross-examining C.T.P. if he desired to do so.
Horn was given adequate opportunity to confront C.T.P. under the Confrontation Clause. He chose to avoid what might have been an uncomfortable or unproductive confrontation with C.T.P. “A litigant may not invite and lead a trial court into error and then complain of the trial court’s action on appeal. [Citation omitted.]” State v. Kirtdoll, 281 Kan. 1138, 1150, 136 P.3d 417 (2006).
There is no Sixth Amendment violation here.
Horn next makes several arguments concerning the juiy instructions given by the court. He principally argues his due process rights were violated by the fact that the juiy instructions failed to guide and focus the juiy on the aggravating factor instead of distracting them with irrelevant issues regarding guilt.
When a defendant objects to instructions, our court is required to consider the instructions as a whole and not isolate any one instruction. Even if erroneous in some way, instructions are not reversible error if they properly and fairly state the law as applied to the facts of the case and could not have reasonably misled the jury. Edgar, 281 Kan. at 54.
Horn raised a specific objection to instruction No. 11, and after hearing his arguments, the court added the last sentence to the definition of fiduciaiy relationship, which as given stated:
“A fiduciary relationship is a relationship of blood, business, friendship, or association in which one party places special trust or confidence in the other. It exists where there has been a special confidence placed in one who, in equity and good conscience, is bound to act in good faith and with due regard to the interest of the one placing the confidence.
“The mere fact that an adult is interacting with a child, by itself, does not create a fiduciary relationship. Something more, in which special trust or confidence is placed in the fiduciary, is required.
“A fiduciary has a duty to act primarily for the benefit of the other person, who has placed his or her special confidence in the fiduciary. A fiduciary relationship implies a condition or superiority of one of the parties (the fiduciary) over the other. Generally, in a fiduciaiy relationship, the property, interest, or authority of the other person is placed in the charge of the fiduciaiy. In addition, as a general rule, a fiduciaiy relationship is established only when it is shown that the confidence placed by one person in another actually was accepted by that party; merely placing confidence in another does not, by itself, create a fiduciary relationship.”
Horn attempts to remake his vagueness argument, which we have previously rejected. He suggests the instruction should have said “mere friendship or respect does not create a fiduciary relationship.” There is no pattern instruction covering fiduciary relationship, but the instruction given adopts language from Hawkinson v. Bennett, 265 Kan. 564, Syl. ¶ 4, 962 P.2d 445 (1998), which we have previously cited, and provides sufficient guidelines which the juiy in this case could utilize in deciding tire issues that were raised.
Additionally on appeal, Horn argues that juiy instruction No. 10 did not advise the juiy that the severity level of the crime was already taken into account in determining the presumptive sentence. He also argues the jury instructions setting forth the elements of all the crimes, instruction Nos. 14-21 were just another opportunity for the State to parade the sex acts before the jury and distract it from focusing on the fiduciary relationship and not the elements of guilt. Horn did not object to the instructions now complained of on appeal.
Therefore, our review of these instructions is limited to determining whether the challenged instructions are clearly erroneous. State v. White, 284 Kan. 333, 346, 161 P.3d 208 (2007). We are to find instructions clearly erroneous only if we are firmly convinced there is a real possibility the jury would have rendered a different verdict without the error. State v. Hoge, 276 Kan. 801, 817, 80 P.3d 52 (2003).
Instruction No. 10 stated:
“If you unanimously find beyond a reasonable doubt that one or more of the offenses involved a fiduciary relationship between the defendant and the victim, then the Court may increase the defendant’s sentence for that offense above the presumptive sentence otherwise provided by law. The length of the defendant’s sentence, including any increase due to the existence of a fiduciary relationship, is a matter for determination by the Court.
“If you are unable to agree that one or more offenses involved a fiduciary relationship between the defendant and the victim, then the defendant will receive the presumptive sentence provided by law for that offense or those offenses.”
Jury instruction No. 10 mirrors PIK Crim. 3d 71.04, and the Notes on Use that follow 71.04 state that this instruction should be given in all upward departure cases. We hold it is not clearly erroneous. Jury instruction Nos. 14-21 set forth the elements of the crimes of conviction and are also not clearly erroneous. There is no merit in Horn’s arguments concerning these instructions.
There is merit in Horn’s argument that the district court erred in failing to give a cautionary instruction that the evidence of guilt of the sex crimes may be used only in considering whether the prosecution established beyond a reasonable doubt that a fiduciary relationship existed. Horn recognizes no such instruction was requested but suggests this argument should be reached to serve the ends of justice and prevent a denial of fundamental rights.
Although Horn does not argue that we should consider this issue under a clearly erroneous standard, the State says the failure is not clearly erroneous and points us to K.S.A. 2006 Supp. 21-4718(b)(7), which states that even if the jury found an aggravating factor, the sentencing court is not required to impose an upward durational departure.
Horn argues that the case at hand presents legal issues of first impression and the cautionary instruction is necessary to focus the jury on the aggravating factor only — not on the crime. We agree this is an important issue that we must consider on appeal.
Horn argues this situation is like a case where the trial court has admitted prior crimes evidence pursuant to K.S.A. 60-455, which requires a limiting instruction following PIK Crim. 3d 52.06 to be given. See State v. Garcia, 285 Kan. 1, 12, 169 P.3d 1069 (2007) (citing Gunby, 282 Kan. at 48, 56-57). As the court in Gunby explained: “These safeguards are designed to eliminate the danger that the evidence will be considered to prove the defendant’s mere propensity to commit the charged crime.” 282 Kan. at 48. To paraphrase this holding, an instruction is necessary to eliminate the danger that the evidence of the crime will be used to prove the existence of any aggravating factor.
However, the mere assumption that a cautionary instruction is required fails to recognize the fundamental difference between testimony which relates directly to the relationship between the defendant and the victim and K.S.A. 60-455 evidence that relates to crimes or bad acts committed by the defendant against third parties. We recognize this clear difference between evidence of the direct relationship between Horn and C.T.P. and what might have been offered under one of the K.S.A. 60-455 exceptions as a valid argument for a holding that no cautionary instruction was required.
Such a result is highly unsatisfactory, as Horn’s defense counsel attempted at every instance to restrict the use of evidence of the crimes perpetrated against C.T.P. The request of a cautionary instruction may even have been thought to be an admission of admissibility of evidence that was claimed not to be relevant and unduly prejudicial.
In this case, there was not minimal mention of the sex acts and their existence was part of the prosecutor’s final arguments. We have held that admission of the evidence of the sexual conduct was proper and consistent with that holding. We also hold that under the facts of this case, a cautionary instruction should have been given. Such an instruction may not be required under different evidence and facts. But, having held that a limiting instruction should have been given in this case does not mean that reversal of the district court is required.
As we have earlier stated, appellate review of the failure to give an instruction which is not submitted or objected to must be considered under a clearly erroneous standard. Instruction errors are clearly erroneous only if the reviewing court is firmly convinced that there was a real possibility that the juiy would have rendered a different verdict if the instruction error had not occurred. State v. Hunt, 285 Kan. 855, Syl. ¶ 7, 176 P.3d 183 (2008).
If we were to treat this error in the same manner as the failure to give a limiting instruction under K.S.A. 60-455, we reach the same standard of requiring reversal only if clearly erroneous. See Gunby, 282 Kan. at 57-59. (explaining the death of the automatic reversal requirement and the adoption of a clearly erroneous standard).
Under the facts of this case, we fail to see how there is a real possibility that the jury would have reached a different verdict if the purported instruction error, i.e. the lack of a limiting instruction, had not occurred. See State v. Cooperwood, 282 Kan. 572, 580-82, 147 P.3d 125 (2006) (example of such an analysis relating to the failure to give PIK Crim. 3d 52.08). The extent of Horn’s involvement with C.T.P.’s family and his individual interaction with C.T.P. was overwhelming. The trial court’s failure to give a cautionary instruction was not clearly erroneous.
Horn next argues the district court erred in denying his motion for judgment of acquittal and the companion argument in a later issue that there was not sufficient evidence of a substantial and compelling nature to support the verdict finding the existence of a fiduciary relationship.
In reviewing the decision on a motion for a judgment of acquittal, an appellate court examines the sufficiency of the evidence to support the conviction. In a criminal case, the standard for determining sufficiency of the evidence is whether, after review of all the evidence, viewed in a light most favorable to the State, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Cavaness, 278 Kan. 469, 479, 101 P.3d 717 (2004).
The same principles apply under a sufficiency analysis for review of an aggravated departure sentence. Upon a challenge to a departure sentence, an appellate court applies a mixed standard of review. A reviewing court first examines the record to see whether there is substantial competent evidence to support the district court’s articulated reasons for granting a sentencing departure. The appellate court then determines, as a matter of law, whether the district court’s reasons for departure constitute substantial and compelling reasons justifying a deviation from a presumptive sentence. State v. Murphy, 270 Kan. 804, 806, 19 P.3d 80 (2001).
Horn argues the facts in this case never elevated him to a position beyond a normal duty of care from one person to another. He points to the lack, of any formal agreement as to his care of the boys, lack of authority to discipline, and lack of authority regarding what to do in an emergency.
When we examine all the evidence in the light most favorable to the prosecution, we hold that a jury could find the existence of a fiduciaiy relationship beyond a reasonable doubt, and so the motion for acquittal was properly overruled.
The evidence showed Horn was accepted into C.T.P.’s family and was generous to the boys. He was regularly entrusted with their care over long periods of time, including overnight during the summer and weekends. He took C.T.P. race car driving, rock climbing, to music lessons, to church, and taught him to ski. C.T.P.’s mother testified that Horn “became like a member of the family.” There was sufficient competent evidence to support the trial court’s decision and the jury’s verdict.
The next argument Horn makes is that the district court erred in not requiring mitigating evidence to be submitted along with aggravating evidence, which he claims violated his fundamental rights of due process and equal protection.
This argument was not raised below, and constitutional grounds for reversal are not properly before us for review. State v. Alger, 282 Kan. 297, 304, 145 P.3d 12 (2006). However, we consider this argument because there is nothing in the record indicating that Horn was denied the opportunity to present any evidence he wished to present.
K.S.A. 21-4718(b)(5) provides: “In the upward durational departure sentence proceeding, evidence may be presented concerning any matter that the court deems relevant to the question of determining if any specific factors exist that may serve to enhance the maximum sentence.” Horn did not present any mitigating evidence for consideration by the jury.
Additionally, as the State points out, defense counsel did not offer any proffer of excluded evidence. See State v. Deal, 271 Kan. 483, 489-90, 23 P.3d 840 (2001) (the failure to make a proffer of excluded evidence precludes appellate review); K.S.A. 60-405. This issue has absolutely no merit as Horn was given every reasonable opportunity to present any mitigating evidence he chose to present. The fact he did not choose to do so precludes this issue from having any validity.
Last, Horn argues the district court failed to make the proper and required finding that the aggravating factor was substantial and compelling. State v. Martin, 285 Kan. 735, Syl. ¶¶ 1-3, 175 P.3d 832 (2008), teaches us:
“An appellate court’s review of dispositional departure sentences is limited to whether the sentencing court’s findings of fact and reasons justifying a departure (1) are supported by the evidence in the record and (2) constitute substantial and compelling reasons for departure. K.S.A. 21-4716(d).
“Appellate court analysis of whether a sentencing court’s reasons for departure are substantial and compelling consists of two parts'; First, are the reasons given valid departure factors; second, are the reasons, as- a whole, substantial and compelling reasons for .departure in a given case?
“Whether the factors relied upon by the sentencing court constitute substantial and compelling reasons for departure is a question of law.”
The parties make significantly different arguments on this issue.
Horn contends that because the district court has the discretion to enter a departure sentence once an aggravating factor has been established, the district court must then engage in the proper analysis before finding that the factor is substantial and compelling. See K.S.A. 21-4718(b)(7) (when the jury finds an aggravating factor, “the defendant may be sentenced” to a departure sentence [Emphasis added.]). Horn states that the district court talked extensively prior to sentencing but never specifically set forth the reasons why a “fiduciary relationship” was a substantial and compelling reason to depart.
In countering this argument, the State cited State v. Snow, 282 Kan. 323, 144 P.3d 729 (2006), and argued K.S.A. 21-4720(c) is not applicable to Horn’s sentence because the district court departed based on aggravating factors found by a jury. K.S.A. 21-4720(c)(1), states: “The court may depart from the presumptive limits for consecutive sentences only if the judge finds substantial and compelling reasons to impose a departure sentence for any of the individual crimes being sentenced consecutively.”
In his reply brief, Horn argues he is not claiming the district court departed without a jury making the proper determination; he contends that after the jury found the aggravating factor, the district court did not make an independent analysis of whether the factor was substantial and compelling enough to enter a departure sentence.
We initially note that Horn made no objection below to the court’s failure to make a proper finding. In general, a litigant must object to the absence of findings of fact and conclusions of law to preserve the issue for appeal. Dragon v. Vangard Industries, 282 Kan. 349, 356, 144 P.3d 1279 (2006). We question whether Horn has the obligation to request findings that are directly adverse to his arguments on appeal and might, in fact, justify his lengthy sentence.
K.S.A. 21-4718(a)(4) provides: “In each case in which the court imposes a sentence that deviates from the presumptive sentence, the court shall make findings of fact as to the reasons for departure as provided in this subsection regardless of whether a hearing is requested.”
We have reviewed the sentencing hearing in its entirety. Statements were made by the victim’s father, the children of the defendant, a pastor, and by the defendant himself.
The sentencing record shows that the judge had a clear understanding of the obligations placed upon him by the statutes governing sentencing for multiple convictions and where the necessary factual findings had been made by a unanimous jury beyond a reasonable doubt of a factor which would justify an upward durational departure.
The sentencing judge discussed the requirements and limitations imposed under K.S.A. 21-4720(c). At sentencing, the court stated that “because of the jury’s finding with respect to a fiduciary duty, the Court also has the ability to enhance the sentences beyond [the guidelines sentence].” The district court commented on the lengthy relationship between Horn and C.T.P. The court stated there was ample evidence to support a fiduciary relationship.
While the court did not specifically state that the upward durational departure sentence was being entered because the fiduciary relationship was a substantial and compelling factor and the better practice would be for the sentencing court to do so, this was the rationale expressed in such statements as the following:
“In the presentation today, including the victim statements that were submitted to the Court in the presentence investigation report, it is clear that there has been an enormous impact by the offenses in this case. There is a direct impact that simply cannot be measured on the boy who was abused. . . . He was extremely young, extremely vulnerable and he remains extremely troubled as of this date.”
The court specifically looked at the duty which exists in sentencing to protect the public from future harm. The court further said: “There is nothing in the statements that were made today by Mr. Horn that would suggest that he understands the real issues here or that he is likely to be safe if he were in the community.” The only departure factor available to the district court was violation of a fiduciary relationship, which had been found by a properly instructed jury. The upward durational departure sentence was lawfully entered, and the acts of the sentencing court in doing so are approved.
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Green, J.;
Brandon Morris appeals from his convictions by a juiy and his sentence for two counts of aggravated indecent liberties with a child. First, Morris contends that the trial court erroneously admitted evidence of the victim’s allegations of his prior bad acts. Nevertheless, Morris’ failure to make a timely specific objection to this evidence at trial precludes appellate review of this issue. Next, Morris contends that the trial court improperly allowed the State to introduce evidence of other uncharged crimes through his former wife’s testimony. As in the previous issue, Morris’ failure to make a timely specific objection to this evidence at trial precludes appellate review of this issue.
Morris also contends that the trial court erred in refusing to grant a mistrial after the State’s witness violated the trial court’s order in limine that the witness would not be permitted to testily as an expert. We agree that the questions by the prosecutor and the responsive testimony by the State’s witness violated the trial court’s order in limine. Moreover, when considering this error along with the prosecutorial misconduct outlined hereafter, we determine that reversible error existed in this case.
Finally, Morris argues that he is entitled to a new trial as a result of prosecutorial misconduct. We agree. The prosecutor’s examination questions to witnesses and remarks in closing argument to the jury, which stated the prosecutor’s personal opinion of witnesses’ credibility; suggested to the jury that it should abandon its common sense when considering these kinds of cases; expressed the prosecutor’s personal belief on matters outside the evidence; vouched for the State of Kansas; referred to matters not in evidence; vouched for the credibility of the State’s witness; solicited testimony from the defendant on the credibility of another witness; buttressed the credibility of the State’s witness; and appealed to the passion and prejudice of the jury were improper and constituted prejudicial error because the questions and remarks called the jurors’ attention to matters that would not have been proper for them to consider in arriving at their verdict. Accordingly, we reverse and remand for a new trial.
This appeal stems from Morris’ two convictions of aggravated indecent liberties with J.M. Morris does not challenge the sufficiency of the evidence to support his convictions. Viewed in the light most favorable to the State, the evidence presented at his trial was as follows:
Brandon and Thea Morris married in July 2002. They have two biological children together, and Morris adopted Thea’s daughter, J.M., born January 23, 1999. Although their marriage was volatile at times, Thea had considered Morris a good father.
One night in the summer of 2005, J.M. was sleeping in her brother’s bed because Thea was organizing J.M.’s room. J.M.’s brother was spending the night at the home of Morris’ mother, Cathy Morris. Thea was sleeping in a chair in the living room when Morris came home very drunk in the middle of the night. Morris did not seem to know where he was, urinated on the carpet, and then lay down on the floor. Annoyed, Thea turned out the light. Thea then heard Morris stumble down the hallway, go into the room where J.M. was sleeping, and get on the bed. Thea later heard J.M. ask Morris what he was doing. Thea got up to investigate.
Thea and Morris met at the bedroom doorway. Thea went in to check on J.M., and Morris went and sat on the couch. J.M., who was now awake, went to the restroom. At that time, she asked Thea why Morris had pulled her pants down. Morris heard J.M., but he said that he did not know what she was talking about. Thea asked J.M. what had happened. J.M. repeated that Morris had pulled down her pants. J.M. also told Thea it looked like Morris was going to kiss her but he jumped up when he heard Thea coming. J.M. said that Morris did not touch her. J.M. abruptly stopped talking and did not say anymore. Thea told her to go to sleep. Thea went back to the living room. Morris had passed out on the couch.
The next morning, Thea questioned Morris about the night before. Morris could not remember anything and was upset to learn what J.M. said had happened. Thea and Morris then talked to J.M., explaining that what had happened was wrong and that Morris was drunk and did not know where he was. They also told J.M. that if anything ever happened like that she should tell anybody with whom she felt comfortable. Thea did not report the incident to authorities because she genuinely believed that Morris was so drunk that he did not know what he was doing. (This incident will be referred to as “the summer 2005 incident.”)
At the end of December 2005, Thea and Morris’ relationship further deteriorated. Thea found a place of her own to live. After Thea told Morris she was leaving, he angrily filed for divorce and obtained temporary custody of the children. When Morris and Thea later reconciled, Morris dismissed the divorce proceedings.
Additional fights, trial separations, and reconciliations between Morris and Thea ensued, culminating in an agreed separation in March 2006. Morris moved out and went to stay with his sister Miranda (Randi) Morris in Wamego.
On Wednesday, April 5, 2006, Morris and Thea amicably discussed their separation. Thea and Morris agreed to share parenting responsibilities. Morris left Thea’s home around 10 p.m. to return to Wamego. The next night, when Morris brought the children to Thea’s, J.M. begged Thea to let her stay with Thea, but Thea made J.M. go with Morris so he could take her to school the next morning. Before Morris left with the children, Thea informed him of her plans to go out with coworkers the following Friday night.
Late that Friday night, Thea returned home and was confronted by Morris, who was drunk and angry because he thought Thea had been with another man. Morris physically attacked Thea, which Thea said he had not done in 3 years. Early the next morning, Thea received a call from Randi, who warned Thea that Morris had a gun and had disappeared. Frightened, Thea fled to her mother’s home in Olathe.
At some point, Thea had obtained a restraining order against Morris, prohibiting him from contacting her or the children. Early Sunday morning, Thea drove back to Wamego in the middle of the night with a police escort, picked up the children from Morris’ mother’s house, and took them to Olathe. The next day, Randi called Thea and told her Morris had checked himself into a hospital. When the children later asked where Morris was, Thea told them Morris was getting help.
During this period, while at Thea’s sister’s house, J.M. said that Morris had inappropriately touched her several times. J.M. told Thea that one night when Thea did not come home, Morris picked J.M. up from Cathy’s house in the middle of the night, took her out on a dirt road in his truck, and asked her to take her clothes off. J.M. told Thea that Morris then “pressed his peepee on hers and it hurt really bad and made her pee.” Thea determined that the incident must have occurred approximately December 2 or 3, 2005, the night she did not come home after she and Morris had argued. (This incident will be referred to as “the truck incident.”)
J.M. then told Thea about another incident that occurred at the trailer in Wamego, after Thea and Morris had separated. J.M. stated that she was asleep when Morris came into her room, lay down with her, and took off her pants and underwear. J.M. pointed to where Morris had touched her. J.M. told Thea she wanted to scream for her Aunt Randi, but she was scared. It was later determined that this incident occurred on April 5, 2006 — the same night Thea and Morris had gone out and discussed their separation. (This incident will be referred to as “the incident at Aunt Randi’s.”)
Thea testified that J.M. said that she did not tell Thea about these incidents because Morris had threatened that Thea would go to jail and that J.M. would have to live with Cathy if J.M. told anyone. Nevertheless, J.M.’s testimony partially contradicted that given by Thea. While J.M. did testify that Morris had told her that she would have to live with Cathy if she told anyone, she denied that Morris had threatened that Thea would go to jail.
Thea testified that she called the police shortly after J.M. told her about the incidents. Olathe law enforcement reported the matter to the Wamego Police Department. Police officers met with Thea and J.M. the next day. Becky Woodward, a children and family services investigator with the Kansas Department of Social and Rehabilitation Services (SRS) in Wamego, was assigned to work with Wamego law enforcement to investigate J.M.’s allegations. Woodward conducted a videotaped interview of J.M., which Officer Matt Pfrang observed.
Woodward used anatomical diagrams representing J.M. and Morris to establish that J.M. referred to both her vagina and a male penis as a “private”; to female breasts as “boobs”; to male breasts as “nipples”; and to a bottom as “gluteus maximus.” Woodward then discussed “touches” with J.M. J.M. told Woodward that the touches she liked were hugs and lasses from Thea and Morris. J.M. then explained that the touches that she did not like included when her mom hurt her private once when her mom put powder on J.M.’s rash in that area. When asked if there were any other touches that J.M. did not like, J.M. responded, “Yes, a lot from my dad and I don’t like it.”
J.M. then described in more exact, but disjointed, detail the summer 2005 incident, the truck incident, and the incident at Aunt Randi’s. J.M. told Woodward that during the truck incident and the incident at Aunt Ranch’s, Morris had either touched or penetrated her private or her gluteus maximus, or both, with either his private or his finger, or both. J.M. also demonstrated for Woodward how Morris had spit on his fingers before touching her private.
When Woodward asked J.M. to describe where the truck incident had occurred, J.M. described parking on a gravel road near a church sign with the number 3 on it. Officer Pfrang was later able to corroborate that such a sign existed near the Morrises’ former rental home in Wabaunsee County. J.M. also told Woodward that during the truck incident, a man, whom J.M. initially said was a police officer but then later described as a “regular” person, approached the truck and asked Morris a few questions. J.M. said that after the man left, Morris continued touching her.
In giving Woodward additional details of the summer 2005 incident, J.M. said that when Morris had touched her stomach and pulled down her pants and underwear, Morris covered her mouth, but she was able to twice pull his hand off and yelled for Thea. J.M. also said that Morris lied to Thea when she came into the room, telling Thea that he was giving J.M. a hug and kiss. J.M. told Woodward that Morris had apologized after the summer 2005 incident, but J.M. never said that Morris had touched her during that incident.
Two days after interviewing Thea and J.M., Officer Pfrang called Morris, who voluntarily came to the police station for an interview. At some point, Pfrang Mirandized Morris, and Morris agreed to speak to him without an attorney. During the interview, Morris suggested J.M.’s allegations arose because he and Thea had separated and were divorcing. When Pfrang asked about the summer 2005 incident, Morris acknowledged familiarity with the allegation. Morris explained that he was drunk and had mistakenly gone in that room and lay down, but he insisted nothing happened.
Morris denied any involvement in the other incidents and suggested that Thea and her mother had programmed J.M. to make the allegations. Morris also told Pfrang that J.M. could have been molested by his 13-year-old nephew because Morris had caught his nephew and J.M. in a sexual position. The nephew was also caught pulling on Morris’ son’s penis. Morris said he and Thea did not report the incidents because the nephew was a child and was in counseling. Morris also gave Pfrang an alibi for the December 2005 night the truck incident was alleged to have happened.
A physical and gynecological examination of J.M. on April 14, 2006, was normal: her hymen had not been disrupted, and her anogenital examination was normal. Nevertheless, the nurse practitioner who performed J.M.’s examination testified it was not unusual for a child reporting sexual abuse to have a normal examination because vaginal injuries heal quickly. Thus, a normal examination could not affirmatively rule out sexual abuse.
The State charged Morris in Pottawatomie County with two counts of aggravated indecent liberties with a child. Count I charged that the crime occurred “on or between the 1st day of June, 2005, and the 31st day of August, 2005” (the summer 2005 incident); Count II charged that the crime occurred on or about April 5, 2006 (the incident at Aunt Ranch's).
At the preliminary hearing, J.M. testified about the charged incidents and the truck incident with some minor variations. J.M. also testified that just before the truck incident (on the same day), Morris had also inappropriately touched her at a motel. Apparently, J.M. first divulged details of this motel incident during her second therapy session with her therapist, Kay Spaniol.
Before trial, Morris moved to exclude evidence of the December 2005 motel and truck incidents. Before ruling on the motions, the trial court stated that it had thoroughly reviewed the transcript of the prehminary hearing conducted by a district court magistrate judge. The trial court ultimately ruled that the evidence of the motel and the truck incidents were admissible under K.S.A. 60-455. The trial judge stated the following reasons for admitting the evidence:
“I think that it does go to prove a material fact which could include motive, each time this happened, there were altercations or disputes or problems between he and his wife, and each time that this happened, it was not a just come home on a Wednesday night, crawl into bed late and do it. There was a problem with his wife and him. I think there is some opportunity, especially taking her, if he did taire her to a motel which he admitted going to a motel. They found a key to a motel in his car, although I don’t know if anybody has ever recovered the key and went to the motel and had somebody check and see if he signed in, but obviously there is an opportunity there. And I think some of it probably goes to intent. If he removed her from the house where she was at and took her to a hotel, I don’t know what the other reasoning could be for doing that, and then taking her from there in a truck somewhere out in the country and allegedly doing it again. Identity, I think it’s probably going to be somewhat important this licking motion for want of a better word comes in. It does help establish that it is him and not the cousin that somehow or another came up. But I think also when the first one is done [(the summer 2005 incident)], there was a lot of discourse about him being intoxicated, that maybe he didn’t know what he was doing, that mom said he was drunk, drunker than she had ever seen him. And I think with these other two, it shows there was an absence of mistake, or accident, so for those reasons, I’m going to allow that evidence to come in in the State’s case in chief.”
Just before the jury trial was to begin, the trial court reiterated that it was allowing the evidence of the truck and motel incidents under K.S.A. 60-455 to prove motive, intent, and absence of mistake or accident. Specifically, the trial judge held:
“The first [reason the evidence can come in] is motive. As I understand the testimony there was some testimony that these happened while the defendant couldn’t find his wife, believed the wife may have been out with other individuals, and I think that is a theme that has happened more than once. The intent pretty much runs along with it, but not only in one instance the defendant [has] claimed that his intent was innocent or that nothing happened because of an . . . amount of alcohol that was taken. Also intent may be closely related to the factor of absence of mistake or accident, which is the third one that I believe it can come in under, especially where the defendant has indicated on the first instance that he actually was in bed with this young lady but was intoxicated and nothing happened.”
The trial court refused to find the evidence was admissible to show plan because it did not “think taking somebody’s pants down is a ’signature’ offense in that regard.”
The State’s theory at trial was that on each of the occasions, Morris sexually abused J.M. because he was angry with Thea. The State opined that J.M. waited to reveal the incidents because Morris was “getting help,” so J.M. knew she was safe to disclose the other incidents.
Before the jury retired for deliberations, the trial court instructed the jury that evidence admitted tending to prove that Morris committed a crime other than the present crimes charged “may be considered solely for the purpose of proving the defendant’s intent, or the absence of mistake or accident.”
The juiy convicted Morris of both counts. The trial court sentenced Morris to a controlling presumptive term of 216 months in prison.
When Morris failed to object to evidence of prior bad acts or other crimes, did he preserve this issue for appealP
Morris’ first and second issues on appeal concern evidence of uncharged crimes or prior bad acts that Morris maintains was erroneously admitted in violation of K.S.A. 60-455. Specifically, in his first issue on appeal, Morris maintains that the trial court erroneously admitted evidence of J.M.’s allegations regarding the motel and truck incidents. Morris contends that the trial court’s admission of that evidence under K.S.A. 60-455 was erroneous because motive, intent, and absence of mistake or accident — -the limited reasons for which the trial court held the evidence would be admissible — were not disputed or were not material facts in his trial. Further, Morris contends that even if those matters were material and the evidence was relevant to those facts, the evidence should have been excluded as more prejudicial than probative.
In addition, Morris complains that the trial court improperly allowed the State to introduce evidence of other uncharged crimes. Specifically, the State elicited testimony from Thea that Morris had physically harmed her on at least one previous occasion and that Morris had tried to elude the police in a car in which she was the passenger.
Did Morris make a timely specific objection concerning the motel and truck incidents?
Morris failed to object to the evidence involving the motel and truck incidents. To preserve an issue relating to the admissibility of evidence for appeal, a party must make a timely and specific objection. K.S.A. 60-404. Even if there is an in limine ruling that the evidence is admissible, where an objection to the evidence is not made when it is introduced at trial, the defendant is generally precluded from challenging its admissibility on appeal. See State v. Carapezza, 286 Kan. 992, Syl. ¶ 7, 191 P.3d 256 (2008) (where defendant objected to evidence only on hearsay grounds, she failed to preserve for appeal the issue of the inadmissibility of the evidence under K.S.A. 60-455); State v. Francis, 282 Kan. 120, 138, 145 P.3d 48 (2006) (where defendant failed to object at trial to the admission of evidence under K.S.A. 60-455, he was precluded from raising the issue on appeal); State v. Young, 14 Kan. App. 2d 21, 37, 784 P.2d 366, rev. denied 245 Kan. 788 (1989) (To preserve a K.S.A. 60-455 issue for appeal, a defendant must object on that ground at trial.). Morris, by failing to object, waived any challenge to the trial court’s admission of the motel and truck evidence under K.S.A. 60-455. As a result, we conclude that Morris has failed to preserve this issue for appeal.
Did Morris make a timely specific objection concerning the marital discord evidence?
During the trial, Thea testified about her corrosive marriage to Morris. In describing to the jury how their marriage had disintegrated, Thea testified how Morris had once physically harmed her after she went out with a girlfriend one evening. In addition, she testified that Morris once tried to elude police while she was a passenger in a car. Morris made a late objection to the marital discord testimony based on relevancy. This objection, however, was made after Thea had testified to the physical confrontation. Moreover, the record does not show that Morris made a timely objection concerning the alleged eluding from the police incident.
Morris argues that this evidence was inadmissible under K.S.A. 60-455. Nevertheless, the contemporaneous rule requires a party to make a timely objection. See K.S.A. 60-404; State v. Horton, 283 Kan. 44, 63, 151 P.3d 9 (2007); State v. Sims, 265 Kan. 166, ¶ 6, 960 P.2d 1271 (1998) (A timely and specific objection to the admission of evidence at trial must be made in order to preserve the issue on appeal.); Young, 14 Kan. App. 2d at 37; 3 Barbara, Kansas Law and Practice, Lawyer’s Guide to Kansas Evidence, § 1.4, p. 4 (5th ed. 2007).
Did the trial court err in refusing to grant a mistrial after the State’s witness testified concerning her expertise as a child therapist in violation of the trial court’s ruling that the witness would not be allowed to testify as an expertP
Morris next complains that the trial court erred in failing to grant his motion for mistrial after Spaniol testified about her expertise in counseling children of sexual abuse despite the trial court’s ruling that she would not be permitted to testify as an expert witness.
K.S.A. 22-3423(1)(c) provides that a trial court can terminate the trial and order a mistrial at any time that it finds termination is necessary because “[prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.” This court reviews the trial court’s denial of Morris’ motion for mistrial under an abuse of discretion standard. Thus, Morris must establish that by denying his motion for mistrial, the trial court abused its discretion to the prejudice of his substantial rights to a fair trial. See State v. Albright, 283 Kan. 418, 425-26, 153 P.3d 497 (2007).
During the State’s questioning of Spaniol, the State specifically asked Spaniol about her credentials and education. Spaniol told the juiy about her 15 years of work experience as a social worker. Moreover, she stated that she had a Masters degree in social work. When Spaniol testified that her expertise was in “working with children of sexual abuse,” the trial judge intervened and stated the following outside the jury’s presence:
“THE COURT: . . .This lady was not an endorsed witness, she was endorsed late. She has not filed a report and I have excluded part of her testimony saying anything that she says as an expert because of the fact that there was no report filed, and Mr. Roe is entitled not to be surprised. So I don’t want to hear anything else from this lady that she’s an expert.” (Emphasis added.)
In addition, the prosecutor asked Spaniol about discrepancies in testimony of children who have been abused. Spaniol was allowed to testify that it was not unusual for J.M. to disclose the motel incident separately from her initial disclosure of sexual abuse.
“Q. [Prosecutor:] In your experience, did you find it unusual that [J.M.] might disclose another incident of sexual abuse other than what she had previously disclosed?
“A. [Spaniol]: No, I didn’t find it unusual at all.”
Moreover, the prosecutor asked Spaniol about J.M.’s alleged desire to visit Morris:
“Q. [Prosecutor:] In your experience in dealing with children who malee allegations of any abuse, is it unusual — did you find it unusual that a child would want to see someone who is suspected to be the perpetrator of that abuse?
“[Defense Counsel:] Judge, I’m going to object to this.
“THE COURT: Overruled.
“Q. [Prosecutor:] Did you find that unusual?
“A. [Spaniol:] In my experience it was not unusual. Children who have been very severely physically abused or sexually abused still have an attachment to that parent, and in fact some sexual abuse children may have been given special treatment.
“[Defense Counsel:] Judge, I’m going to object to this.
“THE COURT: I’m going to overrule your objection.”
The answers that Spaniol gave to these questions would not have been within the common knowledge, experience, and education of the jury. Because Spaniofs answers involved special knowledge, they were given more as an expert than a lay witness. When an opinion requires special knowledge or skill, the witness may have to be offered as an expert. See K.S.A. 60-456; State v. Amodei, 222 Kan. 140, 146-47, 563 P.2d 440 (1977) (defense counsel was precluded from asking a lay witness: “ “Was it . . . [defendant’s] desire to get away from heroin and off the habit?’ ” or “ ‘Did you see any indication . . . [defendant] ever desired to be a dealer?’ ”).
Although the trial court determined that the prosecutor did not violate the order in limine, we disagree. Once the jury was told about Spaniol’s education and experience, the jury would have given her testimony more weight than the testimony of a lay witness. Moreover, to answer the two questions discussed here would have required the witness to have special knowledge concerning abused children. See K.S.A. 60-456(b)(2). For example, Spaniol opined that in her experience, it was not unusual for children to disclose another incident of abuse. Finally, Spaniol opined that it was not unusual for children who have been victims of abuse to still want to see or visit their alleged abuser. Because Spaniol’s opinion testimony exceeded that of a lay witness, it violated the order in hmine.
Obviously, SpanioPs testimony would have bolstered J.M.’s credibility. The trial court did not instruct the jury to disregard SpanioPs improper expert opinion testimony. We determine that the order in limine was violated by the prosecutor’s questions and by SpanioPs answers to those questions. Moreover, we will further consider this trial error along with the next issue in determining if these errors were so prejudicial as to deny Morris a fair trial.
Were the prosecutor’s improprieties during examination of witnesses and closing argument so flagrant that reversal is required?
Morris next argues that he is entitled to a new trial as a result of prosecutorial misconduct. Specifically, Morris argues that the prosecutor committed misconduct in the following ways: (1) injecting her personal opinion regarding defense witnesses’ credibility; (2) commenting in closing argument on evidence that was not admitted at trial; and (3) eliciting inadmissible testimony from Morris concerning his opinion of J.M.’s credibility.
Regardless of whether a defendant objects to alleged prosecutorial misconduct, an appellate court applies a two-step analysis. State v. Gunby, 282 Kan. 39, 63, 144 P.3d 647 (2006). First, an appellate court must determine whether the prosecutor exceeded the bounds of permissible conduct. If so, the second step requires the appellate court to determine if the conduct constitutes plain error: whether the statements or conduct prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Albright, 283 Kan. at 428. In the second step of the two-step analysis, the appellate court considers three factors, without any one factor individually controlling: “(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor’s part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors.” 283 Kan. at 428.
Personal opinion of witnesses’ credibility
Morris complains that the prosecutor committed misconduct when she on four occasions commented in closing argument on her personal opinion of defense witnesses’ credibility.
First, Morris contends that the prosecutor s comments about the alibi testimony of Cathy were improper. Cathy testified from a fist of dates she kept of when the Morris children stayed overnight. The list was kept at the suggestion of Morris’ attorney when Morris had filed for divorce at the end of December 2005. During the State’s cross-examination, Cathy was questioned about why she had not furnished the fist of dates — which was potentially exculpatory because it indicated the children were with her on April 5 — when she was interviewed by the police in the investigation of J.M.’s allegations. Morris asserts that the prosecutor improperly injected her own personal beliefs of whether Cathy was telling the truth. The prosecutor offered the jury this view:
“Then they meet her on the 7th of November. She doesn’t say, ‘You know what? I have something. I’ve been keeping track of this. I can tell you exactly what dates the kids were there’. Nope, doesn’t say anything about it. Miraculously it appears between November 8th and the day she leaves. Now she’s found it. There it is. Cathy testified to that. I think that her motives are a little suspect here, quite honestly.” (Emphasis added.)
Second, the prosecutor continued on the credibility of Cathy’s alibi testimony:
“The defendant and his mother testified that on December 2nd he called her all the time. I don’t doubt that. Cathy, [Morris’] mother, did watch the children. She watched them a lot of the time, I don’t doubt that. That record, may be it starts off chronological. She doesn’t record any of the times the children were there when [Morris] was home because it was designed to be used against Thea, I believe. I mean, that’s what it was designed for, and I don’t know that, I think that she went back and made up all of the notes but I don’t think that they were done at the time it actually happened. It isn’t a complete record. It’s a record designed to be used against an individual.” (Emphasis added.)
Third, Morris contends that the prosecutor’s comments concerning the testimony of Kai Bloom were improper. Bloom, a friend of Morris, had furnished Morris with an alibi for the motel and truck incidents. He testified that he had gone out with Morris the night of December 2 and that Morris dropped Bloom off at his residence around 1:30 a.m. Bloom later saw Morris alone the next morning. Specifically, the prosecutor made the following comments about Bloom’s testimony:
“Mr. Bloom is — I think [defense counsel] said, “Well, he has no vested interest. He’s not involved in this.’ No, he probably isn’t. I never said he may not have, but I don’t think he went out with him on the 2nd, considering all of the other things that occurred that day.” (Emphasis added.)
Fourth, Morris complains about an argument made by the State to rebut Morris’ closing argument concerning Morris’ alibi for the motel and truck incidents. Although Morris does not explain his argument, some additional background is necessary to place the State’s rebuttal argument in context. Morris’ counsel had argued that the evidence supported a conclusion that J.M. was at Cathy’s home — not with Morris — on the night of the alleged motel and truck incidents. On that night, the defense alleged that Morris had been out late drinking with Bloom. Defense counsel urged the jury:
“Now you have to apply a little common sense to this, even though we know Morris was by himself from 1:30 to 7:00. How would he have possibly have gone to get [J.M.], bring her to the house or take her out in the country and do diese horrible acts to her, get her back to Cathy without causing a big commotion, and been ready to go to work the next day? It just does not add up.”
Bloom had conceded on cross-examination that the night to which he testified could have been December 9, 2005, rather than December 2-3, 2005. In rebutting the defense argument, the State suggested that the date to which Bloom had testified was actually the following weekend (December 9, 2005). Clearly, it was permissible for the State to point out the inconsistency about the dates. Yet, the prosecutor continued her rebuttal with die following personal opinion: “[Defense counsel] wants you to think logical, well, I think it’s hard in these cases to see the logic in why would anyone do something like that? I know I cant. I can’t see the logic at all.” (Emphasis added.)
Attorneys are prohibited, both by judicial precedent and by our canons of ethics from asserting their personal opinion “as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.” Rule 3.4(e) (Fairness to Opposing Party and Counsel) (2007 Kan. Ct. R. Annot. 514). Moreover, our Supreme Court recently explained:
“Generally, a prosecutor may not offer the jury his or her personal opinion as to the credibility of witnesses. [Citation omitted.] On the other hand, a prosecutor is free to craft an argument that includes reasonable inferences to be drawn from the evidence. [Citation omitted.] That latitude would include explaining to the jury what it should look for in assessing witness credibility, especially when the defense has attacked the credibility of the State’s witnesses.” State v. Scaife, 286 Kan. 614, 623-24, 186 P.3d 755 (2008).
In the present case, the prosecutor’s closing argument was loaded with comments like the following:
(1) “I think that-her [Cathy’s] motives are a little suspect here, quite honestly”;
(2) “I think that she [Cathy] went back and made up all of the notes but I don’t think that they were done at the time it actually happened”; and
(3) “I think it’s hard in these cases to see the logic in why would anyone do something like that? I know I can’t. I can’t see the logic at all.”
Based on these comments, the prosecutor improperly stated her personal opinion as to the credibility of Cathy and to the guilt of Morris. Because Cathy was Morris’ mother, it would have been proper for the prosecutor to draw attention to Cathy’s possible bias. See Com. v. Womack, 307 Pa. Super. 396, 406, 453 A.2d 642 (1982) (comment that testimony of defendant’s mother was biased). Nevertheless, it was improper for the prosecutor to express her personal belief that Cathy had fabricated the notes showing the dates she had the children overnight. Likewise, it was improper for the prosecutor to insinuate her belief about Morris’ guilt: “I think it’s hard in these cases to see the logic in why would anyone do something like that? I know I can’t. I can’t see the logic at all.” See Wilson v. State, 371 So. 2d 126, 128 (Fla. Dist. App. 1978) (Prosecutor’s remark about his personal belief in defendant’s guilt was improper.).
The prosecutor’s comments were improper and called to the jurors’ attention her personal opinions, which were not evidence. Moreover, the personal opinions pertained to crucial matters for the jury’s determination.
Suggesting to jury to abandon common sense
In addition, it was improper for the prosecutor to suggest to the juiy that it should abandon its common sense when considering these kinds of cases because they really do not make any sense. See State v. Lockhart, 24 Kan. App. 2d 488, 492, 947 P.2d 461, rev. denied 263 Kan. 889 (1997) (“Juries must be given an opportunity to exercise reason and sound judgment in deciding the facts of a case, free from passion and prejudice.”).
Giving personal belief on matters outside the evidence
The prosecutor also improperly gave her personal belief on matters outside the evidence when she stated:
“Defense I think has a basic theme, at least it appears. It’s a bad divorce so [J.M.] is coming in here saying this because she’s been prompted by her mother to say this. The State believes that what happened to [J.M.] wasn’t because of a bad divorce. What happened to [J.M.] is because the defendant couldn’t get to her mom, and the worse way he could hurt her was to hurt her child. There’s a lot of testimony — ” (Emphasis added.)
At this point, Morris’ counsel objected that the State’s theory was not a fair comment on the evidence. The trial judge responded, “[Defense counsel], I think that there is evidence that there is serious problems between these people and their marriage. I would suggest that [the State] move off of getting back at mom through the child.” Later, the prosecutor continued as follows: “The defendant used his daughter every time he was mad at his wife, really mad at her. That’s when he had access to [J.M.]. He couldn’t hurt Thea any more, so he did it then by hurting her child.”
With this argument, the prosecutor departed from the record to suggest to the jury the real reason that Morris would have abused J.M. Although there was evidence of marital discord between Morris and Thea, the prosecutor’s comments told the jury that Morris was getting back at his wife by abusing J.M. Yet, the evidence was insufficient to allow the prosecutor to make such an assertion.
A prosecutor has a special obligation to avoid “improper suggestions, insinuations, and especially assertions of personal knowledge.” Berger v. United States, 295 U.S. 78, 88, 79 L. Ed. 1314, 55 S. Ct. 629 (1935). Here, the prosecutor indicated that she knew why Morris committed the alleged criminal acts and went on to explain the reasons for Morris’ conduct. In doing so, the prosecutor improperly suggested that there were matters outside of the admitted evidence that would support J.M.’s testimony. By expressing her personal belief concerning matters outside the evidence, the prosecutor s comments impinged on the jury’s task of determining Morris’ guilt or innocence based on the evidence presented at trial.
Prosecutorial vouching for the State of Kansas
In addition, by explicitly invoking the name of the State during her closing argument, the prosecutor placed the prestige of the State behind her personal beliefs about matters outside of the evidence. The prosecutor’s comments represented impermissible prosecutorial vouching for the State of Kansas. Recognizing that the prosecutor is a representative of the people of Kansas, our Supreme Court in State v. Pabst, 268 Kan. 501, 510, 996 P.2d 321 (2000), stated:
“A prosecutor is a servant of the law and a representative of the people of Kansas. We are unable to locate an excuse for a prosecutor’s failure to understand the remarkable responsibility he or she undertakes when rising in a courtroom to announce an appearance for the State of Kansas. Instructional materials abound on this topic. Sixty-five years ago the United States Supreme Court said that the prosecutor represents
‘a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.’ Berger v. United States, 295 U.S. 78, 88, 79 L. Ed. 1314, 55 S. Ct. 629 (1935).”
Declaring that the prosecutor in Pabst had improperly placed the weight of the State behind his personal opinions that the defendant was lying, our Supreme Court stated:
“He ignored his special obligation as a prosecutor to avoid improper personal insinuations. Because he represented the State of Kansas the jury might have been misled into thinking his personal opinions were validated by the weight of the State of Kansas. Such prosecutorial vouching places the prestige of the State behind the prosecutor’s personal assurances.” (Emphasis added.) 268 Kan. at 510-11.
Here, not only did the prosecutor inject her personal beliefs about witnesses’ credibility into her closing argument, she also explicitly placed the full weight of the State of Kansas behind her position. Specifically, during closing argument, the prosecutor commented:
“The State believes that what happened to [J.M.] wasn’t because of a bad divorce. What happened to [J.M.] is because the defendant couldn’t get to her mom, and the worse way he could hurt her was to hurt her child. There’s a lot of testimony.” (Emphasis added.)
The prosecutor in this case sought to elevate her position in the eyes of the jury by calling on the State of Kansas in her closing argument. Even more egregious than the prosecutor’s personal insinuations in Pabst, the prosecutor in this case explicitly told the jury what “[t]he State believes . . . .” The prosecutor improperly vouched for the State by placing the power and prestige of the State of Kansas behind her personal beliefs on matters outside the evidence.
Referring to matters not in evidence
The prosecutor also improperly referred to matters not in evidence when she stated:
“The truth is no one really focused on the first incident. I don’t know. Maybe it was because the adults said, yeah, it happened. I mean, he was there. He was drunk, and he did go in the room. [J.M.’s mother] says, ‘Yeah, he pulled her pants down and tried to kiss her’, and they talked to her about it. So no one focused on that one. It was all the other incidents they focused on.” (Emphasis added.)
The prosecutor stated that the reason why there was little investigation in the first charge was because “the adults said, yeah, it happened.” With this statement, the prosecutor insinuated that Morris had admitted to abusing J.M. in the first charge. Nevertheless, Morris never testified that “it happened.” He denied that he had sexually touched J.M. Moreover, the prosecutor’s statement (“because the adults said, yeah, it happened”) vouched for the State’s lack of investigation concerning the first charge. This was clearly improper based on our earlier discussion.
Vouching for credibility of State’s witness
Further, the prosecutor improperly vouched for J.M.’s credibility when she made the following argument:
“What we know is this, [J.M.] has expressed to her therapist that she’s mad because she doesn’t get to see her dad [Morris], Well, she could cure that by lying or made this story up. All she would of had to say, ‘I was telling a story. I was making it all up’. She hasn’t done that. She hasn’t done it because she wants dad to get some help.” (Emphasis added.)
Here, the prosecutor asserts that J.M. is mad because she does not get to see Morris anymore. The prosecutor further insinuates that J.M. could once again see Morris if she would have said that she had lied about the four incidents. Nevertheless, the prosecutor interjects her own personal opinion that J.M.’s testimony was truthful because she wants her dad to get help.
Again, the prosecutor puts herself in the position as an unsworn witness. United States v. Garza, 608 F.2d 659, 662-63 (5th Cir. 1979) (Prosecutor’s statements about his personal opinion of veracity of witness were improper.). The prosecutor’s comments related to what the jury ultimately had to decide: whether J.M.’s testimony was more credible than Morris’ testimony. By vouching for the credibility of J.M., the prosecutor improperly and prejudicially attempted to introduce evidence on the ultimate issue in this case. See Pabst, 268 Kan. at 509.
Solicitation of Morris’ opinion on J.M.’s credibility
During Morris’ cross-examination, the prosecutor asked Morris why J.M. had made the accusations against him.
“Q. [Prosecutor:] [Morris], why would ¡J.M.] say these things about you? You have been described by [J.M.’s mother] even that prior to her hearing that this child thought that you were the perfect dad. Why would she say these things about you if they didn’t happen?
“A. [Morris:] That’s what I’m trying to figure out still to this day.” (Emphasis added).
It was improper for the prosecutor to ask Morris to comment on the credibility of his accuser.
Whether a district court improperly allows one witness to express an opinion on the credibility of another witness is a question of law subject to de novo review. See State v. Drayton, 285 Kan. 689, 701-02, 175 P.3d 861 (2008); State v. Oliver, 280 Kan. 681, 695, 124 P.3d 493 (2005).
Our courts have long held that “[questions which compel a defendant or witness to comment on the credibility of another witness are improper” because weighing the credibility of witnesses “is the province of the jury.” State v. Manning, 270 Kan. 674, 698, 19 P.3d 84 (2001). As our Supreme Court recently explained, “an even more basic rationale for prohibiting a question which invites the witness to comment on the truthfulness of another witness is that such a question is argumentative and seeks information beyond the witness’ competence. [Citation omitted.]” State v. Crum, 286 Kan. 145, 152, 184 P.3d 222 (2008).
The State suggests its question was proper because it did not ask the question to bolster J.M.’s credibility; but rather, it asked the question and argued as it did in closing to show why J.M. told what happened. This is a distinction without difference. In a nutshell, this case involved a credibility battle. The State’s question of Morris and its comment in closing were designed to bolster J.M.’s credibility. The State, however, points out that it did not ask Morris whether he thought J.M. was lying, as was the case in Manning. See 270 Kan. at 698-71. Moreover, the State notes that, unlike in Manning, it did not repeatedly ask Morris to testify on the veracity of the testifying witness. Nevertheless, the prosecutor’s questions and argument about Morris’ assessment of J.M.’s credibility were improper.
In addition, the prosecutor’s question was argumentative: An “examiner is not permitted to ask questions which tend to pose inferences or interpretations from facts and have the witness respond to them nor may questions be asked which are framed to focus the witness to reconcile other testimony with his own. Undue embarrassment is improper.” 3 Barbara, Kansas Law and Practice, Lawyer’s Guide to Kansas Evidence, § 9.3, p. 295 (5th ed. 2007).
Judge Barbara gives two examples of an argumentative question: “(1) Q. ‘Are you telling the jury that witness_is lying?’ [and] (2) Q. ‘How can you reconcile the two statements?’ (in a situation where the two statements are clearly irreconcilable).” 3 Barbara, Kansas Law and Practice, Lawyer’s Guide to Kansas Evidence, § 9.3, p. 296. The prosecutor’s question would clearly fits under example (2): How could Morris reconcile J.M.’s testimony about what she said he had done with his testimony about what he said he did not do? The prosecutor s question was argumentative, and it was meant to cause undue embarrassment to Morris.
Buttressing the credibility of a State’s icdtness
Next, during the State’s closing argument, the prosecutor used the previous improper question and Morris’ answer to discuss and bolster J.M.’s credibility:
“[Prosecutor:] Even the defendant can tell you he doesn’t know why [J.M.] would say these things. He thinks they had a pretty good relationship, but she has said them. She said them because she thinks her father is getting help now and it’s okay to say it now. She knows that no one can come and take her away from her mom, and that’s what she was worried about. There’s no reason why [J.M.] would make these things up unless they happened.” (Emphasis added.)
Here, the prosecutor’s remarks bolstered J.M.’s credibility. The prosecutor’s argument was based on a classic non sequitur: Morris does not know why J.M. would say that he abused her; therefore, J.M.’s assertions about the sexual abuse must have happened. The reconstruction of the assumed major premise in the prosecutor’s argument shows what nonsense on which the deduction is based: All people who are unable to explain why an accuser would say negative things about them must have done what the accuser claimed they did. The assumed major premise ignores the possibility of a false accusation.
In addition, this argument improperly asked the jury to speculate on matters outside the record. Similarly, quoting State v. Kleypas, 272 Kan. 894, Syl. ¶ 83, 40 P.3d 139 (2001), this court in State v. Jeffrey, 31 Kan. App. 2d 873, 881, 78 P.3d 284 (2003), stated:
“ ‘[P]rosecutorial comments referring to what the victim was thinking are improper because they ask the jury to speculate on facts not in evidence. It is improper for a prosecutor to create an “imaginaiy script” in order to create and arouse the prejudice and passion of the sentencing jury.’ ”
It is well established that the fundamental rule in closing arguments is that a prosecutor must confine his or her comments to matters in evidence. When the prosecutor argues facts that are not in evidence, misconduct occurs, and the first prong of the test for prosecutorial misconduct has been met. State v. Murray, 285 Kan. 503, 512, 174 P.3d 407 (2008). In addition, when a prosecutor refers to facts not in evidenqe, such statements tend to make the prosecutor his or her own witness who offers unsworn testimony not subject to cross-examination. See Pabst, 268 Kan. at 510; People v. Hill, 17 Cal. 4th 800, 828, 72 Cal. Rptr. 2d 656, 952 P.2d 673 (1998). This unsworn testimony, “ ‘ “although worthless as a matter of law, can be ‘dynamite’ to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence.” ’ [Citations omitted.]” 17 Cal. 4th at 828.
Here, by giving the jury an “imaginary script” of what J.M. was thinking, the prosecutor asked the jury to speculate on facts that were not admitted into evidence at trial. In doing so, the prosecutor improperly put herself in the position of an unsworn witness who was not subject to cross-examination.
Appealing to passion and prejudice of the jury
Finally, interjecting her own opinion and belief as she ended her rebuttal argument, the prosecutor stated:
“They [Morris and his counsel] can’t tell you why [J.M.] would tell, would say these things, but I can tell you why she disclosed them. She disclosed them because it was safe to do so now because dad was in therapy. He was getting help until his head, and he told her if she told before then that’s when it would be bad. Dad was getting help. She was safe with her mom. She didn’t have to see Cathy again, that’s why she told. . . .
"The verdict here is guilty.” (Emphasis added.)
As stated earlier, the prosecutor’s comments referring to what J.M. was thinking were improper because the comments asked the jury to speculate on facts not in evidence. Jeffrey, 31 Kan. App. 2d at 881. Indeed, the State concedes in its brief that what prompted J.M. to disclose the alleged abuse was only the State’s theory: “The [S]tate’s theory was that [J.M.] disclosed when she did because she had been told that her father was getting help.” The evidence, however, does not support this theory.
Moreover, the comments were designed to appeal to the passion and prejudice of the jury. Indeed, the prosecutor’s opinion about why J.M. felt safe to report the alleged incidents of abuse is contradicted by J.M.’s testimony. The prosecutor’s closing argument insinuates that Morris had told J.M. that things would be bad for J.M. if she told anyone about the alleged abuse before he had entered therapy. During the prosecutor s direct examination of J.M., the prosecutor asked J.M. the following question:
“Q. [J.M.], did you ever tell your mom what happened?
“A. Yes, cause she picked me up . . . and we came up to Olathe .... I told her all the parts that he touched and all the times that he did it to me.
“Q. And that was not too long ago, huh?
“A. Nope.
“Q. Okay. Had you told her before then?
“A. No.
“Q. Okay. Did the defendant ever tell you — Did your dad ever tell you not to teH?
“A. Well, he told me not to tell anybody when we were on the gravel road. He told me not to tell anybody or else I wiU have to live out with Cathy, the mean girl.
“Q. Did your dad teH you that your mom would go to jail if you told?
“[Defense Counsel:] Objection, leading.
“A. No.
“THE COURT: Is the mom going to testify?
“[Prosecutor:] Yes.
“THE COURT: TU overrule it.
“Q. Do you remember, [J.M.], if your dad ever told you that your mom would go to jail if you told?
“A. He did not say that.
“Q. You don’t remember, or he didn’t.
"A. He did not say it.”
Nowhere in J.M.’s testimony does she state that Morris told her to keep the alleged abuse secret until he had entered therapy. The prosecutor created an “imaginary script” to arouse the passion and prejudice of the jury. Kleypas, 272 Kan. 894, Syl. ¶ 83.
Having established that the prosecutor’s arguments were improper, it is necessary to consider whether this misconduct constituted plain error; that is, whether the misconduct was so prejudicial that it denied Morris a fair trial. See State v, Albright, 283 Kan. 418, 428, 153 P.3d 497 (2007).
As the statement of facts of this case indicates, the prime issue was credibility. The prosecutor’s examination questions to witnesses and comments were improper and, at the veiy least, interjected her personal belief that J.M.’s testimony was more truthful than Morris’ testimony. Moreover, the prosecutor’s questions and comments exposed the jury to several fact-free personal opinions. Clearly, the prosecutor’s expression of her personal opinions were improper and were damaging to the defense. In addition, the jury was allowed to believe that the prosecutor’s improprieties were proper because the trial court never intervened to correct any of them. Indeed, the trial court gave no curative instructions. See Pabst, 268 Kan. at 507 (“Both the prosecutor and the trial judge have a responsibility to ensure the closing argument is kept within the proper bounds.”). Finally, the general instructions given to the jury at the close of the case were insufficient to reduce the prejudice of the prosecutor’s questions and comments. We determine that the prosecutor’s misconduct was gross and flagrant.
Under the second factor, ill will was shown when the prosecutor knew, or should have known, that she was violating rules of prosecutorial conduct by: (1) stating her opinion on the credibility of witnesses; (2) suggesting to the juiy that it should abandon its common sense; (3) expressing her personal belief on matters outside the evidence; (4) vouching for the State of Kansas; (5) referring to matters outside the evidence; (6) vouching for the credibility of J.M.; (7) sohciting testimony from Morris on J.M.’s credibility; (8) buttressing the credibility of J.M.; and (9) appealing to the passion and prejudice of the jury. See State v. McHenry, 276 Kan. 513, 525, 78 P.3d 403 (2003) (A prosecutor’s repeated acts of misconduct are “evidence of ill will.”).
Finally, we turn our attention to the third factor. With the exception of J.M.’s testimony, there was no direct evidence that Morris had molested J.M. Moreover, the State concedes in its brief that the evidence against Morris was not overwhelming. The prosecutor’s improper questions and comments, as stated earlier, called the jurors’ attention to matters that would not have been proper for them to consider in arriving at their verdict. The possible effect that these improper and very prejudicial questions and comments had on the jury’s consideration of Morris’ credibility and the verdict is unknown. As a result, we cannot declare beyond a reasonable doubt that the errors were harmless in that they had little, if any, likelihood of having contributed to the verdict. State v. Thompkins, 271 Kan. 324, 335, 21 P.3d 997 (2001); State v. Bell, 266 Kan. 896, 920, 975 P.2d 239, cert. denied 528 U.S. 905 (1999). For these reasons, we reverse and remand for a new trial.
Moreover, our determination to reverse for a new trial is reinforced by the prosecutor’s violation of the order in limine limiting Spaniol’s testimony to that óf a lay witness.
Cumulative error
Morris argues that cumulative error denied him a fair trial. Nevertheless, we have already determined that there were reversible errors in this case. The errors were prejudicial and denied Morris a fair trial.
Citing Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), Morris also contends that the trial court erred in including his prior convictions in his criminal history. In addition, Morris asserts that the trial court erred in requiring him to reimburse the Board of Indigents’,Defense Services (BIDS) for his court-appointed attorney fees. Because we are reversing, we need not consider Morris’ challenge to his criminal history or BIDS’ attorney fees.
Finally, our reversal of the convictions renders Morris’ argument that the trial court abused its discretion in denying his request for continuance moot.
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Leben, J.:
Kristie Urban was granted a personal recognizance (PR) bond subject to the condition that she go to the Johnson County Community Corrections Residential Center. After she failed to return to the facility while on a pass to visit her family, the State charged her with aggravated escape from custody. The district court dismissed the charge because it believed Urban’s PR bond and placement at the facility did not fit the definition of custody under K.S.A. 21-3809(b)(1). But Urban’s placement at the facility was not merely incidental to her PR bond, and her confinement there went beyond general supervision to the equivalent of incarceration. The district court erred in dismissing the aggravated escape charge, and we reverse the dismissal and remand the case for further proceedings.
I. Urban Was in Custody While at the Residential Center.
Urban claims that she was not “held in lawful custody . . . upon a charge or conviction of a felony” as required to charge aggravated escape. K.S.A. 21-3810(a). But K.S.A. 21- 3809(b)(1) defines custody for the purpose of the aggravated escape statute, and Urban met the test for custody found there. K.S.A. 21-3809(b)(1) defines two categories as custody that apply to Urban when she was at the Residential Center: (1) “detention in a facility for holding persons charged with or convicted of crimes” and (2) “detention in . . . [some] other facility pursuant to court order . . . imposed as a specific condition of assignment to a community correctional services program.” The statute excludes from the custody definition restrictions that are “incidental to release on bail.” But that exclusion doesn’t apply to Urban because a requirement that a person reside in a custodial community corrections facility is not an “incidental” or minor restriction.
We must focus on the words of the statute, K.S.A. 21-3809(b)(1). We quote it in full for context but note that it consists of two sentences. The first sentence defines situations in which a person is in custody; the second sentence defines situations in which a person is not in custody:
“ ‘Custody’ means arrest; detention in a facility for holding persons charged with or convicted of crimes or charged or adjudicated as a juvenile offender, as defined in K.S.A. 2007 Supp. 38-2302, and amendments thereto, where tire act, if committed by an adult, would constitute a misdemeanor; detention in a facility for holding persons adjudicated as juvenile offenders; detention for extradition or deportation; detention in a hospital or other facility pursuant to court order, imposed as a specific condition of probation or parole or imposed as a specific condition of assignment to a community correctional services program; commitment to the state security hospital as provided in K.S.A. 22-3428 and amendments thereto; or any other detention for law enforcement purposes. ’Custody’ does not include general supervision of a person on probation or parole or constraint incidental to release on bail.” K.S.A. 21-3809(b)(1).
As we will see, it’s quite clear that Urban’s situation is covered by the first sentence, which suggests that she was in custody. The debate in our case is about whether her situation is also covered by the second sentence, which would suggest she was not.
A. The First Sentence of K.S.A. 21-3809(b)(1) and Kansas Supreme Court Caselaw Clearly Demonstrate that Urban Was in Custody.
Let’s take first things first: was Urban in custody under the first sentence? Two provisions seem to apply. She was in “detention in a facility for holding persons charged with or convicted of crimes” and she was in “detention in a hospital or other facility pursuant to court order . . . imposed as a specific condition of assignment to a community correctional services program.” Indeed, a Kansas Supreme Court case confirms our reading that these statutory provisions apply to Urban’s case.
In that case, State v. Garrett, 235 Kan. 768, 684 P.2d 413 (1984), the defendant was charged with aggravated escape after he left Sedgwick County’s residential community corrections center. The court concluded that he “was being detained in a facility for holding persons convicted of crimes and was also being detained in a facility pursuant to court order.” 235 Kan. at 774. Thus, the court held that it was aggravated escape when “a convicted felon who, without permission and in violation of the rules, departs from a community corrections facility or fails to return following temporary leave lawfully granted.” 235 Kan. at 775.
The only factual difference between Garrett and Urban’s case is that Garrett had already been sentenced, while Urban had not. This distinction is of no legal significance. First, K.S.A. 21-3809(b)(1) defines “detention in a facility” with respect either to “persons charged with or convicted of crimes.” (Emphasis added.) Thus, Urban was in custody so long as she was charged with a crime while detained in a facility under that statute. The Garrett court held that a residential community corrections center is such a facility, and that holding applies whether Urban was already convicted or merely charged. Second, the Garrett court also held that a residential center is an “other facility” under the statute, and Urban was there pursuant to court order; that holding also applies whether Urban was already convicted or merely charged. For that matter, a person cannot be admitted to a community corrections program without a court order. Third, Urban had already been convicted because she had pled guilty and been found guilty on January 2, 2007, 6 weeks before she left the residential center on a pass and failed to return. A defendant is convicted at the time a plea is accepted and the defendant is found guilty. K.S.A. 21-3110(4); State v. Pollard, 273 Kan. 706, 712-13, 44 P.3d 1261 (2002); State v. Holmes, 222 Kan. 212, Syl. ¶ 1, 563 P.2d 480 (1977); Thompson v. State, 32 Kan. App. 2d 1259, Syl. ¶ 2, 96 P.3d 1115 (2004), rev. denied 278 Kan. 852 (2005). Thus, Urban cannot viably distinguish Garrett and its teaching that a convicted felon commits aggravated escape if he or she fails to return to a residential community corrections center after going out on temporary leave. See also State v. Kraft, 38 Kan. App. 2d 215, 163 P.3d 361, rev. denied 285 Kan. 1176 (2007) (the defendant on house arrest as the first phase of conditional release from residential community corrections program was in custody for purposes of aggravated-escape charge).
B. The Second Sentence of K.S.A. 21-3809(b)(1) Demonstrates that Urban Was in Custody by the Rules of Statutory Interpretation.
We still must consider whether Urban’s situation is covered by the second sentence of K.S.A. 21-3809(b)(1). That sentence lays out exclusions to the definition of custody, which does not include “general supervision of a person on probation or parole” or “constraint incidental to release on bail.” (Emphasis added.) Urban argues that her placement at a residential facility was a constraint that was incidental to her PR bond. If that were so, she would not have been in custody and would not be subject to a charge for aggravated escape from custody.
But principles of statutory interpretation rebut Urban’s argument. Whether we apply ejusdem generis (interpret words or phrases of the same land or nature similarly) or noscitur a sociis (words are known by their associates), the two parts to the second sentence of K.S.A. 21-3809(b)(1) should be interpreted similarly. The first portion excludes “general supervision of a person on probation or parole.” Thus, mere “general supervision” of a person is not custody for someone who was already sentenced and placed either on probation (before a sentence is served) or parole (after a sentence has been served). General supervision would include things such as: regular reporting to a parole or probation officer, random drug testing, or informing officials of any change of address. But surely someone who resides at a community corrections facility is not just under “general supervision.” Similarly, the phrase “constraint incidental to release on bail” suggests the person has been released rather than kept in something equivalent to incarceration and for which jail-time credit is required. And the use of the term “incidental” suggests something minor, certainly less than incarceration or its equivalent.
Indeed, Urban tries to argue for an interpretation of the word “incidental” that flies in the face of its accepted meaning. Black’s Law Dictionary defines it as “[subordinate to something of greater importance” or “having a minor role.” Black’s Law Dictionary 777 (8th ed. 2004). The American Heritage Dictionary defines incidental as “[ojccurring or likely to occur as an unpredictable or minor accompaniment” or “[o]f a minor, casual, or subordinate nature,” as in incidental expenses. American Heritage Dictionary 886 (4th ed. 2006). The requirement to be in “residence” at a community corrections facility is not a minor matter. Urban was accordingly given jail-time credit against her sentence in the drug-possession case for the time she spent in residence there, just as the legislature has provided for in K.S.A. 21-4614a.
Urban’s argument confuses the phrases “incidental to” and “incident to,” even though they do not mean the same thing. A person may be asked his name incidental to arrest and that may be a relatively minor matter. But the person may be subject to a search incident to arrest even though that search may be quite extensive, intrusive, and significant. When used as an adjective, “incident” simply means something “[t]ending to arise or occur as a result or accompaniment” or something “[r] elated to or dependent on another thing.” American Heritage Dictionary 886. That definition is different than the meaning of “incidental,” which is the word used in this statute. As Bryan Garner has explained, “incident to” means “closely related to” or “naturally appearing with,” while “incidental to” means “happening by chance and subordinate to some other thing; peripheral.” Garner, Garner's Modern American Usage 439 (2d ed. 2003). We believe the legislature correctly used “incidental to” in this statute to refer to a subordinate, peripheral, or minor accompaniment to release on bail.
So the first portion of the exclusionaiy sentence in K.S.A. 21-3809(b)(1) would not exempt a person in residence at a community corrections facility from the definition of custody. The first portion applies only after a person has been sentenced because the defendant could not otherwise be on either probation or parole. The second part of the sentence, “constraint incidental to release on bail,” can apply even before the person has been sentenced. But the second part of the sentence is not meant to have any broader application. “Constraint incidental to release on bail” should be considered roughly equivalent to “general supervision” because words of the same type should be interpreted in a similar way just as a word should be known by its associates. This interpretation makes sense given that “general supervision” is relatively minor as compared to incarceration.
Under Urban’s argument, all limitations added as a condition of bail would be deemed a “constraint incidental to release on bail” and would be excluded from the definition of custody. For example, if the judge had not only said that Urban must stay at the residential center but had also added that she could never receive a day pass to leave the center briefly, she would still not be in custody under the defendant’s argument. That would not be a reasonable interpretation of this statute.
II. We Do Not Find Our Court’s Prior Decision in Hampton Persuasive or Controlling.
We recognize that there is an unpublished decision of a panel of our court that is contrary to the ruling we are making. In State v. Hampton, No. 91,092, unpublished opinion filed September 24, 2004, a panel concluded that a person who left the Johnson County Residential Center without permission while there on felony bond could not be charged with aggravated escape.
We first note that there is a potentially significant factual difference between Hampton and Urban’s case — Hampton had not yet pled and been convicted, while Urban had. Hampton could be distinguished on that basis. But we do not believe that difference is of importance because “detention in [some] other facility pursuant to court order” is included in the definition of custody whether a person has been convicted or not. In addition, the definition of custody includes “detention in a facility for holding persons charged with or convicted of crimes,” again making clear that conviction is not required for custody status. See K.S.A. 21-3809(b)(1).
Upon review, we do not find the analysis in Hampton persuasive, but we find the Garrett decision quite persuasive. Hampton distinguished Garrett because “Garrett had been convicted on the underlying crime prior to being ordered to the community corrections” residential center, but Hampton had not been. The Hampton opinion does not discuss one portion of K.S.A. 21-3809(b)(1) for which conviction is not required — “detention in [some] other facility pursuant to court order” — and which Garrett had applied to Sedgwick County’s community corrections residential center. Nor does the Hampton opinion discuss the meaning either of “incidental” or “incidental to.” Rather, it concludes from the exclusion from custody of a “constraint incidental to release on bail” that “it appears clear that the legislature did not intend to include walking away from a community corrections residential center before conviction and while on bond to be an aggravated escape from custody as opposed to bail jumping.” Slip op. at 11. We find our analysis of the Garrett holding and of the statute more persuasive in deciding Urban’s case than the holding in Hampton.
In any case, we are not bound by the decision of a previous panel of our court. The ability of panels of our court to disagree on legal issues is recognized in one of the statutory provisions enacted when our court was created. K.S.A. 20-3018(b) explicitly provides that a conflict between the decision of two panels of our court is one basis for tire Supreme Court to exercise its discretionary review of our opinions. Because one panel of our court has no greater power than another, we may not “disapprove” a past decision and thus remove whatever precedential value it may have. In re Marriage of Cray, 254 Kan. 376, Syl. ¶ 1, 867 P.2d 291 (1994); cf. State v. Heffelman, 256 Kan. 384, 387-94, 886 P.2d 823 (1994) (citing Cray but agreeing with Court of Appeals panel that had disagreed with prior panel opinion); State v. Moody, 282 Kan. 181, 144 P.3d 612 (2006) (agreeing with Court of Appeals panel that had disagreed with prior panel opinion); see also 282 Kan. l-lxxvi (containing list of cases overruled or “disapproved” by the Kansas Supreme Court). But while we must carefully consider each precedent cited to us, we also must uphold our duty to correctly determine the law in each case. In doing so, we sometimes find that we must respectfully disagree with the opinion of another panel.
Conclusion
Based upon our. analysis of the words used by the legislature, we do not find any indication that the legislature meant to exclude persons sent to a community corrections residential center from the statutory definition of custody. Based in part on Hampton, the district court dismissed the aggravated escape charge against Urban. We reverse that dismissal and remand the case for further proceedings. | [
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Buser, J.:
Alfonzal Jones appeals his convictions and sentences for aggravated kidnapping and rape. First, Jones appeals the district court’s denial of his motion to represent himself at the preliminary hearing. Second, Jones claims tire district court erroneously admitted prejudicial testimony. Third, Jones contends the jury instructions were improper. Fourth, Jones claims the district court erred in its response to the jury’s question during deliberations. Finally, Jones contends his constitutional rights were violated when the district court enhanced his sentences based on a criminal history that was not proven to a jury beyond a reasonable doubt. We affirm.
Factual and Procedural Background
On December 28, 2005, W.H. was driving her automobile when a van driven by Jones rammed the side of her vehicle causing it to travel off the roadway. W.H. was the former fiancée of Jones. Jones jumped from the van and ran towards W.H.’s automobile holding a handgun. Seeing Jones, W.H. accelerated, violated a stop sign, and collided with a truck driven by James Flowers.
After Flowers stepped out of his truck, he observed Jones point a handgun at W.H.’s head, grab her hair, and yell at her to get out of the automobile. Jones threatened to kill W.H. while asking, 'Why did [you] do this to me[?]” W.H. thought Jones was asking her why she had left him and recently had filed a Protection From Abuse Act (PFA) petition regarding him. A hearing on the petition had been scheduled for later that day.
After Jones forcibly removed W.H. from her vehicle, he noticed Flowers nearby. Flowers testified that Jones pointed the handgun at him. Flowers retreated as Jones dragged W.H. away by her hair and neck. W.H. was screaming during this encounter.
Jones took W.H. to a friend’s apartment in a nearby building. At trial, W.H. testified that Jones yelled at her, asked her why she broke his heart, and threatened to kill her. Then, he told her to undress. W.H. testified that she engaged in sexual relations to avoid getting hurt and in the hope she could later escape. W.H. eventually left the apartment after Jones’ friend, who was to prevent her from leaving, fell asleep.
A jury convicted Jones of aggravated kidnapping and rape. He was acquitted of the aggravated assault of Flowers. Jones timely appealed.
Right of Self-Representation at the Preliminary Hearing
Jones seeks reversal of his convictions because he contends the district court improperly denied his motion for self-representation and insisted that counsel represent him at the prehminary hearing. In order to review this contention, it is necessary to summarize the pretrial proceedings.
At the hearing on the motions, court-appointed defense counsel noted that Jones had been found competent to stand trial, a result she characterized as “amazing.” Defense counsel commented that she was “veiy concerned about [Jones’] understanding of procedurally how things work at a preliminary hearing, very concerned about what he may, you know, attempt to present or how he may attempt to cross-examine. I don’t know if that would be in his best interests to represent himself.”
The district court commented on “the loud discussion just a little while ago through the walls” and indicated knowledge of “the previous problems in front of Judge Bums.” The district court cautioned Jones to act respectfully in the courtroom and asked Jones about his formal education and legal training. Jones replied that he had a GED and he had studied law books for the past 10 years.
The district judge denied the motion for self-representation by stating, “Okay. Well, I have never and I don’t intend to start now allowing people who do not have any specialized legal training that have just done some reading, I’m not going to let them represent themselves. You can assist.” Jones objected to the mling, but the preliminary hearing was conducted with court-appointed counsel representing Jones.
Less than 2 months later, on October 6, 2006, another district judge conducted a pretrial motions hearing. Jones was asked whether he still wanted to represent himself. Jones replied, “I want to be able to participate in my defense.” The district court informed Jones that he could either accept his attorney’s representation, placing her in charge of how the defense was conducted, or Jones could represent himself and his counsel would be on “standby.” The district court advised Jones that if he represented himself he would be held to the same standard as a practicing attorney. Jones replied, “I want to represent myself.”
The district court, after referencing federal and state case law, then engaged in an extended and detailed colloquy with Jones to determine if his waiver of counsel was knowing and intelligent. First, the district court explained that Jones’ attorney was experienced in handling criminal trials. Next, he gave extensive warnings about the dangers of self-representation. In particular, the district court advised Jones that he would be required to follow the mies of criminal procedure, especially with regard to direct and cross-examination of witnesses, and that the court would not provide him with legal advice. Jones was also told that by representing himself he would give up the right to later claim ineffective assistance of counsel.
The district court and Jones’ counsel provided Jones with a copy of the Kansas Sentencing Guidelines relevant to the charges. An extensive discussion ensued regarding the possible sentences which could be imposed, given Jones’ criminal history, if he was convicted of the charges. The district court also asked about Jones’ knowledge of possible affirmative defenses or mitigating evidence.
Towards the end of the colloquy Jones advised the district court, “Well, your Honor, I’ll go ahead and let her [defense counsel] represent me.” The district court confirmed that Jones was not going to change his mind later. Jones told the district court, “Yeah, that motion is withdrawn.” Jones was represented by counsel at trial and posttrial proceedings.
On appeal, Jones contends the district court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution by summarily denying his motion to represent himself at the preliminary hearing. Jones complains that at the preliminary hearing, the district court did not obtain a knowing and intelligent waiver of his right to counsel as set forth in State v. Lowe, 18 Kan. App. 2d 72, Syl. ¶ 1, 847 P.2d 1334 (1993). The State admits “the court may not have made the appropriate inquiry at the prehminaiy hearing.”
“The Sixth Amendment, as made applicable to the states by the Fourteenth Amendment, guarantees that a defendant in a state criminal trial has an independent constitutional right to self-representation.” State v. Vann, 280 Kan. 782, Syl. ¶ 2, 127 P.3d 307 (2006). “A criminal defendant who before trial clearly and unequivocally expresses a wish to proceed pro se has the right to self-representation after a knowing and intelligent waiver of the right to counsel. A knowing and intelligent waiver requires that the defendant be informed on the record of the dangers and disadvantages of self-representation.” 280 Kan. 782, Syl. ¶ 3.
Jones clearly expressed a desire to waive counsel and represent himself at the preliminary hearing. We agree with the parties that the district court erred by failing to inform Jones of the dangers and disadvantages of self-representation in order to insure that Jones made a knowing and intelligent waiver of his right to counsel at the preliminary hearing. Moreover, the district court violated Jones’ right to self-representation at the preliminary hearing by requiring him to be represented by counsel in violation of the Sixth and Fourteenth Amendments. See Faretta v. California, 422 U.S. 806, 818-20, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975); Vann, 280 Kan. 782, Syl. ¶¶ 2-3.
The principal issue before us, then, is the remedy. Jones asks us to reverse his convictions, arguing that the denial of his right to self-representation at the preliminary hearing was “structural, and not subject to a ‘harmless error’ analysis.” Jones concedes that after the preliminary hearing, he later “acquiesced to representation by counsel at trial.” (Emphasis added.) Nevertheless, Jones argues that his “subsequent decision to allow counsel to represent him at trial did not cure the error.”
It should be noted that Jones does not contend the denial of his right to self-representation at the preliminary hearing had any effect on his trial. He simply points to the error at the preliminary hearing and asks for reversal of his convictions. In response, the State maintains that Jones’ subsequent knowing and intelligent waiver of tire right to self-representation prior to trial renders harmless the denial of the right to self-representation at the preliminary hearing.
In reviewing this issue we must ask whether this is one of the “ ‘very limited class of cases’ ” subject to “automatic reversal” due to a “[‘structural’] defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Neder v. United States, 527 U.S. 1, 8, 144 L. Ed. 2d 35, 119 S. Ct. 1827 (1999) (quoting Johnson v. United States, 520 U.S. 461, 468, 137 L. Ed. 2d 799, 117 S. Ct. 792 [1997]; Arizona v. Fulminante, 499 U.S. 279, 310, 113 L. Ed. 2d 302, 111 S. Ct. 1246 [1991]). “The determination of whether an error is structural or harmless involves a question of law subject to unlimited review.” City of Wichita v. Bannon, 37 Kan. App. 2d 522, Syl. ¶ 6, 154 P.3d 1170 (2007).
In Lowe, 18 Kan. App. 2d 72, our court considered a violation of a defendant’s right to self-representation at trial. Lowe relied upon McKaskle v. Wiggins, 465 U.S. 168, 177 n.8, 79 L. Ed. 2d 122, 104 S. Ct. 944 (1984), wherein the United States Supreme Court explained the inapplicability of harmless error analysis in such situations: “Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to ‘harmless error analysis. The right is either respected or denied; its deprivation cannot be harmless.” See Lowe, 18 Kan. App. 2d at 74. Notably, the United States Supreme Court continues to characterize the structural error in McKaskle as a violation of the right to self-representation at trial. See Washington v. Recuenco, 548 U.S. 212, 218 n.2, 165 L. Ed. 2d 466, 126 S. Ct. 2546 (2006); Neder, 527 U.S. at 8; Johnson, 520 U.S. at 469.
We think McKaskle’s reference to self-representation at trial is essential to its structural error analysis. According to McKaskle, the “core” of the right to self-representation is the defendant’s right “to preserve actual control over the case he chooses to present to the jury.” 465 U.S. at 178. Given the judgment of the McKaskle Court that a conviction is more likely where the right to self-representation is respected, the question whether a defendant suffered prejudice where the right was violated is an “irrelevance.” United States v. Gonzalez-Lopez, 548 U.S. 140, 149 n.4, 165 L. Ed. 2d 409, 126 S. Ct. 2557 (2006) (citing McKaskle, 465 U.S. at 177 n.8).
In the present case, however, Jones’ right to self-representation was violated at the preliminary hearing, not at the trial. Under Kansas law, the issue at the preliminary hearing is not “the defendant’s guilt; it is rather an inquiiy whether the defendant should be held for trial.” State v. Jones, 233 Kan. 170, Syl. ¶ 1, 660 P.2d 965 (1983). A defendant may learn the nature of the charges, the State’s evidence in support of the charges, and seek dismissal for lack of probable cause. See State v. Ramsey, 228 Kan. 127, 131, 612 P.2d 603 (1980). If the charges are dismissed, the State may initiate another prosecution. 228 Kan. at 131. The general rule in Kansas is, therefore, that “any error at the preliminary hearing stage is harmless unless it appears that the error caused prejudice at trial.” State v. Lee, 266 Kan. 804, Syl. ¶ 1, 977 P.2d 263 (1999).
McKaskle may be read in consonance with Kansas law regarding preliminary hearings, at least under the present facts. Importantly, Jones does not allege the deprivation of his right to self-representation at the prehminary hearing affected his trial. Indeed, under the unique facts of this case, shortly before trial (and after Jones was throughly advised of the dangers and disadvantages of self-representation as mandated by Lowe) he knowingly and intelligendy waived his right to self-representation and allowed counsel to represent him at trial. If the violation of the right to self-representation at the prehminary hearing did not affect Jones’ trial, it neither increased nor decreased the likelihood of a trial outcome unfavorable to him, which was the underlying rationale for the McKaskle ruling. Stated another way, where the defendant’s trial and conviction are not affected by the deprivation of the right to self-representation at the preliminary hearing, the question of prejudice from the violation is no longer irrelevant, and the harmless error rule applies.
The New York Court of Appeals arrived at a similar conclusion in People v. Wardlaw, 6 N.Y.3d 556, 816 N.Y.S.2d 399, 849 N.E.2d 258 (2006). The district court in Wardlaw allowed a defendant to proceed pro se at a suppression hearing without an adequate waiver of counsel. The New York Court of Appeals noted that “the normal remedy for a violation of the right to counsel at a suppression hearing is a new suppression hearing, with a new trial to follow if, after the new hearing, the evidence is suppressed.” 6 N.Y.3d at 559. In Wardlaw, however, it was “clear beyond a reasonable doubt that any new trial would have the same result, even if the defendant’s statements were excluded from evidence. Thus a new hearing would serve no purpose.” 6 N.Y.3d at 559.
The New York Court of Appeals acknowledged that “[w]hen a defendant has wrongly been denied counsel at a particular proceeding, we do not inquire whether the presence of counsel would have changed that proceeding’s result. In this sense, the denial of the right to counsel may not be treated as ‘harmless.’ ” 6 N.Y.3d at 559. Nevertheless, “the remedy to which a defendant is entitled ordinarily depends on what impact, if any, the tainted proceeding had on the case as a whole. Where it had none, the conviction will be affirmed notwithstanding the error — and in that sense, the harmless error rule does apply. [Citation omitted.]” 6 N.Y.3d at 559.
An example of a tainted pretrial proceeding which did affect the “case as a whole” is Vasquez v. Hillery, 474 U.S. 254, 263-64, 88 L. Ed. 2d 598, 106 S. Ct. 617 (1986), where the United States Supreme Court considered racial discrimination in grand jury selection. The Supreme Court pointedly observed that a “grand juiy does not determine only that probable cause exists to believe that a defendant committed a crime,” tire grand jury also controls charging. 474 U.S. at 263.
“Thus, even if a grand jrny’s determination of probable cause is confirmed in hindsight by a conviction on the indicated offense, that confirmation in no way suggests that tire discrimination did not impermissibly infect the framing of the indictment and, consequendy, die nature or very existence of the proceedings to come.” 474 U.S. at 263.
Such racial discrimination, therefore, “undermines the structural integrity of the criminal tribunal itself.” 474 U.S. at 263-64. This does not mean, however, that error in grand jury proceedings is inherently structural. See Bank of Nova Scotia v. United States, 487 U.S. 250, 254, 101 L. Ed. 2d 228, 108 S. Ct. 2369 (1988) (A “district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants.”).
In the present case, unlike the grand jury proceeding in Vasquez, the prosecutor had the sole discretion to determine whether to charge Jones and what charges were appropriate. These decisions were made prior to the preliminary hearing and, as noted earlier, regardless of the preliminary hearing’s outcome, the charging decisions would remain within the prosecutor’s discretion.
Thus, the question is still whether any particular error “deifies] harmless-error review.” Neder, 527 U.S. at 8. Because Jones does not allege the deprivation of his right to self-representation at the preliminary hearing affected his trial, his convictions, or the structural integrity of the criminal proceedings, the present case does not defy harmless error analysis.
An. error of constitutional magnitude is usually governed by the federal constitutional error rule, which provides that an error is only harmless if it can be declared beyond a reasonable doubt to have had litde, if any, likelihood of changing the trial’s outcome. State v. Ventris, 285 Kan. 595, 608, 176 P.3d 920 (2008). Our own independent review of the record convinces us beyond a reasonable doubt that the denial of Jones’ right to self-representation at the prehminary hearing was harmless error. We conclude the district court’s error had litde, if any, likelihood of changing the trial’s outcome.
Evidence of the Filing of a Protection from Abuse Order
Immediately prior to trial, the State advised that W.H. would testify “she had filed a protection from abuse [PFA] order.” See K.S.A. 60-3101 et seq. Although the prosecutor stated she would not introduce the order in evidence, she argued that W.H. believed Jones’ motive in committing the aggravated kidnapping was to prevent W.H. from attending the PFA hearing later that same day. Defense counsel asked for time to respond to the State’s argument. The district court took the matter under advisement, but the issue was not raised again before W.H. began her testimony at trial.
On direct examination, W.H. testified that when Jones dragged her from the vehicle with a gun to her head, “[h]e was just yelling at me, telling me why did I do this to him, [that] he was gonna kill me and just shut up and come on.” The prosecutor asked W.H. what Jones meant. She responded, “Why did I leave him. I had left him and filed a PFA against him.” Defense counsel asked to approach the bench and requested a ruling on the evidentiary issue and “copies of the PFA to verify what she was going to testify about.” The following colloquy then occurred:
“THE COURT: Well, I mean it would seem to me that that is relevant, that it is relevant or testimony for what took place and I think she can testify that she filed the protection from abuse order or initiated the proceedings to obtain an order or what not. I think she can do that. I mean that’s admissible evidence.
“[Prosecutor]: Okay.
“[Defense counsel]: Well, just because we’re making a record here, okay, I’m also going to object because there was no motion filed. And if she gets any further into, you know, relationship of the parties or anything like that, it has to do with other criminal acts, I’m going to object to any of that if that’s where this is going.
“[Prosecutor]: I’m not going to get into any of that. I think it’s relevant she said she had just broken up with him and filed a PFA against him. I think she can tell the jury what a PFA is and that’s it.
“THE COURT: Let’s leave it that way. Ms. Eaton [the prosecutor], just be careful how you frame your questions, okay.”
W.H. then testified that a PFA was a “protection from abuse order.”
Later, the prosecutor approached the bench and sought permission to establish that the PFA hearing was scheduled for the morning the crimes occurred and that W.H. believed Jones kidnapped her in order to prevent her from testifying at the hearing. Defense counsel objected that W.H.’s belief about Jones’ motive was speculation. The district court limited W.H.’s testimony to establishing that the hearing on the PFA order was “set for 1:00 o’clock on December 28th.”
During cross-examination by defense counsel, W.H. testified that she had consented to sexual relations with Jones because she was “scared that he might have hurt me because he has hurt me in the past and that’s why I have a PFA against him.” Defense counsel did not object to this reference to the PFA, but instead established that the PFA was dismissed. During redirect examination, W.H. testified without objection that she was frequently scared of Jones, including at the time she filed the PFA. During closing arguments the prosecutor reminded the jury that W.H. testified she filed the PFA order because she was scared of Jones. Defense counsel did not object to this argument, and Jones does not argue prosecutorial misconduct on appeal.
Jones does argue on appeal that the PFA testimony was admitted contrary to K.S.A. 60-455 and State v. Gunby, 282 Kan. 39, 56, 144 P.3d 647 (2006). The State responds that it was unnecessary to file a K.S.A. 60-455 motion because it never sought to introduce the actual PFA order and, if there was error, it was harmless.
Jones did not raise this issue below. Defense counsel initially objected to the PFA testimony because the district court had not ruled on the admissibility of the evidence and defense counsel had not reviewed the PFA order. Although defense counsel warned she would object to testimony of “other criminal acts, . . . if that’s where this is going,” she never objected to any PFA testimony on that basis. Moreover, the only other objection to the admission of PFA evidence made by defense counsel regarded W.H.’s speculation as to Jones’ motive for kidnapping her. The district court, however, implicitly sustained this objection by limiting W.H. to testimony about the time and date of the PFA hearing.
In order to preserve an issue for appeal, a party must make a timely and specific objection. K.S.A. 60-404; State v. Anthony, 282 Kan. 201, 206, 145 P.3d 1 (2006). Additionally, a party may not object at trial to the admission of evidence on one ground and then on appeal argue a different ground. State v. Engelhardt, 280 Kan. 113, 127, 119 P.3d 1148 (2005). At trial, defense counsel in the present case never raised an objection based on a claimed violation of K.S.A. 60-455. Although there are exceptions to the general rule precluding appellate review upon a failure to properly raise an issue at trial, Jones does not argue for the applicability of any of the exceptions. See State v. Hunt, 275 Kan. 811, 813, 69 P.3d 571 (2003).
If the issue had been considered below, the trial court should have determined whether the PFA evidence was relevant to prove a material fact, whether that material fact was in dispute, and whether the probative value of the evidence outweighed the potential for undue prejudice. See State v. Vasquez, 287 Kan. 40, Syl. ¶ 2, 194 P.3d 563 (2008). Jones candidly concedes the PFA evidence “may have been relevant in that it provided the jury with evidence of a motive.” He only argues that “[e]ven if the evidence was relevant to prove motive, ... its prejudicial effect far outweighed its probative value.” Although there is no ruling to review, “[o]n appeal of a K.S.A. 60-455 issue, a district judge’s weighing of probative value and prejudicial effect is reviewed for abuse of discretion.” 287 Kan. 40, Syl. ¶ 5.
If we were to attempt analysis of the probative value and prejudicial effect for the first time on appeal, we would not find error. As noted earlier, the PFA evidence did not identify any prior crime or civil wrong. The factual basis for the PFA order was never disclosed, and its dismissal undermined any prejudicial impact. Moreover, the jury’s acquittal on the aggravated assault charges suggests the jury was not prejudiced into concluding the PFA evidence showed Jones’ propensity to commit crimes of violence. Under the circumstances, the probative value outweighed any prejudicial effect.
Even if we assume the PFA evidence was more prejudicial than probative, reversal is not automatic. See Gunby, 282 Kan. at 57. “[T]he admission of evidence regarding prior crimes and civil wrongs in violation of the requirements of K.S.A. 60-455 [is] harmless [where] it was not inconsistent with substantial justice, did not affect the defendant’s substantial rights, and had no likelihood of changing the results at trial.” State v. Warledo, 286 Kan. 927, Syl. ¶ 4, 190 P.3d 937 (2008). For the reasons already mentioned, we are convinced that any error was harmless.
On a related matter, Jones contends the district court’s failure to issue a limiting instruction was clear error. Assuming the PFA evidence was admissible under K.S.A. 60-455, the district court should have issued a limiting instruction informing the jury of the specific purpose for its admission. See Gunby, 282 Kan. at 48. The State argues Jones did not request a hmiting instruction, and the failure to issue one was not clear error.
The State is correct that Jones did not request a limiting instruction or object to its omission. In this situation, “the failure to give the instruction will be reversible only if clearly erroneous. [Citation omitted.].” Gunby, 282 Kan. at 58-59; see K.S.A. 22-3414(3). “ 'Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if tire error had not occurred.’ [Citations omitted.]” 282 Kan. at 59.
There was no real possibility the jury would have rendered a different verdict had a limiting instruction been issued. The testimony in question was brief and ambiguous and not likely to persuade the jury that Jones had a general propensity to commit violent crimes. Moreover, there was eyewitness testimony from both W.H. and Flowers of Jones’ audacious violence during this encounter. Given this record, Jones has failed to show clear error.
Aggravated Kidnapping Instruction
Jones next contends the district court erred in submitting an aggravated kidnapping instruction that was broader than the charge contained in the information. In relevant part, the State charged aggravated kidnapping as follows: “Jones did . . . take or confine a person, to-wit: [W.H.], by force, threat or deception, with the intent to hold such person to facilitate flight or the commission of a crime, to-wit: Rape.” In Instruction No. 6, however, the trial court directed the jury to determine whether Jones “took or confined [W.H.] by force or threat . . . with the intent to hold such person to inflict bodily injury or terrorize the victim or to facilitate the commission of any crime.”
At the instructions conference, defense counsel objected to the addition of an intent to terrorize. She argued that Jones had filed a pretrial pro se motion for a bill of particulars which was overruled.
The trial judge had denied the motion because the State had an “open file” policy and “we already had a prehminary hearing. I don’t know what the motion for bill of particulars could . . . include beyond what the defense already knows.” Defense counsel maintained that denial of the motion for a bill of particulars and an instruction on intent to terrorize would allow “the State to have ... an overbroad opportunity to do kind of an either/or.” Counsel stated generically that this “violated [Jones’] rights.”
The State responded that the instruction was “appropriate to the evidence that has been heard at trial.” The State also argued that Jones’ motion for a bill of particulars “did not allege that he had this particular problem.” The State finally contended that the evidence at trial conformed to the evidence at the prehminary hearing — a point which Jones’ counsel did not dispute.
The district judge overruled Jones’ objection to Instruction No. 6:
“Well, the Court is going to find that these instructions are appropriate and the use of the words ‘to terrorize’ I think certainly conforms to the evidence that took place. The record shows that this young lady’s automobile was rammed by another vehicle, that she was afraid, that she tried to get away, that she ran into Mr. Flowers’ vehicle. At that point she was pulled from the vehicle that she was in by her hair and at the point of a gun and dragged off and she was screaming and she at least at some point resisted, and that would certainly give a reasonable inference that she was certainly terrorized at that point and was then taken to a house or apartment in the vicinity. And what took place there took place there, but I think there’s more than enough evidence in the record to find that this taking was done with the intent to terrorize the victim as well as to inflict some type of bodily harm, including rape. So that objection is noted and it is denied.”
On appeal, Jones does not renew his argument regarding the denial of the bill of particulars. He does not claim fhe relevant evidence summarized by the district court at trial diverged in any way from the evidence presented at the preliminary hearing. Nor does Jones dispute that Instruction No. 6 conformed to the evidence at trial.
Jones instead argues he was deprived of notice and an opportunity to present a defense:
“The State originally alleged that Mr. Jones kidnapped [W.H.] in order to rape her. Mr. Jones’ defense to the charge of aggravated kidnapping was that he never intended to rape [W.H.], and that the two had consensual sexual intercourse after ‘making up.’ Mr. Jones, however, presented no defense to the theory that he took or confined [W.H.] in order to terrorize her. If defense counsel had known that the district court was going to instruct on the second theory of kidnapping, she may have attempted to mount a defense to that theory.”
Jones does not explicitly claim a violation of due process rights, but we believe it is the issue he raises. See State v. Wade, 284 Kan. 527, 533, 161 P.3d 704 (2007) (“Wade first contends that the district court’s elements instruction broadened the scope of the . . . charges and deprived him of notice and a fair opportunity to prepare his defense, i.e., deprived him of due process.”); In re Care & Treatment of Hay, 263 Kan. 822, Syl. ¶ 4, 953 P.2d 666 (1998) (“The essential elements of due process of law are notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case.”). We therefore do not apply the standard of review for cases where the defendant objected to instructions below. Because “the gravamen” of Jones’ argument “is a constitutional due process challenge, ... we exercise unlimited review. [Citation omitted.]” Wade, 284 Kan. at 534.
“A jury instruction on the elements of a crime which is broader than the information charging the crime is erroneous. Such an error may be excused only where the substantial rights of the defendant have not been prejudiced.” Wade, 284 Kan. 527, Syl. ¶ 3. “If a defendant’s ability to prepare and present a defense has been compromised by an erroneously broadened jury instruction, the substantial rights of the defendant have been prejudiced.” 284 Kan. 527, Syl. ¶ 4. Under the federal constitutional error rule, “an error is harmless only if the reviewing court is able to declare beyond a reasonable doubt that the error had little, if any, likelihood of changing the outcome of the trial. [Citation omitted.]” State v. Ventris, 285 Kan. 595, 608, 176 P.3d 920 (2008).
Instruction No. 6 was broader than the aggravated kidnapping charge. As a result, the question is whether the error violated Jones’ due process rights by compromising his ability to prepare and present a defense. As already indicated, Jones makes two assertions: (1) that he “presented no defense to the theory that he took or confined [W.H.] in order to terrorize her” and (2) that if he had known of the intent to terrorize theory, his counsel “may have attempted to mount a defense to that theory.” Jones does not explain or expand upon these conclusory assertions.
Jones did not present any evidence at trial. Contrary to Jones’ first assertion, however, defense counsel contended in closing argument that Jones’ actions were not committed with the intent to terrorize W.H. Instead, defense counsel characterized Jones’ actions as the latest episode in an ongoing and troubled domestic relationship involving Jones and W.H.:
“To terrorize [W.H.], that’s the nature of their relationship. She had a PFA, you know. I’m not saying she’s not a nice person, I’m not saying my client’s a nice person. What I’m saying is sometimes people argue and sometimes people argue in a really bad way. Does that mean that kidnapping has occurred? No.”
With regard to Jones’ second assertion, that his counsel “may have attempted to mount a defense,” Jones provides nothing more than conjecture, leaving us to speculate about what other defense he would have presented.
“An appellate court will not independently search the record and guess which specific facts a party believes support its general al legations.” State v. Bryant, 285 Kan. 970, Syl. ¶ 3, 179 P.3d 1122 (2008). Moreover, “error at the trial court level is never presumed but must be made to affirmatively appear.” State v. Lumley, 25 Kan. App. 2d 366, 371, 963 P.2d 1238 (1998), aff'd 267 Kan. 4, 977 P.2d 914 (1999); see also State v. Miller, 222 Kan. 405, 408, 565 P.2d 228 (1977) (citing cases). Jones’ argument fails in this respect. We cannot simply presume that Jones’ due process rights were violated.
Even if we were inclined to speculate on an available defense, the record suggests none. Jones’ actions were brazen and violent. From the record on appeal it appears that the best possible argument against an intent to terrorize was the one made by Jones’ counsel.
If there was a better defense, Jones bore the burden to designate a record showing it and then argue the point. See State v. Paul, 285 Kan. 658, 670, 175 P.3d 840 (2008); State v. Mitchell, 284 Kan. 374, 377, 162 P.3d 18 (2007). In the absence of such a record and argument, we cannot conclude that Jones’ substantial rights were prejudiced. For the reasons stated, we find beyond a reasonable doubt that the instructional error had little, if any, likelihood of changing the outcome of the trial.
Sympathy Instruction
In Instruction No. 15 the district court informed the jury: “You must consider this case without favoritism or sympathy for or against either party. Neither sympathy nor prejudice should influence you.” Neither party objected to the instruction.
When a party fails to object to an instruction at trial, an appellate court reviews the instruction to determine if it was clearly erroneous. “ ‘Instructions are clearly erroneous if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.’ [Citation omitted.]” Bryant, 285 Kan. at 983.
Jones contends the circumstances of this case did not justify giving the sympathy instruction. He correctly notes this instruction, previously found at PIK Crim. 2d 51.07, hás been deleted from the pattern instructions and is no longer approved for general use. Nevertheless, the sympathy instruction may be used if the facts present very unusual circumstances. See PIK Crim. 3d 51.07; State v. Baker, 281 Kan. 997, 1004, 135 P.3d 1098 (2006). Having reviewed the record evidence in this case, we discern no such circumstances that warranted providing the jury with Instruction No. 15 and the district court erred in giving the instruction.
Jones concedes that “evidence that Mr. Jones kidnapped and raped [W.H.] may have evoked sympathy for W.H.,” but he claims prejudice by speculating that the instruction may have caused the jury to discount evidence of W.H.’s prior drug use when weighing her credibility. Jones also alleges Instruction No. 15 may have prevented the jury from being sympathetic towards him because he misunderstood that W.H. did not want to have consensual sexual relations with him and W.H. had previously ended their engagement.
Jones’ claims of prejudice are highly speculative and unpersuasive. In addition to Instruction No. 15, Instruction No. 4 stated: “It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified.” Considered together, the district court’s instructions properly guided the jury’s deliberations.
We are firmly convinced that Jones’ substantial rights were not prejudiced in any way by the instructional error. See State v. Turbeville, 235 Kan. 993, 997-98, 686 P.2d 138 (1984). There is no real possibility the jury would have rendered a different verdict if the instructional error had not occurred. See Bryant, 285 Kan. 970, Syl. ¶ 10.
Response to the Jury's Question
Included in the jury instructions was Instruction No. 17, patterned after PIK Civ. 3d 101.09. The instruction read in part:
“The attitude and conduct of jurors at the outset of their deliberations are matters of considerable importance. It is rarely helpful for a juror, upon entering the jury room, to malee an emphatic expression of their opinion on the case or to announce a determination to stand for a certain verdict. The result of conduct of this nature might, be that a juror because of personal pride would hesitate to recede from an announced position when shown that it is erroneous.
“It is natural that differences of opinion will arise. When they do, each juror should not only express their opinions but the reasons upon which they base them.
“Although a juror should not hesitate to change their vote when their reason and judgment are changed, each juror should vote according to their honest judgment, applying the law from tire instructions to the facts as proved. If every juror is fair and reasonable, a juiy can almost always agree.
“It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement if you can do so without compromise to your individual judgment.
“Your verdict must be founded entirely upon the evidence admitted and the law as given in these instructions.
“Your agreement upon a verdict must be unanimous.”
Neither party objected to the instruction.
After the jury retired for deliberations, it submitted the following question:
“If one juror expresses a viewpoint contrary to the rest but then states that [he or she does] not wish to hang the jury and will go along with the rest, is it appropriate for us to accept that as a yes’ to allow us to proceed?”
Jones’ attorney asked the district court to respond to the question by stating “no” and then referring the jury to Instruction No. 17. The district court declined Jones’ request to respond “no,” but it did agree to direct the jury to read Instruction No. 17.
Jones contends the district court erred by not stating “no, period” prior to its directive to the jury to read Instruction No. 17. Jones claims prejudice because the jury rendered a unanimous verdict.
As a general rule, when a party fails to object to an instruction at trial, an appellate court reviews the instruction to determine if it was clearly erroneous. Bryant, 285 Kan. 970, Syl. ¶ 10. In the present case, however, Jones “does not claim that giving the instruction prior to deliberations was error.”
An appellate court reviews the district court’s decision to respond to a jury’s request for additional information during deliberations for abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the district court’s action, it cannot be said that the district court abused its discretion. State v. Reed, 282 Kan. 272, 280, 144 P.3d 677 (2006).
K.S.A. 22-3420(3) governs a jury’s request for additional information during deliberations. The statute provides:
“After the jury has retired for deliberations, if they desire to be informed as to any part of the íaw or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.”
Additional instruction will be upheld if it “is not coercive or objectionable.” State v. Murdock, 286 Kan. 661, 680, 187 P.3d 1267 (2008). The key factor is whether the district court’s response “ was a correct statement of the law as applied to the facts brought out in the evidence.’ [Citation omitted].” 286 Kan. at 683.
The use of PIK Civ. 3d 101.09 has been approved for use in criminal jury trials. See State v. Cummings, 242 Kan. 84, 90, 744 P.2d 858 (1987); State v. Hall, 220 Kan. 712, 718, 556 P.2d 413 (1976). The issue then becomes whether the district court’s failure to state “no, period” prior to directing the jury to read Instruction No. 17 was coercive or objectionable.
It is well settled that when a jury raises a question during a trial that has been adequately covered by the original instructions, the district court may answer the question by directing the jury to read the instructions already given. State v. Thomas, 6 Kan. App. 2d 925, 932, 636 P.2d 807 (1981). In the present case, the district court did not alter the original instruction, which specifically advised that “each juror should vote according to their honest judgment.” The instruction also properly directed the jury to “consult with one another and to deliberate with a view to reaching an agreement if you can do so without compromise to your individual judgment.” The district court’s refusal to preface its directive to read Instruction No. 17 with “no, period” was not “arbitrary, fanciful, or unreasonable.” See Reed, 282 Kan. at 280. To the contrary, the response by the district court was a proper statement of law and responsive to the jury’s question. Accordingly, the district court did not abuse its discretion.
Sentencing
Finally, Jones contends the district court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution when it imposed Jones’ sentences based in part on his criminal history without proving the prior convictions to a jury beyond a reasonable doubt. Jones bases this claim of error on the landmark Supreme Court decision, Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
Jones concedes that our Kansas Supreme Court has previously rejected his contention in State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002) (including prior criminal convictions in criminal history score is constitutional); see State v. Storey, 286 Kan. 7, 16, 179 P.3d 1137 (2008) (reaffirming Ivory); State v. Gonzalez, 282 Kan. 73, 116-18, 145 P.3d 18 (2006) (affirming Ivory after United States Supreme Court’s post-Apprendi decisions). Jones has provided no persuasive reason for this court to retreat from controlling precedent. We find no error in Jones’ sentences imposed by the district court.
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Larson, J.:
In this appeal, Gregory A. Renfro, Sr., challenges his conviction of aggravated interference with parental custody contending there was insufficient evidence to prove the charge and that the conviction violates his fundamental right to be a parent.
With the sufficiency of the evidence in issue, we will set forth the facts in considerable detail which resulted in Renfro’s conviction after a jury trial.
Latoya Berry and Renfro are the biological parents of G.R., born April 18, 2003. Berry and Renfro ended their relationship in April 2005 when their child was 2 years old. They were not dating on April 3, 2006. They had never married. There was no written visitation schedule.
Renfro had not had planned visits with the child since the child was 6 months old. Berry testified Renfro called and asked to see the child every 3 months and visited the child at Berry’s mother’s house. Renfro had “off and on” contact, about twice per month, with the child from the time the parents broke up until April 3, 2006. Berry testified Renfro’s sporadic conduct was not due to her denying Renfro visitation.
On April 1, 2006, between 3:30 and 4 a.m., Renfro went to Berry’s apartment saying he wanted to see the child. Berry told Renfro it was not a good time. After Berry closed and locked the door, Renfro climbed up to Berry’s third-floor balcony and knocked on the window. She testified she was not comfortable with Renfro’s presence that night because she had not seen or heard from him for a month and was unsure why Renfro was there at that time in the morning.
Two days later on April 3, 2006, Renfro showed up at Berry’s doorway around 9 p.m. Renfro said he wanted to see the child. Berry said it was not a good time as she had not talked with Renfro earlier that day. Berry attempted to close the door, but Renfro pushed it open causing Berry to fall. Berry testified Renfro took her cell phone and tiren proceeded to play with the child. Berry said she did not call the police when Renfro arrived, nor did she tell him he could not come in or ask him to leave.
Berry testified Renfro told her he wanted to talk in the hallway and Renfro moved toward the door with the child. Berry stated Renfro then ran down the stairs with the child and she ran after him. Berry stated she told Renfro not to take the child and asked Renfro if he came to her apartment to take the child. Berry testified Renfro denied coming to take the child but did not say anything else as he put the child in the front seat of the car without a car seat. Berry stated Renfro got in the car, locked the doors, and left. Berry called the police, but they told her there was nothing they could do because Renfro was the child’s father. Berry testified she had safely concerns about Renfro seeing the child because Renfro did not have a permanent residence and stayed at different places. Berry testified she called Renfro numerous times after he took the child and asked when he planned to return the child and where the child was; Renfro would not answer either question.
On April 4, Berry filed for a protection from stalking order because she was worried about her safety and that of the child. Berry stated she unsuccessfully looked for the child that day. She also spoke with Renfro, but he would not tell her tire child’s location. On April 5, Berry searched for the child and talked to Renfro on the phone; he continued to refuse to disclose the child’s location. Berry testified she called Renfro’s relatives who told her they did not know anything, or if Renfro was at their house, he would hang up on Berry.
Berry filed a formal police report with the Shawnee, Kansas, Police Department on April 6. She talked to the child on the phone that day for the first time since Renfro took him. Berry and Renfro spoke on the phone on April 7, but Renfro refused to give Berry the child’s location. That day, Berry and her father went to Move Up which printed flyers. They also advertised the missing child on the radio.
A meeting was held between Berry, her parents, and Renfro at tire Jackson County Library on April 8. Berry testified Renfro would not tell her where the child was. The meeting ended when Berry’s mother began crying; Renfro became upset and said, “I don’t need this,” and walked out.
Renfro called Berry to arrange another meeting on April 9. Berry testified Renfro told her she could see the child if she came alone. They were supposed to meet at a house in Missouri, but Renfro later called saying the meeting was cancelled because his friend decided they could not meet at his house. Berry did speak to the child on this day.
On April 10, Berry went to the Shawnee Police Department again and spoke with Shawnee Sergeant Carrie Hall who told Berry she could not find the child and was having trouble with the Kansas City, Missouri, police because the child was not in the national database as a missing child. After speaking with Berry, Sergeant Hall reclassified the case as an aggravated interference with parental custody and entered the child in the national database.
Sergeant Hall received a call from Renfro who said he had the child but refused to disclose the location. Sergeant Hall testified that Berry had Renfro’s girlfriend’s address in Kansas City, Missouri, where police attempted to make contact but no one answered the door.
Berry testified she talked to Renfro on April 11 and asked where the child was but Renfro continued to refuse to disclose the location. The next day, Berry was interviewed by a local TV news channel about the child. After the newscast aired that day, an anony mous tip about Renfro’s location was received by the police. Police then knocked on the door of a house in Kansas City, Missouri, and Renfro answered the door. The child was there and was returned to Berry.
During the trial, Berry admitted Renfro told her he wanted to spend time with the child and would return the child at some time. She admitted to talking to Renfro but denied that he told her where he and the child were and where they were staying.
Renfro’s aunt testified the child and Renfro were at her house at times between April 3 and 12. The aunt said Berry knew where the child was and did not mind Renfro having the child. Berry testified she looked for her child at the aunt’s house because he had been found there previously, but he was not there when she checked.
Renfro testified he came to Berry’s apartment on April 3 after calling and obtaining permission to come. He denied pushing in the door or pushing Berry to the floor. He admitted taking the child but claimed Berry did not chase him or tell him to stop. He admitted he lied when he told Berry he would not keep the child for very long. Renfro testified he and the child stayed at a different residence each night. He claimed that Berry did not tell him that the police were involved and if he had known, he said he would have returned the child. He said he learned of police involvement on April 10 when he spoke with Sergeant Hall and refused to disclose the child’s location.
Renfro admitted he took the child and that he did not give Berry a date that he would return the child. He said he called Berry daily to let her know the child was fine. He testified he wanted to arrange a visitation schedule and did not return the child to Berry because he knew she would not let him see the child on Easter or his birthday. He claimed he did not intend to conceal the child between April 3 and April 12.
Based on the above evidence, Renfro was convicted of aggravated interference with child custody in violation of K.S.A. 21-3422a. After several of Renfro’s motions were overruled, he was sentenced to 24 months’ probation with an underlying prison sentence of 23 months and the condition that he not have contact with Berry or the child while at Labette Correctional Conservation Camp (Labette).
Renfro timely appealed.
Renfro’s probation was subsequently revoked after he was removed from Labette for disciplinary reasons. He was ordered to serve his original sentence.
Renfro first argues his fundamental right to be a parent is violated by his conviction of aggravated interference with parental custody. He admits he did not assert that his conviction was unconstitutional at his trial but now argues his situation falls under the exceptions the Kansas Supreme Court has recognized for addressing a constitutional claim for the first time on appeal as set forth in State v. Gonzalez, 282 Kan. 73, 114, 145 P.3d 18 (2006):
“ ‘(1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reason.’ [Citations omitted.]”
The State correctly points us to the longstanding rule that when constitutional grounds are asserted for the first time on appeal, the issue is not properly before the court on review. State v. Powell, 274 Kan. 618, 625, 56 P.3d 189 (2002). However, the right to be a parent is a fundamental right recognized as a liberty interest to be protected by the Due Process Clause. See, e.g., Troxel v. Granville, 530 U.S. 57, 65-66, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000); In re Adoption of Baby Boy L., 231 Kan. 199, 221, 643 P.2d 168 (1982). The issue Renfro raises is purely a question of law and is necessary to be considered to prevent the denial of a fundamental right, making it one that justifies our reaching and deciding Renfro’s constitutional arguments in this case. The issue raised has not previously been considered by a Kansas appellate court.
Whether a statute is constitutional is a question of law over which appellate courts have unlimited review. Tolen v. State, 285 Kan. 672, 673, 176 P.3d 170 (2008). We are further guided by the following rules in considering the constitutionality of a statute:
“ ‘The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the constitution. In determining constitutionality,
it is the court’s duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear- beyond reasonable doubt.’ [Citation omitted.]” State v. Whitesell, 270 Kan. 259, 268, 13 P.3d 887 (2000).
The applicable statutes under which Renfro was convicted are K.S.A. 21-3422 and K.S.A. 21-3422a, which read as follows:
“(a) Interference with parental custody is leading, taking, carrying away, decoying or enticing away any child under the age of 16 years with the intent to detain or conceal such child from its parent, guardian, or other person having the lawful charge of such child.
“(b) It is not a defense to a prosecution under this section that the defendant is a parent entitled to joint custody of the child either on the basis of a court order or by virtue of the absence of a court order.
“(c)(1) Interference with parental custody is a class A person misdemeanor if tire perpetrator is a pax'ent entitled to joint custody of the child either on the basis of a court order or by virtue of the absence of a court order.
“(2) Interference with parental custody is a severity level 10, person felony in all other cases.” K.S.A. 22-3422.
“(a) Aggravated interference with parental custody is:
“(1) Hiring someone to commit the crime of interference with parental custody, as defined by K.S.A. 21-3422 and amendments thereto; or
“(2) the commission of interference with parental custody, as defined by K.S.A. 21-3422 and amendments thereto, by a person who:
“(A) Has previously been convicted of the crime;
“(B) commits the crime for hire;
“(C) takes the child outside the state without the consent of either the person having custody or the court;
“(D) after lawfully taking the child outside the state’while exercising visitation rights or parenting time, refuses to return the child at the expiration of that time;
“(E) at the expiration of the exercise of any visitation rights or parenting time outside the state, refuses to return or impedes the return of the child; or
“(F) detains or conceals the child in an unknown place, whedrer inside or outside the state.
“(b) Aggravated interference with parental custody is a severity level 7, person felony.
“(c) This section shall be a part of and supplemental to the Kansas criminal code.”
As stated in In re Marriage of Harris, 20 Kan. App. 2d 50, 56-57, 883 P.2d 785, rev. denied 256 Kan. 995 (1994):
“Kan. Const. art. 15, § 6 provides: ‘The legislature shall provide for the protection of the rights of women, in acquiring and possessing property, real, personal and mixed, separate and apart from the husband; and shall also provide for then-equal rights in the possession of their children.’ Under this constitutional provision, ‘in the absence of a court order both parents have an equal right to the custody of their minor children.’ State v, Al-Turck, 220 Kan. 557, 558, 552 P.2d 1375 (1976).”
Under the facts of our case, the record shows that no court order existed concerning visitation rights or custody of the child of Renfro and Berry.
Renfro’s principal argument on appeal is based on State v. Al-Turck, 220 Kan. 557, 552 P.2d 1375 (1976). In Al-Turck, the defendant and his wife were involved in divorce proceedings. Prior to a custody hearing, the defendant picked up their child with the pretense of taking the child on a picnic but instead flew with the child to Iraq. The defendant was convicted of interference with parental custody. The Kansas Supreme Court held that because there was no court order of custody when the defendant took the child, the defendant’s exercise of his right to equal custody could not subject the defendant to criminal charges. The conviction was reversed, and the defendant was discharged. 220 Kan. at 559.
Renfro argues that if no crime was committed in Al-Turck, then no crime was committed in the instant case because there is no court order concerning the child’s custody.
This argument is flawed as it ignores the 1986 amendment to K.S.A. 21-3422 which added subsection (b): “It is not a defense to a prosecution under this section that the defendant is a parent entitled to joint custody of the child either on the basis of a court order or by virtue of the absence of a court order.” L. 1986, ch. 119, sec. 1.
Renfro argues this amendment may have been intended to legislatively overrule the Al-Turck result but asserts the legislature cannot overrule a constitutional ruling with a statutory amendment. As authority for this contention, Renfro points us to Moore v. Shanahan, 207 Kan. 645, 651, 486 P.2d 506 (1971), which we do not read to support his contention and restates the rule that
"the constitutionality of a statute or concurrent resolution is presumed, and that all doubts must be resolved in favor of their validity, and before they may be stricken down, it must appear the infringement of the Constitution is clear beyond substantial doubt. It is the court’s duty to uphold the concurrent resolutions, rather than defeat them, and if there is any reasonable way to construe them as constitutionally valid, that should be done.” 207 Kan. at 651.
While the result in an individual case becomes final after all appellate rights are exhausted, it is not improper for the Kansas Legislature to alter or amend statutory provisions which have the effect of requiring a different result to a similar factual scenario which occurs in the future. See State v. McKessor, 246 Kan. 1, 10, 785 P.2d 1332 (1990) (“The legislature, of course, could overrule our interpretation in [State v. Buggs, 219 Kan. 203, 216, 547 P.2d 720 (1976)], at any time by amending K.S.A. 21-3420[b].”); State v. Henning, 38 Kan. App. 2d 706, Syl. ¶ 1, 171 P.3d 660 (2007) (“[T]he Kansas Legislature, by enacting the 2006 amendment in K.S.A. 2006 Supp. 22-2501[c] intended to change the rule established by State v. Anderson, 259 Kan. 16, 22, 910 P.2d 180 [1996], and allow searches incident to arrest to extend to any crime as constitutionally allowed by New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860, reh. denied 453 U.S. 950 [1981].”).
In Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 88-89, 106 P.3d 492 (2005), the court stated: “ ‘ “When the legislature revises a law, it is presumed that the legislature intended to change the law as it existed prior to the amendment.” ’ [Citations omitted.].” Also, In re M.R., 272 Kan. 1335, 1342, 38 P.3d 694 (2002), states: “As a general rule, statutes are construed to avoid unreasonable results. There is a presumption that the legislature does not intend to enact useless or meaningless legislation.”
We have shown that tire legislature has the authority and the right to amend K.S.A. 21-3422. The only question then is, having done so, does the language added in subsection (b) make the provision unconstitutional? We hold that it does not. If anything, the amendment protects the fundamental rights of a parent by preventing one parent from depriving the other parent of the right to be a parent in the absence of a court order or other custody agreement.
In our case, Renfro took the child and deliberately concealed the child’s whereabouts from April 3 until April 12, 2006. As there was no court order or written custody agreement, both Renfro and Berry were joint custodians and had equal custody. However, the custodial interference statute states interference with parental custody occurs when a child is taken from a parent “with the intent to detain or conceal such child from its parent.” K.S.A. 21-3422(a). In addition, it is not a defense to a prosecution that the defendant is a parent entitled to joint custody of the child by virtue of or in the absence of a court order. K.S.A. 21-3422(b).
Under the facts of our case, Renfro deprived Berry of her equal right to custody of the child when he took and concealed the whereabouts of their son. While the fundamental right to be a legal parent of a child is constitutionally recognized, that right can be abrogated if a compelling reason exists, In re Adoption of B.M.W., 268 Kan. 871, 881, 2 P.3d 159 (2000). The absence of a court order is not a compelling reason sufficient to allow a father to secrete his child from tire mother.
The language set forth in K.S.A. 21-3422(b) was lawfully enacted. Its easily understood provisions provide essential equal protection to parents in protecting their rights as to the care, custody, and control of their children. K.S.A. 21-3422 and 21-3422a are constitutional.
The result we reach is consistent with that reached in other jurisdictions that have considered this question. See Strother v. State, 891 P.2d 214, 223 (Alaska App. 1995) (The court held that tire statute embodied the rule that when parents are joint custodians, neither parent can take exclusive physical custody of the child in a manner defeating the rights of the other parent.); State v. Donahue, 140 Ariz. 55, 57, 680 P.2d 191 (Ct. App. 1984), rev. denied April 17, 1984 (The father, in the absence of a court order, had custody equal to that of the mother but did not have a right to custody of the children to the exclusion of the mother.); State v. Todd, 509 A.2d 1112, 1114-15 (Del. Super. 1986) (When parents are joint custodians, the parent who takes the child from the other parent infringes upon the other parentis rights.); People v. Harrison, 82 Ill. App. 3d 530, 531, 402 N.E.2d 822 (1980) (Child abduction statutes mean neither parent can remove the child without infringing on the other parent's powers, rights, or duties.); State v. West, 70 Or. App. 167, 171, 688 P.2d 406 (1984) (The focus of the custodial interference statute was to protect the rights and interests of the victims, i.e., the child and the lawful custodian; the focus was not on the legal status of the one who does the taking.); State v. Ohrt, 71 Wash. App. 721, 724, 862 P.2d 140 (1993), rev. denied 123 Wash. 2d 1029 (1994) (Each parent had an equal right to custody of the children and shared custody in the absence of a court order.).
For all of the reasons previously set forth, we hold Renfro’s conviction of aggravated interference with parental custody was constitutional.
Renfro also argues the evidence was insufficient to prove he intentionally deprived Berry of custody of the child or, alternatively, that it was not proven he detained or concealed the child at an unknown location, which requires him to be resentenced only for interference with parental custody.
“When the sufficiency of the evidence is reviewed in a criminal case, this court must consider all of the evidence, viewed in a light most favorable to the prosecution, and determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Parker, 282 Kan. 584, 597, 147 P.3d 115 (2006). However, a jury is not required to accept the defendant’s version of the facts. If the defendant is convicted, the jury is presumed to have believed the State’s evidence and to have drawn inferences in favor of the State. State v. Aikins, 261 Kan. 346, 392, 932 P.2d 408 (1997).
We have previously set forth the applicable statutes under which Renfro was charged, and they need not be repeated.
In this case, the jury was instructed that the State was required to prove (1) the child was under 16 years old, (2) he was in Berry’s custody, (3) Renfro took the child, (4) Renfro took the child with intent to deprive Berry of custody, and (5) Renfro detained or concealed the child in a place unknown to Berry, either inside or outside of Kansas. A review of the record shows the presence of substantial evidence under which the jury could have found Renfro guilty beyond a reasonable doubt.
Although Renfro did talk to Berry almost every day, he consistently refused to disclose where he and the child were located. We need not repeat all the facts which we first set forth, but they plainly showed the child was detained in another state and that Renfro took the child without Berry’s consent with the intent to deprive her of custody.
There were different facts which were favorable to Renfro, but the jury is the ultimate factfinder and is not bound to accept a defendant’s version of the facts in question. Aikins, 261 Kan. at 392.
In denying the motion for a new trial, the judge who heard the prehminary hearing and the trial pointed out that Renfro not only refused to tell Berry where the child was, he also would not tell the police officer. We hold there was substantial competent evidence to uphold the jury’s verdict.
Renfro raised an issue on appeal concerning the no contact order by the trial judge, which the parties agree is moot based on the revocation of probation.
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Marquardt, J.:
Christopher Thurber appeals a grant of summary judgment confirming an arbitration award. We affirm.
Magicure Automotive Restoration, Inc., a Pennsylvania corporation (Magicure); Robert Nowicki, owner and president of Magicure; Dan McLaughhn, Inc., a New Jersey corporation (Dan McLaughhn, Inc.); and Dan McLaughhn, owner and president of Dan McLaughhn, Inc. (collectively Plaintiffs), entered into a state distributorship agreement in January 2004 and May 2004 with Project Paint Research Labs, Inc. (Project Paint), a Kansas corporation.
The parties agreed that all disputes over their contract would be settled by arbitration with the American Arbitration Association (AAA) located in Philadelphia.
Robert M. Fellheimer, the attorney representing the Plaintiffs, sent demands for arbitration (demands) to Project Paint on March 20 and 21,2006. The demands stated that die nature of the dispute was: “Respondents [Defendants] sold a product that was suppose^] to repair scratches and defects to cars in a professional manner in approximately 40 minutes. The product failed in all aspects and the claimants [Plaintiffs] are entitled to recover damages.” Thurber and Dale Lomax were listed as respondents because they were Project Paint’s officers and personally represented the “efficacy” of the product.
Plaintiffs hsted as damages the purchase price of the distributorship; costs of supplies and materials; loss of time and materials in attempting to make tire product work; loss of profits; loss of the bargain; loss of good will; punitive damages; and attorney fees.
Notice of the arbitration proceeding was sent to all parties on October 16, 2006, informing them that the arbitration was scheduled for January 17-19, 2007. On January 11, 2007, Thurber advised the arbitrator, Bernard Beitch, that he would not participate or attend the arbitration hearing. Thurber also told the AAA case manager that he would not appear at or participate in the arbitra tion proceeding. The arbitration proceeding was held in Philadelphia without Thurber.
During the arbitration, Plaintiffs provided Beitch with promotional videotapes, automobile parts which had been treated with the product, the agreements, and the testimony of several witnesses. Plaintiffs withdrew their claims against Lomax.
Beitch noted that Thurber “emphatically and repeatedly” represented that his product would improve an automobile’s overall appearance, was permanent, took only 30 to 45 minutes to apply, and had been approved by the Occupational Safety and Health Administration as well as the Department of Environmental Protection. Beitch found these representations were false, Thurber knew they were false, and that Plaintiffs relied on Thurber’s false representations. Plaintiffs invested substantial time and expense “to malee the products/processes work as represented. These efforts were to no avail and the treatments remained imperfect, non-color matched and disintegrated over time.” Plaintiffs could not sell or license the product to anyone.
Beitch described Thurber’s and Project Paint’s conduct as “outrageous and fraudulent.” Plaintiffs were awarded $44,873 for reasonable costs and attorney fees. Nowicki and Magicure were awarded $78,598 in out-of-pocket expenditures, $30,000 for their time, and $750,000 for 5 years of anticipated profits. McLaughlin was awarded the same amounts except for out-of-pocket expenditures, of which he was awarded $79,598. Because Plaintiffs’ claims were limited by their contract to $250,000, Beitch reduced each Plaintiff s award to $250,000.
Beitch noted that Thurber, as the sole shareholder and director of Project Paint, did not observe corporate formalities; operated Project Paint as his alter ego; paid household bills, personal bills, and payments to his girlfriend from Project Paint’s business checking account; and did not receive a regular salary.
The AAA attempted to fax a copy the arbitrator’s award to Thurber on February 7, 2007. When this failed, the AAA case manager sent Thurber a copy of the award through the United States Mail on February 20, 2007. The postal service returned the copy of the award to AAA, indicating on the envelope that Project Paint’s post office box had been closed and it could not forward the envelope. Thurber called Fellheimer and asked that he fax a copy of the award to him. Fellheimer faxed a copy of the award to Thurber on February 20, 2007.
Plaintiffs filed a motion to confirm the arbitration award in Kansas on June 6, 2007. In his answer to the motion, Thurber quoted K.S.A. 5-412 in its entirety and denied that Project Paint was a Kansas corporation that sold automotive paint products; that he personally was a party to the contract; and that he received, either by fax or delivery, the arbitration award on February 7, 2007.
On July 25, 2007, the district court confirmed the arbitration award. On August 20, 2007, after confirmation of the award, the district court, with agreement of the parties, determined that the sole issue before it was whether Thurber made a timely application to vacate the arbitration award pursuant to K.S.A. 5-412 and directed the parties to file motions for summary judgment on that issue.
In Plaintiffs’ motion for summary judgment, they alleged that Thurber was time-barred from setting aside the award pursuant to K.S.A. 5-412 and that summary judgment was appropriate because Thurber asserted no other valid defense. Some of Plaintiffs’ “Uncontroverted Facts” are:
“8. On February 20, 2007 Christopher Thurber called Robert Fellheimer, counsel for claimants in the arbitration, and asked Mr. Fellheimer to fax a copy of the award.
“9. Mr. Fellheimer, delivered by facsimile a copy of the arbitration award to Mr. Thurber.
“10. The fax was sent to the fax number given by Mr. Thurber and the facsimile machine printed a report showing that the transmission was successful.”
In Thurber’s answer to Plaintiffs’ motion for summary judgment, he copied Plaintiffs’ numbered paragraphs and either accepted, denied, or objected as “heresay” [sic] but made no references to the record to controvert Plaintiffs’ factual statements.
The district court granted Plaintiffs’ motion for summary judgment, stating:
“[T]he arbitrator’s award was sent, by facsimile, to Christopher Thurber and Project Paint Research Labs, Inc. The only issue in this case is whether or not Mr. Thurber is time barred from raising a defense under K.S.A. 5-415.
“Mr. Thurber makes many objections to the due process of the arbitration procedure. It is clear, however, that he was aware of the hearing and advised that he would not be present. . . .
“Mr. Robert Fellheimer . . . faxed a copy of the Arbitrator’s award at Mr. Thurber’s request. It was successfully faxed .... Mr. Thurber now claims that notice was given fraudulently in this process, which is certainly a defense to the 90-day appeal period found in K.S.A. 5-412. The Court, however, disagrees with Mr. Thurber’s contention that any action that was fraudulent, corrupt, or undue is not founded on any facts that the Court is satisfied with. Thus, Mr. Thurber’s request to dismiss this case is denied and plaintiffs’ Motion for Summaiy Judgment is granted.”
Thurber appeals.
I. Service of the Arbitration Award
A. Standard of Review
The standard of appellate review of an arbitration award is:
“Generally, where the parties have agreed to be bound to a submission to arbitration, errors of law and fact, or an erroneous decision of matters submitted to the judgment of the arbitrators, are insufficient to invalidate an award fairly made. Nothing in the award relating to the merits of the controversy, even though incorrecdy decided, is grounds for setting aside the award in the absence of fraud, misconduct, or other valid objections. Further, where an arbitration award made under the Kansas Uniform Arbitration Act is attacked by one of the parties, it is not the function of the court to hear the case de novo and consider the evidence presented to the arbitrators. [Citations omitted.] Ordinarily, an arbitrator’s award will not be subject to judicial revision unless such award is tainted or based on an irrational interpretation of the contract. [Citations omitted.]” Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan. 683, 689, 751 P.2d 122 (1988).
On appeal from the district court’s confirmation of an arbitration award, this court will not overturn the district court’s findings of fact if they are supported by substantial evidence. Griffith v. McGovern, 36 Kan. App. 2d 494, 496-97, 141 P.3d 516 (2006).
B. Service of the Arbitration Award
Thurber argues that he was never given proper service of the arbitration award, and, therefore, he is not time-barred from asserting that the award should be set'aside pursuant to K.S.A. 5-412. Thurber cites K.S.A. 5-408(a), which states: “The award shall be in writing and signed by the arbitrators joining in the award. The arbitrators shall deliver a copy to each parly personally or by registered mail, or as provided in the agreement.” Thurber claims that Fellheimer s attempt to deliver the arbitration award by fax “is irrelevant to the Kansas statute.”
Plaintiffs interpret Thurber s argument to suggest that Beitch was required by statute to successfully deliver a copy of the award to Thurber and because there was no evidence that Beitch successfully delivered the award, the 90-day time limit imposed by K.S.A. 5-412(b) has not begun to run.
The parties did not consider the entire statute, which states: “The award shall be in writing and signed by the arbitrators joining in the award. The arbitrators shall deliver a copy to each party personally or by registered mail, or as provided in the agreement.” (Emphasis added.) K.S.A. 5-408(a). Thus, delivery of the award— either in person or by registered mail — is required by the statute unless the parties agree otherwise.
It is uncontested that Section 6.11 of the distributorship agreement stated that any and all claims would be resolved by arbitration in accordance with the rules of the AAA. AAA Rule R-l(a) states: “The parties shall be deemed to have made these rules a part of their arbitration agreement whenever they have provided for arbitration by the American Arbitration Association . . . .” AAA Rule R-45, “Delivery of Award to Parties,” states:
“Parties shall accept as notice and deliveiy of the award the placing of the award or a true copy thereof in die mail addressed to die parties or their representatives at the last known addresses, personal or electronic service of the award, or the filing of die award in any other manner that is permitted by law.”
Fellheimer testified that he faxed Thurber a copy of the arbitration award on February 20, 2007. Fellheimer also testified that it was the AAA’s practice to fax a copy of the award to all parties. The AAA twice attempted to fax the award to Thurber at the fax number he provided. After both attempts failed, the AAA mailed the award to the address provided by Thurber.
The district court found that the February 7, 2007, arbitration award was sent by fax to Thurber and Project Paint. The district court also found that Fellheimer successfully faxed a copy to Thurber at Thurber’s request.
The district court’s findings are supported by substantial evidence. The district court did not err in finding Thurber received proper notice and delivery of the arbitration award.
II. Application ofK.S.A. 5-412
A court’s review of an arbitration award is limited to the statutory grounds hsted in K.S.A. 5-412(a). A court must presume an award is valid unless one of the specific grounds is proven. Alexander v. Everhart, 27 Kan. App. 2d 897, 900-01, 7 P.3d 1282, rev. denied 270 Kan. 897 (2000). Interpretation and application of a statute is a question of law subject to an appellate court’s unlimited review. See Nguyen v. IBP, Inc., 266 Kan. 580, 583, 972 P.2d 747 (1999).
Thurber alleges that he, personally, was never a party to the underlying contract, the arbitration agreement, or the arbitration proceeding. Thurber also argues that Plaintiffs produced no evidence of the existence of an arbitration contract involving Thurber. Thurber claims that Plaintiffs did not present him with a demand with his name on it and that he was never Hsted as a party prior to the arbitration proceeding. Thus, Thurber argues because he was never listed as a party, the district court should have allowed him to present evidence regarding arbitrability. Thurber ignores Beitch’s decision that he operated Project Paint as his alter ego.
Thurber does not raise any specific grounds under K.S.A. 5-412(a), he merely quotes the statute. It is Thurber’s burden to prove the arbitration award should be vacated under K.S.A. 5-412(a). See Griffith, 36 Kan. App. 2d at 500.
There is nothing in the record on appeal showing that Thurber sent an objection to Beitch claiming he was not a party to the contract. It is Thurber’s duty as appellant to designate a record sufficient to .establish the claimed error. Without an adequate record, the claim of alleged error fails. See State ex rel. Stovall v. Alivio, 275 Kan. 169, 172, 61 P.3d 687 (2003). Even if Thurber’s claim was not time-barred, he provides this court with no evidence suggesting any. grounds for vacating the award under the statute.
.The district court’s findings were supported by substantial evidence. The district court determined that there was no fraud, cor ruption, or other undue means. Therefore, the district court properly applied the statute. Thurber’s claim fails.
Additionally, Thurber seems to attack the validity of the arbitration agreement, arguing that he was not a party to the contract or arbitration agreement. An arbitrator’s power to arbitrate a dispute originates from the parties’ agreement to arbitrate. The arbitrator has no jurisdiction without the parties’ consent. Anderson v. Dillard’s, Inc., 283 Kan. 432, 436, 153 P.3d 550 (2007).
Without an adequate record, however, it is impossible for this court to determine whether an agreement existed between Plaintiffs and Project Paint only or Plaintiffs and Thurber. Thurber has not provided this court with copies of the agreements. Thurber’s argument before the district court and his appellate brief contain no evidence to support his position. See Rural Water Dist. No. 6 v. Ziegler Corp., 9 Kan. App. 2d 305, 310, 677 P.2d 573, rev. denied 235 Kan. 1042 (1984).
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Leben, J.:
Kansas sentencing statutes provide for doubling the recommended sentence for a persistent sex offender who commits a new sex offense. Whether someone is classified as a persistent sex offender depends upon whether he or she has a prior conviction for a sexually violent crime. But the term usually used for proceedings in juvenile court is an adjudication, not a conviction. We must determine in this case whether a past juvenile adjudication may be used as the basis for classifying a defendant as a persistent sex offender.
James Boyer was sentenced to 110 months in prison on his primary offense, which was double the sentence he would have received had he not been classified as a persistent sex offender. That classification was based on a juvenile adjudication, not an adult conviction. If that juvenile adjudication were not considered, Boyer would not have been classified as a persistent sex offender, and his maximum sentence would have been 55 months on the primary offense.
In several other cases, the Kansas appellate courts have noted that the legislature has explicitly included juvenile adjudications in some criminal sentencing statutes. In these cases, we have generally concluded that references only to convictions do not include juvenile adjudications. After reviewing the statutes applicable to Boyer’s case, we find that the same principles apply here.
The statutory provisions at issue are K.S.A. 21-4704(j) and K.S.A. 21-4710. K.S.A. 21-4704(j) is the statute that doubles a sentence for persistent sex offenders. K.S.A. 21-4710 determines what crimes are scored in determining a defendant’s criminal-history score. Kansas uses a sentencing grid box in which the seriousness of the crime (called the severity level of offense) and the seriousness of the defendant’s criminal past (called the criminal-history score) determine the sentences available for most felony crimes in Kansas. The sentences provided in the sentencing grid box are doubled for persistent sex offenders under K.S.A. 21-4704(j).
On appeal, Boyer argues that his juvenile adjudication shouldn’t have triggered the sentencing rules for persistent sex offenders. As a statute’s context can be important when determining its meaning, we have included complete subsections of the pertinent statutes here. The statutes are as they stood in September 2006 when Boyer committed the offenses. K.S.A. 21-4704(j) sets out the sentencing rules for persistent sex offenders. It has no references to juvenile adjudications but has several references to convictions (including reference to “convicted crimes” or having “been convicted”). Subsection (j)(1) provides for the sentence doubling. Subsection (j)(2) determines which convictions qualify to classify someone as a persistent sex offender while subsection (j)(3) provides exceptions. Each subsection refers to convictions but not to adjudications:
“(j) (1) The sentence for any persistent sex offender whose current convicted crime carries a presumptive term of imprisonment shall be double the maximum duration of the presumptive imprisonment term. The sentence for any persistent sex offender whose current conviction carries a presumptive nonprison term shall be presumed imprisonment and shall be double the maximum duration of the presumptive imprisonment term.
“(2) Except as otherwise provided in this subsection, as used in this subsection, persistent sex offender’ means a person who: (A) (i) Has been convicted in this state of a sexually violent crime, as defined in K.S.A. 22-3717 and amendments thereto; and (ii) at the time of the conviction under paragraph (A) (i) has at least one conviction for a sexually violent crime, as defined in K.S.A. 22-3717 and amendments thereto in this state or comparable felony under the laws of another state, the federal government or a foreign government; or (B) (i) has been convicted of rape, K.S.A. 21-3502, and amendments thereto; and (ii) at the time of the conviction under paragraph (B) (i) has at least one conviction for rape in this state or comparable felony under die laws of another state, the federal government or a foreign government.
“(3) Except as provided in paragraph (2)(B), the provisions of tiiis subsection shall not apply to any person whose current convicted crime is a severity level 1 or 2 felony.” K.S.A. 21-4704.
K.S.A. 21-4710(a) determines which convictions are included for determining a defendant’s criminal-history score, and that score determines the range of potential sentences for a specific offense. Obviously, whether some past offense counts for this purpose is important. The statute has specific references to both convictions and to juvenile adjudications, including a specific reference to which juvenile adjudications will be counted:
“(a) Criminal history categories contained in the sentencing guidelines grid for nondrug crimes and die sentencing guidelines grid for drug crimes are based on the following types of prior convictions: Person felony adult convictions, nonperson felony adult convictions, person felony juvenile adjudications, nonperson felony juvenile adjudications, person misdemeanor adult convictions, nonperson class A misdemeanor adult convictions, person misdemeanor juvenile adjudications, nonperson class A misdemeanor juvenile adjudications, select class B nonperson misdemeanor adult convictions, select class B nonperson misdemeanor juvenile adjudications and convictions and adjudications for violations of municipal ordinances or county resolutions which are comparable to any crime classified under the state law of Kansas as a person misdemeanor, select nonperson class B misdemeanor or nonperson class A misdemeanor. A prior conviction is any conviction, other than another count in the current case which was brought in the same information or complaint or which was joined for trial with other counts in the current case pursuant to K.S.A. 22-3203 and amendments thereto, which occurred prior to sentencing in the current case regardless of whether the offense that led to the prior conviction occurred before or after the current offense or the conviction in the current case.”
Later subsections define terms like “select misdemeanor,” which is a weapons violation, K.S.A. 21-4710(b), or clarify whether convictions ever “decay” or cease to be counted. K.S.A. 21-4710(c), (d). No adult felony convictions ever go away for purposes of criminal-history scoring, K.S.A. 21-4710(d)(2), (3), but juvenile adjudications that are equivalent to adult felonies are scored forever only if they fit certain categories, like person felonies or particularly serious felonies. K.S.A. 21-4710(d)(4), (5), (6).
Any review of a statute must begin with the statute’s words. It seems significant that a persistent sex offender by definition must have “at least one conviction for a sexually violent crime.” K.S.A. 21-4704(j)(2)(A)(ii). The juvenile system uses the term adjudication, not conviction. One might argue that adjudications are equivalent to convictions and, thus, the legislature’s reference to convictions should be read broadly to include any equivalent determinations.
But that seems a weak inference when the legislature has so carefully distinguished between criminal convictions and juvenile adjudications in other statutes, such as K.S.A. 21-4710. The Kansas Supreme Court and our court have emphasized such differences in statutory language and concluded that a reference only to convictions did not implicitly include juvenile adjudications in several past decisions:
• In In re W.H., 274 Kan. 813, 823, 57 P.3d 1 (2002), the Kansas Supreme Court held that the Kansas Juvenile Justice Code did not authorize consecutive sentences even though sentencing guidelines for adult proceedings did. The court held that the lack of reference to consecutive sentences in juvenile proceedings, while the adult statute specifically provided for consecutive sentences, brought into play the rule of statutory interpretation that the expression of one thing excludes the other (or, in Latin, expressio unius est exclusio alterius). Thus, consecutive sentences weren’t available in juvenile proceedings because the legislature hadn’t provided for them.
• In re J.E.M., 20 Kan. App. 2d 596, 600-01, 890 P.2d 364 (1995), our court noted that the severity-level-enhancement provisions of the Kansas Sentencing Guidelines Act did not reference juvenile adjudications but the criminal-history provisions of the Act explicitly did so. From this, our court concluded that the legislature had not meant to include juvenile adjudications as a basis for increasing the severity level of the offense.
• In State v. Fischer, 22 Kan. App. 2d 568, Syl. ¶ 2, 919 P.2d 368 (1996), we held that the a statute providing for presumptive prison when an adult was convicted for a “new felony” while the offender is “on probation for a felony” referred only to prior probations for felony convictions and did not include probations for juvenile adjudications.
• Recently, in State v. Crawford, 39 Kan. App. 2d 897, 185 P.3d 315 (2008), and State v. Sims, 40 Kan. App. 2d 119, 190 P.3d 271 (2008), we have concluded that an adult sentence may not be made consecutive to the sentence from a juvenile adjudication. In each of these cases, we have emphasized that K.S.A. 21-4603d(f), which provides for consecutive sentences on adult convictions, makes no reference to juvenile adjudications. We have found that lack of reference significant in light of the specific references found to juvenile adjudications in other sentencing statutes, like K.S.A. 21-4710(a).
The issue before us in Boyer’s case is quite similar to the ones faced in these cases. In each of these cases, courts have noted the care with which the statutes for both juvenile and adult proceedings have been written. In each of these cases, courts have declined to infer statutoiy coverage of situations not explicitly covered.
In addition, general rules of statutory interpretation also support Boyer’s argument. First, the plain words of the statute reference juvenile adjudications in the general provision for calculating criminal-history scores but not in the specific provision determining who may be classified a persistent sex offender. Specific statutes generally control over more general ones. In re K.M.H., 285 Kan. 53, 82, 169 P.3d 1025 (2007). Second, as the Kansas Supreme Court recognized in In re W.H., the expression of one thing in a statute generally implies the exclusion of others. The juvenile-and adult-sentencing statutes are interrelated and have been carefully crafted. Juvenile adjudications are clearly referenced in several other adult sentencing statutes so we find the lack of explicit reference to them in the statute defining persistent sex offenders significant. It is unlikely that this omission was an accident. Third, under the rule of lenity, penal statutes are narrowly construed in favor of the defendant. State v. Zeit, 39 Kan. App. 2d 364, Syl. ¶ 3, 180 P.3d 1068 (2008); In re J.E.M., 20 Kan. App. 2d at 600. To the extent that K.S.A. 21-4704(j) is ambiguous about whether juvenile adjudications may be used to classify someone as a persistent sex offender, we construe the statute in the defendant’s favor since consecutive sentences can have serious impact. It is within the legislature’s authority to say that juvenile adjudications maybe used for this purpose. But such authority should be clearly granted, not implied from ambiguous language.
The cases the State argues are to the contrary do not call for a different result in Boyer’s case. State v. LaMunyon, 259 Kan. 54, 911 P.2d 151 (1996), involved only the calculation of the criminalhistoiy score under K.S.A. 21-4710(a), where the statute unambiguously references many juvenile adjudications. Thus, our Supreme Court ruled in LaMunyon that juvenile adjudications could be used to figure criminal-history scores under the sentencing guidelines. See 259 Kan. at 58-62. We also recognize that State v. Allen, 283 Kan. 372, 375-76, 153 P.3d 488 (2007), references the use of a juvenile adjudication to classify a defendant as a persistent sex offender and that the court did not say that this was improper. But the court decided Allen on an altogether different line of argument. The Allen court held that it would have violated the defendant’s jury-trial rights to conclude that his past juvenile adjudication referenced a “sexually motivated” offense. 283 Kan. at 377-79. There is no indication in Allen that the court considered — or the defendant presented — the issue raised here by Boyer.
We are aware that a panel of our court has held in an unpublished opinion that a juvenile adjudication could be used to classify a defendant as a persistent sex offender. State v. Swisher, No. 94,705, unpublished opinion filed April 6, 2007. That court first noted State v. Hitt, 273 Kan. 224, 236, 42 P.3d 732 (2002), cert. denied 537 U.S. 1104 (2003), for the proposition that “juvenile adjudications enjoy ample procedural safeguards” and, thus, juvenile “adjudications need not be proven to a juiy beyond reasonable doubt before they can be included in a defendant’s criminal history pursuant to K.S.A. 21-4710(a).” Slip op. at 6. The Swisher panel then concluded that “consistent with Hitt, there is no indication the legislature intended K.S.A. 2006 Supp. 21-4704(j)(2) to have a different application than K.S.A. 21-4710(a), which explicitly includes juvenile adjudications as a type of prior conviction for criminal history purposes.” Slip op. at 6-7.
We believe that Swishers assumption that the prior convictions defined in K.S.A. 21-4710(a) apply in all contexts is misplaced. K.S.A. 21-4710(a) has no explicit application to anything but figuring the criminal-history score, a separate endeavor from classifying a person as a persistent sex offender. In K.S.A. 21-4710(a), the legislature certainly has carefully defined which past convictions and adjudications count in calculating a criminal-histoiy score. But the past cases we have cited note how carefully the statutes for criminal sentencing have been constructed. For the reasons we have explained, we cannot add language to K.S.A. 21-4704(j) that is not present there — and the statute simply makes no reference at all to juvenile adjudications or, for that matter, to K.S.A. 21-4710(a).
Because the defendant was sentenced as a persistent sex offender, his sentences must be vacated and the case remanded for resentencing.
The defendant has separately argued that the mere use of any prior convictions to calculate his criminal-history score violated his jury-trial rights. That argument is without merit under decisions of the Kansas Supreme Court. State v. Storey, 286 Kan. 7, Syl. ¶ 4, 179 P.3d 1137 (2008); State v. Ivory, 273 Kan. 44, 47, 41 P.3d 781 (2002).
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McAnany, J.:
This appeal involves the decision of the Kansas Public Employees Retirement System (KPERS) to deny disability benefits to William A. Sheldon. The appeal is complicated by two factors. First, the case was resolved before the agency by summary judgment rather than the typical weighing of conflicting evidence, making factual findings, and arriving at legal conclusions that arise from the facts as established. Second, the agency never determined whether Sheldon was totally disabled as defined by the policy. Summary judgment was entered because Sheldon’s claim was too late.
In order to provide a complete factual overview, we will summarize the facts from the record. As will be seen, we will constrain our factual consideration considerably once we undertake the anal ysis needed to evaluate the court’s ruling on the summary judgment motion that led to this appeal.
KPERS was created by the Kansas Legislature to be “a body corporate and an instrumentality of the state of Kansas.” K.S.A. 74-4903. It provides retirement and other benefits, including disability benefits, to participating members. Sheldon was a member of KPERS. He was a school teacher who taught and coached athletics in schools in Langdon and Sharon Springs before coming to the Lewis Unified School District No. 502 (U.S.D. 502) in August 1988, where he taught and coached in the elementary school, junior high, and high school.
While at U.S.D. 502, Sheldon developed back problems and underwent surgeries in 1999 and 2000. The surgeries did not resolve his back pain, so he stopped coaching though he continued to teach. Virgil Ritchie, the school principal who later became school superintendent, encouraged Sheldon to apply for disability benefits on one or two occasions, but Sheldon thought his back would improve.
Before beginning the 2001-2002 school year, U.S.D. 502 notified Sheldon and others that their teaching contracts would not be renewed at the end of the school year due to a decline in student enrollment and resulting budget constraints. Sheldon’s back condition was not a factor in the decision to terminate his employment. Sheldon taught throughout the school year. His last day of teaching for the school district was May 24, 2002.
Over that summer and during the summer of 2003, Sheldon taught drivers’ education courses in Lamed. He also applied for various teaching positions in Kansas, Texas, New Mexico, Nebraska, Montana, and Colorado. Sheldon was unable to obtain another teaching position.
In November 2003, Sheldon called KPERS to inquire about disability benefits. Melva Janke, an administrative assistant handling disability claims, spoke with Sheldon and followed up with a letter in which she stated:
“To be eligible to receive a monthly disability benefit under the terms of the KPERS disability income benefit policy, a member must be totally disabled for over 180 continuous days. The 180 day waiting period commences the day after the member s last day physically on the job in a KPERS covered position. A Disability Income Benefit Certification is enclosed for further description of total disability.
“Your employer states you left work due to reduction of force, therefore, it appears you would not meet the definition of total disability at tire time you left.”
Janke called U.S.D. 502 to inquire why no disability claim had been filed on Sheldon’s behalf. She was advised that no claim was filed because the school district understood that Sheldon intended to continue working after he lost his position with U.S.D. 502.
Almost a year later, on October 6, 2004, Dr. Pedro A. Murati examined Sheldon and opined that Sheldon suffered a 20% whole person impairment based on his low back injury. On October 11, 2004, Sheldon made his first request to KPERS for disability benefits. On December 29, 2004, Security Benefit Life Insurance Company (Security Benefit), the KPERS plan administrator, denied Sheldon’s claim because he was not totally disabled within the meaning of the disability policy and because he failed to provide timely written notice of the claim.
On January 1, 2005, DCG Resource Options, LLC, (DCG) replaced Security Benefit as the plan administrator. Sheldon’s request for reconsideration was referred to DCG. DCG reconsidered the claim and, on March 30, 2005, again denied it based upon Sheldon not meeting the definition of total disability as of May 24, 2002, when he left the school district.
Sheldon sought an administrative appeal with KPERS. He supported his claim with medical opinions from Dr. Murati and from Dr. Kris Lewonowski, the surgeon who operated on Sheldon’s back. Dr. Lewonowski opined that Sheldon was disabled on and before May 24, 2002. To explain his late filing, Sheldon claimed he had been dissuaded from pursuing his claim by KPERS employees.
After the completion of discovery, KPERS moved for summary judgment, arguing that Sheldon’s claim was untimely. KPERS did not argue that Sheldon was not totally disabled on May 24, 2002. In his response Sheldon claimed that KPERS should be estopped from raising the lateness of his claim and, in any event, KPERS had not been prejudiced by the late assertion of his claim. The hearing officer sustained KPERS’ motion, finding that Sheldon’s claim was not timely. The hearing officer made no finding as to whether Sheldon was disabled as of May 24, 2002. After exhausting his administrative remedies, Sheldon filed an action for judicial review in the district court. The district court affirmed the denial of disability benefits, and this appeal followed.
Standards of Review
The district court’s review of actions of an administrative agency is governed by the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. Miller v. Board of Trustees of KPERS, 21 Kan. App. 2d 315, 317, 898 P.2d 1188 (1995). When we review the district court’s decision upholding KPERS’ decision to deny benefits to Sheldon, we must first determine whether the district court followed the requirements and restrictions placed on it and then conduct the same review of the agency’s action as required of the district court. See Jones v. Kansas State University, 279 Kan. 128, 139, 106 P.3d 10 (2005).
K.S.A. 77-621(c) lists the bases for granting Sheldon relief upon judicial review. These are the standards that apply in both the district court and in this court on appeal. They are:
“(1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied;
“(2) the agency has acted beyond the jurisdiction conferred by any provision of law;
“(3) the agency has not decided an issue requiring resolution;
“(4) the agency has erroneously interpreted or applied the law;
“(5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure;
“(6) the persons taking the agency action were improperly constituted as a decision-making body or subject to disqualification;
“(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
“(8) the agency action is otherwise unreasonable, arbitrary, or capricious.” K.S.A. 77-621(c).
Here, the administrative proceeding did not involve presenting evidence before the hearing officer and the hearing officer weigh ing the conflicting evidence in order to arrive at a decision. Rather, the hearing officer ruled on KPERS’ motion for summary judgment, a procedure specifically authorized by K.S.A. 77-519(a) of the Kansas Administrative Procedure Act. The KPERS Board of Trustees then reviewed the hearing officer’s order and voted to adopt it in full.
This raises the question: By what standard do the district court and this court evaluate the hearing officer’s order sustaining KP-ERS’ summary judgment motion and the KPERS Board of Trustees’ decision to adopt it in full? We do not find the parties’ appellate briefs to be helpful in this regard. Further, prior Kansas cases do not provide us with any guidance. The only case we find which deals with the review of an agency’s grant of summary judgment, Abbott v. Kansas Board of Examiners in Optometry, 268 Kan. 739, 1 P.3d 318 (2000), does not address the standard of review. However, the standards for summary judgment are well known and can be found in Korytkowski v. City of Ottawa, 283 Kan. 122, 128, 152 P.3d 53 (2007).
In his appellate brief, Sheldon states that we are bound on appeal by the substantial competent evidence standard found in K.S.A. 77-621(c)(7) and that we must view the evidence in the light most favoring the prevailing party. K.S.A. 77-621(c)(7) certainly cannot apply on judicial review of a summary judgment order, since the standard for summary judgment is not whether there is substantial evidence on the record as a whole to support the judgment, but rather whether there is no genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. Further, it seems contradictory to suggest that we must view the evidence in the light most favoring the prevailing party when, in summary judgment proceedings, the court must resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the nonmoving party. See State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107 P.3d 1219 (2005).
In its appellate brief, KPERS recites the familiar notion that upon judicial review of an agency’s action the court may not substitute its own judgment for that of the agency. See In re Certif. of Need App. by Community Psychiatric Centers, Inc., 234 Kan. 802, 806, 676 P.2d 107 (1984). However, this is in direct conflict with our time-honored practice of de novo review of orders granting summary judgment. See Roy v. Young, 278 Kan. 244, 247, 93 P.3d 712 (2004).
We conclude that when considering the propriety of an agency’s action in granting summary judgment, a reviewing court must look to K.S.A. 77-621(c)(4) (the agency erroneously interpreted or applied the law) and K.S.A. 77-621(c)(5) (the agency failed to follow prescribed procedure) in considering de novo whether, resolving all facts and reasonable inference from the facts in favor of the nonmoving party, there exists a genuine issue of material fact and whether the party who prevailed before the agency was entitled to judgment as a matter of law.
The Contract
The KPERS disability plan required Sheldon to give Security Benefit written notice of his claim within 180 days after “any event for which benefits are payable ... or as soon thereafter as it is reasonably possible.” Upon receipt of the notice of claim, Security Benefit was required to furnish Sheldon a proof of loss form which he was required to complete and submit to Security Benefit “within 90 days after tire date written notice of claim is required.” However, failure to timely submit a proof of loss does not
“invalidate or reduce any claim if it is shown that it was not reasonably possible to furnish such notice or proof within such time and that such notice or proof was furnished as soon as was reasonably possible, and in no event, except in the absence of legal capacity, later than one year from the time written proof of loss is otherwise required . . . .”
Interpretation of the contract is an issue of law over which appellate review is unlimited. Conner v. Occidental Fire & Cas. Co., 281 Kan. 875, 881, 135 P.3d 1230 (2006). KPERS was created by our legislature. See K.S.A. 74-4901 et seq. When the terms of a contract are governed by statute, courts interpret the contract to effectuate the intent of the legislature. See Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 88, 106 P.3d 492 (2005). Sheldon cites K.S.A. 2007 Supp. 74-4927(3)(A) as an expression of the legislature’s intent and argues that because the statute refers to the legislature’s intent to provide the broadest possible coverage, the KPERS disability policy must be construed liberally in favor of providing coverage for him.
Read in context, the relevant portion of the statute provides:
“To carry out the legislative intent to provide, within the funds made available therefor, the broadest possible coverage for members who are in active employment or involuntarily absent from such active employment, the plan of death and long-term disability benefits shall be subject to adjustment from time to time by the board within the limitations of this section. The plan may include terms and provision which are consistent with the terms and provisions of group life and long-term disability policies usually issued to drose employers who employ a large number of employees. The board shall have authority to establish and adjust from time to time the procedures for financing and administering the plan of death and long-term disability benefits authorized by this section.” K.S.A. 2007 Supp. 74-4927(3)(A).
The statute is not as sweeping as Sheldon suggests. Our Supreme Court has determined that when the statute is considered in its entirety, it simply authorizes the KPERS board to make adjustments in the plan from time to time in order to keep its policies consistent with current and comparable policies available in the insurance industry to large employers. See Rubin v. KPERS, 229 Kan. 575, 578, 629 P.2d 148 (1981). While it is true under the general rule that ambiguous terms in an insurance policy are liberally construed in favor of the insured, K.S.A. 2007 Supp. 74-4927(3) (A) does not preempt the overarching rule of contract construction that absent ambiguity courts do not construe contracts but merely enforce the contract terms in accordance with their plain and ordinary meanings. See O’Bryan v. Columbia Ins. Group, 274 Kan. 572, 575-76, 56 P.3d 789 (2002).
Our examination of these provisions of the plan discloses no ambiguity or lack of clarity. Absent extenuating circumstances described in the policy, a claim must be made within 180 days of disability, and proof of loss must be submitted within 90 days thereafter. The plan defines total disability as
“disability which commences while this Plan is in force as to the Member whose disability is the basis of claim and is caused by sickness or injury which prevents the Member from performing each and every duty of any and all occupations for which he is reasonably qualified by education, training or experience and in any case disability that requires the regular and continuous care of a physician unless care would serve no helpful purpose.”
In granting summary judgment, the hearing officer did not determine whether Sheldon was totally disabled within the meaning of the policy when he left the school district. On review of the decision affirming the hearing officer s entiy of summary judgment, we must consider all facts in the light most favoring Sheldon, the nonmoving party. Thus, for the purpose of our review, we must assume that Sheldon became totally disabled on May 24, 2002, the last day he worked for U.S.D. 502.
Using May 24, 2002, as the date of disability, Sheldon was required to file a written notice of claim by November 20, 2002, 180 days thereafter. It is undisputed that KPERS received Sheldon’s notice of claim on October 21, 2004. Such a late notice is excused if Sheldon can demonstrate that timely notice of his claim was not reasonably possible and the notice of claim and proof of loss were filed no later than February 18, 2004 (180 days after disability, which is November 20, 2002, for notice of the claim; plus 90 days for proof of loss; plus 1 year).
Sheldon does not present facts upon which a jury could reasonably conclude that it was not reasonably possible for him to assert his claim in a timely fashion. While he claimed that he did not have the medical opinions necessary to establish his disability until he was examined by Drs. Murati and Lewonowski, he does not explain why he could not schedule the examinations sooner. Further, the sole exception to the final deadline of February 18, 2004, arises when the claimant is legally incapacitated. There is no evidence here that Sheldon lacked the legal capacity to assert his claim.
Sheldon was aware of his KPERS disability benefits. Ritchie encouraged him to seek disability benefits on at least one occasion prior to May 24, 2002. Sheldon did not contact the school district or KPERS to request assistance with his claim until November 2003. The final deadline for a late claim was February 18, 2004. Sheldon did not submit his claim until October 2004. Applying a plain reading of the unambiguous provisions of the policy to the uncontested facts, it is clear that Sheldon’s claim was untimely.
Equitable Estoppel
Sheldon contends that KPERS should be estopped from raising these time limitations as a defense. Whether KPERS is estopped from raising this defense is a question of law and not an issue of disputed material fact. Equitable estoppel may prevent enforcement of contract provisions. See Toshiba Master Lease, Ltd. v. Ottawa University, 23 Kan. App. 2d 129, 927 P.2d 967 (1996). For Sheldon to prevail on the grounds of equitable estoppel he must show: (1) he was induced to believe certain facts by KPERS’ acts, representations, admissions, or silence when it was under a duty to speak; (2) he relied and acted upon those facts; and (3) he would be prejudiced if KPERS were allowed to deny the existence of those facts. See Fleetwood Enterprises v. Coleman Co., 37 Kan. App. 2d 850, 865, 161 P.3d 765 (2007) (citing Rockers v. Kansas Turnpike Authority, 268 Kan. 110, 116, 991 P.2d 889 [1999]).
Sheldon’s estoppel claim is based upon (1) U.S.D. 502 failing to file a Form K-60 to initiate the disability claim process; (2) KPERS dissuading him from filing a claim when Janke informed Sheldon that he was ineligible; and (3) KPERS failing to inform him of the time limitations. We will consider these bases in order.
(1) Inaction by U.S.D. 502
Sheldon contends that estoppel applies because U.S.D. 502 was notified of his desire to file a disability claim in November 2003 when Janke called the school district after speaking with Sheldon by telephone. This contention fails for several reasons.
First, Janke called the school district to determine why no K-60 had been filed for Sheldon when he left the school district. There was no request by Janke or by Sheldon that the school district take any action at that time.
Second, Sheldon cannot use the acts of the school district to estop KPERS, a separate and independent entity. Sheldon failed to show that U.S.D. 502 was an agent of KPERS for the purpose of filing a disability claim. If anything, U.S.D. 502 would have been acting as an agent for Sheldon, not for KPERS. See Barbara Oil Co. v. Kansas Gas Supply Corp., 250 Kan. 438, 446, 827 P.2d 24 (1992) (defining “agency”).
Third, Sheldon fails to show prejudice arising from the school district’s failure to file a claim on his behalf in November 2003. Sheldon’s notice of claim was due on or before November 20, 2002. Sheldon fails to demonstrate that the provisions of the policy extending the deadline applied to him.
(2) Dissuasion by KPERS
When Sheldon inquired about disability benefits in November 2003, Janke informed him that he was ineligible because his employment had been terminated due to a reduction in the work force and not due to his back injury. Based on this statement, Sheldon claims he was dissuaded from pursuing his claim further. The essence of estoppel is this: A party who takes a position which the other party relies and acts upon should not be permitted to take a contrary position in litigation to the detriment of the other party who acted in good faith reliance on the earlier position. See Fleetwood Enterprises, 37 Kan. App. 2d at 865; Coffey v. Stephens, 3 Kan. App. 2d 596, 599, 599 P.2d 310 (1979). Here, KPERS has not taken contrary positions before and then during litigation. KPERS has consistently claimed that Sheldon was not totally disabled at the time he ended his employment with U.S.D. 502. It is only for purposes of summary judgment that we assume that Sheldon was totally disabled as of May 24, 2002.
Then there is the issue of detrimental reliance. Janke’s letter to Sheldon stated: “If you wish to pursue this matter, put your concerns in writing to the KPERS office. If you have questions, contact me.” Enclosed with the letter was the Disability Income Benefit Certification. In a later affidavit, which did not conflict with her deposition testimony but clarified her November 2003 letter (see Mays v. Ciba-Geigy Corp., 233 Kan. 38, 45-46, 661 P.2d 348 [1983]), Janke explained that this certificate was the disability policy itself. Sheldon did not recall receiving this plan document, but he testified that he would not dispute Janke if she testified she sent it. In her affidavit Janke swore she sent Sheldon the plan document. Thus, this fact was uncontroverted for purposes of summary judgment. Accordingly, in November 2003 Sheldon had as much information regarding his entitlement to benefits as he had later in October 2004 when he eventually submitted his claim. Sheldon’s inaction was not due to some misinformation communicated to him by KPERS. Janke’s November 2003 letter to Sheldon is not a valid basis for invoicing the doctrine of equitable estoppel.
(3) Failure To Disclose Time Limits
Sheldon’s final basis for equitable estoppel is KPERS’ failure to inform him of the time limits for filing a claim. Sheldon was provided the time limits for submitting a claim when Janke sent him a copy of the plan with her November 19, 2003, letter. This was in response to Sheldon’s first expression of interest in making a claim. These facts negate any possible estoppel argument.
Prejudice
Sheldon contends that KPERS has the duty to show prejudice in order to invoke the defense that his claim was too late. The hearing officer concluded that “Mr. Sheldon’s assertion that KP-ERS must show prejudice to his late filing is an unreasonable attempt to effectively extend the deadline for filing claims indefinitely.” This apparently was based upon him accepting KPERS’ position that prejudice must only be shown when a late claim is asserted in an occurrence policy, not in a claims-made policy; and the KPERS disability policy is a claims-made policy. The district court agreed, citing Marshall v. Kansas Med. Mut. Ins. Co., 276 Kan. 97, 101-02, 73 P.3d 120 (2003), for the distinction between occurrence and claims-made policies.
The court in Marshall made this distinction in discussing the common types of liability insurance available to health care providers. The district court also cited Phico Ins. Co. v. Providers Ins. Co., 888 F.2d 663 (10th Cir. 1989), which dealt with a coverage dispute between two liability insurers of a hospital. The claims-made occurrence distinction makes sense in resolving liability coverage disputes such as a typical dispute between competing liability carriers when company l’s policy was in force when the tort occurred and company 2’s policy was later in force when the claim was made. The analysis becomes tortured when the distinction is applied to first-party coverage under a disability policy.
In its brief in support of its motion for summary judgment, KP-ERS relies on a number of cases to support its claim that it need not show prejudice from Sheldon’s late notice of claim. Here they are: LaForge v. American Cas. Co. of Reading, Pa., 37 F.3d 580 (10th Cir. 1994), dealt with whether an insurance carrier had to provide liability coverage for a director of a failed savings and loan association under an officers and directors liability policy; Phico, cited by the district court, involved a coverage dispute between two liability insurers of a hospital; Simundson v. United Coastal Ins. Co., 951 F. Supp. 165 (D.N.D. 1997), involved a dispute over coverage in a claims-made liability policy for a wrongful death claim asserted approximately 2 years after the policy ended; Hunt v. Kling Motor Co., 841 F. Supp. 1098 (D. Kan. 1993), dealt with the issue of prejudice from an insured’s late notice to its liability insurer regarding a pending suit; Campbell & Co. v. Utica Mut. Ins. Co., 820 S.W.2d 284 (Ark. App. 1991), considered whether there was coverage under a claims-made errors and omissions liability policy when no claim was made and no written notice was given during the policy period; T.H.E. Ins. v. P.T.P., Inc., 331 Md. 406, 628 A.2d 223 (1993), involved the denial of coverage under a claims-made liability insurance policy for a claim made and reported after the policy had expired.
The common thread of these cases is that they all deal with liability insurance policies. Not one deals with first-party coverage under any type of policy, let alone a disability policy.
Coverage under a claims-made policy requires that a claim is made during the policy period. Coverage under an occurrence policy requires that the event giving rise to the claim occurred during the policy period. The hearing officer and the district court found that the KPERS policy was a claims-made policy. This distinction is meaningless in the context of the KPERS policy which does not come into and out of existence from time to time but provides ongoing coverage to a group whose members are constantly changing as they join and leave employment in the public sector.
Sheldon was a public school teacher. As such, he was a member of KPERS and entitled to disability coverage while employed by the school district. If he became disabled while employed by the school district and a member of KPERS, he was entitled to benefits. If he ceased his employment and his membership in KPERS at a time when he was not disabled as defined by the policy, he was not entitled to disability benefits. If he later became disabled, he still was not entitled to benefits since, at the time he became disabled, he was not covered by the KPERS plan.
What triggers coverage under the KPERS plan is “disability which commences while this Plan is in force as to the Member whose disability is the basis of claim.” The reference to “while this Plan is in force as to the Member” refers to the fact that while KPERS coverage is ongoing for its members, members come and go; and coverage for Sheldon is dependent upon him being a KPERS member, employed by the school district, when his disability occurred. Thus, if Sheldon was totally disabled as defined by the policy at the time he left the school district, he was covered under the KPERS policy if he properly perfected his claim.
KPERS claims that Sheldon’s claim was not timely. Sheldon claims this does not matter if KPERS has not been prejudiced by his late claim. Given the fact that the triggering event is the occurrence of disability, not the assertion of a claim, KPERS seems to concede that it must show that it was prejudiced by the late notice to avoid coverage when it stated in its appellate brief: “Since the KPERS plan is a claims made policy, the notice-prejudice rule does not apply. In Kansas, the rule’s application is generally limited to occurrence policies.”
No Kansas case has specifically addressed whether prejudice due to a late claim must be shown in the context of a claim against KPERS for disability benefits. However, the issue has been addressed in other insurance and insurance-type settings.
A showing of prejudice from a late claim was required to avoid liability under a construction performance bond in School District v. McCurley, 92 Kan. 53, 142 Pac. 1077 (1914). Prejudice arising from late notice of a workers compensation claim was required by statute to avoid an insurer’s liability in Pike v. Gas Service Co., 223 Kan. 408, 409, 573 P.2d 1055 (1978). However, a statutory change in 1993 resulted in insurers no longer being required to show prejudice to avoid liability for such claims. See Injured Workers of Kansas v. Franklin, 262 Kan. 840, 846, 942 P.2d 591 [1997].) In Local No. 1179 v. Merchants Mutual Bonding Co., 228 Kan. 226, 230, 613 P.2d 944 (1980), late notice did not relieve a surety of liability when no prejudice resulted. In the context of a fidelity bond issued to a savings and loan association, the failure of the insured to provide a timely proof of loss does not void coverage absent a showing of prejudice. See National Union Fire Ins. Co. v. FDIC, 264 Kan. 733, 751, 957 P.2d 357 (1998). An insurer who issued a comprehensive general liability policy must show prejudice to avoid liability due to late notice of a claim. AT&SF Ry. Co. v. Stonewall Ins. Co., 275 Kan. 698, Syl. ¶ 8, 71 P.3d 1097 (2003).
As pointed out in Phico, 888 F.2d at 668-69:
“Policy provisions respecting notice of claim or occurrence should be liberally construed in favor of the insured. [Citation omitted.] Thus, many courts apply the rule that, in the absence of an express forfeiture clause, if the insured gives the insurer timely and adequate notice, even though not submitted in writing or in keeping with policy terms, it is the obligation of the insurer to show actual prejudice for denial of coverage. [Citations omitted.] . . . Forfeitures of insurance policies are disfavored in Kansas and should be permitted only when expressed in clear and unmistakable terms. [Citations omitted.]”
We find few cases from other jurisdictions considering the notice-prejudice rule in the context of a disability claim. Applying Florida law in a case in which the insurer denied coverage for a disability claim under the federal Employee Retirement Income Security Act (ERISA), the court in Borschel v. Continental Cas. Co., 536 F. Supp. 2d 1294 (S.D. Fla. 2008), found a rebuttable presumption of prejudice for an untimely claim which the insured may overcome with contrary evidence. However, this is contrary to the accepted notion in Kansas that prejudice is never presumed but must be proved. See National Union Fire Ins. Co., 264 Kan. at 751.
Applying California law in a similar ERISA case, the court in Mizzell v. Paul Revere Ins. Co., 278 F. Supp. 2d 1146 (C.D. Cal. 2003), required the insurer to demonstrate actual prejudice from an untimely claim to justify denying coverage. Missouri law, applied to a claim for disability benefits under ERISA, requires the insurer to establish prejudice from a late claim. See Reid v. Connecticut General Life Ins. Co., 17 F.3d 1092 (8th Cir. 1994).
Washington requires a showing of prejudice, as explained in Kaplan v. NW Mut. Life Ins. Co., 100 Wash. App. 571, 990 P.2d 991 (2000). The court stated:
“The policy underlying die prejudice requirement is based on risk spreading. Insurance policies should provide the maximum protection possible, while still being fair to the insurer. If insurers were allowed to avoid payment based on the insured’s conduct even in the absence of prejudice, the public policy of risk spreading would be compromised and, in a sense, the insurer would receive a windfall.” 100 Wash. App. at 578.
It appears that the weight of authority and the more reasoned view is to require an insurer to establish prejudice from a late claim for disability benefits in order to avoid coverage. We conclude that the requirement for KPERS to show prejudice applies here.
This leads to the final question: Has KPERS established that it is entitled to judgment as a matter of law due to it being prejudiced by Sheldon’s late disability claim? As noted earlier, prejudice is not presumed but must be proven. Further, “the presence or absence of prejudice’ in this context is a finding of fact. [Citation omitted.]” Reid, 17 F.3d at 1098.
The purposes of a timely notice of claim are twofold. One is to afford the insurer an opportunity to encourage medical treatment as soon as possible to mitigate the effects of the injury and to prevent avoidable complications. The other is to afford the insurer an opportunity to investigate the claimed injury and the surrounding circumstances to determine its course of action regarding the claim for benefits. In its statement of uncontroverted facts in support of its motion for summary judgment, KPERS did not fist a single fact from which the hearing officer, considering the facts in the fight most favoring the nonmoving party, could conclude that KPERS was prejudiced by Sheldon’s late notice. In its argument in support of its motion, KPERS made no claim that it was prejudiced by Sheldon’s late notice.
The issue of prejudice was first raised in Sheldon’s brief in opposition to the motion. Sheldon provided a statement of additional uncontroverted facts, including the fact that he had been examined by two doctors who expressed opinions regarding his disability. Through his supporting affidavit, Sheldon attached reports from tírese doctors, one of whom was an examining doctor and the other was his treating surgeon. Sheldon argued that KPERS had not been prejudiced by his late notice because, among other things, his medical records (which would include the records from his treating surgeon) were available.
In its reply brief, KPERS did not contest that Sheldon’s medical records were available. It simply argued: “If [Sheldon] had submitted notice of claim and/or proof of loss during the 180-day elimination period, KPERS would have sent [him] to a doctor to be evaluated, but KPERS did not get that opportunity. The lost opportunity to investigate prejudiced KPERS.”
In ruling on the motion the hearing officer listed his findings of fact. None of those facts makes reference to any prejudice suffered by KPERS. In his discussion of the facts, the hearing officer concluded that “KPERS did suffer prejudice because it can’t now go back to 2002 and have Mr. Sheldon’s claimed disability be timely evaluated by a doctor.”
An independent medical examination of the claimant is an important tool in the defense against a disability claim. Nevertheless, it is a tool that is not employed in every case. It is uncontroverted that Sheldon’s medical records are available. Those records alone may not be sufficient for KPERS to determine whether Sheldon met the policy definition of disability at the time he left U.S.D. 502 on May 24, 2002. Further, if Sheldon was disabled when he left U.S.D. 502, the extent of Sheldon’s disability (and KPERS’ liability for disability benefits) may have been ameliorated by treatment KPERS could have authorized had Sheldon given notice of his claim in timely fashion. Had the issue of Sheldon’s late notice and any resulting prejudice been submitted to the hearing officer for a decision on the merits, the hearing officer could have made a factual determination whether Sheldon’s medical records alone were sufficient to avoid a claim of prejudice. However, KPERS sought to avoid the fact-finding process in favor of a summary disposition of the claim. Consequently, in considering KPERS’ summary judgment motion, the hearing officer was obliged to resolve all facts and inferences reasonably drawn from the evidence in favor of Sheldon, the nonmoving party. Therefore, absent an uncontroverted fact that these medical records would be inadequate for KP-ERS to defend against the claim, the hearing officer was obliged to conclude for purposes of summaiy judgment that KPERS was not prejudiced because Sheldon’s medical records were available. The hearing officer drew the opposite conclusion.
On review, the district court upheld the agency’s action because there was substantial evidence of prejudice. As discussed earlier, this is not the appropriate standard when reviewing an agency’s grant of summary judgment. Rather than viewing the evidence in the light most favoring Sheldon, the district court affirmed based upon the evidence of prejudice viewed in the light most favoring KPERS.
KPERS failed to establish that it was entitled to summary judgment based upon its having been prejudiced by Sheldon’s late claim. Accordingly, we must reverse the district court, set aside the order for summaiy judgment in favor of KPERS, and remand the case for further proceedings before the agency’s hearing officer for further summary judgment proceedings consistent with this opinion or for resolution of the factual disputes regarding Sheldon’s claim.
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Green, J.:
The State appeals from the trial court’s pretrial judgment suppressing all evidence seized by law enforcement officers executing two search warrants at the home of Tony Bottom and Sara O’Brien (collectively appellees). The first issue is whether the information contained in the first search warrant was so stale as to lack probable cause for issuance of the search warrant. Second, if it is determined that the first search warrant was not based upon probable cause, could the items seized under the first search warrant be admitted under the Leon good-faith exception to the warrant requirement? Of these two issues, we find the second issue controlling. Accordingly, we reverse the trial court’s judgment suppressing all the evidence seized and remand for further proceedings.
On the afternoon of November 27, 2006, Detective Al Dunn met with Nancy Tobias and Dennis Tobias, K.T.’s maternal grandparents, regarding a report of child abuse to K.T., a 5-year-old child, by K.T.’s father, Tony Bottom. K.T. was 5 years old when Dunn met with the Tobiases. During the meeting, Nancy told Dunn that Bottom spanked K.T. and two other young girls with a board for lying to him. Nancy gave Dunn a photograph showing a small child’s buttocks covered with bruising.
Dennis stated that their daughter, Terri Tobias, had told them that Bottom had caused the bruising when K.T. stayed with him from August 2, 2006, to August 4, 2006. Apparently, when Terri picked up K.T. on August 4, 2006, Bottom’s girlfriend, Sara O’Brien, and Bottom’s sister told Terri about the bruises. O’Brien also told Terri that Bottom had almost killed her a couple of days before but that she did not think Bottom would actually kill her. When Nancy heard about the bruising to K.T., she looked at K.T.’s buttocks and photographed the bruising. According to Nancy, K.T. told her that Bottom had spanked her with a board.
Nancy showed Dunn temporary custody papers giving Dennis temporary custody of K.T. until Christmas break when K.T. was scheduled to go with Bottom. A custody hearing had also been scheduled for December 27, 2006. No one had had contact with K.T.’s mother since November 11, 2006.
Also present during the meeting with Dunn was Donna Cox, who lived with Dennis. Cox stated that K.T. had not complained of any injuries or made any statements about being spanked before leaving with Bottom. According to Cox, K.T. had said that Bottom had spanked her and had showed Cox the bruises after she returned from visiting him.
On November 29, 2006, Alyce Goin, who was a Department of Social and Rehabilitation Services (SRS) worker, interviewed K.T. at the Wamego Police Department concerning the alleged abuse. When asked about being spanked, K.T. stated that she and another girl were spanked by O’Brien for playing with fishing poles. K.T. said that they were spanked with the “Booty Buster.” When asked to draw the “Booty Buster,” K.T. drew a picture that resembled a ping-pong paddle. During an earlier conversation between Bottom and Goin, Bottom had admitted to using a ping-pong paddle to spank K.T. when she would he. K.T. told Goin that she had been spanked a second time with the “Booty Buster” by Bottom. According to K.T., Bottom broke tire “Booty Buster” during her spanking. K.T. said that Bottom then made another “Booty Buster” and spanked her again. K.T. was unable to tell Goin the exact date when the spanking occurred but did state that she was wearing a bathing suit and that it happened before school started. K.T. first said that it happened in the summer and then said it happened in the fall.
On the evening of November 29, 2006, Dunn went to Bottom’s home to speak with Bottom and O’Brien. When no one answered the door, Dunn left a business card in the door. Dunn again went to Bottom’s residence on December 1, 2006, and December 6, 2006, in an attempt to contact Bottom. According to Dunn, there were dead animal carcasses around Bottom’s residence each time he was there. In addition, Dunn saw several areas on the property where there appeared to be discarded items, junk, or trash. Dunn did not see a burn barrel or trash can used to discard household trash.
Bottom tried to call Dunn on December 2, 2006, but Dunn was off work. Dunn left messages on Bottom’s telephone asking Bottom to speak with him. According to Dunn, Russ Roe, Bottom’s attorney in this case, contacted Dunn at the sheriff s office and said that Bottom was in his office stating that Dunn had been trying to speak with Bottom. Dunn explained why he needed to speak with Bottom. Roe said that he would have Bottom call Dunn. Dunn again tried to call Bottom, but he received no response.
Based on all of this information, Dunn applied for and was issued a search warrant for Bottom’s residence. Dunn applied for the search warrant at approximately 9:30 p.m. on December 7, 2006. The search warrant authorized tire officers to look for ping-pong paddles commonly referred to as the “Booty Buster”; “any board fashioned as such a paddle, striking instrument or any other device used to inflict abuse [] or punishment of children”; and “any pictures or photographs of child abuse to include computer discs, floppy discs, film negatives and digital memory sticks, electronically stored media.” Law enforcement officers executed the search warrant at around 10:13 p.m. on December 7, 2006. During the search, officers seized a wooden paddle marked “BB II” from Bottom’s residence.
While executing the search warrant, officers discovered what appeared to be drugs and drug paraphernalia items in plain view in Bottom’s home. Officers also discovered electronic scales under a shelf in Bottom’s home. In addition, Detective Darren Brown knew that Bottom had a prior conviction for possession of drug paraphernalia. Based on this information, Brown applied for and was issued a second search warrant to search for evidence of drugs in Bottom’s home. Brown applied for the second search warrant at approximately 11:53 p.m. This second search warrant was executed at approximately 12:30 a.m. on December 8, 2006. Officers seized drugs and various items of drug paraphernalia during the second search.
Bottom was charged with one count of possession of methamphetamine, two counts of possession of drug paraphernalia, one count of possession of marijuana, one count of criminal use of weapons, and two counts of endangering a child. In a separate criminal case, O’Brien was charged with one count of possession of methamphetamine, one count of possession of drug paraphernalia, one count of possession of marijuana, and two counts of endangering a child. Additionally, in two other criminal cases, Bottom and O’Brien were each charged with one count of abuse of a child.
Both O’Brien and Bottom moved to suppress the evidence obtained during both searches of Bottom’s and O’Brien’s residence. Specifically, the appellees argued that the information in the affidavit for the first search warrant was stale and, therefore, insufficient to establish probable cause for the issuance of the warrant. The appellees further argued that because the second search warrant was based solely on information discovered during the execution of the first search warrant, the second search warrant must also fail.
After conducting an evidentiary hearing on the appellees’ motions to suppress, the trial court found that the evidence in the first search warrant application was so stale that it was without value and should not have been considered. As a result, the trial court determined that the first search warrant application did not provide probable cause for issuance of a search warrant. Moreover, the trial court found that the magistrate issuing the first search warrant abandoned his role as a neutral magistrate and that the search warrant was so facially invalid that no law enforcement officer could have relied upon it in good faith. The trial court further found that the second search warrant was based almost solely on information developed during the execution of the first search warrant. As a result, the trial court granted the appellees’ motions to suppress the evidence obtained during the execution of the two search warrants.
Did the Trial Court Err in Suppressing the EvidenceP
On a motion to suppress evidence, this court reviews the factual findings underlying the trial court’s suppression decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those factual findings by a de novo standard. Am appellate court does not reweigh the evidence. See State v. Parker, 282 Kan. 584, 588, 147 P.3d 115 (2006).
A. Were There Sufficient Facts in the First Search Warrant to Support Probable Cause?
First, the State argues that the trial court erred in finding that there were insufficient facts in the first affidavit for search warrant to provide probable cause to search the appellees’ residence.
In determining whether probable cause exists to support a search warrant, the task of the issuing magistrate is simply to make a practical, commonsense decision whether, based on all the circumstances in the affidavit, including the veracity and basis of knowledge of any person supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. State v. Hicks, 282 Kan. 599, Syl. ¶ 1, 147 P.3d 1076 (2006).
When reviewing the magistrate’s decision to issue a search warrant, the trial court and the appellate court must apply the following deferential standard of review:
“When an affidavit in support of an application for search warrant is challenged, the task of the reviewing court is to ensure that the issuing magistrate had a substantial basis for concluding probable cause existed. This standard is inherently deferential. It does not demand that the reviewing court determine whether, as a matter of law, probable cause existed; rather, the standard translates to whether the affidavit provided a substantial basis for the magistrate’s determination that there is a fair probability that evidence will be found in the place to be searched. Because the reviewing court is able to evaluate the necessarily undisputed content of an affidavit as well as the issuing magistrate, the reviewing court may perform its own evaluation of the affidavit’s sufficiency under this deferential standard.” Hicks, 282 Kan. 599, Syl. ¶ 2.
Therefore, when reviewing the issuing magistrate’s decision to issue a search warrant, this court conducts an independent analysis of the content of the affidavit for search warrant, but we need only see enough to persuade us that there was a substantial basis for the magistrate’s determination. See State v. Fisher, 283 Kan. 272, 300-01, 154 P.3d 455 (2007); Hicks, 282 Kan. at 611.
In this case, the trial court determined that the information contained in the affidavit for search warrant was too stale to provide probable cause for issuance of the search warrant. The trial court noted that there was no information in the affidavit for search warrant about a ping-pong paddle being in the appellees’ house from August 2, 2006, to 4 months later when the search warrant was issued. Further explaining the reasons for its decision, the trial judge stated:
“I do believe the information was stale. And not only do I bebeve that but there’s only one piece of information on August 2nd, 4th, whenever, I got spanked with a paddle. There’s no other comments by the child that says I’ve been back since, I[’ve] been hit since, I have seen the paddle fifteen times since, three times since, whatever else. . . . The child got . . . whipped with a paddle sometime in August. And that’s four months ago. And I understand your argument about it being an item that one necessarily wouldn’t get rid of and you may be correct but I think that is stale information and there [are] no other corroborating factors that go to help that out.”
It is a basic principle that allegations of probable cause set forth in a search warrant affidavit must show that probable cause exists at the time the warrant is issued. Indeed, the United States Supreme Court spoke about staleness in a search warrant affidavit as early as 1932 in Sgro v. United States, 287 U.S. 206, 210, 77 L. Ed. 2d 260, 53 S. Ct. 138 (1932): “[I]t is manifest that the proof [contained in a search warrant affidavit] must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.” As a result, the issuing magistrate must conclude that what law enforcement officers are searching for is presently at the location to be searched, not that it was there sometime in the past. “Probable cause existing at some time in the past will not suffice unless circumstances exist from which it may be inferred that the grounds continued to the time the affidavit was filed. [Citations omitted.]” United States v. Neal, 500 F.2d 305, 309 (10th Cir. 1974).
Arguing that the trial court wrongly concluded that the information contained in the affidavit for search warrant was too stale to support probable cause, the State cites two federal Tenth Circuit Court of Appeals cases where the mere passage of time did not render the information in an affidavit for search warrant too stale for consideration. See United States v. Cantu, 405 F.3d 1173, 1177 (10th Cir. 2005); United States v. Riccardi, 405 F.3d 852, 860-61 (10th Cir. 2005).
In Cantu, the court upheld an April 2003 search warrant of the defendant’s car where drugs were found. The affidavit for search warrant contained information about five discrete episodes concerning the defendant: an August 2001 drug conviction; an April 2002 arrest where drugs were found in the defendant’s car;, an August 2002 arrest at a storage facility where drugs were found in the defendant’s car; an April 2003 surveillance of the defendant driving to Texas based on a tip that the defendant received supplies for his drug operation in Texas; and an April 2003 surveillance of the defendant in which he drove to a remote location near a storage facility and was seen dragging a duffel bag out of a line of evergreen trees towards his car. The Tenth Circuit Court of Appeals determined that it was proper for the judge issuing the search warrant to consider the defendant’s earlier arrests and conviction, particularly where the more recent events in the affidavit for search warrant refreshed the earlier episodes. The court pointed to the fact that the informant’s tip leading to police surveillance provided some indication of continuing criminal activity and also to the similarity between the August 2002 arrest and the events leading to the April 2003 arrest as refreshing the earlier information.
Cantu is distinguishable from the instant case because in Cantu, the affidavit for search warrant outlined specific recent events that were highly suspicious and indicated ongoing criminal activity. Nevertheless, Cantu is instructive on' the rule that the timeliness and relevance of information contained in an affidavit for search warrant cannot be judged solely on the passage of time:
“A search warrant may not issue if based upon information that has grown stale, i.e., information that no longer supports an affidavit’s underlying assertion that the item sought will be found in the area or location to be searched. [Citation omitted.] However, timeliness and relevance cannot be judged solely by the days of the calendar. [Citation omitted.] Rather, ‘whether the information is too stale to establish probable cause depends on the nature of the criminal activity, the length of the activity, and the nature of the property to be seized.’ [Citation omitted.] When the circumstances suggest ongoing criminal activity, the passage of time recedes in importance. [Citation omitted.]” 405 F.3d at 1177.
This rule was applied in Riccardi, where the Tenth Circuit Court of Appeals upheld a search warrant to seize and search the defendant’s computer. The court rejected the defendant’s argument that a 5-year-old Kinko’s receipt for copying of four Polaroid photographs to computer disks was too stale to support probable cause. The court noted that the receipt showed that the defendant had the desire and ability to convert pictures to a digital format which, based upon the affidavit for search warrant, is a common means by which child pomographers distribute and exchange their materials. The court, citing United States v. Lamb, 945 F. Supp. 441, 460 (N.D.N.Y. 1996), further noted that images of child pornography are likely to be kept by persons interested in those materials in their homes due to the difficult collection of the materials, the illegality of possessing the materials, and the severe social stigma such images cany. Looking to the other information in the affidavit for search warrant, tire court stated that the proximity of the Kinko’s receipt and the computer to hundreds of photographs of teenage males, many of which were pornographic, made it likely that some of them had been converted to a computer format, from which they could be distributed over the internet.
As discussed in Riccardi, the determination of whether evidence relating to possession of images of child pornography is too stale to support probable cause brings with it a unique rationale based on the nature of that particular criminal activity. This rationale is difficult to apply in the context of other criminal activity. Nevertheless, Riccardi illustrates that the question of staleness cannot turn solely on the passage of time between the information relied on and the issuance of the search warrant. Rather, the determination depends on the particular circumstances of the case, that is, “ ‘the nature of the criminal activity, the length of the activity, and the nature of the property to be seized.’ [Citation omitted.]” 405 F.3d at 860-61.
In United States v. Schauble, 647 F.2d 113, 116 (10th Cir. 1981), the Tenth Circuit Court of Appeals recognized that while the element of time is crucial to probable cause, the passage of time becomes less significant when the facts indicate activity of a protracted and continuous nature:
“We concur with [the defendant’s] position that ‘the element of time is crucial to the concept of probable cause.’ [Citation omitted.] But ‘the vitality of probable cause cannot be quantified by simply counting the number of days between the occurrence of the facts relied upon and the issuance of the affidavit.’ [Citation omitted.] In resolving the question of staleness, the nature of the alleged criminal activity and the property to be seized must be considered. [Citations omitted.] Where the affidavit recites a mere isolated violation it would not be unreasonable to imply that probable cause dwindles rather quickly with the passage of time.’ [Citation omitted.] This is particularly true if the property to be seized can be easily transported or consumed. On the other hand, ‘where the affidavit properly recites facts indicating activity of a protracted and continuous nature . . . the passage of time becomes less significant,’ and facts otherwise remote in time may retain their relevance. [Citation omitted.]”
Relying on United States v. Myers, 553 F. Supp. 98 (D. Kan. 1982), this court has set forth four factors to consider when analyzing whether the information relied upon to obtain a search warrant is stale:
“The first is whether the criminal activity is continuous. The second is the time between the issuance of the warrant and the alleged criminal activity relied upon to establish probable cause. The third is the use of present or past tense verbs in the affidavit supporting a search warrant. Finally, the court looks at the likelihood the contraband would be removed from the location of the proposed search.” State v. Hemme, 15 Kan. App. 2d 198, 203, 806 P.2d 472, rev. denied 248 Kan. 998, cert. denied 502 U.S. 865 (1991).
When considering all of the factors to determine whether an application for a search warrant depends upon stale information and, therefore, is not supported by probable cause, the trial court must ultimately find a nexus between the place to be searched, the property to be seized, and the criminal conduct. Hemme, 15 Kan. App. 2d 198, Syl. ¶ 2.
This case presents a close question. In order to establish probable cause to search Bottom’s home for evidence of child abuse, the affidavit for search warrant needed to show that what the officers were searching for was presently at Bottom’s home. There appeared to be only one specific spanking incident outlined in the affidavit for search warrant. This was the spanking incident that occurred in August 2006 and resulted in K.T.’s buttocks being covered with bruises. This incident occurred approximately 4 months before the search warrant was issued. Moreover, the information in the affidavit for search warrant indicates that Bottom realized that he was the suspect in a child abuse investigation by the time that officers executed the search warrant at his home. Before the officers searched Bottom’s home, Bottom had tried to contact Dunn. Moreover, Bottom had visited an attorney who eventually spoke with Dunn and was told about the investigation. Based on this information, it would be reasonable to assume that Bottom would remove or dispose of any evidence, such as the paddle, that could incriminate him in tire child abuse investigation.
On the other hand, some of the other information in the affidavit for search warrant indicated that the abuse was a continuous course of conduct by Bottom and that he would not readily dispose of the paddle. Bottom had previously admitted to the SRS worker that he spanked K.T. with a wooden ping-pong paddle when K.T. would lie. Moreover, Bottom had named the ping-pong paddle that he used to spank K.T. the “Booty Buster” and had gone so far as to make a second “Booty Buster” when the first one broke. As the State points out, Bottom’s actions indicate that he intended to continue using this object to strike children and that he was not going to dispose of it after the spanking. In other words, Bottom’s action in naming tire wooden paddle and in making a second “Booty Buster” when the first one broke indicate that tire specific incident of abuse occurring in August 2006 was not a limited, transitory event. Moreover, it would be reasonable to conclude that Bottom would not dispose of an object that he had made specifically for spanking and that he had named.
Nevertheless, we need not answer the close question of whether the information contained in the search warrant affidavit was so stale as to render the search warrant invalid. Even if the search warrant was not based upon probable cause, the evidence obtained under the first search warrant could be admitted under the Leon good-faith exception to the warrant requirement. See United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405, reh. denied 468 U.S. 1250 (1984).
B. Leon Good-Faith Exception
Under Leon, the exclusionary rule of the Fourth Amendment to the United States Constitution should not be applied to bar the use of evidence obtained by law enforcement officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid. The Leon Court determined, however, that the exclusionary rule still applies in cases where: (1) the magistrate who issued the search warrant was deliberately misled by false information; (2) the magistrate wholly abandoned his or her detached or neutral role; (3) there was so little indicia of probable cause in the search warrant affidavit that it was entirely unreasonable for officers to believe the warrant was valid; or (4) the warrant so lacked specificity that officers could not determine the place to be searched or the items to be seized. State v. Hoeck, 284 Kan. 441, Syl. ¶ 1, 163 P.3d 252 (2007).
In adopting the good-faith exception in Leon, the United States Supreme Court expressed a “strong preference” for law enforcement officers’ use of warrants in conducting a search. 468 U.S. at 914-17. The United States Supreme Court stated that “the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.” 468 U.S. at 916. As a result, the suppression of evidence by officers acting in good faith in reasonable rebanee on a search warrant issued by a neutral and detached magistrate does not further the purpose of the exclusionaiy rule under the Fourth Amendment to the United States Constitution. 468 U.S. at 916-17; State v. Malm, 37 Kan. App. 2d 532, 547, 154 P.3d 1154, rev. denied 284 Kan. 949 (2007).
In determining that the Leon good-faith exception did not apply in this case, the trial court found that the judge issuing the search warrant abandoned his neutral and detached role. The trial court noted that too many times the issuing judge had been given a search warrant application at 1 a.m. and 2 a.m. and had not spent as much time as he should have in reviewing it. The trial judge further stated: “I would never say that [the issuing judge] would intentionally do something like this, but he can by not paying attention to the affidavit and not reading it as carefully as he should have abandoned his neutral and detached role and become a rubber stamp” for law enforcement. In addition, the trial court found that the search warrant was so facially invalid that no law enforcement officer could have relied upon it in good faith. Specifically, the trial judge stated: “I believe [] that the officer should have blown that something four to five months old and that being the only . . . indicia of reliability or the . . . reason that they would find it there . . . should have known that wasn’t going to fly.”
In determining that the good-faith exception to the exclusionary rule did not apply, the trial court stated that under Leon, reviewing courts will not defer to a warrant based on an affidavit that does not provide the magistrate with a substantial basis for determining the existence of probable cause. In Hoeck, however, our Supreme Court recently disapproved of this test and held: “The Leon good faith exception applies when an affidavit does not supply a substantial basis for the determination of probable cause but does provide some indicia of probable cause sufficient to render official reliance reasonable.” 284 Kan. 441, Syl. ¶ 2.
Therefore, under Hoeck, this court must determine whether Dunn’s affidavit for search warrant provided some indicia of probable cause sufficient to render official reliance reasonable. As discussed previously, this case presented a close question. The officers believed they were executing a valid warrant, and they did not act outside the scope of the warrant they possessed. The paddle that was seized was encompassed by the description in the warrant. Thus, the officers reasonably believed the paddle was seized under the authority of a lawfully issued search warrant. As a result, the information contained in the affidavit for search warrant provided some indicia of probable cause sufficient to render official reliance reasonable.
In summaiy, our reversal of this matter was not dependent upon whether the information contained in the first search warrant was so stale as to preclude probable cause. We reverse because, whatever label we place on the information contained in the first search warrant, the Leon exception to the warrant requirement allows the admission of the seized evidence.
Reversed and remanded for further proceedings. | [
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Hill, J.:
In Kansas, slight defects in sidewalks do not present an actionable negligence claim against cities or those who maintain them. This doctrine is known as the slight-defect rule. The district court applied that rule to this case where Violetta Elstun fell and broke her hip in a Spangles parking lot because of a 2-inch rounded depression she did not see when she tried to get into her car. We hold the district court’s application of the slight-defect rule to a parking lot was improper. We reverse and remand.
The district court decided this case by granting summary judgment.
On February 24, 2004, Violetta Elstun first went to church and then to eat at a Spangles restaurant on Fourth Street in Hutchinson. It was misting as she was leaving the restaurant. She walked through the parking lot to her car, opened her car door, and stepped back into a hole. Ms. Elstun fell and suffered a broken hip. She later testified the hole was hidden from view because the pavement was dark and wet and the hole was filled with water. Ms. Elstun also testified that she was not looking at the ground or die depression in the parking lot before she fell. Estimating from the photographs attached to Spangles’ motion for summary judgment, the sagging depression that Elstun stepped in was about 2 inches deep.
Spangles moved for summary judgment, arguing the slight-defect rule barred Ms. Elstun’s claim. The corporation attached two photos to support its claim the depression in the parking lot was only 2 inches deep. Ms. Elstun disputed Spangles’ claim about the depth of the depression. She argued “the photos attached by Defendant are insufficient to establish the depth of the depression and are not in conformity with Sup. Ct. R. 141(a).” She asserted, as an added uncontroverted fact, the hole was hidden from view by the dark, wet pavement. She also argued the slight-defect rule did not apply to defects in a retail business parking lot and that, if the rule was applicable, there were circumstances which precluded application of the rule here. The district court held the slight-defect rule barred Ms. Elstun’s claim and granted Spangles’ motion for summary judgment.
In this appeal, Elstun claims the district court erred in granting summaiy judgment to Spangles. Initially, she argues the court erred in resolving a negligence claim on a motion for summary judgment. Second, Ms. Elstun maintains the court should not have relied on photos attached to Spangles’ motion for summary judgment. Third, Ms. Elstun contends the slight-defect rule does not apply to a defect in a retail business parking lot. Fourth, she thinks the court erred when it decided the defect was slight. Finally, in Elstun’s view, the fact that it was raining, the pavement was wet and dark, and the hole was filled with water precluded application of the rule. She thinks the court erred when it failed to consider all the circumstances and granted summaiy judgment. On the other hand, Spangles contends the district court correctly expanded the slight-defect rule and that it was entitled to summaiy judgment as a matter of law.
We set out our standard of review.
Summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, along with any affidavits, show there is no genuine dispute about any material fact and the party seeking summary judgment is entitled to judgment as a matter of law. A district court must resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party opposing summary judgment. Then, to avoid summaiy judgment, the party opposing summaiy judgment must come forward with evidence to show a dispute about a material fact and the facts subject to the dispute must be material to the decisive issues in the case. Where reasonable minds could differ about any conclusions drawn from the evidence, summary judgment must be denied. An appellate court applies the same standard as the district court when reviewing a motion for summaiy judgment. See Robbins v. City of Wichita, 285 Kan. 455, 459-60, 172 P.3d 1187 (2007).
We look briefly at the first two claims.
Ms. Elstun first asserts that a negligence claim involves questions of fact which should not be resolved by summaiy judgment. This is accurate to a certain extent. Even though district courts are warned against granting summary judgments in negligence cases, a litigant moving for summary judgment is entitled to prevail if the moving party proves there is no evidence of negligence. See Seitz v. Lawrence Bank, 36 Kan. App. 2d 283, 288, 138 P.3d 388, rev. denied 282 Kan. 791 (2006). Appellate courts have approved summary judgment to defendants if the plaintiffs fail to show the defendants breached any duly to the plaintiffs. In Robbins, 285 Kan. at 470, the court said summary judgment is proper where plaintiff fails to show a prima facie case of breach. We will not hold that summary judgment will never be granted in negligence cases.
Second, Ms. Elstun argues the district court erred in relying on photos attached to Spangles’ motion for summary judgment on the depth of the hole. Ms. Elstun claims the photos had no evidentiary basis, were not enough to prove the depth of the hole, and were not in conformity with Supreme Court Rule 141(a) (2007 Kan. Ct. R. Annot. 218). Spangles contends the photos were part of the record, that Elstun failed to provide the district court with any contrary evidence, and the district court did not abuse its discretion by considering the photos.
We point out Supreme Court Rule 141(a) explains what a memorandum in support of a summary judgment motion must contain. It must have “the uncontroverted contentions of fact relied upon by [the moving party] (with precise references to pages, lines and/ or paragraphs of transcripts, depositions, interrogatories, admissions, affidavits, exhibits, or other supporting documents contained in the court file and otherwise included in the record).” (Emphasis added.) (2007 Kan. Ct. R. Annot. 218). Spangles, in its contentions of fact, specifically referred to the two attached photos as exhibits of the depression’s depth.
Ms. Elstun does not say how the photos fail to conform with Supreme Court Rule 141(a). She cannot claim surprise. Spangles asserted the depression was 2 inches deep and referred to two photos attached to the motion. According to Spangles, it disclosed these photos during discovery. The photos were clearly contained in the court file and included in the record when Spangles filed its motion with the district court.
In contrast, Ms. Elstun has failed to come forward with any evidence disputing Spangles’ claim about the depth of the depression. See Supreme Court Rule 141(b) (2007 Kan. Ct. R. Annot. 218) (if opposing party contends the moving party’s factual claim is controverted, the opposing party must provide a concise summary of conflicting testimony or evidence); Robbins, 285 Kan. at 460 (the adverse party must come forward with evidence to show a dispute about a material fact). In her opposing memorandum, Elstun merely challenged the evidentiary basis for the photos but failed to provide contrary evidence to dispute the depth of the hole. We believe the district court properly relied on the photos and found the depression in the Spangles parking lot was 2 inches deep. We find no abuse of discretion by the district court on this point.
We examine history of the slight-defect rule.
The district court applied tire slight-defect rule to the facts of this case and granted summary judgment to Spangles. Spangles asks us to do the same. No prior Kansas case has applied tire rule to a retail business parking lot. We decline to do so.
It has long been the rule in Kansas that slight defects in sidewalks do not present an actionable negligence claim against cities, individuals, or private corporations. The reason underlying this slight-defect rule is to relieve those responsible for construction and maintenance of sidewalks of the financially prohibitive burden of maintaining them in a perfectly level condition, particularly because of Kansas weather.
In 1935, the Kansas Supreme Court created the slight-defect rule in Ford v. City of Kinsley, 141 Kan. 877, 881, 44 P.2d 255 (1935). The court ruled that slight and inconsiderable defects in city sidewalks do not present an actionable negligence claim against a city. The ruling was later extended in Sepulveda v. Duckwall-Alco Stores, Inc., 238 Kan. 35, 36, 708 P.2d 171 (1985), to actions against individuals and private corporations. This rule was reaffirmed in Lyon v. Hardee’s Food Systems, Inc., 250 Kan. 43, 52, 824 P.2d 198 (1992). But in Lyon, the court declined to apply the rule where defendant negligently created and maintained a defect in the sidewalk. This court has also applied to slight-defect rule to a privately maintained sidewalk in Barnett-Holdgraf v. Mutual Life Ins. Co. of New York, 27 Kan. App. 2d 267, 271, 3 P.3d 89 (2000). We will go deeper into the cases.
The Ford court looked at larger interests when it adopted the slight-defect rule:
“ ‘But a municipality cannot be expected to maintain the surface of its sidewalks free from all inequalities and from every possible obstruction to mere convenient travel, and slight inequalities or depressions or differences in grade, or a slight deviation from the original level of a walk due to the action of frost in the winter or spring, and other immaterial obstructions, or trivial defects which are not naturally dangerous, will not make a municipality liable for injuries occasioned thereby. The fact that the surface of a walk may have become uneven from use, or that bricks therein may have become loose or misplaced by the action of the elements, so that persons are hable to stumble or be otherwise inconvenienced in passing, does not necessarily involve the municipality in liability, so long as the defect can be readily discovered and easily avoided by persons exercising due care, or provided the defect be of such a nature as not of itself to be dangerous to persons so using the walk. So it has been held that a municipality is not hable for injuries to a pedestrian resulting from slipping or stumbling over a niche left in a sidewalk around a growing tree, from which the tree has been removed, or over a piece of stone projecting slightly above the level of a crosswalk.’ [Citation omitted.]” 141 Kan. at 881.
We trace the application of the rule through the years.
In Biby v. City of Wichita, 151 Kan. 981, 101 P.2d 919 (1940), the plaintiff tripped on a 1/4-inch metal plate which was covering a portion of a city sidewalk. The Biby court upheld the lower court’s decision to grant summary judgment in favor of the city. 151 Kan. at 987-88. In Taggart v. Kansas City, 156 Kan. 478, 480-82, 134 P.2d 417 (1943), the court applied the rule where the plaintiff fell on a city sidewalk where a tree root had caused an irregularity in the sidewalk.
In Sepulveda, the plaintiff fell after stepping into a sunken section of the sidewalk in front of the Duckwall store. The sidewalk was city property, but a city ordinance required adjoining property owners to keep sidewalks in good repair. The Supreme Court approved the trial court’s grant of Duckwall’s motion for summary judgment, citing the slight-defect rule. 238 Kan. at 36-40.
In Lyon, the plaintiff tripped and fell on a metal tree grate on the sidewalk of a Hardee’s restaurant. Hardee’s employees had recently removed the tree grate to paint it and replace the rocks underneath the grate. After these repairs, the employees repositioned the grate, but the grate protruded about 3 inches above the sidewalk. The court refused to apply the rule under these facts and stated: “The slight defect rule is not intended to shield from liability those who negligently create and maintain a defect in the sidewalk. Its intended function is to limit the liability of those who permit or allow a slight defect not of their own making to remain.” (Emphasis added.) 250 Kan. at 52.
The Barnett-Holdgraf court applied the slight-defect rule to a defect in a privately maintained sidewalk. The court reasoned the principles announced in Ford were equally applicable to sidewalks maintained by private individuals even though private individuals do not have to maintain the same number of sidewalks as a municipality, 27 Kan. App. 2d at 271.
We find three principles common in cases dealing with the slight-defect rule. First, landowners who provide sidewalks, whether public or private, have a duty to maintain sidewalks in a reasonably safe condition. Second, the party responsible for maintaining a sidewalk is not hable for injuries just because someone using that sidewalk trips, falls, and suffers injury. Third, the party maintaining a sidewalk is not an insurer of the safety of those who use the sidewalk.
We hold the rule inapplicable here.
The question of whether the slight-defect rule applies to defects in a retail business parking lots is a matter of first impression in Kansas. The district court concluded that “there is absolutely no reason why there should be a distinction between streets, sidewalks, and parking lots.” We disagree. The correct question in this case is whether the business owner, Spangles, exercised reasonable care in maintaining its property.
First, sidewalks, always open to the public, are easements dedicated to public foot traffic. Sidewalks can extend for miles. They are usually narrow strips of relatively thin concrete slabs (or bricks) that rise and fall and expand and contract with the seasons due to expansion joints built in the walkway. See Barnett-Holdgraf, 27 Kan. App. 2d at 272. The surface of a sidewalk can be affected by soil conditions beneath and adjacent to the sidewalk. Tree roots, drains, plumbing, and electrical conduits can all cause slight variations in a sidewalk. Rain, snow, and ice can make the surface hazardous. It is fair to say that it is virtually impossible to maintain a sidewalk permanently ievel forever.
Second, parking lots are not sidewalks. They are built for machines and humans. Parking lots must be designed with motor vehicle traffic and foot traffic in mind. Commonly, parking lots are not built from small slabs of concrete but rather large pours of cement which are smoothed and then allowed to harden. Or, they are built from “blacktop,” or some form of asphalt. Asphalt can sag from the weight of cars and trucks, causing a deep depression to form; since asphalt is dark, that depression can be difficult to see. In contrast to sidewalks, parking lots are not always open to the public, and sometimes they are only open to customers or those approved by business managers. In our view, the parking lot should be controlled by the same rules of liability as the rest of the business premises.
Those rules are set out in Jones v. Hansen, 254 Kan. 499, 509-10, 867 P.2d 303 (1994). Our Supreme Court established the factors to be considered in determining whether a business owner exercised reasonable care in maintaining its business premises. They include “the foreseeability of the harm to the entrant, the magnitude of risk of injury to others in maintaining such a condition of the premises, the individual and social benefit of maintaining such a condition, and the burden upon the land occupier and/ or community, in terms of inconvenience or cost, in providing adequate protection.”
We hold the district court erred when it applied the slight-defect rule to the facts of this case. We must set aside the summary judgment. Factual decisions must be made here. We reverse and re mand for trial. We need not address the remaining issues raised by Elstun.
Reversed and remanded. | [
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Rulon, C.J.:
The State appeals the district court’s dismissal of one count of aggravated endangering a child filed against defendant Monica Hernandez after the preHminary hearing. We affirm.
On May 7, 2007, the defendant told the police she allowed her son A.J. (d.o.b. August 19, 2005) to play in their front yard with several older children while the defendant was inside cooking dinner. According to the defendant, she could see the children from inside her home and was alternating between cooking and watching the children. The defendant looked away for a moment and when she looked back the children were gone. The defendant went looking for A.J. and was informed by a neighbor an incident had oc curred at the Dillons grocery store which was a short walking distance from the defendant’s residence.
The Dillons parking lot and an adjoining retaining pond were full of water because of heavy rainfall. As Dillons customer Fred Foley was leaving the parking lot, he observed five or six children playing by the retaining pond. Foley’s wife said she saw a boy in the water, so they turned around, went to the pond, and found A.J. completely submerged in the water lying face up and unresponsive. Foley pulled A.J. from the water and revived him. The defendant arrived shortly after A.J. was pulled from the water. The police and emergency medical technicians (EMTs) arrived shortly thereafter and A.J. was examined in the ambulance. The defendant told the EMTs she would take A.J. to the hospital herself.
Hernandez was charged with one count of aggravated endangering a child under K.S.A. 21-3608a(a)(1). At the preliminary hearing, the prosecutor clarified the defendant was charged with recklessly endangering a child under K.S.A. 21-3608a(a)(2). The district court dismissed the charge, finding “this was nothing more than an accident and there was no reckless conduct on the part of the defendant.”
The State appeals under K.S.A. 22-3602(b)(1).
The State argues the district court erred in finding there was no probable cause to show the defendant committed one count of aggravated endangering a child. Under K.S.A. 22-2902(3), a defendant shall be bound over if the evidence at the preliminary examination shows that a felony has been committed and there is probable cause to believe it was committed by the defendant. State v. Berg, 270 Kan. 237, 238, 13 P.3d 914 (2000). In order to prove probable cause, there must be evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the defendant’s guilt. State v. Huser, 265 Kan. 228, 230, 959 P.2d 908 (1998). The district court must draw inferences favorable to the prosecution from the evidence presented at the preliminary examination and must not be concerned with whether the possibility of conviction is remote or virtually nonexistent. Even if the evidence is weak, if some evidence tends to disclose the charged offense was committed by the defendant, the case should go to a jury. Berg, 270 Kan. at 238.
The State may appeal from an order dismissing a complaint pursuant to K.S.A. 22-3602(b)(1). An appellate court reviews de novo whether the evidence presented at the prehminary hearing was sufficient to establish probable cause. State v. Anderson, 270 Kan. 68, 71, 12 P.3d 883 (2000); Berg, 270 Kan. at 238.
K.S.A. 21-3608a(a)(2) defines aggravated endangering a child as “recklessly causing or permitting a child under the age of 18 years to be placed in a situation in which the child’s life, body or health is injured or endangered.” K.S.A. 21-3201(c) defines reckless conduct as “conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger.”
The State argues probable cause exists as to all of the elements of K.S.A. 21-3608a(a)(2) and contends the defendant acted recklessly because leaving a child under the age of 2 in the front yard without adult supervision when the city was extremely flooded places the child at a serious imminent risk. Additionally, the State argues the mother’s failure to provide adult supervision in this situation shows an unjustifiable disregard for the danger that threatened this child. The State further argues the defendant allowed A.J. to be placed in a situation which endangered his life, body, or health by leaving him unsupervised long enough for the child to walk to the grocery store and fall in the water. More importantly, however, the focus of the district court’s decision to dismiss the charge was that no evidence of reckless conduct was presented at the prehminary hearing.
As no Kansas case law has discussed K.S.A. 21-3608a(a)(2), the defendant responds by citing cases from other jurisdictions discussing what type of parental behavior is sufficient to meet the standard of reckless endangering of a child. In State v. Anderson, 108 S.W.3d 680, 683 (Mo. App. 2002), a mother was convicted of second-degree child endangerment after her 7-year-old disabled child was found naked in the middle of a highway. This charge required the State to prove “ ‘criminal negligence’ ” which is defined in part as a failure “ ‘to be aware of a substantial and unjus tifiable risk that circumstances exist or a result will follow’ ” and the “ ‘failure constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.’ ” 108 S.W.3d at 683 (quoting Mo. Rev. Stat. §562.016.5 [2000]). The Anderson court concluded the evidence did not establish that any failure by the mother to supervise the child posed a substantial risk the child would end up in the middle of the highway or the mother should have been aware of such a risk. 108 S.W.3d at 684. Although this case does not involve a “reckless” standard, the defendant argues our Supreme Court has recognized that recklessness requires a higher degree of mental culpability than mere negligence. See State v. Remmers, 278 Kan. 598, 601-02, 102 P.3d 433 (2004).
In State v. Massey, 128 Ohio App. 3d 438, 715 N.E.2d 235 (1998), a mother discovered her 2Vz year-old child in the bathtub submerged and unresponsive after the mother had left for 30 seconds to 4 minutes to attend to another child in the apartment. The Massey court concluded insufficient evidence supported the mother’s conviction of felony child endangering which required a showing that she recklessly violated a duty of care to her child creating a substantial risk to her health and safety. 128 Ohio App. 3d at 442. The Massey court concluded leaving the child alone in the bathtub was imprudent and possibly negligent, but not criminal. “If such a result were possible, undoubtedly the majority of parents in this country would be guilty of endangering — at least for acts of similar culpability.” 128 Ohio App. 2d at 443-44. The Massey court concluded that while the mother’s actions contained some speculative risk to the child, her conduct did not create a strong possibility her child would be harmed. 128 Ohio App. 2d at 444.
In State v. McLeod, 165 Ohio App. 3d 434, 438, 846 N.E.2d 915 (2006), the Ohio Court of Appeals concluded checking on a child on a playground once in 30 minutes while attending to other children did not rise to the level of recklessly endangering a child, reasoning: “The failure to realize an ideal level of supervisoiy attention of a child does not equate to acting with heedless indifference to the consequences, thereby perversely disregarding a known strong possibility, as contrasted with a remote or significant possibility, of harm to the health or safety of the child.”
Our research has disclosed an additional case which may be helpful to our analysis. In State v. Riggs, 2 S.W.3d 867 (Mo. App. 1999), a mother left her 4- and 2-year-old children unsupervised on the front porch eating lunch for 45 minutes knowing there was an unfenced pond nearby. The younger child drowned in the pond, and the mother was convicted of involuntary manslaughter and endangering the welfare of a child. On appeal the Riggs court reversed die involuntary manslaughter conviction, concluding the evidence was insufficient the mother recklessly caused the death of her child. 2 S.W.3d at 872. “ ‘Recklessly ” is defined in Missouri in part as: “ ‘consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow.' ” 2 S.W.3d at 869. The Riggs court reasoned die mother's omission to watch her children on the steps of her home for a 45-minute period did not make it substantially certain her 2-year-old child would wander to his death when die pond was 628 feet and eight homes away. 2 S.W.3d at 872. However, the court affirmed her endangering die welfare of a child conviction which required a showing that she knowingly acted in a manner that created a substantial risk to the life, health, and body of her child. 2 S.W.3d at 872.
The case law cited above persuasively supports the district court's finding insufficient evidence of reckless conduct was presented at the preliminary hearing to support the charge of aggravated endangerment of a child. The testimony established the defendant was alternating between cooking dinner and watching the children through a window. When the defendant looked away for “a moment,” the children were gone and she went looking for them. The trailer park where the defendant lived was right behind the Dillons grocery store. While the defendant’s supervision was certainly less than ideal, the time frame the children were left unsupervised in this case is far less than the 45 minutes the children were left alone in their front yard in Riggs and the babysitter checking in once in 30 minutes on the children on the playground in McLeod, where the Missouri and Ohio courts found no recldess conduct.
The defendant argues the State did not produce any evidence regarding defendant’s knowledge or awareness of the retaining pond or of any danger in the front yard which the defendant consciously disregarded by permitting A.J. to go outside to play. Although evidence was presented there had been heavy rain and city wide flooding from the night before, no evidence was presented defendant was aware of this flooding at the grocery store near their home and consciously disregarded a dangerous condition.
Even when viewing the evidence here in the light most favorable to the State, sufficient evidence was not presented to establish probable cause the defendant’s conduct was done “under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger.” See K.S.A. 21-3201(c). We are convinced the district court properly dismissed the charge of aggravated endangerment to a child because insufficient evidence was presented to establish probable cause the defendant acted “recklessly” under K.S.A. 21-3608a(a)(2).
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Parks, J.:
This is an appeal from an order denying modification of a divorce decree. The parties, plaintiff Ardith J. Carney (Rickbeil) and defendant Frank L. Carney, mutually agreed upon the terms of a restrictive travel provision. The court, after finding the agreement to be valid, just and equitable, incorporated it into the decree of divorce.
Alleging changed circumstances, plaintiff seeks relief from the requirement that she obtain court approval prior to removing the six minor children from the state for more than 30 days during any calendar year.
The issue on appeal is whether the trial court abused its discretion in refusing to modify the travel restrictions.
The same considerations which determine the custody of children are applied to the question of removal of children from the state. Of primary concern are the best interests and welfare of the children; all other issues are subordinate. (Parish v. Parish, 220 Kan. 131, 551 P.2d 792; Schreiner v. Schreiner, 217 Kan. 337, 342-343, 537 P.2d 165; Lewis v. Lewis, 217 Kan. 366, 369, 537 P.2d 204.)
Plaintiff takes the position that her changed circumstances were sufficient justification for modification of the travel restrictions. Appellate courts cannot nullify a trial court’s disbelief of evidence, nor can they determine the persuasiveness of evidence which a trial court may have believed. Therefore, the trial court’s finding that plaintiff did not establish entitlement to the relief sought will not be disturbed on this appeal. (Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, 548 P.2d 719.)
Plaintiff knowingly and intelligently entered into the separation agreement with full knowledge of the meaning of the travel provision. She now complains that her constitutional rights have been violated. An individual may waive constitutional provisions intended for her benefit, especially where no question of public policy or public morals is involved. (16 Am.Jur.2d, Constitutional Law § 131, p. 328.) One who waives her constitutional rights cannot subsequently contend that they have been violated. (Wall v. Parrot Silver & Copper Co., 244 U.S. 407, 61 L.Ed. 1229, 37 S.Ct. 609.) Having waived her right to take the children from the state for more than 30 days, without approval of the court, plaintiff has no standing to contest the travel provision.
Discretion may be defined as the freedom to act according to one’s judgment. Judicial discretion implies the liberty to apply the rules and analogies of the law to the facts found after weighing and examining the evidence. It is well settled that the appellant must establish a clear abuse of judicial discretion before an appellate court will overturn the exercise of a trial court’s discretion. (Reedy v. Reedy, 175 Kan. 438, 440, 264 P.2d 913, and cases cited therein.)
No abuse of discretion of the trial court having been shown, the judgment is affirmed. | [
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Spencer, J.:
Plaintiffs, as successors in title of the original lessors, brought suit to cancel an oil and gas lease (known as the Kufahl lease) on land in Coffey County, Kansas. Defendant John R. Evans is the undisputed owner of the lease in zones above the Mississippi lime formation as well as a small overriding royalty interest in the zones below. Defendants J. R. Burris (hereinafter Burris) and International Tours, Inc. (hereinafter Tours) each claim ownership of the lease in the zones below the Mississippi lime (deep zones), subject to the Evans interest, from a common assignor. The trial court quieted title as to the deep zones in Burris and granted plaintiffs cancellation of the lease, subject only to test drilling by Evans and Burris in their respective zones within six months after the date judgment became final. Tours has appealed from the judgment quieting title in Burris. No issue is raised in this appeal as to plaintiffs Luthi or as to the defendant Evans, or as to the judgment of conditional cancellation.
This matter was submitted upon agreed facts as set forth in the pre-trial memorandum. The trial court concluded that Burris was an innocent purchaser and acquired title by virtue of the fact that the recording of the prior assignment to Tours was not sufficient to give notice under the recording statutes.
By written instrument designated “Assignment of Interest in Oil and Gas Leases” dated February 1, 1971, acknowledged February 5, 1971, one Grace V. Owens, who was then the owner of the working interest in the Kufahl lease subject only to the overriding interest of the defendant Evans, assigned to Tours all of her right, title and interest in and to seven oil and gas leases on land in Coffey County, Kansas. These leases were identified in the assignment by lease descriptions and recording data and are not involved in this appeal. The second full paragraph of that assignment is as follows:
“And for the same consideration the Assignors covenant with the Assignee, his heirs, successors or assigns: That the Assignors are the lawful owners of and has good title to the interest above assigned in and to said Lease, estate, rights and property, free and clear from all liens, encumbrances or adverse claims; That said Lease is valid and subsisting Lease on the land above described, and all rentals and royalties due thereunder have been paid and all conditions necessary to keep the same in full force have been duly performed, and that the Assignor will warrant and forever defend the same against all persons whomsoever, lawfully claiming or to claim the same. Assignors intend to convey, and by this instrument convey, to the Assignee all interest of whatsoever nature in all working interests and overriding royalty interest in all Oil and Gas Leases in Coffey County, Kansas, owned by them whether or not the same are specifically enumerated above. . . (Emphasis added.)
This instrument was filed for record on February 16,1971, at 8:50 o’clock A.M. and duly recorded in Book 13 of O & G at page 116-119, office of the Register of Deeds, Coffey County, Kansas. It is an admitted fact that the register of deeds entered this instrument in the grantor-grantee index and in the numerical indexes as to those tracts specifically described therein, but that nothing was shown on either the grantor-grantee index or the numerical indexes with respect to the Kufahl lease specifically on lands here in question.
Under date of January 30, 1975, the same Grace V. Owens, assignor to Tours, executed and delivered a second assignment of her working interest in the Kufahl lease to Burris. Prior to the date of that assignment, Burris personally checked the records in the office of the register of deeds and, following the date of the assignment to him, Burris secured an abstract of title to the real estate in question. Neither his personal inspection nor the abstract of title reflected the assignment to Tours. There is no contention here as to lack of consideration for the assignment to Tours or for that to Burris, the sole question being — Which defendant, J. R. Burris or International Tours, Inc., is the owner of the working interests in all zones below the Mississippi lime formation, subject only to the l/16th of ysths overriding royalty interest in favor of the defendant John R. Evans under the Kufahl lease?
It is admitted in the record and by the parties in oral argument before this court that the portion of the assignment to Tours which provides “Assignors intend to convey, and by this instrument convey, to the Assignee all interest of whatsoever nature in all working interests and overriding royalty interest in all Oil and Gas Leases in Coffey County, Kansas, owned by them whether or not the same are specifically enumerated above . . .,” was a valid transfer of the Owens interest in the Kufahl lease to Tours as between the parties to that instrument. However, Burris directs attention to the provisions of K.S.A. 58-2203, form of warranty deed, and notes that the general language of the assignment omits the names of the lessor and lessee in the lease from which the working interest is carved, omits the date of the lease, all legal descriptions, and the recording data. He argues that as a result of the omissions contained in that portion of the assignment to Tours, it was impossible for the Register of Deeds of Coffey County to identify the real estate involved and to make the proper entries in the numerical index. Accordingly, even though he checked the records at the courthouse, he was unaware of the assignment to Tours and he did not learn of the prior conveyance until after he had purchased the rights from Grace V. Owens, after which he had an abstract of title prepared which also failed to reflect the assignment to Tours. He concludes that the failure to complete the proper indexes was not a problem created by the register of deeds but rather by Tours, and that as a result of the omissions, the Tours assignment as recorded was not sufficient to give constructive notice to a subsequent innocent purchaser for value. It is upon this point that Burris prevailed before the trial court.
There is no doubt but that the assignment to Tours was valid. The case of In re Estate of Crawford, 176 Kan. 537,271 P.2d 240, was an action which among other things challenged the sufficiency of a deed in which the property to be conveyed was described as follows:
“Mineral rights and oil royalties on properties heretofore conveyed by me and lots in the town of Stafford.
“Grantor expressly reserves a life estate in all of the property hereby conveyed.” (p. 540.)
In upholding the validity of the deed, the court said:
“. . • It clearly conveyed his mineral interests on properties located in Stafford County ‘heretofore conveyed’ by him, and lots in the town of Stafford. The evidence was clear that by the execution of the deed he intended to convey all of his holdings in Stafford County, reserving to himself a life estate. Specific identification of those properties was a simple matter merely by reference to the public records.” (p. 543.)
and referred to the general rule concerning the sufficiency of description contained in deeds found in 26 C.J.S., Deeds § 30, as follows:
“In general any description in a conveyance of the property is sufficient if it identifies the property, or if it affords the means of identification, as by extrinsic evidence.
“Generally, therefore, any description is sufficient by which the identity of the premises can be established, or which furnishes the means of identification, of the property covered by the deed or which it was intended to convey thereby with reasonable certainty, and without the exercise of arbitrary discretion.” (pp. 640-643.)
. . [A]nd the property may be identified by extrinsic evidence, such as records of the county where the land is situate.” (p. 645.)
See also Riley v. Foster, 95 Kan. 213, 148 Pac. 246; Bryant v. Fordyce, 147 Kan. 586, 78 P. 2d 32, Syl. 3. Of interest also is the case of Texas Consolidated Oils v. Bartels, 270 S.W. 2d 708 (Tex. Civ. App. 1954), Syl. 3, as follows:
“Where instrument described property purported to be covered therein as all the owner’s right, title and interest, legal and equitable, in all oil, gas and mining leases, royalties and overriding royalties located anywhere within the United States, most of which were located within the states of New Mexico, Kansas, Oklahoma, Louisiana, and Texas the description was sufficient to reasonably identify and to have conveyed the land and constituted notice to subsequent purchasers of the land after said instrument was recorded.”
The Tours assignment purports to convey all interests in all oil and gas leases in Coffey County owned by assignors “whether or not the same are specifically enumerated above.” Obviously, the clear intent of the language contained in that assignment was to convey to the assignee whatever interests the assignors may then have owned in the Kufahl lease in Coffey County, which could have been identified by reference to the public records. Also, Burris makes no claim that because the instrument contained both specific and general descriptions the general description was ineffective. (See Hudson v. Underwood, 229 N.C. 273, 49 S.E. 2d 508 [1948], to the effect that a single instrument may convey separate tracts by specific and general descriptions where such an intent can be found from the language used in that instrument.)
Burris focuses his argument as to lack of notice on the general description of the lease contained in the assignment to Tours. He points to K.S.A. 19-1210 which provides that where a county has determined to maintain a numerical index, as provided by K.S.A. 19-1209, the register of deeds is required to make entries in such index by reference to the quarter section described in the recorded instrument. He then argues that the legislature surely intended the indexing and recording statutes (58-2221 and 58-2222) to be considered together for purposes of interpretation. Burris claims that recording of an instrument in the numerical index is essential for constructive notice to a subsequent purchaser.
Burris directs attention to the case of Cities Service Oil Com pany v. Adair, 273 F. 2d 673 (10th Cir. 1959), in support of his position that an instrument not filed in the numerical index is outside the chain of title and therefore does not impart notice. The principal question presented in the Adair case arose from the plaintiff’s claim that the term of the lease under which it claimed was extended by the production of oil and gas in paying quantities on a portion of the original leased premises assigned to another, and that the filing of an affidavit of production as provided by K.S.A. 55-205 by such other assignee gave notice to the defendants of plaintiff’s continuing interest, even though the latter’s leasehold was not described in the affidavit. The argument was that the defendant, having knowledge of the existence of the original lease and its provision that it would be extended beyond the primary term by timely production on any part thereof, was required to examine the records to determine if an affidavit of production had been filed by the owners of any part of that lease. It was noted that Kansas follows the general rule that a person acquiring an interest in property is not charged with notice of a recorded instrument which does not appear in the chain of title to such property (Hollinger v. Imperial Warehouse Co., 122 Kan. 709, 253 Pac. 215). The plaintiff argued that the filing of a production affidavit by a part owner of the lease gives as much notice as the filing of two or more owners of separate affidavits reciting the same facts. The court observed that when the affidavits of production describe only that land which the producer holds under production, it is indexed in the office of the register of deeds as affecting only that particular land and does not appear in the chain of title to the remaining lands of the original lease; and where the grantor-grantee index is used, the recording of a production affidavit filed by a producer holding only part of the leased premises would not be referred to under the names of any persons who were shown by the index to have held interests in other portions of the premises in which there had been no production. The court held that a reasonable construction of K.S.A. 55-205 is that in cases where the primary term of an entire lease has been extended due to production by a partial owner of the lease, the owners of other portions of the lease are required to file affidavits of production if they desire to protect their leaseholds as against innocent purchasers for value, the sole purpose of the statute being to give notice to the public that an oil and gas lease has been extended beyond its primary term.
We do not interpret the decision in the Adair case to mean that a recorded instrument not appearing in the numerical index is outside the chain of title to real estate specifically described therein or as to real estate conveyed thereby. In the case at bar, the assignment of the Owens’ interests in the Kufahl lease to Tours was an effective conveyance of those interests to Tours inasmuch as the general description contained in that instrument afforded means of identification of the property involved, and accordingly, when recorded it was in the chain of title to the property covered by the Kufahl lease.
In the case of Ingram v. Ingram, 214 Kan. 415, 521 P. 2d 254, we find the following:
“It is obvious from this analysis of the Kansas statutes and decisions that in this state an oil and gas lease is a hybrid property interest. For some purposes an oil and gas leasehold interest is considered to be personal property and for other purposes it is treated as real property. . . . We have concluded that the legislature has determined that oil and gas leasehold interests are to be treated as real property under the statutes pertaining to the recording of instruments conveying or affecting real estate.” (pp. 420-421.)
The assignment by Owens of the oil and gas leasehold interest to Tours, and subsequently of the same interest to Burris, would certainly come within this category. K.S.A. 58-2221 provides in part as follows:
“Every instrument in writing that conveys real estate, any estate or interest created by an oil and gas lease, or whereby any real estate may be affected, proved or acknowledged, and certified in the manner hereinbefore prescribed, may be recorded in the office of register of deeds of the county in which such real estate is situated. . . .”
and provides further for the duties of the register of deeds to file the same for record immediately and in those counties where a numerical index is maintained in that office, to compare such instrument, before recording, with the last record of transfer in that office and if apparent errors are found in the instrument offered for record, to not record the same until after notifying the grantee where such notice is reasonably possible.
K.S.A. 58-2222 provides:
“Every such instrument in writing, certified and recorded in the manner hereinbefore prescribed, shall, from the time of filing the same with the register of deeds for record, impart notice to all persons of the contents thereof; and all subsequent purchasers and mortgagees shall be deemed to purchase with notice.”
The fact that the instrument of assignment to Tours was properly acknowledged and certified “in the manner hereinbefore prescribed” is not in dispute. It is also admitted that the instrument was recorded as provided by K.S.A. 19-1204, as follows:
“The register of deeds shall have custody of and safely keep and preserve all the books, records, deeds, maps, papers and microphotographs deposited or kept in his office; he shall also record, or cause to be recorded, in a plain and distinct handwriting, in suitable books to be provided and kept in his office, all deeds, mortgages, maps, instruments and writings authorized by law to be recorded in his office and left with him for that purpose, and shall perform all other duties required of him by law.”
The statutes also provide that the register of déeds shall keep in his office a general index, direct and inverted, divided into seven columns, in which that officer is to make correct entries of every instrument recorded to show description, remarks, recording data, nature of instrument, names of grantees and grantors, and the time of reception (K.S.A. 19-1205). That official is to maintain a receiving book as provided by K.S.A. 19-1206 in which are to be entered among other things the names of the grantor and grantee named in an instrument offered for record, and which statute provides also:
“. . . Whenever any instrument has been received by him for record, he shall immediately endorse upon such instrument his certificate, noting the day, hour and minute of its reception, and the fees received for recording the same; arid the date of record of such instrument shall be from the date of filing.. . .” (Emphasis added.)
K.S.A. 19-1207 provides that the register of deeds shall keep a plat book with an index thereto; and K.S.A. 19-1208 provides that he shall keep an index of each volume of records kept in that office showing on one page the names of the grantors in alphabetical order and on the other page the names of the grantees in alphabetical order. K.S.A. 19-1209 provides for the numerical index whenever such is deemed necessary by the county commissioners. These are duties of the register of deeds and when in this case the instrument of assignment was delivered to that official for recording and was endorsed as provided by K.S.A. 19-1206 and returned, Tours had done all that was then possible for the grantee to do.
The case of Ingram v. Ingram, supra, dealt with the assignment of an oil and gas leasehold interest absolute in form but given for security purposes. It was there held that such an instrument, when filed for record in the office of the register of deeds of the county wherein the property is situated as an instrument affecting real estate, imparts notice to all persons of the contents thereof under the provisions of K.S.A. 58-2222 effective with the filing of the same. (214 Kan. at 422.)
There is also the early case of Poplin v. Mundell, 27 Kan. 138, where in an opinion filed in 1882 the supreme court in considering the recording statutes, which are today in substance as they were then, stated:
“Clearly, under the reading of these sections, where a deed duly acknowledged and certified is left for record in the usual way, with the register of deeds, and is properly marked filed by him for record at the time of receiving such deed, it imparts notice to all persons of the contents thereof, and all subsequent purchasers must be deemed to purchase with notice. . . . But counsel insist that these sections are only a detached portion of the acts relating to registration, and that as [present sections 19-1205 and 19-1206] require every register to keep a receiving book and general index book, for the purpose of making an entry of every instrument when filed in the receiving book, and of making correct entries in the general index book so soon as the instrument is recorded, that any delay of any of these steps deprives the record thereof of the power of imparting constructive notice of the existence of the deed and its contents,. . . Now in this case the actual recording of the deed . . ., and the entry thereof upon the general index or the numerical index records, need not be considered, because it cannot be expected that a register of deeds in the discharge of his duties shall write out each instrument in the record books on the date of its filing, and of course he is not to enter the same upon the general index or numerical index until the instrument is actually recorded in the books of the office. At least, it is not necessary for him to perform this duty until the instrument is recorded.” (p. 156.)
The court concluded:
“. . . It seems to us that when the party holding the title presents his deed, duly acknowledged and certified, to the register of deeds for record, and demands that it be placed upon record, and the register thereupon accepts the same, and duly indorses it filed of the date it is so presented, such party has discharged his whole duty to the public, and his muniment of title cannot be shaken by any subsequent purchaser.” (p. 158.)
In Gas Co. v. Harris, 79 Kan. 167, 100 Pac. 72, the mineral lease was duly recorded but was not properly indexed. The court succinctly stated the rule as to indexing as follows:
“The fact that the filing of this lease was not properly indexed by the register of deeds has not been suggested as a fact which in any manner affects its validity. It was otherwise duly recorded, and therefore imparted notice as fully as if it had been properly indexed.” (p. 173.)
Referring again to Texas Consolidated Oils v. Bartels, supra, the Texas court in considering a conveyance of “all oil, gas and mining leases, royalties and overriding royalties located anywhere within the United States, most of which were located within the states of New Mexico, Kansas, Oklahoma, Louisiana, and Texas,” held that where the instrument of assignment was sufficient to have conveyed the interest, “purchasers of said mineral interest subsequent to recordation of the instrument had constructive notice and they could not claim ignorance of such prior sale as a basis of estoppel against prior purchaser.” (270 S.W. 2d at 709, Syl. 4.)
There is nothing in this record on appeal to indicate that Tours, as the prior assignee, misled Burris, the subsequent assignee, in any manner whatsoever.
We hold that the assignment to Tours was a valid conveyance from Grace V. Owens of her working interests in the Kufahl oil and gas lease in all zones below the Mississippi lime; that such instrument was duly acknowledged and certified as provided by law and when on February 16, 1971, that instrument was delivered to the Register of Deeds of Coffey County, who accepted it and endorsed it filed and “duly recorded in Book 13 of O & G at page 116-119,” all over her signature, that Tours had done all that was then required by the law of this state; and that the instrument thereafter and from the time of such filing imparted notice to all persons, including Burris, of the contents thereof, and Burris must be deemed to have taken the subsequent assignment with such notice.
One further point remains to be resolved. In his brief, Burris contends that the finding of the trial court that “defendant International Tours, Inc. has no right, title or interest in and to the deep rights in the Kufahl lease owned by J. R. Burris and that J. R. Burris should have his title in said lease quieted against any right, title or interest of defendant International Tours, Inc.” and the judgment based on that finding quieting title in Burris as against any right, title or interest of Tours, was determinative of that issue as between plaintiffs and Tours, and no appeal having been taken from that part of the judgment, Tours lacks standing on appeal before this court. Suffice it to say that the issue here is between Tours and Burris and it was precisely that issue which was before the trial court. The plaintiffs were granted judgment of condi tional cancellation from which there has been no appeal. We find no merit in this contention on the part of Burris.
The judgment of the lower court on the issue between the appellant International Tours, Inc. and the appellee J. R. Burris is reversed and remanded with instructions to enter judgment in conformity with this opinion. | [
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Abbott, J.;
This is an appeal from a judgment of the district court decreeing specific performance of a written contract conveying Kansas real estate entered into by a California executor with a Kansas resident and quieting the title to said real estate in the appellee, Merle Stasser.
Wilson Eugene Luther, a nonresident of the state of Kansas, owned farm real estate in Sherman County, Kansas. He died testate, a resident of Orange County, California, on June 25,1970.
The will and codicil of Wilson Eugene Luther were admitted to probate on July 31,1970, in Orange County, California. Roland S. Barcume was named in the will as executor and ultimate trustee, and was duly appointed and qualified as executor on the same date.
At the time of his death, Wilson Eugene Luther owned real estate in Sherman County, Kansas, described as the north one-half (N%) of section twenty-three (23), township seven (7), range forty-one (41).
The will and codicil provided for trusts to be established for Bird B. Bates for life, and upon her death the remainder to appellant, The First Church of Christ, Scientist, Boston, Massachusetts. Barcume, as executor, had the power of sale under paragraph thirteen of the will, which read as follows: “I authorize my Executor or Executrix as the case may be to sell with or without public notice, at public or private sale, and to lease any property belonging to my Estate, subject only to such confirmation of Court as may be required by law.”
During the lifetime of Wilson Eugene Luther, the farm real estate in Kansas was managed by Farmers National Company of Omaha, Nebraska. Barcume allowed Farmers National Company to continue managing the farm after Luther’s death. Working through a distinguished Kansas lawyer, Barcume had the property appraised on December 2, 1970, by a local real estate agent. The land was appraised at $35,200. On July 18, 1972, Barcume gave an exclusive listing to Farmers National Company to sell the real estate. A contract to purchase the land was entered into by and between Merle Stasser and Roland S. Barcume on February 21, 1973, for the sum of $38,000. Stasser took possession of and has farmed the land since March 1, 1973.
Numerous efforts were made to get the necessary authenticated papers from California to start probate proceedings in Kansas and complete the transaction. Both parties to the contract desired and attempted to complete the transaction, but Barcume did not send the necessary authenticated paperwork despite numerous promises to do so. Finally, on July 31, 1973, the state of California suspended Barcume as executor and appointed the California public administrator to complete the administration of the estate. The requested documents were immediately forwarded to Kansas. A probate proceeding was commenced on August 7, 1973, and on August 31,1973, Thomas R. Oglevie was appointed by the probate court of Sherman County, Kansas, as the administrator with the will annexed of the estate of Wilson Eugene Luther, deceased.
On September 20,1973, the Kansas real estate was appraised by three appraisers who set the value as of the date of death at $39,500.
During August and September of 1973, the price of wheat rose dramatically. Land that nourished wheat which once sold for $1.75 to $2.25 a bushel became more valuable as the price of wheat ultimately passed five dollars a bushel. This fact did not go unnoticed by the parties, and on October 9, 1973, the probate court ordered another appraisal of the farm real estate to ascertain its current value. Appraisers were appointed and appraised the property as of October 9, 1973, at $51,400.
On April 4, 1974, Thomas R. Oglevie, as administrator of the estate of Wilson Eugene Luther, deceased, filed this action ultimately seeking to quiet the title and requesting that Merle Stasser be treated as a tenant and be required to furnish an accounting as well as pay over to the estate the landlord’s share (one-third) of the crops. Merle Stasser prayed for specific performance and that title be quieted in him. Issues were joined and the case tried.
The trial court decreed specific performance and ordered the Kansas administrator to deliver a deed, ordered payment of the realtor’s commission to Farmers National Company, and quieted title in Merle Stasser contingent upon payment of all funds due the estate. Appellants, Thomas R. Oglevie, administrator of the estate of Wilson Eugene Luther, deceased, and First Church of Christ, Scientist, appealed from this judgment.
Two points are raised on appeal:
“(1) A Contract by a foreign executor to sell Kansas real estate titled in the name of a nonresident decedent is void by the foreign executor’s total failure to comply with the Kansas Probate Code.
“(2) A contract purchaser of Kansas real estate has notice of a foreign executor’s improper conduct when no probate proceedings have been filed in Kansas and title to the real estate is in the name of the nonresident decedent.”
Appellants’ second point has no bearing on our decision in this case. None of the parties contend that Stasser is “an innocent purchaser.” Stasser knew that Barcume was a foreign executor and that no probate proceedings had been commenced in Sherman County, Kansas. If the contract is binding on the Kansas administrator, the fact that vendee had actual or constructive notice that probate proceedings had not commenced on the estate in Kansas would not in itself cause the contract to be void. If the contract is not binding on the Kansas administrator, the second point appellants raise is immaterial.
The trial court cited 2 Bartlett, Kansas Probate Law & Practice, sec. 860, as precedent to allow the foreign executor to contract to sell the Kansas real estate. Section 860 provides:
“A testator may by his will give to his executor power to sell his property, and when such power is given the executor may proceed to sell the realty without recourse to the courts for a license. There can be no question that such power can be granted by a testator. The powers of an executor are those which are conferred upon him by the will and do not necessarily depend upon the action of the probate court. The probate court determines the authenticity of the will, but the executor derives his power, not from the court, but from the testator. There is, of course, the necessity of probating the will, and the necessity of formal appointment, qualification, and notice in conformity with the statute.
“When all this is done, and the testator has lawfully conferred upon his executor the power to sell real estate without formal sanction of the probate court, the power is absolute although the executor may in fact consult that court and keep it informed of his acts, and that court approve his reports as made from time to time during the period of his executorship. Where executors are given a general power of sale they may sell at their discretion, as prudence may dictate, during the continuance of the trust, and are not limited to a sale for purposes of administration. The power contained in the will should be given a liberal construction in order to carry into effect the true purpose of the testator. This power of the executor should never be captiously drawn into question. That would handicap the efficient discharge of his trust. Prospective buyers would fear to deal with him, and consequently the estate in his hands would suffer. And so the general rule is that purchasers are not bound to inquire into his powers; they may deal with him in full confidence. If the executor transcends his powers, he is responsible to heirs, devisees, and creditors, but the vendees cannot be affected unless they have notice of the executor’s improper conduct. Whether the will creates a power in the executor to sell and convey real property is a question of interpretation to be decided from the language of the instrument. Power to sell real property may be conferred on executors by will, without using technical legal phraseology. When so conferred, application to the probate court for an order of sale is not necessary.” (pp. 377-9.)
Section 860 of Bartlett and the authorities cited therein applies only to Kansas executors who have been appointed and qualified to act by the appropriate Kansas probate court (now a district court). Section 860 of Bartlett was never intended to apply to foreign executors.
Appellees would have us follow Niquette v. Green, 81 Kan. 569, 106 Pac. 270, in which the Supreme Court said:
“A foreign executor with testamentary power to sell and convey land in this state may make a valid contract to convey before the will has been admitted to record in this state. All that section 2953 of the General Statutes of 1901, which governs the matter, requires is that the will shall be of record at the time of conveyance.” (Syl. 4.)
The Niquette case is distinguishable on the facts in that it involved section 2953 of the 1901 Kansas statutes. That statute specifically authorized a legally qualified foreign executor with power granted in the will to sell real estate located in Kansas by recording a copy of the will in the county in which was situated the land so conveyed. The statute was repealed and no comparable statute exists today.
Although Niquette, supra, does not control this case, and the ultimate beneficiary is a church and not minors, the reasoning of Justice Burch in Niquette is very persuasively set forth as follows:
“Finally it is said that because this land has greatly increased in value and some of the beneficiaries of the will are minors the contract ought not to be specifically enforced. It is true that sometimes collateral circumstances arising after the formation of a contract may bring new factors into the relations of the parties so that hardship would follow its enforcement, and in such cases equity may decline to compel performance by one not himself at fault. But the rise or fall of fluctuating markets works no hardship in an equitable sense. The fate of fair and just contracts freely made by competent parties can not in conscience be left to depend upon such fortuities. (See note to Banaghan v. Malaney, 200 Mass. 46, in 128 Am. St. Rep. 378, 413.) And certainly a vendor who wrongfully delays fulfilling his just obligation until the market turns and the land rises in value has no standing in equity to deprive the vendee of the fruits of the bargain. To allow him to do so would be to approve misconduct as a source of gain, and equity can not thus be turned into an instrument of fraud, even for the sake of minors who may be remotely interested.” (p. 584.)
It is a well-established rule that the judgment of a trial court will be upheld if it is correct, even though the court may have assigned an erroneous reason for its decision when the determinative facts are undisputed (Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, 548 P.2d 719; Yellow Freight System, Inc., v. Kansas Commission on Civil Rights, 214 Kan. 120, 124, 519 P.2d 1092).
Appellants argue that the real estate contract is void. Appellants reason that a nonresident decedent’s estate is treated in the same manner as a resident estate; that no will is effective to pass real or personal property unless it shall have been duly admitted to probate (K.S.A. 59-616); and that K.S.A. 59-704 denies an executor the power to dispose of any part of the estate except to pay funeral expenses until letters testamentary are granted. Although not cited by counsel, we are not unmindful of K.S.A. 59-1413.
It is true the Kansas probate code has greatly restricted the authority of foreign representatives to function in Kansas until they have qualified under Kansas probate procedure. The princi-. pal purpose of the restrictions is to protect Kansas creditors, to insure the orderly distribution of the estate, and to provide a record so that marketable title to Kansas real estate is documented. The statutes cited by appellants do not contemplate the set of facts we are called upon to decide.
The power to sell under a will is not derived from the probate court, but rather from the will. In Bank v. Grisham, 105 Kan. 460, 185 Pac. 54, our Supreme Court said:
“It is difficult to see how more simple and explicit language could have been employed to express the testator’s purpose to clothe the executrix with the power which these appellants dispute; and there can be no question that such power can be granted by a testator. The powers of an executor are those which are conferred upon him by the will and do not necessarily depend upon the action of the probate court. The probate court determines the authenticity of the will, but the executor derives his power, not from the court, but from the testator. (Note, 78 Am. St. Rep. 171; 11 R. C. L. 128.) We are not at present discussing the necessity of probating the will, nor the necessity of formal appointment, qualification and notice in conformity with the statute. All that was done by the Miller executrix. We merely hold that the testator, George J. Miller, lawfully conferred upon his executrix the power to sell real estate without formal sanction of the probate court (Gen. Stat. 1915, sec. 4621), although she did, in fact, consult that court and keep it informed of her doings, and that court approved her reports as made from time to time during the years of her executorship.” (p. 470.)
The testator gave Barcume the power to sell the real estate and Barcume was at all times material duly appointed and qualified as executor of the estate of Wilson Eugene Luther. Barcume was the only person involved with the estate of Wilson Eugene Luther in California who had authority and the duty to employ someone in Kansas to open an estate in Kansas. Oglevie was retained by Barcume to act as the attorney in Kansas concerning the real estate sale and required probate proceedings. Oglevie had contact with Stasser and assured Stasser he would do everything that he could do in Kansas to expedite the sale. That same assurance was given by Oglevie to the judge of the superior court of Orange County, California.
Under the facts and in the absence of a specific statutory prohibition against so doing, this court adopts the theory of “relation back” to the limited extent set forth hereinafter.
The doctrine of “relation back” is an ancient one. It is mentioned as much as five hundred years ago (in the Year Book 18 Hen. VI. 22, pt. 7). The doctrine has been criticized, and many jurisdictions recognize the doctrine only to the limited extent necessary to avoid injustice.
Here, the person who ultimately became the Kansas administrator and who was employed by the California executor for the sole purpose of completing the sale gave assurances that the sale would be completed. The contract was signed by the duly qualified California executor who had power to sell the real estate under the will which has been admitted to probate and which has not been contested. Appellee Stasser was given possession of the real estate and he was allowed to sow and harvest crops. The rights of third parties are not involved. No one asserts fraud or that the sale price was less than the fair market value at the time the contract was signed. The contract was beneficial to the estate at the time it was entered into. The vendor wrongfully delayed fulfilling the obligation of completing the transaction for over one year until the market rose. The administrator with the will annexed, when duly qualified, could sign the deed and complete the sale since the will did not provide that the power to sell should not be so exercised (K.S.A. 59-1413). The rights of Kansas creditors are protected because all payments must be made through the Kansas administrator.
No valid reason exists for not applying a limited relation back doctrine. When, as in this case, the will of a nonresident decedent has been admitted to probate outside the state of Kansas and the person named in the will as executor with power of sale has been appointed, and the executor enters into a contract to sell real estate located in Kansas prior to the appointment of an administrator with the will annexed, this court will apply the doctrine of relation back to prevent an injustice if the contract is beneficial to the estate at the time it is entered into, is free of fraud, and the rights of third parties are not involved. (3 A.L.R.3d 1225; 26 A.L.R. 1349; 21 Am.Jur., Executors and Administrators, Sec. 848; 33 C.J.S., Executors & Administrators, Sec. 151 b; 34 C.J.S., Executors & Administrators, Sec. 1001 e; Arledge v. Ellison, 247 Ala. 190, 23 So.2d 389, 391 [1945]; Jasper v. Batt, 76 Ariz. 328, 264 P.2d 409, 413 [1953]; Estate of Machado, 186 Cal. 246, 250, 199 Pac. 505 [1921]; Penn v. Whidden, 42 A.2d 136, 137 [D. C. 1945]; Griffin v. Workman, 73 So. 2d 844, 846 [Fla. 1954]; Hudmon v. Thomasson, 74 Ga.App. 31, 38 S.E.2d 683, 685 [1946]; Panke v. Louisville Trust Co., 303 Ky. 579, 198 S.W.2d 313, 315 [1946]; Scott v. Lumber Co., 144 N.C. 44, 56 S.E. 548 [1907]; Barrett v. Steele, 189 Okla. 501, 117 P.2d 1020, 1022 [1941].)
When the doctrine of relation back applies, as in this case, it is necessary that the will be proved and recorded in the county where the land is situated, and when the will is so admitted after the date of the conveyance, it will relate back and render the contract valid. It is important to note that those who deal with an out of state executor under circumstances set forth in this opinion do so at their peril that the transaction is free of fraud, is beneficial to the estate when entered into, and that the rights of third parties have not intervened.
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Harman, C.J.:
This is an action for an accounting under a written cattle lease. By way of sanction the trial court entered a default judgment against the defendant for his failure to comply with a discovery order. Defendant has appealed.
Points on appeal include the court’s jurisdiction over the person of the defendant, the propriety of the sanction and the amount of the judgment awarded.
From the pleadings on file and the depositions of each of the parties the following appears. Plaintiff Ed Prather, an airline pilot who resided in Lake Quivera, Johnson county, Kansas, received information from two Lake Quivera neighbors about defendant Ray Olson and his tax shelter cattle leasing program in northern Missouri. One neighbor was Jeff Griffiths, Olson’s accountant, and the other was Frank Brown.
Defendant Olson individually owned a livestock ranch near Browning, Missouri. He was president of Olson Cattle Co., Inc., which bought and sold livestock he ran on his ranch. He was also president of Milan Livestock Auction, a Missouri corporation which operated a livestock auction, and of Olson Order Buyers, a Missouri corporation which bought and sold cattle at the auction.
Early in 1971 plaintiff contacted defendant by telephone after learning of him through plaintiff’s two neighbors and as a result purchased thirty head of heifers on March 16, 1971, through the Milan Livestock Auction. By letter dated May 3, 1971, Olson mailed Prather a copy of the bill of sale for these cattle. The stationery used by Olson contained the legend “Green Hills Cattle Management Co.” Defendant Olson testified this was a name “dreamed up” by his accountant Griffiths for the cattle tax shelter program but Olson never went through with incorporation for it and instead carried on the operation himself. The May 3d letter also transmitted the cattle lease agreement which is the subject of this action and which Prather signed and returned to Olson for his signature. Briefly, this instrument provided for the leasing by Prather of thirty cattle to Olson for a period expiring December 1, 1971, for a rental of $426.45, such agreement to continue from year to year unless terminated by either of the parties with an annual rental of $600.00. The agreement provided that Olson should care for, feed and breed the cattle at his place of operation and should receive all progeny except those used as replacement for the original cattle. He was to have discretion to sell any original cattle, or their replacements, deemed undesirable, the funds derived therefrom to be reinvested in replacement cattle. Under the agreement the rented cattle were to be branded or otherwise marked so as to make positive their identification and the owner was to have the right to make inspection of them.
Prather saw his cattle on three occasions on Olson’s ranch. He received his 1971 rental money. Prather testified that in the early summer of 1972 he visited the ranch and saw heifers but no calves; Olson told him there were no calves because he had sold the original thirty cows and replaced them with heifers; Prather could see they weren’t the original herd because they were no larger than those he had seen the year previously; he asked Olson for a bill of sale but Olson said that wasn’t necessary for tax purposes and he furnished none; Olson paid Prather the $600.00 rental for 1972; Prather visited the herd in the summer of 1973 and again saw there were only heifers; in December, 1973, he requested termination of the agreement; Olson eventually gave him a check for $5,000; Olson had previously told him his replacement heifers were branded on the hips with the letter “P”.
Olson testified in his deposition that he did not solicit Prather for the cattle program; form letters were printed for that purpose but none were supposed to have been sent out; he knew Prather through his accountant Griffiths; he had Prather’s cattle branded; none of Prather’s cattle died during the period or were replaced; he did not sell any of Prather’s cattle and had them all in December, 1974; he had bought and sold other cattle off the ranch during 1972 and 1973 and had the records.
On June 3,1974, plaintiff Prather commenced this action in the trial court, obtaining “long-arm” service pursuant to K.S.A. 60-308 (b) (1) and (5). Defendant Olson answered, among other things, challenging the court’s jurisdiction over his person, and he also filed a counterclaim for expense incurred by him for feeding plaintiff’s cattle after October, 1973. Thereafter both parties were deposed. On March 17, 1975, pursuant to K.S.A. 60-234, plaintiff requested production of defendant’s 1971-1974 federal income tax returns, his records of cattle purchases and sales during 1971 through 1974 and requested permission for himself and his veterinarian to enter upon defendant’s ranch for inspection of cattle identified by defendant in his December 10, 1974, deposition as plaintiff’s cattle. When nothing was forthcoming plaintiff moved for an order to compel defendant to comply with the request previously made. On May 14, 1975, the trial court ordered defendant to comply with the request within thirty days. Thereafter defendant’s accountant furnished the requested tax records but records of cattle purchases and sales were never supplied.
On June 18, 1975, plaintiff and his veterinarian traveled to defendant’s ranch to inspect the thirty cattle defendant had identified in his deposition as being branded with a “P” and approximately five years of age. Defendant produced only twenty cattle for inspection. The “P” brands on the cattle were in the opinion of plaintiff’s veterinarian from six weeks to six months old at the time of inspection and the cattle were from three to eight years of age. No chute was provided by defendant for this inspection although one had been previously requested of defendant so as to make a meaningful inspection.
On July 3, 1975, plaintiff filed his motion for sanctions based on defendant’s wilful noncompliance with the production order. On July 24, 1975, the court held a hearing on this motion. Plaintiff appeared and presented his version. Defendant appeared by his attorney only. Defendant offered no evidence at the hearing. On July 28, 1975, the trial court found that plaintiff’s allegations were true, that defendant had failed to deny that the requested records existed or that he had control of them and that his failure to comply with the discovery order and the proffering of false and fraudulent evidence was wilful on his part. The court also ruled it had jurisdiction of defendant’s person based on transaction of business within Kansas. It entered a judgment against defendant for $20,423.00. Defendant appealed from this judgment. Later he filed a motion to set aside the default judgment, alleging, in general terms only, mistake and inadvertence and that he had a meritorious defense. The record on appeal does not show disposition of this motion. Plaintiff states it was overruled but in any event we are not concerned with that motion.
We consider first the court’s ruling that it had personal jurisdiction over defendant by reason of transaction of business in this state, pursuant to K.S.A. 60-308 (b) (1) and (5), which provide:
“(b) Submitting to jurisdiction — process. Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits said person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of said acts:
“(1) The transaction of any business within this state;
“(5) Entering into an express or implied contract, by mail or otherwise, with a resident of this state to be performed in whole or in part by either party in this state. ...”
In White v. Goldthwaite, 204 Kan. 83, 460 P. 2d 578, the court stated three basic factors which must coincide if such jurisdiction is to be exercised over a nonresident, as follows:
“. . . (1) the nonresident must purposefully do some act or consummate some transaction in the forum state; (2) the claim for relief must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation. . . (p. 88.)
Defendant asserts a single telephone call by plaintiff to him in Missouri and receipt by plaintiff in Kansas of defendant’s rent checks are not sufficient activities to give jurisdiction to the Kansas court. The trial court had more than this upon which to base its ruling. There was testimony plaintiff learned of defendant’s program through his Kansas neighbors. The court had before it a letter addressed to plaintiff’s neighbor, Frank Brown, dated December 28, 1970, on “Green Hills Cattle Management Co.” stationery, signed by Olson, which letter outlined Olson’s cattle program and its tax advantages. The letter solicited Brown’s investment. Endorsed on the top of the letter was this handwritten note: “Frank, This the deal I was discussing with you. Jeff.” The inference is inescapable this note was from Olson’s accountant, Jeff Griffiths. Griffiths, also plaintiff’s Kansas neighbor, discussed the cattle program with plaintiff. It was he who, in defendant’s parlance, “dreamed up” the name of defendant’s tax shelter program. Defendant acknowledged he learned of plaintiff through Griffiths. Prior to signing the cattle lease plaintiff purchased cattle through Olson and made payment and received his bill of sale for them in Kansas. This transaction was part and parcel of the leasing agreement and its performance took place partially in Kansas. Payments under the lease were made in Kansas and the lease was twice extended past its original term by the assent of plaintiff, which can be said to have occurred in Kansas.
It seems clear the entire transaction was initiated through defendant’s activity — by mail and by his accountant. Although each case is to be determined on its own facts, solicitation by mail or by agents within a state for services to be performed in another state may be, and has been, held to be sufficient transaction of business within the state to support in personam jurisdiction over a nonresident defendant (see Paulos v. Best Securities Incorporated, 260 Minn. 283, 109 N.W. 2d 576; Kugler v. Market Dev. Corp., 124 N.J. Super. 314, 306 A. 2d 489; Schaffer v. Granit Hotel Inc., 110 N.J. Super. 1, 264 A. 2d 240; Gregory v. Grove, Okla., 547 P. 2d 381). And as pointed out certain aspects of the whole transaction were performed in Kansas. Overall the contacts in Kansas were much more numerous and significant than those in Misco-United Supply, Inc. v. Richards of Rockford, Inc., 215 Kan. 849, 528 P. 2d 1248, relied upon by defendant for reversal.
We conclude the court’s factual determination of personal jurisdiction was sufficiently supported by the evidence, that the activities of the parties brought defendant within the ambit of K.S.A. 60-308 (b) (1) and (5) and, under the circumstances, constitutional due process was not thereby offended.
Defendant asserts the trial court erred in imposing the ultimate sanction of entry of default judgment against him. He points out he furnished the tax records which were ordered, the order didn’t require him to furnish a chute for cattle inspection and plaintiff was able to make some inspection. He seems to make much of the fact, according to him, that the cattle purchase and sale records were not in his possession. On this showing he contends he complied with the letter and spirit of the order and default judgment was too harsh under the circumstances.
K.S.A. 60-237 (b) authorizes a number of sanctions for the trial court’s use against parties unjustifiably resisting discovery orders. Rendition of default judgment is one of them, respecting which, in Lorson v. Falcon Coach, Inc., 214 Kan. 670, 522 P. 2d 449, it was held:
“The sanction of judgment by default for refusal to make discovery under K.S.A. 60-237 is the most severe sanction which a court may impose and its use must be tempered by the careful exercise of judicial discretion to assure that imposition thereof is merited. However, where there is evidence that a parts' has acted in deliberate disregard of reasonable and necessary orders of a court, and where such party is afforded a hearing and an opportunity to offer evidence of excusable neglect, the imposition of a stringent sanction will not be disturbed.” (Syl. 3.)
In Vickers v. City of Kansas City, 216 Kan. 84, 531 P. 2d 113, it was further held:
“Where a party fails to comply with a production order in the course of discovery proceedings, the trial court is required in the exercise of its power of judicial discretion to determine which of the variety of available sanctions it will impose by its judgment. In making this determination the trial court should consider whether or not the documents to be produced go to a dispositive issue in the case, and whether the party seeking discovery may therefore be protected by the imposition of a sanction short of dismissal; and the court also should consider whether the party ordered to produce has failed to comply due to his inability to comply with the order, and not due to willfulness or bad faith.” (Syl. 7.)
The real dereliction was defendant’s failure to furnish the records of his cattle purchases and sales during the pertinent period. Although he seems to imply this was due to his inability to produce them, he conceded in his deposition and in his brief that he had access to them. The fact he was president of all the corporations involved leads to the conclusion he had “control” over them as that term is used in our production of documents statute (see Williams v. Consolidated Investors, Inc., 205 Kan. 728, Syl. 2, 472 P. 2d 248). Defendant did not testify he was unable to produce the requested records. In fact at the hearing afforded him he offered no reason or excuse for his inaction nor did he request any extension of time. The documents sought went to a vital issue in the case, the purchase and sale of cows which may have belonged to plaintiff and upon which damages would be based. As indicated, this was information controlled by defendant. The trial court specifically found defendant’s conduct to be wilful. Under the guidelines mentioned in Vickers it is difficult to see how lesser sanctions could be imposed to protect plaintiff. At the least we cannot declare abuse of discretion in the action taken.
Finally, defendant asserts the trial court erred in awarding the full amount of damages sought because there was insufficient evidence of loss suffered. We cannot agree. The court conducted a hearing on the entire matter. In its journal entry of judgment the court made specific reference to the depositions of the parties. The plaintiff’s deposition, which was on file and of which the court was obviously aware, explained his calculation of damages. Admittedly he had no evidence of the exact date of sales of any of his cattle or the exact weight of the animals or the sales prices (this was information he had sought unsuccessfully to obtain). Essentially plaintiff testified his calculation began with defend ant’s statement that in 1972 he had sold the original heifers purchased in 1971 and had replaced them with others as he had a right to do under the contract; plaintiff based his computations concerning normal growth and weight of the animals sold on information gleaned from individuals in the cattle business and his estimated profits on cattle market quotations in the Kansas City Star. He calculated the number of heifers which would then have been purchased from the proceeds, with a consequent increase in the herd. Similarly he made the same calculations with respect to the cattle sold in 1973 and replaced with other heifers. His bottom line figure after allowance of credits he conceded were due defendant was $18,023.00. In view of the foregoing we cannot say the court acted improperly. The court did not, however, take into account the $2,400 credit testified to by plaintiff but rendered judgment for $20,423.00, the amount prayed for in the petition. In Lorson v. Falcon Coach, Inc., supra, the supreme court modified a default judgment rendered by way of sanction because of improper claim for one item of- damages. Similarly, within Lorson guidelines, we think sanctions should not be imposed beyond any amount subsequently claimed by plaintiff in his testimony and therefore the judgment was excessive by $2,400 and must be so modified. As modified the judgment is affirmed. | [
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Abbott, J.:
This appeal involves a dispute as to redemption rights between appellee and his ex-wife’s successor in interest to real estate sold at a mortgage foreclosure sale.
The facts are not in dispute and are essentially as follows:
Appellee, Pat Elliott, and his then wife, Marguerite L. Elliott, owned a home in Wichita as joint tenants with the right of survivorship and not as tenants in common. On September 1, 1959, Pat and Marguerite mortgaged the home to Federal National Mortgage Association, a corporation.
Pat and Marguerite L. Elliott were divorced on September 12, 1974, by virtue of a decree entered in case No. D-32992 in the district court of Sedgwick County, Kansas. The court divided the property as required by statute and awarded the real estate as follows:
“IT IS FURTHER BY THE COURT CONSIDERED, ORDERED, ADJUDGED AND DECREED that the absolute right of possession and occupancy of the home of the parties at 1621 Alta, Wichita, Kansas, legally described as Lot 6, Block 1, Louis Fourth Addition, be and is hereby granted to the plaintiff until such time as she may sell said home, remarry, die, or until such time as she shall vacate said home for a period of time longer than three (3) months. If, at any time, plaintiff desires to sell said home, she may do so and apply the proceeds toward the payment of the mortgage thereon, expenses of sale, and then divide the balance equally between the parties hereto; and at said time, defendant is hereby ordered to sign such deed as the plaintiff may require to effect said sale. At such time as plaintiff may remarry or vacate said home for a period of time longer than three (3) months, plaintiff shall sell said home under the conditions as set out above. Plaintiff shall assume the mortgage indebtedness on said home.”
Marguerite remained in the family home but failed to make the mortgage payments. Federal National Mortgage Association filed this mortgage foreclosure action in June of 1975. Service was made on the Elliotts. Judgment was entered on September 17, 1975, for the unpaid amount of the mortgage plus interest. A sale of the real property was ordered and the following judgment entered concerning redemption rights:
“IT IS BY THE COURT FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED that in the event of foreclosure sale of the above described real property, the defendants Pat Elliott and Marguerite L. Elliott be and hereby are given the right to redeem said real property as by law provided, said period of redemption being hereby fixed at 6 months from the date of such sale.
“IT IS BY THE COURT FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED that in the event of foreclosure sale and the failure to redeem by the defendants Pat Elliott and Marguerite L. Elliott within 6 months from the date of such sale, the Sheriff of Sedgwick County, Kansas, be and he is hereby directed to make to the holder of the Certificate of Purchase at said Sheriff’s sale a valid Sheriff’s Deed conveying said real property to such holder.”
The foreclosure sale was held on October 29, 1975. Appellant, Wichita Investors Group, Inc., was high bidder at the sale with a bid of $9,100. After the sale, but on the same day as the sale, Wichita Investors Group, Inc., paid $200 to Marguerite L. Elliott as consideration for a quitclaim deed and assignment of redemption rights which read:
“KNOW ALL MEN BY THESE PRESENTS, That the undersigned Marguerite L. Elliott, for value received, the receipt and sufficiency of which is hereby acknowledged, do hereby transfer, set over, convey, quit claim and assign unto Wichita Investors Group, Inc. all of Assignors right, title and interest and the equity of redemption owned by Assignor in and to the following described real estate, to-wit:
Lot 6, Block 1, in LOUIS FOURTH ADDITION, more commonly know [sic] as 1621 E. Alta, Wichita, Sedgwick County, Kansas.
“Assignor warrant’s [sic] that she is of the record part owner of said real estate prior to the above entitled foreclosure equity of redemption and has the legal authority to make and deliver this instrument.
“EXECUTED THIS 29 day of October, 1975”
On November 6, 1975, the order of confirmation of sale was approved, and it provided “the period of redemption for the defendant-owners Pat Elliott and Marguerite L. Elliott has been fixed at 6 months from the date of said sale, or from October 29, 1975.”
Wichita Investors Group, Inc., on January 16, 1976, as the assignee of Marguerite L. Elliott’s redemption rights, paid the clerk of the district court of Sedgwick County the sum of $9,389.57. The clerk of the district court then paid Wichita Investors Group, Inc., as the holder of the certificate of purchase, the identical sum. Although the transaction was largely a paper transaction, moving money from one pocket to another in the same owner’s trousers, it is important to note Wichita Investors Group, Inc., at this point is out of pocket the sum of $9,100 it paid for the property at the sheriff’s sale.
Pat Elliott attempted to redeem the property and Wichita Investors Group, Inc., asserted sole ownership of the real estate. As a result, Pat Elliott, on February 24, 1976, well within the six-month redemption period, filed a motion in this case requesting that the trial court determine his redemption rights. The trial judge granted Elliott the exclusive right to redeem the property by an order dated March 5, 1976, which reads in pertinent part:
“The Court after being duly advised in the premises, finds that the defendant, Pat Elliott, has the right to redeem from Wichita Investors Group, Inc. by payment of the sum of $9,100.00 as the price paid at the Sheriff’s sale, $200.00 as the price paid to defendant Marguerite Elliott, interest from October 29, 1975 at the rate of 514 percent on the principal sum of $9,300.00, insurance, taxes or other costs as provided in K.S.A. 60-2414, and that payment of such amounts to redeem the aforedescribed real estate shall be done in no event later than April 29, 1976.
“IT IS THEREFORE BY THE COURT CONSIDERED, ORDERED, ADJUDGED, AND DECREED that defendant, Pat Elliott, shall have the right to redeem from Wichita Investors Group, Inc., Lot 6, Block I in Louis Fourth Addition, Sedgwick County, Kansas, at any time on or before April 29, 1976.
“IT IS FURTHER BY THE COURT CONSIDERED, ORDERED, ADJUDGED, AND DECREED that upon the payment to the Clerk of the District Court by defendant, Pat Elliott, of the redemption amounts as hereinbefore set forth, on or before April 29, 1976, the Sheriff of Sedgwick County, Kansas, shall not deliver a Sheriff’s deed to Wichita Investors Group, Inc., and that upon such payment, all right, title and interest of Wichita Investors Group, Inc., to Lot 6, Block 1, Louis Fourth Addition, Sedgwick County, Kansas, shall thereupon terminate.”
Pat Elliott redeemed the property, and this appeal by Wichita Investors Group, Inc., followed. Marguerite L. Elliott and Federal National Mortgage Association, a corporation, did not appeal and make no appearance on the appeal.
Basically, appellant argues that the district court erred in granting Pat Elliott the exclusive right to redeem the property and terminating all rights of the appellant upon redemption by Pat Elliott. Appellant’s main argument is that the property rights of Pat Elliott and his ex-wife were determined in the divorce decree; that none of the parties to the divorce appealed, and the court in the mortgage foreclosure case cannot change the property rights determined in the divorce case; that Marguerite was given the right of sale; and that at best appellee is entitled only to one-half of the $200 appellant paid to Marguerite for her quitclaim deed and assignment of her equity of redemption.
Appellee argues Pat Elliott “had one-half ownership in the property as a joint tenant with right of survivorship,” that his ex-wife was ordered to make the payments and did not, that it would be inequitable to have Pat Elliott become a joint tenant with the corporation and that it would be equitable to allow Pat Elliott to redeem the real estate and become the sole owner.
Appellee further argues that appellant cannot have better title than Marguerite’s as a result of the assignment and quitclaim deed from Marguerite to appellant. The basis of this argument is that in June of 1976, some eight months after Marguerite gave the assignment and quitclaim deed and several months after this appeal had been commenced, appellee’s counsel and counsel for Marguerite appeared before the district court in the original divorce action. The divorce court ruled that Marguerite’s interest in the real estate had terminated because of her failure to make the mortgage payments. We are advised that on oral argument no notice was given to counsel for appellant, and the trial judge in the divorce case was not informed of the mortgage foreclosure action. The argument was not presented to the trial court. We reject the argument for numerous reasons so obvious that they require no discussion or citations.
Appellant chose not to brief his points separately. In passing, we note appellant cites but one authority in his brief, and that authority is not relevant to any material issue in the case.
The Elliotts owned the property as joint tenants with right of survivorship and not as tenants in common prior to the commencement of the divorce action. A joint tenancy depends upon the coexistence of four requirements, namely, interest, title, time and possession. A joint tenancy may be terminated by mutual agreement of the joint tenants or by operation of law when any one or more of the necessary elements of joint tenancy are destroyed. (Carson, Executrix, v. Ellis, 186 Kan. 112, 348 P.2d 807; Baade v. Ratner, 187 Kan. 741, 359 P.2d 877.) In Carson and Baade, the Supreme Court recognized that the parties could mutually agree to terminate a joint tenancy by a property settlement agreement inconsistent with the elements of joint tenancy without expressly stating they were terminating the joint tenancy. In Carson, the parties agreed to sell the real estate within sixty days and divide the. net proceeds. The husband died and his ex-wife claimed all of the interest in the real estate as the surviving joint tenant. The court said in pertinent part at pp. 115-6 (omitting citations contained therein):
“A joint tenancy will be severed by the destruction of any one or more of its necessary units.
“It has also been held that a joint tenancy may be terminated by a mutual agreement between the parties, or by any conduct or course of dealing sufficient to indicate that all parties have mutually treated their interests as belonging to them in common.
. . These contracts and the acts and conduct of the parties were clearly inconsistent with the existence of a joint tenancy and indicated an intention and agreement that such relationship should no longer exist. . .
The court considered the effect the divorce decree had on joint tenancy property and found that the divorce decree operated to sever the unity of possession, stating at pp. 116-7:
“Did the decree of divorce sever the joint tenancy? G.S. 1949, 60-1511 provides, in part, that when a decree of divorce is granted to the wife by reason of the fault of the husband, the court shall make a division of the real and personal property as shall have been acquired by the parties jointly during their marriage, whether the title thereto be in either or both of the parties. It is clear that the object of the statute, in case a divorce is granted, is to settle all rights between the parties and sever the interests of the husband and the wife so as to vest in each a sole interest in specific property or an allotment of the lands and tenements. The divorce decree has the effect of severing the unity of possession between a husband and wife. In other words, that which was a joint possession is turned into a several one. The decree of divorce definitely fixed the rights of the parties in the real estate by ordering the property sold and the proceeds divided in accordance with the decree. It was a final judgment from which no appeal was taken. The fact that sale of the property had not been made prior to the death of Mr. Ellis is immaterial. The decree operated to sever the unity of possession.”
We have no difficulty concluding that when a divorce decree grants possession of real estate to one of the joint tenants until that tenant sells the home, remarries, dies, or vacates the realty for over three months, and the decree provides that upon remarriage, vacation of the realty, or desire to sell on the part of the occupying tenant the other tenant join in the deed and the net proceeds of the sale be divided equally between them, such provisions operate to terminate the joint tenancy and to create a tenancy in common by operation of law.
We further note that Marguerite L. Elliott conveyed her interest in the property by quitclaim deed to appellant after the sheriff’s sale which in itself would have severed the joint tenancy. A joint ténant can convey his or her interest in realty to a third party, and that conveyance will terminate the joint tenancy. (Berry v. Berry, 168 Kan. 253, 212 P.2d 283.)
Pat Elliott and his ex-wife were cotenants in the realty as a result of the divorce decree. Marguerite L. Elliott had conveyed her interest in the property to appellant prior to the date of the court order granting Pat Elliott the exclusive right to redeem the property and thereby terminating any right of appellant in the property. The district court erred in its order. The divorce decree effectively terminated the joint tenancy. No appeal was taken from the divorce decree and it was a final order. The law is well settled in Kansas that “[w]here matters concerning the disposition and division of property and property rights are adjudicated and settled in a final divorce decree the trial court is thereafter without statutory authority to change, alter or modify the judgment with respect to the property so divided.” (Flannery v. Flannery, 203 Kan. 239, 452 P.2d 846. See, also, Drummond v. Drummond, 209 Kan. 86, 495 P.2d 994, and Wallace v. Wallace, 214 Kan. 344, 520 P.2d 1221.) If the trial court which granted the divorce is without authority to change, alter or modify the original divorce decree with respect to the property divided therein, another court cannot do what the original court is prohibited from doing under the guise of equity in a mortgage foreclosure action. Appellant was the successor in interest to Marguerite L. Elliott’s undivided one-half interest in the property, and the trial court could not terminate that interest nor frustrate her disposition of her one-half interest to appellant.
Appellant argues Marguerite L. Elliott had authority in the divorce decree to sell the property and that when she quitclaimed the property to appellant that terminated appellee’s interest. We are not dealing with an innocent purchaser. Appellant was charged with constructive knowledge of the divorce decree at the time it solicited and accepted the quitclaim deed from Marguerite. The trial judge in the divorce action recognized Marguerite L. Elliott could not alone convey good title and required appellee to join in any deed conveying the premises. Certainly the trial court in the divorce action would not have required appellee to join in a deed when the property was not being transferred for adequate consideration. Appellant knew of Pat Elliott’s right of redemption in the mortgage. Even more damaging to appellant’s argument is the language found in the assignment and quitclaim deed whereby appellant obtained Marguerite L. Elliott’s interest in the property and which was drawn by appellant stating, “Assignor warrant’s [sic] that she is of the record part owner of said real estate . . .” (Underscoring supplied.)
Appellant took only the interest of Marguerite L. Elliott in the realty and that was an undivided one-half interest. Pat Elliott owns the other one-half as a tenant in common. A tenant in common cannot redeem realty in a mortgage foreclosure action to the exclusion of a cotenant. Thus, a tenant in common who exercises his or her right of redemption does so not only for his or her benefit, but also for the benefit of the cotenant regardless of the intent of the redeeming cotenant. The cotenant who did not redeem can participate in the redemption by contributing an amount that is commensurate with his proportionate share. (Hayden v. Hughes, 147 Kan. 511, 77 P.2d 938; Rutland Savings Bank v. Norman, 125 Kan. 797, 266 Pac. 98.)
Reversed, with direction for the trial court to allow redemption in accordance with this opinion. | [
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Harman, C.J.:
This is an action by a consignee to recover for damages done to merchandise carried by defendant as a common carrier in interstate commerce. Trial to the court resulted in judgment for the plaintiff. Two separate shipments were the subject of trial but appeal has been taken by defendant only with respect to one, the Windsor door shipment, for which judgment for $557.41 was entered. The issue is whether a sufficient written claim was timely filed.
The Windsor shipment originated in Little Rock, Arkansas, and on October 14, 1974, defendant Graves Truck Line, Inc. delivered it to plaintiff Chester A. Gay at Abilene, Kansas. Noting damage to some of the doors, plaintiff, who was a general contractor, notified defendant and on October 16, 1974 requested an inspection. The inspection was made by defendant’s agent on October 23, 1974. The agent filled out an “After Delivery Inspection Report.” He also partially filled out a form denominated “Freight Claim For Loss and Damage.” The agent dated the claim October 23, 1974, and filled out Section I of the claim form which called for the name and address of the claimant, the shipper and the consignee, and for the number and date of defendant’s freight bill. He partially filled out Section III of the claim entitled “Inspection report of damage on loss of merchandise from container” by indicating October 14, 1974, as the date of delivery, and by striking out certain items which called for answers respecting concealed damage, apparent damage, description and adequacy of packing, whether damage was noted on delivery, whether there was loss or pilferage, and whether shipment was in original manufacturer’s carton and packing.
Defendant’s inspection agent did not fill out Section II of the claim form entitled “Statement of how amount is determined, description of merchandise, value, etc.” He also left blank the space which called for the dollar amount of the claim. This portion of the claim also stated that certain documents must be included with the claim, including “[a]ll repair or replacement bills in support of claimed amount.” The agent stated that plaintiff had to have the replacement bills. Plaintiff did not at that time sign the partially completed claim form and defendant’s agent left it with plaintiff for completion of Section II.
The “After Delivery Inspection Report” was filled out by the agent, apparently on October 23, 1974. It indicated that damage to the shipment was both visible and concealed; that damage could be known without unpacking; and it identified nineteen door sections which were damaged. Some of the damage was characterized as “concealed.” The testimony revealed that the door sections were to be installed by plaintiff in an implement company building in Abilene. At the time of defendant’s inspection, some of the shipping cartons containing the doors were torn so that the damage was visible. Some of the damaged sections were, with the owner’s consent, repaired. Four sections were damaged so that they had to be replaced. Plaintiff ordered replacement doors with Windsor Door Company at Little Rock on November 4,1974, requesting delivery as soon as possible. These doors were not stock items but had to be fabricated to the job specifications and the Windsor company could not and would not state their cost until the doors were completed. Plaintiff sent a follow-up order to Windsor on December 2, 1974, and was advised the doors would be shipped December 13th or 16th. When plaintiff did not receive them as indicated, he wrote a follow-up letter January 7, 1975, requesting information and an invoice so the freight claim could be processed. June 9, 1975, plaintiff wrote Windsor again on the same subject.
The date the replacement doors or the invoice for them actually arrived in Abilene is not clear but it appears to be about July 14, 1975. Meanwhile Windsor issued an invoice for the doors dated July 10, 1975, showing a shipping date of July 8,1975, and a cost of $496.78. On August 14, 1975, ten months after delivery of the first shipment, defendant’s claim department received the written claim form signed by plaintiff. Section II was completed. It indicated replacement cost consisting of Windsor’s invoice in the sum of $496.78, plus defendant’s freight charge of $28.63, and repair cost in the amount of $32.00, or a total claim of $557.41.
Section 2(b) of the uniform straight bill of lading under which the doors were shipped provides that as a condition precedent to recovery, all claims for freight damage must be filed in writing with the delivering carrier within nine months of the date of delivery. Defendant asserts the judgment cannot stand because plaintiff failed to comply with this contractual provision.
The parties agree, and properly so, that federal law governs transactions involving the interstate shipment of goods (Nichols v. Atchison, T.& S. F. Rly. Co., 180 Kan. 101, 299 P.2d 52). A leading case on the subject of freight claims is St. Louis, I. Mt. & So. Ry. Co. v. Starbird, 243 U.S. 592, 61 L.Ed. 917, 37 S.Ct. 462 (1917), from which these principles have emerged: Actual notice of damage on the part of a carrier is insufficient to constitute a claim; no particular form of written claim is necessary and the claim need not set out all the particulars of the damage; and the written claim puts in permanent evidentiary form the intent to claim damages and facilitates prompt investigation by the carrier.
Federal decisions have generally been liberal in construing the sufficiency and timeliness of shippers’ written claims. For example, in American Synthetic Rubber Corp. v. Louisville & N. R. Co., 422 F.2d 462 (6th Cir. 1970), defendant’s agents examined and returned to plaintiffs documents which stated that damage was being claimed though the extent of damage to the shipment had not been ascertained; more than nine months later plaintiffs submitted to the defendant carrier a memorandum outlining the extent of damage. It was held this action sufficiently complied with section 2(b). In Loveless v. Universal Carloading & Distributing Co., 225 F.2d 637 (10th Cir. 1955), a statement on a freight bill that damage to a shipment was noted on arrival was deemed sufficient. In Thompson v. James G. McCarrick Co., 205 F.2d 897 (5th Cir. 1953), memoranda noted on papers entitled “Statement of Protest” and “Placement Notice” which identified shipments as decayed and delayed, and which indicated claim “For $150.00 More or Less” and for “$100.00 subject to correction,” were held sufficient.
Defendant urges that holdings of this nature are to be tempered by the later enactment by the Interstate Commerce Commission in 1972 of the following regulation:
“(a) Claims in writing required. A claim for loss or damage to baggage or for loss, damage, injury, or delay to cargo, shall not be voluntarily paid by a carrier unless filed in writing, as provided in paragraph (b) of this section, with the receiving or delivering carrier, or carrier issuing the bill of lading, receipt, ticket, or baggage check, or carrier on whose line the alleged loss, damage, injury, or delay occurred, within the specified time limits applicable thereto and as otherwise may be required by law, the terms of the bill of lading or other contract of carriage, and all tariff provisions applicable thereto.
“(b) Minimum filing requirements. A communication in writing from a claimant, filed with a proper carrier within the time limits specified in the bill of lading or contract of carriage or transportation, and (1) containing facts sufficient to identify the baggage or shipment (or shipments) of property involved, (2) asserting liability for alleged loss, damage, injury, or delay, and (3) making claim for the payment of a specified or determinable amount of money, shall be considered as sufficient compliance with the provisions for filing claims embraced in the bill of lading or other contract of carriage.
“(c) Documents not constituting claims. Bad order reports, appraisal reports of damage, notations of shortage or damage, or both, on freight bills, delivery receipts, or other documents, or inspection reports issued by carriers or their inspection agencies, whether the extent of loss or damage is indicated in dollars and cents or otherwise, shall, standing alone, not be considered by carriers as sufficient to comply with the minimum claim filing requirements specified in paragraph (b) of this section.” (49 CFR 1005.2)
Regulations of the Interstate Commerce Commission do have the force and effect of federal law. Thus, an inspection report, standing alone, may not be considered sufficient compliance with minimum claim filing requirements. But that report here did not stand alone. The October 23,1974, claim for freight damage form, made the same day as the inspection report, did identify the property by means of the freight bill covering it (which bill in turn described the shipment), and it indicated claim for damage was being made. Defendant’s agent had this form on October 23, having filled out those parts already indicated. Keeping in mind the purpose of the requirement for a written claim, we think these documents, taken together, sufficiently made claim for a determinable amount of money within the meaning of the regulation. The term “determinable” simply means capable of being definitely ascertained, which is manifestly something different from a “specified” amount.
As matters developed, final determination of that specified amount was not quickly obtainable, despite plaintiff’s diligent efforts. Shortly after October 23, 1974, plaintiff ordered the replacement doors and tried to secure a written replacement bill. He made repeated efforts toward this end but because the doors had to be fabricated specially, he could not secure a statement of their cost until after they were completed. He did not receive this until about July 14,1975. Within thirty days thereafter his written claim and manufacturer’s invoice for the exact amount was received by defendant. It is difficult to perceive much more plaintiff could have done under all the circumstances. We think his actions were reasonable and that the October 23 writings sufficiently advised defendant of his claim so that it could make its own investigation of the matter. The trial court found plaintiff had substantially complied with filing requirements and the record sufficiently supports that finding.
The judgment is affirmed. | [
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Harman, C.J.:
This is an original proceeding in habeas corpus. The issue is whether a juvenile is entitled to pretrial bail as a matter of right under our federal and state constitutions. The case is submitted upon stipulated facts after briefing and oral argument.
On May 26, 1977, plaintiff, William Pauley, Jr., a seventeen- year-old male, was arrested upon a charge of burglary and grand theft. The same day delinquency proceedings under our juvenile code were instituted against him in the district court of Geary county and a guardian ad litem was appointed. A temporary detention hearing pursuant to K.S.A. 1976 Supp. 38-819 was held May 27, 1977, at the conclusion of which the court refused to release plaintiff to his guardian, denied bail, and ordered that the sheriff of Geary county should have plaintiff’s custody in a special area away from adult prisoners. The court made the following findings:
“1. That the juvenile had a history of juvenile offenses for curfew violations numbering four.
“2. That the juvenile had been adjudged a delinquent in 1974 for burglary. Said juvenile was sent to the Boys Industrial School in Topeka and released in December 1975.
“3. That the juvenile had been ‘A.W.O.L.’ while at the Boys Industrial School on two occasions.
“4. Evidence showed also that since his release from the Boys Industrial School he had no further juvenile record until the present charges and that he had never failed to appear at any court proceeding.”
The court further found that plaintiff was dangerous to himself and others and that he was being held for his own welfare and protection and that of others because other adequate supervision for him did not exist. Hearing on the merits in the delinquency proceeding was scheduled for June 3, 1977.
On May 31, 1977, an amenability hearing conducted in the district court of Geary county resulted in a finding that plaintiff was not a fit and proper person to be dealt with under the juvenile code and prosecution under the criminal code was directed. This latter action has prompted a suggestion of mootness by the respondent inasmuch as once a juvenile is certified for trial as an adult, he becomes entitled to bail. We deal first with this matter.
The rule is, except in rare instances, appellate courts do not decide moot questions or render advisory opinions (In re Browning, 1 Kan. App.2d 652, 573 P.2d 1095). One exception is where a real controversy of statewide importance and interest exists but because of the time required for adequate presentation the question cannot ordinarily be litigated at the appellate level prior to becoming moot (see, e.g., Smith v. Miller, 213 Kan. 1, 514 P.2d 377). The case at bar is not an appeal but is an original proceeding which ordinarily can be more speedily processed, but nonethe less the issue in it has become academic. We think the same rationale should be applicable in an original proceeding also where, as here, review of an important judicial question, capable of appellate attention, would normally be frustrated by action which ought not be delayed including that of certification of a juvenile for trial as an adult offender in an appropriate case, if the rule of mootness were strictly applied. Hence, we will consider the issue presented.
The eighth amendment to the federal constitution confers no right to bail on anyone, either adult or juvenile. It provides only that bail shall not be excessive. A citizen charged in state courts must rely on his state constitution or statute for bail. Kansas provides for such a right in its constitution:
“All persons shall be bailable by sufficient sureties except for capital offenses, where proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.” (Bill of Rights § 9)
The conflict underlying the issue before the court has been described as one of expanding egalitarianism versus the parens patriae tradition of the juvenile court system (see Hafen, Reservations About Children’s Rights, 1976 Brigham Young U.L. Rev. 605, 607). Arguments urging reform — the granting of more extensive procedural protection to juveniles — include: (1) The constitution is silent on age. (2) The purpose of parens patriae is to grant the juvenile greater protection than he would experience under the criminal law. Why strip him, then, of those constitutional rights guaranteed adults? (3) In spite of statutory proclamation that juvenile proceedings are civil in nature, the juvenile still is stigmatized with crime when he stands accused of an offense. (4) The juvenile often faces very real “deprivation of liberty,” no matter what the euphemistic name given the detention facility. See, Note, The Right tó Bail and the Pre-“Trial” Detention of Juveniles Accused of “Crime, ” 18 Vanderbilt L. Rev. 2096 (1965); Comment, Juvenile Right to Bail, 11 Journal Family Law 81 (1971); Comment, Children’s Liberation — Reforming Juvenile Justice, 21 K.L.R. 177 (1973); Anno. “Juvenile Courts— Right of Bail,” 53 A.L.R. 3d 848 (1973).
Kansas has long espoused the parens patriae doctrine in dealing with juvenile offenders (see State v. Fountaine, 196 Kan. 638, 642-643, 414 P.2d 75, 79), now expressed in K.S.A. 1976 Supp. 38-801 as follows:
“This act [juvenile code] shall be liberally construed, to the end that each child coming within its provisions shall receive such care, custody, guidance, control and discipline, preferably in the child’s own home, as will best serve the child’s welfare and the best interests of the state. In no case shall any order, judgment or decree of the district court, in any proceedings under the provisions of this act, be deemed or held to import a criminal act on the .part of any child; but all proceedings, orders, judgments and decrees shall be deemed to have been taken and done in the exercise of the parental power of the state.”
Our juvenile code specifically provides for pretrial detention. First, K.S.A. 1976 Supp. 38-815(e) states that whenever a child under the age of eighteen years is taken into custody by a peace officer and is forthwith taken before the district court, as is required, such child shall not remain in any detention or custody, other than the custody of the parent, guardian or other person having legal custody of the child, for more than forty-eight hours, excluding Sundays and legal holidays, from the time the initial custody was imposed by a peace officer, unless a determination is made, within such forty-eight hour period, as to the necessity for any further detention or custody in a detention hearing as provided in K.S.A. 1976 Supp. 38-815b.
This latter statute prescribes the procedure for a detention hearing, to include appointment of a guardian ad litem, notice of hearing and the like, along with this:
“(c) The district court may order temporary custody or detention as provided in K.S.A. 1976 Supp. 38-819, in a detention hearing under this section after determining that: (1) The child is dangerous to self or to others; (2) the child is not likely to appear at a hearing for adjudication on any petition filed pursuant to K.S.A. 1976 Supp. 38-816; or (3) the health and welfare of the child may be endangered without further care.
“(d) When the court finds that the continued detention of the child pending adjudication in a hearing on a petition is not required to serve the welfare of the child and the best interests of the state as determined in subsection (c) of this section, the court shall order the child’s release and in doing so may place the child in the custody of the parent, guardian or other person having legal custody of the child, or a juvenile probation officer, or may impose any other conditions which may be required subject to modification by the court.”
K.S.A. 1976 Supp. 38-819 provides: .
“(a) Prior to or during the pendency of a hearing on a petition to declare a child to be delinquent, miscreant, wayward, a traffic offender, a truant or dependent and neglected, filed pursuant to K.S.A. 1976 Supp. 38-816, the district court may order that such child be placed in some form of temporary detention or custody as provided in this section, but only after a determination is made as to the necessity therefor in a detention hearing as provided by K.S.A. 1976 Supp. 38-815b.
“(b) Upon such a determination, the court may make an order temporarily granting the custody of such child to some person, other than the parent, guardian or other person having legal custody, or to a children’s aid society, or to a public or private institution used as a home or place of detention or correction, or to the secretary of social and rehabilitation services.
“(c) Upon such a determination, the court may order any such child who is alleged to be a delinquent or miscreant child to be placed in detention in the county jail or police station in quarters separate from adult prisoners. In such cases, the court, if it deems it advisable, may order such child confined in a jail or police station prior to or during the pendency of the hearing on the petition. When such provisions for separate quarters have not been made for the care and custody of the child in such detention, the court may order such child to be kept in some suitable place of detention provided by the county other than the county jail or police station.”
Nowhere in our juvenile code is a right to bail prescribed.
The few states which have held that a juvenile has a constitutional right to bail, even though no statute authorizes it, have done so for the reasons indicated under the arguments for reform.
The landmark case in the area of juvenile procedural rights is In re Gault, 387 U.S.1, 18 L.Ed.2d 527, 87 S.Ct. 1428 (1967). There a ñfteen-year-old boy had been committed to a state industrial school for the period of his minority because of an obscene phone call he apparently had made. Procedural safeguards were practically nonexistent throughout the proceedings. Finding that the “unbridled discretion” perpetuated by the parens patriae doctrine was often a poor substitute for procedure, the Gault court held juvenile delinquency proceedings which may lead to commitment in a state institution must measure up to the essentials of due process and fair treatment, including (1) written notice of the charges to the juvenile and his parent; (2) the right to counsel; (3) the application of the privilege against self-incrimination; and (4) sworn testimony with opportunity for cross-examination. (In re Winship, 397 U.S. 358, 25 L.Ed.2d 368, 90 S.Ct. 1068 [1970], may be said to have added to this panoply a fifth factor — the right to a standard of proof beyond a reasonable doubt.)
Although Gault stated “neither the Fourteenth Amendment nor the Bill of Rights is for adults alone” (387 U.S. at 13), it went on to point out that practically all jurisdictions grant certain rights to adults which are withheld from juveniles. The right to bail was specifically noted among these. While the holding was limited to the facts in the case, the court did state:
“. . . We do not mean by this to denigrate the juvenile court process or to suggest that there are not aspects of the juvenile system relating to offenders which are valuable.” (Id. at 22)
Further:
“. • • While due process requirements will, in some instances, introduce a degree of order and regularity to Juvenile Court proceedings to determine delinquency, and in contested cases will introduce some elements of the adversary system, nothing will require that the conception of the kindly juvenile judge be replaced by its opposite, nor do we here rule upon the question whether ordinary due process requirements must be observed with respect to hearings to determine the disposition of the delinquent child.” (Id. at 27)
Certainly a wholly informal juvenile process is capable of inviting abuse and certain procedural requirements are necessary to prevent the exercise of “unbridled discretion.”
States which have held that a juvenile is not entitled to bail usually have done so under the parens patriae doctrine for these reasons: (1) a juvenile does not stand charged with crime; (2) an adequate substitute for bail exists; and (3) traditionally a juvenile is not held to the same standard of individual responsibility for his conduct as is an adult, so adequate reason for different procedures concerning the two classes exists. Our own law and statutes on the subject are compatible with these ideas and they appear sound, particularly the latter two.
Cases which have simply held that a juvenile has not been charged with crime include In re Castro, 243 Cal. App. 2d 402, 52 Cal. Rptr. 469; Baker v. Smith, 477 S.W.2d 149 (Ky. 1971), 53 A.L.R.3d 843; Ex Parte Cromwell, 232 Md. 305, 192 A.2d 775; Ex parte Newkosky, 94 N.J.L. 314, 116 A. 716; State ex rel. Peaks v. Allaman, 51 Ohio Op. 321, 66 Ohio L. Abs. 403, 115 N.E.2d 849. Castro points out that an effective system adhering in part to the underlying theory of juvenile courts could not logically or practically be administered along with the strict procedural exercise of all the constitutional rights accorded adults.
Some courts have found it unnecessary to reach the question whether there is a constitutional right to bail in juvenile proceedings, believing an adequate substitute for bail is provided by the juvenile acts themselves. In re Castro, supra; Baker v. Smith, supra; Fulwood v. Stone, 394 F.2d 939 (D.C. Cir. 1967); U. S. ex rel. Burton v. Coughlin, 463 F.2d 530 (7th Cir. 1972); Baldwin v. Lewis, 300 F. Supp. 1220 (E.D. Wis. 1969). In many jurisdictions the judge has the power to turn custody of the child over to the parent or to establish reasonable means for release of the juvenile pending hearing. If parental custody cannot be granted, an appropriate inquiry concerning pretrial custody is made to meet the oft-stated statutory requirement of “equivalent custody” (equivalent to that parents should give).
K.S.A. 38-801 demonstrates legislative intent that no child shall be deemed criminally charged when proceeded against under the juvenile code and our supreme court has so held (State v. Fountaine, supra). That code mandates prompt action when prehearing detention is contemplated, with fundamental fairness to be accorded in the detention hearing. Detention is clearly contemplated as a last resort, after certain findings have been made, and no other form of supervised release, including parental custody, is available. When, for want of a better place, detention is to be in a county jail or police station, separation from adult prisoners is required.
Detention in a juvenile proceeding in all instances cannot really be said to be the equivalent of denial of bail for an adult. Criminal bail is to insure presence for trial. A juvenile can be detained for this reason (this was not the purpose in the case at bar). He can also be detained for his own protection or welfare. We think this factor should be an essential finding for prehearing detention under our statutes except where detention is necessary to insure presence for trial. When so detained, he is not really deprived of anything as he, unlike an adult, is already subject to parental or some substituted control. Different treatment of the juvenile from that of an adult is justifiable not because of age, but because of lack of capacity. Care and guidance for juveniles in need is appropriate under our juvenile code both before and after their hearings. An absolute right to bail is inconsistent with this philosophy. “The institution of bail, whereby an arrested person is given an opportunity to buy his release, may be seriously questioned as a rational solution to the problems of prehearing custody, despite its ancient and constitutional lineage. . . Release as of right [of a juvenile arrested for delinquency] plainly may interfere with the protection or care required in some cases, and availability of freedom should not turn on the ability of the child or his family to purchase it.” (Pres. Commission, Task Force Report: Juvenile Delinquency and Youth Crime, p. 36 [1967].)
Our conclusion is that the absence of an absolute right to bail in our juvenile code, and its denial by judicial action after a due process detention hearing, does not contravene section 9 of the Kansas bill of rights nor does it deny due process or equal protection of the laws in violation of the fourteenth amendment to the federal constitution.
Here the detaining court, after notice and hearing, made specific findings including the essential ones that plaintiff was being held for his own welfare and protection and because other means of adequate supervision for him did not exist. The court’s evidentiary findings were not overly explicit or detailed factually but they appear sufficient.
The petition is denied.
It is generally held that a ruling on pretrial bail is not reviewable after trial and conviction (see, e.g., State v. Sheppard, 100 Ohio App. 345, 128 N.E.2d 471 [1955], aff’d 165 Ohio St. 293, 135 N.E.2d 340 [1956]). | [
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Green, J.:
Randy Johnson appeals from his jury trial conviction of felony driving under the influence of alcohol (DUI) in violation of K.S.A. 8-1567. First, Johnson argues that his case should be remanded for a new trial because a juror improperly introduced extrajudicial evidence regarding prior bad acts. Nevertheless, because Johnson has failed to show that the alleged juror misconduct substantially prejudiced his right to a fair trial, he has not established that the trial court abused its discretion in denying him a new trial. As a result, Johnson’s argument fails.
Next, Johnson contends that the trial court failed to completely respond to the jury’s question about the consequences of a hung jury. Nevertheless, we determine that there was nothing in the trial court’s response that would prejudice Johnson’s rights in this case. As a result, we find no abuse of discretion in the trial court’s response to the juiy’s question.
Finally, Johnson argues that the trial court erred in failing to inquire into the accuracy of the jury’s verdict and in fading to ask whether the parties wanted the jury polled. Under K.S.A. 22-3421, the parties have the burden to request individual polling of the jury. Because Johnson failed to timely request polling of the jury, he waived his right to have the jury individually polled. Nevertheless, K.S.A. 22-3421 imposes a statutory mandate upon the trial court to ask the jury in open court whether the verdict is the jury’s verdict. Because the trial court failed to follow the statutory mandate of K.S.A. 22-3421, which would give the jurors an opportunity to express dissent from or disagreement with the verdict, we cannot be satisfied that the verdict was truly unanimous in this case. Under the facts of this case, where Johnson has presented jurors’ affidavits showing problems with the unanimity of the verdict, we determine that the trial court’s failure to follow the statutory mandate of K.S.A. 22-3421 to inquire as to whether the verdict was the jury’s verdict amounted to reversible error.
Officer Mark Davidson stopped Johnson around 3 a.m. on June 12, 2005. Before stopping Johnson, Davidson’s radar had clocked Johnson’s van traveling 42 miles per hour in a 65-mile-per-hour speed zone. Davidson testified that he had passed Johnson going in the opposite direction, so he turned around and began following him. While following Johnson, Davidson saw Johnson’s van travel left of the center line and also cross the right white line. According to Davidson, Johnson was unable to produce his driver’s license during the stop. Nevertheless, Craig Van Allen, the officer who later came to assist Davidson with the stop, testified that he saw Davidson with Johnson’s driver’s license that evening.
Davidson testified that when he asked Johnson to step out of the van, Johnson appeared to be under the influence of alcohol. Davidson testified that Johnson had bloodshot eyes, slurred speech, and poor coordination. In addition, Johnson smelled of alcohol. Davidson had Johnson perform field sobriety tests. According to Davidson, Johnson said that he knew he would fail the tests. Davidson testified that during the walk-and-tum field sobriety test, Johnson lost his balance in the instruction stage; did not touch heel to toe; stepped off the line; and made an improper turn. Moreover, on tire one-leg stand test, Johnson hopped and put his foot down on the ground.
After Johnson performed the field sobriety tests, Van Allen arrived to assist Davidson. Van Allen testified that Johnson’s speech was slurred, his balance and coordination were impaired, and his breath smelled of alcohol. According to Van Allen, Johnson had trouble standing in one spot and was taking steps to maintain a standing position. Moreover, Van Allen testified that Johnson admitted that he had been drinking but asked the officers not to arrest him.
Davidson arrested Johnson for DUI. Davidson testified that his opinion was that Johnson could not safely operate an automobile. After Johnson agreed to submit to an alcohol blood test, Davidson took him to the hospital. On the way to the hospital, Van Allen dropped Johnson’s van off at Johnson’s body shop. Van Allen testified that there was a box of beer in Johnson’s van between the passenger’s seat and driver’s seat “but pushed a little back.”
Upon arriving at the hospital, Johnson said that he had changed his mind and would not take the blood test. Davidson then took Johnson to the police station. Both Van Allen and Davidson testified that Johnson stumbled on his way into the police station. Moreover, Van Allen testified that Johnson leaned against the wall as he walked down the hallway. Davidson and Van Allen later took Johnson home.
Johnson was charged with felony DUI in violation of K.S.A. 8-1567(a). During his testimony at the jury trial, Johnson admitted that he had approximately five beers between 10:30 p.m. on June 11, 2005 and before 2 a.m. on June 12, 2005. Nevertheless, Johnson testified that he thought he was fully capable of driving in a safe manner. According to Johnson, he had his first beer when he met his two friends, Brian Draper and Eric Harper, at a bar in Atwood between 10:30 and 11 p.m. After having one beer, Johnson drove Draper and Harper to Colby to celebrate Draper’s birthday. Johnson testified that they arrived at a bar in Colby just after midnight where they ran into three other friends. According to Johnson, he had one bottle of beer and two to three beers out of a pitcher while he was at the bar in Colby. Upon leaving the bar around 2 a.m., Johnson drove Draper and Harper to Harper’s car in Atwood.
Harper testified that he and Draper had put the box of beer in Johnson s van. According to Harper, he and Draper, not Johnson, were drinking the beer in Johnson’s van on the way to and from Colby. Harper testified that he did not believe that Johnson was too intoxicated to drive that night. Jason Bamhardt, one of Johnson’s friends at the Colby bar, testified that he had no doubts about Johnson’s ability to drive safely that evening. According to Barnhardt, their group of six had only had two or three pitchers within an hour and a half at the bar in Colby.
Johnson testified that after he dropped Draper and Harper off at Harper’s car, he drove towards his home in St. Francis. Johnson stopped at a rest area in MacDonald to use the restroom but then continued driving home. Johnson testified that he had his cruise control set at 67 miles per hour in the 65-mile-per-hour speed zone. Johnson further testified that when he reached Bird City, he slowed down and coasted through the town but then resumed his cruise control at 67 miles per hour. Johnson testified that he never passed a car going in the opposite direction but he did notice a car behind him a few miles outside of Bird City. Johnson was stopped several miles later by Davidson.
According to Johnson, Davidson said that the reason he stopped Johnson was because Johnson was traveling 53 miles per hour through Bird City. Johnson testified that Davidson never said that he had observed Johnson traveling across the center line or driving 42 miles per hour in a 65 mile-per-hour-speed zone. Johnson further testified that when Davidson asked him to perform the field sobriety tests, he agreed to perform the tests but told Davidson that he would not be able to complete them due to the wind that evening. Johnson admitted that he refused to take the blood alcohol test. Johnson testified, however, that Davidson never told him about the consequences of his refusal. Further, Johnson denied that he stumbled when he walked into the police station.
Johnson testified that Davidson gave him the implied consent advisoiy form and told him to look at it but did not read the advisories to him. On the other hand, Davidson testified that he had read the implied consent advisories to Johnson. Davidson indicated that he read Johnson the implied consent advisories at the scene of the stop but was unsure whether he gave Johnson the implied consent advisory form there or at the hospital.
During jury deliberations, the jury asked several questions, including wbat would happen if it could not reach a unanimous verdict. The jury was sent back to deliberation, and it later returned a verdict of guilty on the DUI charge.
I. Did a juror improperly introduce extrajudicial evidence regarding prior bad acts?
First, Johnson argues that his case should be remanded for a new trial because a juror improperly introduced extrajudicial evidence regarding prior bad acts. Under K.S.A. 22-3501, “[t]he court on motion of a defendant may grant a new trial to him if required in the interest of justice.” An appellate court reviews the trial court’s decision on a motion for a new trial for an abuse of discretion. See State v. Mathis, 281 Kan. 99, 103-04, 130 P.3d 14 (2006). “ ‘A trial court abuses its discretion when it denies a motion for a new trial based on juror misconduct if the defendant can show that (1) an act of the jury constituted misconduct and (2) the misconduct substantially prejudiced the defendant’s right to a fair trial. [Citation omitted.]’ [Citation omitted.]” Mathis, 281 Kan. at 103-04.
After the jury rendered its guilty verdict in this case, Johnson moved for a new trial based in part on juror misconduct. Attached to Johnson’s motion for a new trial were affidavits from jurors. In one of the affidavits, a juror claimed that one of the other jurors had stated during deliberations that “this was not Randy’s 1st time and he was about due for the charge.”
The State suggests that the juror’s statement was a mental process, which cannot be used to show juror misconduct under K.S.A. 60-441. On the other hand, Johnson contends that the juror’s statement was not an example of a mental process but was a statement showing that a juror had introduced prejudicial extrajudicial evidence in the deliberation process.
The procedure for and limitations on challenging the validity of a jury’s verdict are statutory. Under K.S.A. 60-444(a), a juror is not exempt “from testifying as a witness to conditions or occurrences either within or outside of the jury room having a material bearing on the validity of the verdict . . . except as expressly limited by K.S.A. 60-441.” K.S.A. 60-441 prohibits testimony concerning the jury’s mental processes:
“Upon an inquiry as to the validity of a verdict or an indictment no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him or her to assent to or dissent from the verdict or indictment or concerning the mental processes by which it was determined.”
A verdict may not be impeached by questions concerning a juror’s views or conclusions, the reasons for those views or the factors used in determining those conclusions, or what influences those views or the mental process in reaching such conclusions. Saucedo v. Winger, 252 Kan. 718, 728-29, 850 P.2d 908 (1993).
In State v. Cook, 281 Kan. 961, 135 P.3d 1147 (2006), our Supreme Court clarified what evidence can be considered under K.S.A. 60-444(a) and what evidence is excluded under K.S.A. 60-441. There, the defendant moved to recall the jury based on a juror affidavit where the affiant attested that he heard another juror state that the defendant had previously been tried and convicted of the same crime. Our Supreme Court held that the evidence of what the other juror had said to the affiant juror was admissible under K.S.A. 60-444(a). Any evidence of what effect the statement had on the affiant’s mental process in reaching the verdict was inadmissible under K.S.A. 60-441. 281 Kan. at 977-78.
In reaching this determination, our Supreme Court in Cook looked to its previous decision in State v. Kaiser, 260 Kan. 235, 918 P.2d 629 (1996). In Kaiser, the defendant moved to recall the jury based on a juror affidavit where the affiant stated that, contrary to her expressed opinion that the defendant was not guilty, she had been pressured by other jurors to agree to a guilty verdict. Our Supreme Court held that the evidence of what the other jurors said and did was admissible under K.S.A. 60-444(a). The evidence of what effect tire conduct had on the affiant’s mental process in reaching the guilty verdict was inadmissible under K.S.A. 60-441. 260 Kan. at 250-52.
An application of Cook and Kaiser to the facts of this case leads to the conclusion that evidence of what the other juror had said can be considered under K.S.A. 60-444(a). Nevertheless, any evidence about what effect the other juror’s statement had on the affiant juror’s mental processes in reaching the verdict is barred by K.S.A. 60-441.
We draw guidance from Brown v. Hardin, 197 Kan. 517, 419 P.2d 912 (1966). In Brown, our Supreme Court indicated that evidence of other jurors’ statements that related to matters that were an intrinsic part of the verdict should not be considered under K.S.A. 60-441. Although Brown is a civil case, its reasoning is instructive. After the verdict in Brown, two jurors submitted affidavits relating that statements were made by other jurors in the jury room that they did not give any consideration to a rebuttal witness’ testimony because they were of the opinion he had been “paid” to come and testify and that it was also remarked that the witness had been “bought off’ and they could not pay any attention to his testimony. Rejecting the appellant’s argument that this was juror misconduct, our Supreme Court stated:
“Clearly tírese affidavits related to matters occurring during the jury’s deliberations which were an intrinsic part of the verdict, namely, expression of opinion on weight to be given testimony. There is no suggestion of extrinsic misconduct of any juror, no claim of personal knowledge on the part of any juror or no indication of outside influence as was true in cases relied on by plaintiff. Human nature, being what it is, if every wild expression of opinion made in a jury room in the throes of hammering out a verdict could be made the basis for retrial jury verdicts could seldom be preserved. Such inquiries into the validity of jury verdicts, based on mental processes of the jurors, are foreclosed in Kansas, formerly by case law, now by statute. [Citation omitted.]” 197 Kan. at 523.
As a result, our Supreme Court found no prejudicial error requiring reversal.
Under Brown, not all statements made by other jurors are admissible under K.S.A. 60-444(a). Particularly, those statements that involve an opinion of the other jurors are inadmissible because they are evidence of mental processes. The State contends that the statements in this case are similar to those in Brown. It seems that the State is correct. The statement of which Johnson complains appears to be an opinion on the part of a juror as to Johnson’s previous conduct. There is no indication in the affidavit that the offending juror discussed a specific situation involving Johnson or gave any specific facts of Johnson previously drinking and driving. The statement is similar to those statements in Brown as it involved the subjective thought of the juror.
Nevertheless, it is unnecessary to determine whether the juror’s statement complained of here was inadmissible under K.S.A. 60-441 because the record establishes that Johnson has not shown that he was prejudiced by the juror’s statement. In denying Johnson’s motion for a new trial based on juror misconduct, the trial court determined that the evidence in the juror’s affidavits did not rise to the level of what is required for a new trial. Essentially, the trial court jumped straight to the prejudice prong and determined that the conduct did not prejudice Johnson’s right to a fair trial.
Johnson cites no case where a new trial was granted based on a juror’s statements similar to the statement made in this case. Instead, Johnson attempts to compare the statement made in this case to the presentation of impermissible prior bad acts evidence under K.S.A. 60-455 to the jury during trial. Nevertheless, Johnson provides no authority for this flawed analogy.
Moreover, the admission of prior bad acts evidence under K.S.A. 60-455 and the statement that occurred during jury deliberations in this case are not capable of comparison. Prior bad acts evidence under K.S.A. 60-455 is presented to the jury during trial. The jury is then instructed to consider the K.S.A. 60-455 evidence for a certain purpose in reaching its verdict. See State v. Gunby, 282 Kan. 39, Syl. ¶ 3, 144 P.3d 647 (2006) (To avoid error in the admission of K.S.A. 60-455 evidence, the trial court must give a limiting instruction informing the juiy of the specific purpose for admission.).
On the other hand, jurors’ statements are not evidence presented in the case, and a jury is instructed to decide die case on the evidence presented at trial. In this case, the juiy was specifically instructed about the evidence it could consider in its deliberations: “In your fact finding you should consider and weigh everything admitted into evidence. This includes testimony of witnesses, ad missions or stipulations of the parties, and any admitted exhibits. You must disregard any testimony or exhibit which I did not admit into evidence.” Finally, the jury was instructed that its verdict “must be founded entirely upon the evidence admitted and the law as given in these instructions.” “It is well established that juries are presumed to have followed the instructions given by the trial court.” State v. Rice, 273 Kan. 870, 873, 46 P.3d 1155 (2002). As a result, Johnson s attempted analogy between prior bad acts evidence under K.S.A. 60-455 and the juror’s statement in this case fails.
Here, the offending juror’s statement that “this was not Randy’s 1st time and he was about due for the charge” does not refer to extrinsic evidence of any particular facts. Although not specifically mentioned in Johnson’s appellate brief, it should be pointed out that in another affidavit, one of the jurors stated that during deliberations, there were “[a] lot of comments about Randy, like ‘We all know how Randy is.’ And that if the police say he was drunk, then he was drunk.” Nevertheless, there is no mention in the affidavits that any juror had specific knowledge of a prior DUI incident involving Johnson or that a specific prior DUI incident was discussed in tire jury room. All that Johnson has established in this case is that there were general statements made that “this was not Randy’s 1st time” and “[w]e all know how Randy is.”
As Judge Learned Hand stated in Jorgensen v. York Ice Machinery Corporation, 160 F.2d 432, 435 (2d Cir.), cert. denied 332 U.S. 764 (1947):
“[I]t would be impracticable to impose the counsel of absolute perfection that no verdict shall stand, unless every juror has been entirely without bias, and has based his vote only upon evidence he has heard in court. It is doubtful whether more than one in a hundred verdicts would stand such a test; and although absolute justice may require as much, the impossibility of achieving it has induced judges to take a middle course, for they have recognized that the institution could not otherwise survive; they would become Penelopes, forever engaged in unravelling the webs diey wove. Like much else in human affairs, its defects are so deeply enmeshed in the system that wholly to disentangle them would quite kill it.”
In the present case, it is apparent that the offending juror’s statement that “this was not Randy’s 1st time and he was about due for the charge” concerned only a very small part of the jury’s deliberation. The juror who supplied the affidavit made no further reference to the statement in her affidavit.
In addition, the offending juror did not explain what the juror meant when the juror stated that “this was not Randy’s 1st time and he was about due for the charge.” Did the juror mean that this was not Randy’s first time attempting to drive home after a night of drinking? Or did the juror mean that this was not the first time that the police had stopped Randy for suspicion of DUI, but before the police never had sufficient evidence to charge Randy with DUI?
Further, the juror’s statement that “he [Randy] was about due for the charge” was a mere opinion. It was not a fact. Whatever factual content that the other jurors gave to the offending juror’s statement had to be supplied from their own speculation of what the offending juror’s statement meant rather than from the statement itself. Finally, even if we were to accept Randy’s characterization that the offending juror’s statement referred to Randy drinking and driving on a previous occasion, there is no logical force in the statement tending to show that Randy was guilty of anything. Indeed, drinking and then driving is not illegal per se in Kansas; it is only driving with a certain blood alcohol concentration and driving while intoxicated to the extent that the driver cannot drive safely that are illegal under Kansas law. See 8-1567(a); State v. Arehart, 19 Kan. App. 2d 879, 882, 878 P.2d 227 (1994).
The cases where our Supreme Court has found prejudicial juror misconduct have included the introduction of objective evidence into deliberations that was not presented at trial. For example, our Supreme Court has found prejudicial juror misconduct where several jurors visited the scene of a collision and measured distances, Kaminski v. Kansas City Public Service Co., 175 Kan. 137, 259 P.2d 207 (1953); and where one juror used a slide rule to determine the point of impact and other computations, Barajas v. Sonders, 193 Kan. 273, 392 P.2d 849 (1964). The extraneous evidence introduced in those cases was capable of corroboration and did not rest solely in a juror’s subjective thoughts.
The State maintains that the offending jurors’ statements in this case are even further removed from being statements of fact than those made in Cook, 281 Kan. 961. There, the defendant had presented an affidavit from a juror which stated: “During deliberations in this case, I heard another juror say that this case was a retrial. That juror also said that [the defendant] had been previously convicted of that same crime in the first trial.” 281 Kan. at 966-67. Our Supreme Court held that the defendant was unable to show prejudice and found no abuse of discretion in the trial court’s decision to deny the defendant’s motion to recall the juiy.
In reaching its determination in Cook, our Supreme Court discussed its decision in State v. Farrar, 103 Kan. 774, 176 Pac. 987 (1919). In Farrar, the defendant, in a motion for a new trial, had presented evidence that during deliberations one or more jurors had stated that the defendant had been convicted of first-degree murder at a previous trial. Determining that prejudice to the defendant had not been shown, our Supreme Court stated:
“A statement of the nature of the verdict at a former trial is not evidential. The fact stated adds nothing to the evidence respecting any contested issue. It may not even be interesting. It may be a matter of common knowledge. It does not naturally or necessarily tend to corrupt the deliberations of a jury, presumably regardful of their oaths and the instructions given by the court, and in any given instance it is the function of the trial court to determine whether or not it probably subverted their integrity and vitiated their verdict. In this instance this court agrees with the trial court that it is highly improbable the extraneous remarks influenced the jury to return an unwarranted verdict.” 103 Kan. at 777.
As a result, our Supreme Court determined that a new trial was not warranted.
The offending jurors’ vague statements in this case do not even rise to the level of those in Cook and Farrar. There were no statements of specific fact concerning Johnson’s past conduct. As in Farrar, the juror’s statements would not naturally or necessarily tend to corrupt the deliberations of a jury, presumably regardful of its oaths and the instructions given by the court. Johnson has not shown that the offending jurors’ statements substantially prejudiced his right to a fair trial. The trial court was correct in its determination that the offending jurors’ statements in this case do not rise to the level of warranting a new trial. As a result, there is no abuse of discretion in the trial court’s decision.
II. Did the trial court fail to properly respond to a jury question?
Next, Johnson argues that the trial court failed to completely respond to the jury’s question about the consequences of a hung jury.
K.S.A. 22-3420(3), which governs a jury’s request for additional information after the start of deliberations, states:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.”
A trial court’s decision to respond to a jury’s request for additional information during deliberations is reviewed for an abuse of discretion. State v. Murdock, 286 Kan. 661, 680, 187 P.3d 1267 (2008). A trial court’s decision to provide additional instruction to the jury when a question is submitted during deliberations will be upheld as long as the additional instruction is not coercive or otherwise objectionable. In other words, the court must determine whether the defendant’s rights were prejudiced by the trial court’s action in giving the instruction. Murdock, 286 Kan. at 680.
During deliberations, the jurors in this case submitted the following question: “What happens if we can’t come to a unanimous verdict?” The trial judge initially responded as follows: “What happens is I declare a hung jury and you go home . . . .” The trial judge then asked the jury if it was deadlocked and further instructed the jury as follows:
“You’ve obviously been talking about this, working on it pretty hard for, I don’t know, a couple hours. Is it your impression that more time is not going to help any, today you’re basically helplessly deadlocked? Does that appear to be the case or not? (Pause)
“Let me put it this way: If I have you go back to the jury room and discuss that among yourselves, you can report to me whether you feel you’re hopelessly deadlocked at that point. If you feel you are, let me know that. If you — if you want to go home and come back in the morning, let me know that. If you want to continue on a while longer tonight, let me know that . . . But if you’ve discussed it and tried and are unable to come to a verdict simply tell me that and we’ll go with that, okay? . . . I’ll have you go back to the jury room, discuss what I have just ran through. Let me know what you want to do, okay?”
Thereafter, the jury asked for and was read some testimony presented at trial from Davidson. Approximately 53 minutes after the court instructed the jury on the unanimous verdict question, the jury returned a verdict of guilty.
Johnson contends that in responding to the jury’s question, the trial court failed to address the legal consequences of an inability to agree on a verdict. Johnson maintains that the trial court should have instructed the jury in accordance with a portion of PIK Crim. 3d 68.12, which states: “If you fail to reach a decision on some or all of the charges, that charge or charges are left undecided for the time being. It is then up to the state to decide whether to resubmit the undecided charge(s) to a different jury at a later time.”
Our Supreme Court has disapproved of the giving of PIK Crim. 3d 68.12 after jury deliberations are in progress. See State v. Makthepharak, 276 Kan. 563, 569, 78 P.3d 412 (2003); State v. Struzik, 269 Kan. 95, Syl. ¶ 6, 5 P.3d 502 (2000). In those situations, “such an instruction could exert undue pressure on the jury to reach a verdict.” Makthepharak, 276 Kan. at 569.
Nevertheless, Johnson argues that the portion of PIK Crim. 3d 68.12 that he quotes was not coercive and should have been given. Johnson argues that this information about the consequences of a mistrial, in particular that the legal matter is not final, is important for a hold-out juror to fend off pressuring jurors.
Although Johnson was present when the trial court answered the jury’s question, he did not request that the jury be instructed in accordance with the particular portion of PIK Crim. 3d 68.12 that he now argues should have been given. Instead, he remained silent while the trial court instructed the members of the jury to return to deliberations and determine whether they were deadlocked. It seems that the instruction now urged by Johnson could shift the focus of tire jury’s deliberation. Such an instruction, when given in the middle of jury deliberations, might cause jury members to un duly concentrate on the fact that Johnson might never be charged again for the alleged crime.
We find nothing in the trial court’s response to the juror’s question that would prejudice Johnson’s rights in this case. The trial court accurately told the jury the consequences that would result if it was unable to reach a verdict, that is, that a hung jury would be declared. The trial court did not pressure the jury to reach a verdict within a certain amount of time or even to reach a verdict at all. The trial court simply told the jury to discuss the matter further and determine if it was unable to reach a unanimous verdict. There was nothing coercive in the trial court’s response. As result, there was no abuse of discretion in the trial court’s response to the jury’s question.
III. Did the trial court err in failing to inquire into the accuracy of the jury’s verdict and in failing to ask whether the parties wanted the jury polled?
Next, Johnson argues that the trial court erred when it accepted the jury’s verdict without inquiring into the accuracy of the verdict or questioning whether the parties wanted the jury polled. Johnson concedes that he never objected at trial to the trial court’s failure to inquire into the accuracy of the verdict or to question whether the parties wanted the jury polled. Moreover, Johnson did not raise this issue in his motion for a new trial.
Generally, issues not raised before the trial court cannot be raised on appeal. State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007). There are several exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal, including the following: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) the consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) the judgment of the trial court may be upheld on appeal despite its reliance on the wrong ground or assignment of a wrong reason for its decision. State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008).
Johnson asserts that this issue should be addressed on appeal because it raises a question of law and does not rely on disputed facts. Moreover, Johnson alleges that this issue involves the fundamental right to a unanimous jury verdict.
In order to address the merits of the State’s argument, this court must interpret K.S.A. 22-3421. Interpretation of a statute presents a question of law over which an appellate court’s review is unlimited. State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). An appellate court’s first task is to “ascertain the legislature’s intent through the statutory language it employs, giving ordinary words their ordinary meaning.” State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007).
K.S.A. 22-3421, which contains the general procedures for releasing a jury verdict, states:
“The verdict shall be written, signed by the presiding juror and read by the clerk to the jury, and the inquiry made whether it is the jury’s verdict. If any juror disagrees, the jury must be sent out again; but if no disagreement is expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case. If the verdict is defective in form only, it may be corrected by the court, with the assent of the jury, before it is discharged.” (Emphasis added.)
Johnson argues that under K.S.A. 22-3421, the trial court in this case should have inquired into whether both parties waived polling of the jury. The right to have a jury polled in Kansas is statutory and has been in existence for over 100 years. State v. Holt, 285 Kan. 760, 767, 175 P.3d 239 (2008). Quoting State v. Panker, 216 Kan. 347, 349, 532 P.2d 1073 (1975), our Supreme. Court in Holt discussed the purpose of juiy polling:
“Any party in a civil or criminal case has an absolute right to have the juiy polled. [Citation omitted.] This practice requires each juror to answer for himself, thus creating individual responsibility and eliminating any uncertainty as to the verdict announced by the foreman. It also affords an opportunity for free expression unhampered by the fears or errors which may have attended the private proceedings. [Citation omitted.]”
Nothing in K.S.A. 22-3421 requires the trial court to determine whether parties wish to exercise their right to poll the jury. K.S.A. 22-3421 states that “if no disagreement is expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case.” (Emphasis added.) The language in K.S.A. 22-3421 places the burden on the parties to require polling of the jury.
Other jurisdictions have held that a party waives the right to have the jury polled when he or she fails to make a timely request:
“[I]t is generally held that the failure to make a timely demand or request for a poll, where a reasonable opportunity to do so has been afforded, operates as a waiver of the right. Conversely, a waiver will not be implied from a failure to demand or request a poll where the defendant has not had a reasonable opportunity to malee such demand or request.” Annot., 49 A.L.R.2d 619, § 8 (Waiver or Loss of Right).
See State v. James P., 96 Conn. App. 93, 899 A.2d 649 (2006) (failure to make timely demand or request for jury poll, where there has been reasonable opportunity to do so, constitutes waiver of right); Sheahan v. Dexter, 136 Ill. App. 3d 241, 252, 483 N.E.2d 402 (1985) (any complaint about failure to poll jury is waived by party’s failure to request such poll).
Here, because Johnson never requested polling of the jury, he waived his right to have the jury individually polled. In the absence of a request by either party to poll the juiy, we determine that the trial court did not err in fading to individually poll the jury.
Johnson also argues that the trial court violated K.S.A. 22-3421 when it failed to inquire into the accuracy of the verdict read in court. K.S.A. 22-3421 is clear in its directive that an inquiry is to be made into whether the verdict is that of the juiy. In the instant case, however, the trial court merely read the verdict into the record without asking whether the verdict was that of the jury.
The State argues that it was unnecessary for the trial judge to make further inquiry of the jury’s verdict in this case because the record clearly indicates that the presiding juror handed the verdict to the trial judge. The State asserts that such personal delivery of the verdict by the presiding juror, who is purportedly representing the jury and its decision, ensures that the verdict is in fact that of the jury as a whole.
If this court were to accept the State’s argument, the language in K.S.A. 22-3421 requiring an inquiry to be made into whether the verdict is the jury’s verdict would be mere surplusage. Under the State’s argument, the inquiry would never need to be made because the verdict form is written and signed by the presiding juror. The signature of the presiding juror, who is purportedly representing the jury and its decision, would ensure that the verdict is in fact that of the jury as a whole.
Nevertheless, the legislature has explicitly included the requirement in K.S.A. 22-3421 that inquiry be made as to whether the verdict is the jury’s verdict. This requirement accomplishes the important purpose of ensuring that the jury’s verdict is unanimous. As the Second Circuit Court of Appeals stated in United States v. Pleva, 66 F.2d 529, 532 (1933): “No person may lawfully be convicted by a jury unless every juror actually agrees that upon the evidence and the law of the case that person is guilty. If a verdict of guilty is returned for any other reason, it is a perversion of the constitutional guaranty to a jury trial.”
Similarly, under K.S.A. 60-248(g), after the verdict is written, signed by the presiding juror, and read by the clerk to the jury, this subsection requires the court to ask the jury whether it is their verdict. The legislature’s use of the pronoun their in the subsection indicates that the legislature is treating the collective noun jury as plural, that is, the jury is functioning as individuals. Both K.S.A. 22-3421 and K.S.A. 60-248(g) require that each juror agree with the verdict. Consequently, this affords no basis for the State to contend that the signature of the presiding juror ensures that the verdict is that of the jury.
Both K.S.A. 60-248(g) and K.S.A. 22-3421 incorporate the common-law rule that a verdict is of no force or validity until it is affirmed by the jury in open court. See Rigg v. Bias, 44 Kan. 148, 24 Pac. 56 (1890) (recognizing that verdict must be affirmed by jury in open court to have force and validity); Young v. Seymour, 4 Neb. 86 (1875). In Bishop v. Mugler, 33 Kan. 145, 5 Pac. 756 (1885), our Supreme Court recognized that the determination of a jury, although not formally stated in a verdict and signed and sealed, is not final with the jury, but it remains within the jury’s control, and subject to any alteration or amendment the jury decides to make, until it is actually rendered in court and recorded. Our Supreme Court further stated that it is well established that any member of the jury is at liberty to withdraw his or her consent from a verdict already agreed upon, at any time before the verdict is received and recorded. 33 Kan. at 147; see also Weeks v. Hart, 24 Hun. 181, 181-82 (N.Y. 1881) (“The right of a juror to dissent from a verdict which he had before agreed, is not lost until the verdict has been recorded. Any expression of dissent before that has been done, destroys the unanimity which is essential to make a verdict valid. [Citation omitted.]”).
By requiring inquiry as to whether the verdict is the jury’s verdict, K.S.A. 22-3421 gives jury members the opportunity to express disagreement with or dissent from the verdict in open court. When such disagreement is expressed, the trial court cannot be satisfied that the verdict is truly unanimous and must send the jury back for deliberations. This is reflected in the language of K.S.A. 22-3421. Immediately after the language requiring the inquiry to be made, K.S.A. 22-3421 states: “If any juror disagrees, the jury must be sent out again.” K.S.A. 22-3421 further states that “if no disagreement is expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case.” Thus, until the inquiry is made and the trial court is satisfied that the verdict is truly unanimous, the verdict is not complete.
Indeed, in State v. Scott, 1 Kan. App. 748, 42 Pac. 264 (1895), it was held that a verdict of acquittal was not complete where the evidence failed to show that the statutory requirements that the verdict be read by the clerk to the jury and the inquiry made as to whether it was their verdict had been accomplished. In that case, the defendant was charged with nuisance. The jury originally returned a verdict of not guilty. Upon returning the verdict, however, the foreman stated that the verdict was an error and that he had signed the wrong blank. A polling of the jury was then demanded, and each juror stated that the verdict was not his verdict. The trial court returned the jury for further consideration of the verdict. The jury later returned a guilty verdict. The defendant argued, however, that there had been a former acquittal.
In rejecting the defendant’s argument, the Scott court looked to the language of paragraph 4379 of General Statutes of 1889. That statute, which was the predecessor to K.S.A. 22-3421 and contained nearly the same language as the current statute, stated:
“The verdict shall be written, signed by the foreman and read by the clerk to the jury, and the inquiry made whether it is their verdict. If any juror disagrees, the jury must be sent out again; but if no disagreement be expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from tlie case.”
Determining that the evidence failed to show that the statute had been complied with, the Scott court stated:
“This paragraph clearly requires that the verdict must be read by the clerk to the jury, and the inquiry made whether it is their verdict before the verdict is complete. The evidence fails to show that this was done; therefore, the defendant fails to prove a complete verdict of acquittal.” 1 Kan. App. at 750-51.
Thus, Scott indicates that an inquiry must be made as to whether the verdict is the jury’s verdict before the verdict is complete.
There appear to be no Kansas cases that address an issue like the one encountered in this case: Does K.S.A. 22-3421, which requires that an inquiry be made to the jury whether the verdict represents the jury’s verdict, mandate that a verdict be reversed when the trial court neglects to make an inquiry to die jury as required by K.S.A. 22-3421, and when the appellate record establishes that there is a question whether the verdict represents the agreement of the individual jurors? In Holt, 285 Kan. 760, however, our Supreme Court recently addressed the issue of whether jury polling violated the defendant’s right to an impartial and unanimous jury. Although distinguishable, the Holt case is instructive on whether a defendant has shown harm in the procedure used in accepting the jury’s verdict under K.S.A. 22-3421.
In Holt, the defendant argued that his right to an impartial and unanimous jury was violated when the court clerk asked each juror during polling, “Is this the verdict of the jury?” instead of, “Is this your [i.e., individual] verdict?” 285 Kan. at 766. The defendant did not object to this question, which prevented the trial court from having any chance to cure any alleged defect in the polling before the jury was discharged. The defendant argued on appeal that his argument should be addressed because consideration of his theory was necessary to serve the ends of justice. In declining to address the defendant’s argument under this exception, our Supreme Court stated:
“Application of this exception is not warranted under the facts of this case, however, because Holt has failed to show that the polling procedure, e.g., the clerk’s question, actually harmed him. We first note that the juiy was given an instruction that its verdict must be unanimous; indeed, it was the last instruction given to the jury, stating,‘The person selected [as presiding juror] will . . . speak for the jury in court and will sign the verdict upon which you agree. . . . Your agreement upon a verdict must be unanimous.’ (Emphasis added.) The jury is presumed to follow the instructions. [Citation omitted.] After the verdict was read, the presiding juror, in response to the court’s question, confirmed in the jury’s presence, that the verdict was the jury’s and that the verdict was unanimous. Each juror then individually stated that this was the jury’s verdict. There is simply no evidence suggesting that Holt received anything other than a unanimous verdict from an impartial jury, i.e., no comments before the jury was dismissed and no posttrial affidavits from jurors or defense counsel to support Holt’s allegations.” 285 Kan. at 770.
Our Supreme Court concluded that because the defendant failed to timely object to the polling, he did not preserve the issue for appeal. 285 Kan. at 771.
This case differs from Holt in that the record in this case calls into question the unanimity of the verdict. Although the jury in this case was given an instruction like the one in Holt, there was no confirmation in open court that the jury’s verdict was unanimous. Moreover, the record contains two posttrial affidavits from jurors indicating that they did not feel the verdict was correct and truly unanimous. Although the jurors’ statements cannot be used to directly impeach the verdict under K.S.A. 60-441, they do show problems with the unanimity of the verdict that could have been addressed by adherence to K.S.A. 22-3421.
Specifically, juror C.M. fisted the following reasons as to why she did not feel the verdict was correct and truly unanimous:
“4. Felt very rushed and very pres[s]ured at the end.
“5. There were two of us not wanting to vote guilty.
“8. The other jurors said let’s make up our minds now! It’s getting late, and nobody wants to come back tomorrow. And no matter what myself and the other juror said they would not change their minds.”
In addition, juror S.S. listed the following reasons as to why she did not feel that the verdict was correct and truly unanimous:
“5. At the end some of the jurors just wanted to get home and decided Randy was guilty. I was not totally convinced that the police had proved his guilt of unsafely operating a motor vehicle. . . .
“8. I felt rushed at die end to agree with a guilty verdict so tire jurors could go home.”
The jurors’ statements call into question whether a truly unanimous verdict was reached in this case. If the inquiry had been made under K.S.A. 22-3421 and no jurors expressed disagreement or dissent with the verdict, the trial court and this court could be satisfied that the verdict was unanimous. Because the inquiry was never made in this case, however, any conclusion concerning the unanimity of the verdict at this point is speculation. In other words, to say that juror S.S. or juror C.M. would not have spoken up in open court to express disagreement with the verdict is pure conjecture at this late stage.
We draw guidance from this court’s holding in State v. Langley, 8 Kan. App. 815, 57 Pac. 556 (1899), that a verdict will not be legally effective unless agreed to by all of the jurors in open court. In Langley, the jury had returned their verdict. The verdict was handed to the trial court by the foreman. When the trial court stated that the jury had evidently made a mistake in their verdict, one of the jurors shouted that the verdict was a compromise verdict. The trial court told the jury to return to the jury room and to correct the verdict in certain particulars. The jury later returned into court with the verdict corrected. The Langley court held that “[w]e think the foregoing facts did not vitiate the verdict. No complaint concerning the verdict was made by any juror after it was returned the second time.” (Emphasis added.) 8 Kan. App. at 816. Langley clearly shows that a verdict will not be legally effective unless agreed to by all of the jurors in open court.
The statutory mandate under K.S.A. 22-3421 and K.S.A. 60-248(g) requiring the trial court to ask the jury in open court whether the verdict is their verdict is a safeguard to prevent error or misunderstanding. Because K.S.A. 22-3421 gives a juror a chance to express a last minute dissent, it cannot be said that Johnson was not prejudiced by the trial court’s failure to inquire into whether the jury had agreed with the published verdict. As a result, the trial court’s failure to follow the statutory mandate of K.S.A. 22-3421 to inquire as to whether the verdict was the jury’s verdict amounted to reversible error in this case.
Because we have determined that there was reversible error in this case, it is unnecessary to address Johnson’s remaining argument concerning the admission of his breath test refusal into evidence.
Reversed and remanded for a new trial. | [
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McAnany, J.:
In June 2005 Steve and Karen Chism purchased a new vehicle from Quality Motors of Independence, Inc. As apart of the transaction, the dealership’s business manager, Dennis Urban, offered to sell them a Protective Life Insurance, Co., credit life insurance policy that would pay off their car loan if either of them died. In her appellate brief, Karen characterizes Quality Motors as an authorized agent for Protective.
Steve had been diagnosed with high blood pressure in 1991, Type II diabetes in 1999, and peripheral vascular disease in November 2004. Steve took various medications and was treated regularly for these conditions.
The Chisms agreed to apply for coverage. Urban electronically downloaded from his computer onto the insurance application form some basic information about the Chisms, such as their names, address, telephone number, age, gender, and social security numbers. He also filled in the blanks with the details about the loan for the new vehicle and the amount of life insurance applied for, including the designated beneficiaries. He then handed the application to the Chisms to complete, review, and sign.
Immediately below the portion of the application filled in by Urban are the words in bold print: “WARNING -YOU MUST BE ELIGIBLE TO APPLY FOR INSURANCE.” The Chisms were then instructed:
“CIRCLE (item) and INITIAL (line) if any item applies to you. OTHERWISE, DO NO MAKE ANY MARKS.
“1. I am not eligible for any insurance if I now have, or during the past 2 years have been seen, diagnosed or treated for:
(a) A condition, disease or disorder of the brain, heart, lung(s), liver, ladney(s), nervous system or circulatory system; or
(b) Tumor; Cancer; Uncontrolled High Blood Pressure; Diabetes; Alcoholism; Drag Abuse; Emotional or Mental Disorder; Acquired Immune Deficiency Syndrome (AIDS); the Aids Related Complex (ARC); or received test results showing evidence of antibodies of the AIDS virus (HIV Positive).
Debtor Initials Co-Debtor Initials (initial here only if you have circled any item)
“2. I am not eligible for disability insurance if I now have, or during the past 2 years have been seen, diagnosed or treated for a condition, disease or disorder of the neck, back, knee(s) or any joint(s) or for carpal tunnel syndrome.
Debtor Initials Co-Debtor Initials (initial here only if you have circled any item)
“The sales representative is not authorized to waive or change any of the insurability requirements or any provision of the Certificate.
“By signing below, I state that I have read and understand this Application and represent that I am eligible and insurable for the coverage as requested in the Schedule. I have read and understand the above Application and understand that I am not insurable for; any coverage if I have circled (any item) and initialed application statement #1 or; disability coverage if I have circled (any item) and initialed application statement #2.1 understand this insurance is not required to obtain credit. I understand and agreed that I am insured only if I have signed below and agree to pay the additional cost of the insurance. I have detached and retained the ‘INSURED’S COPY5 of this form and Certificate for my records.”
The instructions to circle and initial applicable health conditions were printed in red, as was the instruction to provide initials at the end of statements 1 and 2 if any item has been circled. The Chisms did not circle or initial any health condition. The form was then signed and dated by Karen as insured and by Steve as co-insured. Urban signed as licensed resident agent for Protective.
The Chisms signed the application without reading it.
About 7 months later, in January 2006, Steve died from sudden cardiac arrest. The death certificate Usted diabetes mellitus, hypertension, morbid obesity, and peripheral vascular disease as significant conditions that contributed to, but were not the underlying cause of, Steve’s death.
Karen submitted a claim for benefits under the policy. Based on Steve’s prior medical conditions, Protective denied the claim and rescinded the policy. In September 2006, Karen initiated this action in the district court against Protective for breach of contract and against Quality Motors for negligent procurement of the policy.
During discovery, the district court quashed Karen’s subpoenas for depositions of employees of Quality Toyota, a companion auto dealership that also sold credit life insurance through Protective, and refused to compel production of credit life applications of other customers of Quality Motors.
The parties filed competing motions for summary judgment. After sustaining Protective’s motion to strike the affidavit of witness Nancy Myers attached to Karen’s summary judgment motion, the district court sustained the defendants’ motions and overruled Karen’s motion.
Karen appeals these rulings. We will first address the summary judgment in favor of Protective on the issue of rescission. Then we will consider the summary judgment in favor of Quality Motors on Karen’s negligent procurement claim. Finally, we will address the discovery issues and the striking of the Myers affidavit.
Summary Judgment
The applicable standards for summary judgment are well known to the parties and can be found in Korytkowski v. City of Ottawa, 283 Kan. 122, 128, 152 P.3d 53 (2007). Our review is de novo. Botkin v. Security State Bank, 281 Kan. 243, 248, 130 P.3d 92 (2006).
Rescission of the Policy
1. Materiality
With respect to a life insurance policy, the insurer generally has the right to rescind the policy ab initio for fraud or misrepresentation. See Slaby v. Cox, 250 Kan. 429, Syl. ¶ 1, 827 P.2d 18 (1992). Such misrepresentations include an untrue statement of fact, known to be untrue by the putative insured, made with the intent to deceive or recklessly made with disregard for the truth, upon which the insurer justifiably relies and acts to its detriment. See American States Ins. Co. v. Ehrlich, 237 Kan. 449, 452, 701 P.2d 676 (1985). To justify rescission, the insurer must establish that the false statement actually contributed to the event triggering the obligation to pay benefits under the policy. See K.S.A. 40-2205(C); Waxse v. Reserve Life Ins. Co., 248 Kan. 582, 586, 809 P.2d 533 (1991). Finally, fraud is never presumed but must be shown by clear and convincing evidence. Gonzalez v. Allstate Ins. Co., 217 Kan. 262, 266, 535 P.2d 919 (1975).
K.S.A. 40-2205(C) provides:
“The falsity of any material statement in the application for any policy covered by this act may not bar the right to recovery thereunder unless the false statement has actually contributed to the contingency or event on which the policy is to become due and payable: Provided, however, That any recovery resulting from the operation of this section shall not bar the right to render the policy void in accordance with its provisions.”
K.S.A. 40-418 similarly provides:
“No misrepresentation made in obtaining or securing a policy of insurance on the life or lives of any person or persons, citizens of this state, shall be deemed material or render the policy void unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable.”
Under these statutes, the test is whether Steve’s ongoing health conditions contributed to his death for which payment under the policy is sought. There was no autopsy performed to determine the exact cause of Steve’s death. However, Steve’s death certificate listed diabetes mellitus, hypertension, morbid obesity, and peripheral vascular disease as significant conditions contributing to his death.
Karen’s expert, Dr. James Hignight, opined that none of the conditions contained on the application were the immediate or underlying cause of Steve’s death from sudden cardiac arrest. However, in his view uncontrolled diabetes mellitus and uncontrolled hypertension are “associated” with sudden death. Thus, he did not negate the notion that Steve’s medical conditions contributed to his death.
The defendants’ expert, Dr. Eric Voth, opined that Steve’s cardiac arrest “was directly caused by, or significantly contributed to, his underlying conditions of diabetes, hypertension, and vascular disease.”
Based on the plain language of these statutes, tire medical testimony, and Steve’s death certificate, it is clear that Steve’s ongoing health conditions, which were not disclosed in the policy application, contributed to his death.
The test of the materiality of a false statement in an application for life insurance is whether tire misrepresentation could reasonably be considered to affect the insurer’s decisions regarding the degree or character of the risk it is being asked to underwrite, whether to issue tire policy, or what premium it should charge for the policy. See Schneider v. Washington National Ins. Co., 200 Kan. 380, 397, 437 P.2d 798 (1968). The same test applies in considering a false statement in an application for life insurance.
The policy application here specifically negated Steve’s eligibility for coverage due to his medical conditions. Further, the policy application made it clear that Urban had no authority to waive Protective’s insurability requirements. Under the circumstances, the medical conditions the Chisms failed to disclose in the application were clearly material to the risk Protective was being asked to underwrite.
2. Waiver
Next, we consider the argument that Protective waived its right to rescind the insurance policy because Urban knew the Chisms did not read the application and because Urban filled out the application on their behalf.
The record does not establish that Urban knew the Chisms did not read the application. Urban testified that the Chisms did not immediately sign the document when he handed it to them. Karen had it before her for an adequate time for her to read it before signing it. Urban stated, “She did not do anything to my indication that she did not read it.”
Besides, Karen is bound by the provisions in the application regardless of her failure to read or understand its terms, unless her execution of it was the product of fraud, undue influence, or mu tual mistake. See Albers v. Nelson, 248 Kan. 575, 579, 809 P.2d 1194 (1991).
With respect to the claim that Urban filled out the application, Karen relies on Cooley v. National Life & Acc. Ins. Co., 172 Kan. 10, 238 P.2d 526 (1951), for the proposition that Protective could not rely on the answers provided by Urban. In Cooley, an insurance agent, who knew the applicant had diabetes, answered a relevant health inquiry by writing “No.” 172 Kan. at 11. Our Supreme Court concluded the insurance company improperly denied coverage because the company could not taire advantage of a false answer entered by its agent without knowledge of or input from the insured. 172 Kan. at 15-16.
Karen also relies on Schneider which involved facts similar to those in Cooley. There, the court determined that the insurer could not rescind the policy based on false answers provided by its agent which were contrary to the facts stated by the insured.
Neither Cooley nor Schneider presents facts comparable to those now before us. The background facts provided by Urban on the application did not relate to information about material health conditions which the Chisms were expected to supply. We are not confronted with a situation where the insured gives the procuring agent a verbal answer to a health question on the application and the agent writes down something entirely different on the application. Indeed, Karen claims that Urban failed to question them at all about their health conditions.
Citing Swain v. Life Ins. Co. of Louisiana, 537 So. 2d 1297 (La. App. 1989), Karen claims that Urban had a duty to investigate Steve’s health problems. In Swain, the applicant was on crutches when the application form was completed. The agent noted in the application that the applicant was in “sound health.” 537 So. 2d at 1298-99. Karen argues that since Steve’s obesity was obvious to Urban, and it is common knowledge that obesity leads to diabetes and hypertension, Urban should have inquired further.
Unlike the agent in Swain, Urban did not fill out the policy application in its entirety and merely ask the applicants to sign it. Here, the Chisms had the opportunity and duty to correctly com píete the portion of the application form relating to health issues. This they failed to do.
3. Fraudulent Misrepresentation
Karen contends that failure to disclose Steve’s medical condition does not constitute a misrepresentation. To the contrary, Kansas courts have long recognized that fraud may consist of the omission of a material fact. See Miller v. Sloan, Listrom, Eisenbarth, Sloan and Glassman, 267 Kan. 245, 260, 978 P.2d 922 (1999); Umbehr v. Board of Wabaunsee County Comm'rs, 252 Kan. 30, Syl. ¶ 4, 843 P.2d 176 (1992).
Further, Waxse, mentioned earlier and cited by Karen, does not support her position on this issue. In Waxse, the policy application did not inquire about AIDS or HIV, and the insured failed to disclose that he was HIV positive. Our Supreme Court found that under the circumstances, the insured honestly answered the questions put to him by the insurer. 248 Kan. at 586-87. Unlike in Waxse, the Chisms were asked about specific health conditions material to the risk which Steve suffered from, and the Chisms failed to affirmatively respond.
Karen also claims the failure to disclose Steve’s health conditions was not a deliberate deceit or callous disregard for the truth. However, an insurer may rescind a policy after a misrepresentation made with reckless disregard for the truth. See Waxse, 248 Kan. at 586. The Chisms knew of Steve’s health problems. Kansas law requires applicants to know and to understand tire contents of a policy application before signing it and to answer all questions fairly and truthfully. Their failure to read the application does not excuse them absent fraud, undue influence, or mutual mistake. See Albers, 248 Kan. at 579; Ridgway v. Shelter Ins. Co., 22 Kan. App. 2d 218, 225, 913 P.2d 1231, rev. denied 260 Kan. 995 (1996).
Finally, we address the argument that the acknowledgment that preceded the Chisms’ signatures “applies only to answers actually made by the applicants.” For support Karen cites the statement in Schneider that
“ ‘[a]n applicant has no absolute duty to read a policy in anticipation of fraud or mistake of an agent ... a warranty that all answers to questions were correct [is only] a warranty that the answers actually made by the insured were correct, and not that the agent had correctly transcribed them.’ ” 200 Kan. at 396.
Again, Karen ignores the fact that Urban filled out only the biographical and transactional information that preceded the health questions that the Chisms were expected to answer. This fact distinguishes the present circumstances from those in Schneider where the agent filled out the entire application.
The district court did not err in granting Protective summaiy judgment on its rescission claim.
Negligent Procurement
The district court did not specifically address the negligent procurement claim in granting defendants’ summary judgment motions. Nevertheless, given our de novo standard of review, we are able to consider the issue.
The first cause of action asserted by Karen in her petition is her breach of contract claim against Protective. Her second cause of action is against Quality Motors for negligence. In it she asserts:
“15. . . . Quality Motors acted as the agent for [Protective] in presenting and completing the application for credit life insurance and in doing so, negligendy failed to present and recite to plaintiff and her husband Steve Chism the medical inquiries set forth in the application.
“16. In the event it should be determined that [Protective] is not hable to plaintiff on the First Cause alleged above, plaintiff is entitled to judgment against [Quality Motors] for negligence in failing to properly present and record the medical inquiries on the application for credit life insurance.”
We find no filed pretrial order in the record, though Karen filed a document to which a faxed copy of a pretrial order drafted by Quality Motors was attached. The district court apparently signed the fax copy. That order repeats the substance of Karen’s allegations made in paragraph 16 of count II of her petition. Her negligence claim is based upon Quality Motors “failing to read the medical inquiries on the application to plaintiff and decedent.”
In its summary judgment motion Quality Motors identified as an uncontroverted fact only the following which relates to Urban’s agency status:
“2. Dennis Urban, an employee with Quality Motors, presented the Chisms with the option to apply for credit life insurance with tire purchase of the 2005 Mariner.”
Karen admitted this fact. In Protective’s separate summary judgment its only reference to the employment/agency status of Urban is found in paragraph 4 of its statement of uncontroverted facts wherein Urban is referred to as “Quality Motors’ business manager.” In her response to the motion Karen admitted this fact. In her separate motions for summary judgment against Protective and Quality Motors, Karen does not identify any uncontroverted facts relating to the agency status of Urban. She does not allege that Urban was acting as her agent. In fact, in her appellate brief Karen refers to Quality Motors as the authorized agent for Protective.
In opposing Quality Motors’ summary judgment motion, Karen relies on Marshel Investments, Inc. v. Cohen, 6 Kan. App. 2d 672, 634 P.2d 133 (1981), and Waxse, which we discussed earlier. Waxse considered the conduct of the insured in failing to disclose his HIV condition in an insurance application he filled out. The case does not discuss the the duty or breach of duty of any agent. Waxse does not apply.
Marshel was an action against an insurance brokerage firm for failure to procure insurance on plaintiff s equipment at its oil and gas lease site. The equipment was destroyed by fire. The particular agent who dealt with plaintiff was determined to be an independent insurance agent who, under an agreement with the insurer, was required to submit applications for the issuance of policies for his clients. His client was the plaintiff, not the insurer.
The typical situation for a claim such as this is found in an old case, Rezac v. Zima, 96 Kan. 752, 754, 153 Pac. 500 (1915), in which the court noted:
“A broker or agent who undertakes to procure insurance for another is bound to exercise reasonable diligence to obtain insurance in accordance toith his agreement and to notify his principal if he is unable to do so. According to the averments of the petition the defendants failed to perform this duty, and, as has been alleged, Zima deliberately deceived the plaintiff by giving him assurance that the property had been insured when he knew that no insurance had been procured.” (Emphasis added.)
Further, as stated in Rosedale Securities Co. v. Home Ins. Co., 120 Kan. 415, 418, 243 Pac. 1023 (1926), an insurance broker is the agent of his client, the insured, in matters connected with the procurement of insurance. Urban was not an insurance broker; at least, we have nothing in the parties’ uncontroverted facts that supports such a notion. We have nothing before us in the competing summary judgment motions that establishes that Urban was acting as an agent for the Chisms as opposed to an employee of Quality Motors.
The familiar elements of duty, breach, causation, and damages must be present in every tort claim, including Karen’s negligent procurement claim. Whether a duty exists is a question of law. Honeycutt v. City of Wichita, 251 Kan. 451, 463, 836 P.2d 1128 (1992).
We have before us an auto dealership which, during the closing of a sales transaction, offered to the Chisms the opportunity to apply for credit life insurance to cover the purchase price of the vehicle being financed. The offer was made by the dealership’s employee. Nowhere does Karen allege that Urban was acting as her agent in the procurement of the credit life policy. To the contrary, she admits that Urban was acting as an employee of Quality Motors. Under these circumstances, and based upon our de novo review of these motions, Quality Motors was entitled to summary judgment on Karen’s claim of negligent procurement since there is no evidence that Urban, who was an employee of Quality Motors, owed any legal duty to the Chisms when it came to their obligation to read, understand, and accurately respond to die inquiries made in the credit life policy application about their health.
The district court did not err in granting summary judgment to Quality Motors.
Discovery
Karen claims that the district court erred in quashing subpoenas for deposition of certain witnesses, excusing the defendants from producing relevant documents, and striking a witness’ affidavit.
The district court has broad discretion regarding the control and conduct of discovery in civil cases. Its orders will not be disturbed on appeal absent a clear abuse of discretion. See K.S.A. 60-226(c); K.S.A. 60-237(a)(2); In re Tax Appeal of City of Wichita, 277 Kan. 487, 513, 86 P.3d 513 (2004). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would taire the view adopted by the trial court. Simon v. Simon, 260 Kan. 731, Syl. ¶ 2, 924 P.2d 1255 (1996).
Other Credit Life Applications
Karen sought to obtain applications for credit life submitted by other customers of Quality Motors. The district court refused to compel production of these applications. However, the court ordered Quality Motors to provided Karen with the name, age, address, and date of the credit life application for all persons who purchased credit life insurance during the time period requested by Karen. The court authorized Karen to contact these individuals in order to show them a specimen policy application and then question them about their experience in purchasing credit life from Quality Motors.
On appeal, Karens argument is premised on the fact that Urban received a commission for selling a policy to the Chisms and, therefore, had a financial incentive not to alert the Chisms to the medical questions in the application. She claims the applications of other Quality Motors customers would show a pattern of similar improper conduct.
The problem with this is that the application alone would not disclose whether the applicant was encouraged to sign the application without disclosing relevant medical conditions. This could only be accomplished by interviewing the applicants, and Quality Motors was required to provide the information with which Karen could do so. Under the circumstances, the district court did not abuse its discretion in this discoveiy order.
Depositions
Karen sought to depose Judy Hugo and Pat Brzoticky, employees of Quality Toyota, a sister dealership to Quality Motors that also sold credit life insurance through Protective. The district court quashed the subpoenas. The subpoenas referred to by Karen on appeal were not subpoenas duces tecum. Karen claims the depositions would have permitted her to determine whether credit life applications from Quality Toyota “indicated on their face that the applicants had not answered the medical interrogatories.” First, we fail to see how questioning these Quality Toyota employees without the underlying documents would have accomplished this. Second, even if Karen had the credit life applications from customers of Quality Toyota, we fail to see how interrogating these employees would establish that the various applicants had disqualifying medical conditions they failed to disclose. Third, we fail to see how these depositions relating to the conduct of Quality Toyota towards its customers may lead to the discovery of admissible evidence regarding the transaction between the parties now before us. Karen does not present facts which, under our law, would excuse the failure of her and her husband to read the application before signing it. The district court did not abuse its discretion in quashing these subpoenas.
Summary Judgment Affidavit
Karen attached to her motion for summary judgment the affidavit of Nancy Myers, who stated that she and her husband were issued credit life policies for a vehicle purchased at Quality Motors even though the salesman handling the transaction knew that Nancy had high blood pressure and kidney failure and that her husband suffered from brain injuries. She further states that Urban did not inquire about her health or the health of her husband and did not ask them to read the application. Karen asserts that on Protective’s motion the district court struck the Myers affidavit.
We find no record of the court’s ruling on this issue. Karen has the duty to designate a record sufficient to establish this claim of error. Without an adequate record, this claim necessarily fails. See Ellibee v. Aramark Correctional Services, Inc., 37 Kan. App. 2d 430, 433, 154 P.3d 39 (2007). In any event, Myers states that the salesman handling her transaction knew of her and her husband’s state of health, but she makes no allegation that Urban, who handled her credit life insurance transaction, knew. Thus, even if the court had considered the Myers affidavit in ruling on the pending summary judgment motions, there is no indication that the ultimate rulings would have been any different. If the district court struck the affidavit, it did not abuse its discretion in doing so.
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Hill, J.:
This case is a judicial review of an order of the Board of Tax Appeals (BOTA) allowing a tax refund to Stephen and Loretta Lemons, a couple who successfully sued the Internal Revenue Service (IRS) for a tax refund. The Kansas Department of Revenue (KDOR) argues the Lemons failed to file their adjusted return in a timely way. Because we cannot read words into a plainly written statute that would alter its meaning, we affirm the Board of Tax Appeals.
A time line correctly presents the background of this appeal.
August 1995. The Lemons filed their 1994 federal and state income tax returns.
April 1999: The IRS sent a report to the Lemons about the audit of their 1994 return. The Lemons disagreed with the report and elected to pay the added tax as requested by the IRS and then sue for a refund.
November 30, 2001: The Lemons filed suit in the United States District Court, District of Kansas, seeking a refund of the added taxes they paid because of the IRS’s 1999 report.
December 22, 2003: The Lemons received documents from the IRS reporting their adjusted federal income tax liability for 1994.
February 9, 2004: The Lemons and the IRS agreed to a refund to the Lemons of $410,000 from overpaid taxes and interest.
March 2004: The Lemons received federal tax refund checks under the settlement agreement.
December 29, 2004: The Lemons filed an amended 1994 Kansas income tax return with the KDOR. The return contained schedules reflecting federal income adjustments that would result in a state tax refund for the 1994 tax year.
Following a completed audit, the IRS, by agreement with KDOR, provides a Revenue Agent’s Report (RAR) to KDOR about any adjustments made to a Kansas taxpayer’s income. On July 1, 2005, KDOR refused to accept the Lemons’ amended 1994 return and refund request because their amended return was not filed within the 180-day period required for reporting adjustments to federal income under K.S.A. 2007 Supp. 79-3230(f). The Lemons timely protested this action to the Secretary of Revenue.
After an informal conference, the Secretary’s designee issued a written decision continuing the denial of the Lemons’ claim for a refund for the 1994 tax year. The designee decided:
“The purpose of subsection (g) is to prohibit a party who fails to act from obtaining the protection of a period of limitation. . . . Just as a taxpayer should not be allowed to shield themselves from liability by failing to act, [he did not] believe a taxpayer should be allowed to claim a refund by failing to act.”
The Lemons timely appealed to BOTA. The parties’ filed cross-motions for summary judgment. BOTA, relying on this court’s interpretation of the subject statute in the case, In re Tax Appeal of Trickett, 27 Kan. App. 2d 651, 8 P.3d 18 (2000), decided the statute of limitations was tolled under K.S.A. 1999 Supp. 79-3230(g). Thus, BOTA ordered KDOR to process the return. Now, by authority of K.S.A. 74-2426(c)(3), KDOR seeks this court’s judicial review of BOTA’s decision.
We list the standard of review and the controlling statute.
This appeal is controlled by the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. The parties do not dispute the facts and limit their arguments to BOTA’s interpretation and application of the tolling rules of K.S.A. 2007 Supp. 79-3230(g). So, K.S.A. 77-621(c) defines this court’s scope of review in relevant part as follows:
“The court shall grant relief only if it determines any one or more of the following:
“(4) the agency has erroneously interpreted or applied the law;
“(8) the agency action is otherwise unreasonable, arbitrary or capricious.”
The statutory provisions that are the focus of this appeal are K.S.A. 2007 Supp. 79-3230(f) and (g). They govern the time limits for KDOR’s assessment of added taxes or a taxpayer’s request for a refund of state income taxes after the IRS adjusts the taxpayer’s federal income following an audit. Subsection (f) gives the parties 180 days to act and subsection (g) tolls the statute of hmitations:
“(f) Any taxpayer whose income has been adjusted by the federal internal revenue service ... is required to report such adjustments to the Kansas department of revenue by mail within 180 days of the date the federal . . . adjustments are paid, agreed to or become final, whichever is earlier. Such adjustments shall be reported by filing an amended return for the applicable taxable year and a copy of the federal . . . revenue agent’s report detailing such adjustments. . . .
“Notwithstanding the provisions of subsection (a) or (c) of this section, additional income taxes may be assessed and proceedings in court for collection of such taxes may be commenced and any refund or credit may be allowed by the director of taxation within 180 days following receipt of any such report of adjustments by the Kansas department of revenue, or within two years from the date the tax claimed to be refunded or, against which the credit is claimed was paid, whichever period expires later. No assessment shall be made nor any refund or credit shall be allowable under the provisions of this paragraph except to the extent the same is attributable to changes in the taxpayer’s income due to adjustments indicated by such report.
“(g) In the event of failure to comply with the provisions of this section, the statute of limitations shall be tolled.” (Emphasis added.)
BOTA’s ruling follows our holding in Trickett.
Kansas law, K.S.A. 2007 Supp. 79-3230(f), directs the taxpayer to report any adjustment by the IRS to their federal . . . income to KDOR by filing an amended return “within 180 days of the date the federal adjustments are paid, agreed to or become final, whichever is earlier.” The Lemons do not dispute they failed to comply with subsection (f). This noncompliance was the basis of the KDOR’s refusal to accept and work their return.
Nevertheless, K.S.A. 2007 Supp. 79-3230(g) provides that “[i]n the event of failure to comply with the provisions of this section, the statute of limitations shall be tolled.” As noted above, BOTA viewed K.S.A. 2007 Supp. 79-3230(f) and (g) because of this court’s interpretation in Trickett to mean the Lemons’ failure to comply with subsection (f) tolled the 180-day statute of hmitations.
Relying on legislative history, KDOR argues subsection (g) tolls the statute of hmitations only in its favor but does not excuse a taxpayer s failure to comply with the compulsory duty in subsection (f) to report timely any federal adjustments to their income. It insists that in relying on Trickett, BOTA failed to recognize this court’s reason for its holding therein. The Lemons argue in response that BOTA correctly applied Trickett to the statute and to the undisputed facts of the case.
The Trickett court’s interpretation of the statute was in a factual context opposite to this case. Larry N. Trickett lived and worked in Kansas during the tax years of 1988-1991. The KDOR received an RAR from the IRS, but after 2 years the department had received no amended tax return from Trickett. The department eventually assessed taxes based on the RAR. Trickett argued the department only had 180 days after the receipt of the RAR to assess taxes and they failed to do so. In reply, the KDOR argued subsection (g) tolled the 180-day period. Trickett overruled BOTA and found subsection (g) tolled KDOR’s time for assessing added taxes against any taxpayer who fails to file an amended return on receiving an RAR. 27 Kan. App. 2d at 652.
The Trickett court rejected BOTA’s prior conclusion the second paragraph of subsection (f) meant KDOR must assess taxes within 180 days of its receipt of the RAR. Trickett found such an interpretation had been previously rejected in the holding In re Morgan, 209 B.R. 531, motion to alter order denied 211 B.R. 56 (Bankr. D. Kan. 1997), which decided that subsection (g) was triggered because the taxpayers failed to file the amended return and RAR required by subsection (f). Therefore, Trickett decided “[s]ubsection (g) tolls the statute of limitations when a taxpayer does not comply with the provisions of the statute.” 27 Kan. App. 2d at 659.
Given this holding in Trickett, BOTA decided the factual distinction between KDOR assessing more taxes versus the Lemons seeking a refund is immaterial because subsection (g) does not state the tolling provision can only be invoked by KDOR and not the taxpayer.
KDOR suggests that this distinction is critical and argues the legislature intended to toll the limitation period only for KDOR and not the delinquent taxpayer. Specifically, KDOR suggests the rationale of Trickett and Morgan is based only on the system of self-assessment of taxes in Kansas. It argues that BOTA’s reliance on the one sentence from Trickett set forth above
“does not recognize nor contemplate the additional language found in that case which explains the court’s rationale as its holding. . . . Reading the whole case reveals the Trickett court analyzed that the limitations period is tolled in favor of the KDOR as a result of a taxpayer’s failure to comply with the statute requiring them to amend their returns within 180 days of the date the federal or state adjustments are paid agreed to, or become final. The Trickett court, relying on Morgan, states that a ‘[t]axpayer who fails to comply under subsection (f) should not reap greater rewards than a taxpayer who fails to comply under subsections (a) and (c).’ 27 Kan. App. 2d at 660. BOTA’s reliance on one statement from the Trickett case without acknowledging the rationale of that case and Morgan does not warrant rewarding non-compliant Appellees with the opportunity to amend a return outside the statutory time frame.”
KDOR further asserts that BOTA’s order allowing the Lemons to amend their returns after the time frame set out in K.S.A. 2007 Supp. 79-3230(f) ignores the Kansas tax system and “relegates the applicable statute and its limitation periods to meaningless verbiage.” See Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 630-31, 132 P.3d 870 (2006) (where a statute is found to be ambiguous, the rules of statutory construction provide that, generally, courts should construe it to avoid unreasonable results and presume the legislature does not intend to enact useless or meaningless legislation).
The trouble with the KDOR’s argument is that when a statute is plain and unambiguous, this court must carry out the intent of the legislature as expressed, rather than decide what the law should or should not be. See Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003). Our appellate courts resort to the analytical step of applying canons of statutory construction or relying on legislative history to construe the statute to effect the legislature’s intent only if the statute’s language or text is unclear. See In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007).
KDOR fails to show how the statutory language here is unclear. Rather, KDOR argues what the law should be. K.S.A. 2007 Supp. 79-3230 (g) does not distinguish between when or in whose favor the statute is tolled. The law’s plain language states, “[i]n the event of failure to comply with the provisions of this section” — which includes subsection (f)- — “the statute of hmitations shall be tolled.” (Emphasis added.)
Despite KDOR’s request, in cases such as this, where a taxpayer is seeking a refund, we need not speculate why the taxpayer would not immediately seek a refund within the 180-day window that subsection (f) requires. The distinction between applying subsection (g)’s tolhng provision in favor of KDOR or in favor of the dehnquent taxpayer has no clear legal significance — at least as the statute now reads.
Stated another way, the plain language of K.S.A. 2007 Supp. 79-3230(g) provides that a failure to comply with subsection (f)’s requirement to report adjustments to federal income, the statute of hmitations “shall be tolled,” without regard to the results such an adjustment will have on the taxpayer’s state income tax obligation. This includes KDOR’s assessment of added taxes versus the taxpayer’s claim to a refund.
KDOR’s argument there is no legislative intent for subsection (g) to toll the statute of hmitations where the taxpayer is seeking a refund and fails to file timely the amended return, ignores our mandate that this court cannot read into a statute words not readily found therein. Subsection (g)’s tolhng provision is not limited to the tolhng of the statute of hmitations for purposes of KDOR’s assessment of added taxes. If the legislature intends to limit the tolling provided for in subsection (g), it is free to do so. As subsection (g) currently reads, the legislature has not done so.
Therefore, we hold that BOTA did not erroneously interpret K.S.A. 2007 Supp. 79-3230(f) and (g) because of Trickett’s holding. The Lemons’ 1994 amended tax return, though untimely under subsection (f), should be allowed under the tolhng provision of subsection (g). Further, we do not find BOTA’s ruling unreasonable, arbitraiy, or capricious.
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Green, J.:
P.L.B. appeals from a judgment of the trial court denying his motion to withdraw his plea and to set aside his juvenile adjudication for aggravated indecent liberties with a child. On appeal, the State challenges our jurisdiction to consider this issue. Nevertheless, we determine that we have jurisdiction over this matter. Meanwhile, P.L.B. argues that the trial court abused its discretion in denying his motion to withdraw his plea and to set aside his conviction. We agree. Accordingly, we reverse the juvenile adjudication, vacate the plea, and remand for further proceedings.
On June 21, 2006, the State charged P.L.B. in Shawnee County District Court, Juvenile Law Division, with one count of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A) (Furse). On June 30, 2006, counsel entered an appearance on behalf of P.L.B.
On July 25,2006, the trial court held a plea hearing. The hearing included the following colloquy:
[COURT]: You have a right to a trial. And if you exercise that right, the State would have to prove this charge against you, do you understand? Beyond a reasonable doubt.
"[P.L.B.]: Yes, sir, I know.
“[COURT]: You would not be required to present any evidence. The burden would be on the State and it would never shift. Do you understand that?
“[P.L.B.]: Yes, sir.
“[COURT]: In other words, all you would have to do is show up. You wouldn’t have to come with any witnesses, any evidence, anything, because you’re presumed to be innocent. It would be the State that would have to prove the case against you. Do you understand?
Yes, sir. [P.L.B.]:
“[COURT]: All right. However, you could present evidence if you chose to do so. Do you understand that?
“[P.L.B.]: Yes, sir.
“[COURT]: And that evidence could include your taking the stand to testify on your own be — behalf. Do you understand?
1P.L.B.]: Yes, I do.
‘[COURT]: You could also have witnesses brought in here to testify for you. And if they refused to cooperate, I could issue subpoenas and get them in here. Do you understand?
“[P.L.B.]: Yes, sir.
“[COURT]: Throughout this entire trial process, if you cannot afford a lawyer, this Court would appoint a lawyer to malee sure you were ably represented. Do you understand that?
‘[P.L.B.]: Yes, sir.
“[COURT]: If at the end of the trial you and your lawyer did not like the outcome, you could appeal that outcome to a higher court. Do you understand?
Yes, sir. “[P.L.B.]:
Has anyone threatened you to get you to enter a plea today? “[COURT]:
No, sir. “[P.L.B.]:
Have you been promised anything if you plead today? “[COURT]:
“[COUNSEL FOR P.L.B.]: Judge, he understands what the agreement is, but we’ve discussed that you’re not going to be bound by any sentencing in this matter.
“[COURT]: All right. You understand that the final disposition of this matter will be up to me?
“[P.L.B.]: Yes, sir.
“[COURT]: Now if you’re entering a plea because you are guessing as to what this Court would do when it comes to sentencing, don’t enter the plea. Do you understand that?
“[P.L.B.]: Yes, sir.
“[COURT]: You understand this is a serious offense here?
“[P.L.B.]: Yes, sir.”
After the State presented the factual basis, P.L.B. pled no contest to the charge of aggravated indecent liberties in violation of K.S.A. 21-3504(a)(3)(A) (Furse). The trial court found the plea knowingly, voluntarily, and intelligently made and found P.L.B. to be a Violent Offender II as defined by K.S.A. 38-1601 et seq.
The trial court and the parties then discussed P.L.B’s placement in a treatment program at Marillac. At the conclusion of the hearing, the trial court placed P.L.B. in the temporary custody of the juvenile justice authority, “with the understanding that placement is to be sought immediately for him in the Marillac program.” The court ordered that sentence be imposed upon the completion of the Marillac program.
At sentencing on April 17, 2007, the trial court determined that P.L.B. had completed the Marillac sex offender program, then sentenced P.L.B. to commitment in a juvenile correctional facility for 24 months with 12 months’ aftercare. The court further ordered P.L.B. to register as a sex offender, including the posting of his photograph on the Internet/KBI website, to complete DNA registration and pay the accompanying fee, and to pay court costs of $25.
On May 23, 2007, P.L.B. moved to modify sentence. P.L.B. expressed concern that the sentence imposed would cause any progress made during his treatment to be lost. Moreover, he asked the trial court to allow him to complete an independent living program, to place him on probation, and to allow him to follow through with his counseling, therapy, and medication. P.L.B. attached numerous treatment documents to his motion. Although there is no journal entry in the record, the appearance docket reflects that this motion was denied after a hearing on August 15, 2007.
On May 31, 2007, P.L.B.’s original counsel moved to withdraw, which motion was granted by the trial court. On June 4, 2007, new counsel filed an appearance on behalf of P.L.B.
On August 28, 2007, P.L.B. moved to withdraw his plea and to set aside his conviction. P.L.B. asserted that the plea was entered without the trial court informing him of the presumption of innocence or the sentencing alternatives available for a juvenile offender, as required by K.S.A. 2007 Supp. 38-2344(b) and (c). P.L.B. argued that this failure prevented him from entering a knowing, voluntary, and intelligent plea, thereby depriving him of his constitutional rights and constituting reversible error.
The State filed a response to the motion on September 12, 2007, pointing out that the plea hearing transcript reflected that P.L.B. had been informed of the presumption of innocence. The State also suggested that P.L.B. and his counsel left little doubt at the plea hearing that P.L.B. understood the sentencing options available to the court.
The parties presented their arguments at a hearing on September 27, 2007. At the conclusion of the hearing, the trial judge recited the colloquy he had held with P.L.B. at the plea hearing regarding his rights and concluded:
“I am satisfied that this young man was made aware of his rights as the law requires. I am satisfied that he understood what those rights were. And I am satisfied that he entered a voluntary plea to the charge.
“And as a result of the Court being satisfied that this was a plea that was given freely and voluntarily without any coercion or promises, and that he was duly advised of his Constitutional rights, I will deny the motion to withdraw the plea.”
On October 10, 2007, the trial court filed a journal entry reflecting the denial of the motion.
Did the Trial Court Have JuHsdiction to Consider a Motion to Withdraw a Plea in a Juvenile Matter?
Before reaching the merits of P.L.B.’s arguments on appeal, we must first consider the State’s jurisdictional challenge. The State asserts that there is no jurisdiction under the Kansas Juvenile Justice Code for a trial court to consider a motion to withdraw a plea.
The State did not raise this issue below in its response to P.L.B.’s motion or in oral argument before the trial court. Nevertheless, the issue of subject matter jurisdiction may be raised at any time, whether for the first time on appeal or even on the appellate court’s own motion. Vorhees v. Baltazar, 283 Kan. 389, 397, 153 P.3d 1227 (2007). If the trial court lacks jurisdiction to enter an order, an appellate court does not acquire jurisdiction over the subject matter on appeal. State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004).
Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 369, 130 P.3d 560 (2006).
The State’s entire argument regarding this point is as follows: “The Kansas Juvenile Justice Code does not set forth standards for withdrawing guilty pleas and does not have a comparable statute to K.S.A. 2006 Supp. 22-3210(d). Accordingly there was no juris diction for the district court to entertain P.L.B.’s motion to withdraw his plea.”
The State’s brief is devoid of any case law specifically supporting its contention. The State, however, cites a recent unpublished opinion in which a panel of this court rejected a similar argument. In In re C.S.G., No. 97,306, unpublished opinion filed September 28, 2007, this court noted that several Kansas appellate courts’ decisions have suggested that a trial court has jurisdiction to consider a juvenile plea withdrawal. In re C.S.G., slip op. at 2-5.
In C.S.G., the court cited In re J.C., 260 Kan. 851, 852-55, 925 P.2d 415 (1996), where our Supreme Court considered a defendant’s appeal of the trial court’s denial of the defendant’s motion to set aside a prior juvenile adjudication. In re C.S.G., slip op. at 3. In J.C., a juvenile offender argued that the trial court’s failure to fully advise him of the consequences of his plea necessitated the setting aside of the adjudication. Although our Supreme Court ultimately affirmed the trial court’s denial, our Supreme Court never questioned its jurisdiction to consider the juvenile’s motion. Moreover, our Supreme Court pointed out the constitutional safeguards contained in the juvenile plea statute. 260 Kan. at 856.
The next case cited by the C.S.G. court was In re B.S., 15 Kan. App. 2d 338, 807 P.2d 692 (1991). In that case, this court allowed a juvenile offender to withdraw his admission to indecent liberties with a minor because the district court had failed to inform the juvenile offender of his rights before the plea. In re C.S.G., slip op. at 3-4. As in J. C., the B. S. court did not question its jurisdiction to consider the issue.
Finally, the C. S. G. court noted that our Supreme Court has held that “general rules of law” permit plea withdrawal. Slip op. at 4; see State v. Nichols, 167 Kan. 565, 573-77, 207 P.2d 469 (1949). In Nichols, which was decided before there was a statutory provision for plea withdrawal, our Supreme Court set forth the requirements for a valid plea. Moreover, the court stated that when such requirements are not met, “common justice may authorize or require the setting aside of the plea.” 167 Kan. at 577; see State v. Stough, 273 Kan. 113, 119, 41 P.3d 281 (2002). Our Supreme Court then noted that the trial court hearing the criminal case would have jurisdiction to hear and to rule upon a motion challenging a plea in such a circumstance. Nichols, 167 Kan. at 577-78.
In rejecting the State’s jurisdiction challenge, the C.S.G. court concluded: “In light of the Kansas appellate courts’ permitting defendants to withdraw pleas absent specific statutory authority, there is a basis for C.S.G. to pursue his claim, and we have jurisdiction to address this appeal.” Slip op. at 5.
Our research has revealed no case which has held that a trial court lacked jurisdiction to consider a matter such as this. As a result, we determine that the trial court had jurisdiction to consider P.L.B.’s motion to withdraw his plea.
Did the Trial Court Abuse its Discretion in Denying P.L.B.’s Motion to Withdraw His Plea and to Set Aside His ConvictionP
On appeal, P.L.B. contends that the trial court erred in denying his motion to withdraw his plea and to set aside his adjudication, because the court failed to inform him of the possible direct consequences of his plea, as required by K.S.A. 2007 Supp. 38-2344(b). P.L.B. asserts that this failure prevented him from entering a knowing, voluntary, and intelligent plea.
In contrast, the State responds that the trial court informed P.L.B. of his rights at the sentencing hearing. In addition, the State contends that P.L.B. and his counsel left litde doubt that P.L.B. understood the sentencing options available to the trial court. The State also challenges the timeliness of P.L.B.’s motion to withdraw plea.
Because there is no specific provision in the juvenile justice code for plea withdrawal, we must look to the criminal code’s withdrawal provisions in K.S.A. 22-3210 for the appropriate standard of review. See In re J.C., 260 Kan. at 855 (K.S.A. 22-3210 is the adult counterpart to juvenile justice code’s plea provisions). After sentencing, a court may set aside a judgment of conviction and allow the defendant to withdraw the plea only to correct manifest injustice. K.S.A. 22-3210(d). “Manifest injustice” has been defined as “something obviously unfair or shocking to the conscience.” State v. Bar ahona, 35 Kan. App. 2d 605, 608-09, 132 P.3d 959, rev. denied 282 Kan. 791 (2006).
An appellate court will not disturb a trial court’s denial of a motion to withdraw a plea after sentencing unless the defendant establishes an abuse of discretion. State v. Shopteese, 283 Kan. 331, 340, 153 P.3d 1208 (2007). An abuse of discretion may occur when a trial court “goes outside the framework of or fails to properly consider statutoiy limitations or legal standards.” 283 Kan. at 340. Further, a trial court necessarily abuses its discretion when it makes an error of law. Under the abuse of discretion standard, this court reviews whether the district court’s discretion was guided by erroneous legal conclusions. State v. Gary, 282 Kan. 232, 236, 144 P.3d 634 (2006).
In exercising its discretion under K.S.A. 22-3210(d), the trial court must consider the following: (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made. State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). P.L.B.’s arguments are directed at the third factor.
Before a trial court may accept a juvenile offender’s plea, K.S.A. 2007 Supp. 38-2344(b) requires the trial court to inform the juvenile offender of the following:
“(1) The nature of the charges in the complaint;
(2) the right of the juvenile to be presumed innocent of each charge;
(3) the right to trial without unnecessary delay and to confront and cross-examine witnesses appearing in support of the allegations of the complaint;
(4) the right to subpoena witnesses;
(5) the right of the juvenile to testify or to decline to testify; and
(6) the sentencing alternatives the court may select as the result of the juvenile being adjudicated a juvenile offender.”
If a juvenile offender pleads guilty or nolo contendere, then K.S.A. 2007 Supp. 38-2344(c) requires the trial court to determine, before accepting the plea and imposing sentence, “(1) [t]hat there has been a voluntaiy waiver of the rights enumerated in subsections (b)(2), (3), (4) and (5); and (2) that there is a factual basis for the plea.”
The requirements of K.S.A. 2007 Supp. 38-2344(b) and (c) are virtually identical to those found in the previous version of the statute, K.S.A. 38-1633.
P.L.B. asserts that the record does'not show the trial court complied with K.S.A. 2007 Supp. 38-2344(b)(6) by informing him of “the sentencing alternatives the court may' select as the result of the juvenile being adjudicated a juvenile offender.” A review of the transcript of the plea hearing (and the remainder of the record), including the colloquy quoted above, shows that the trial court did not discuss sentencing alternatives with P.L.B. before his plea. The only discussion regarding sentencing occurred when the trial court told P.L.B. that final disposition would be up to the trial court, that P.L.B. should not guess what the trial court “would do when it comes to sentencing,” and that P.L.B. was charged with a serious offense. While these statements.suggested that the trial court had options in sentencing P.L.B., they failed to inform P.L.B. what such options were, as required by K.S.A. 2007 Supp. 38-2344(b)(6).
Besides being compelled by the express language of K.S.A. 2007 Supp. 38-2344(b), a trial court is required by case law to inform a juvenile offender of the information specifically contained in K.S.A. 2007 Supp. 38-2344(b). This proposition is vividly illustrated by In re B.S., which P.L.B. cites in support of this argument.
In B. S., this court determined that the trial court erred in relying on the juvenile offender s attorney to inform the juvenile offender of his rights under K.S.A. 38-1633(b), rather than the court itself informing the juvenile offender of his rights. 15 Kan. App. 2d at 339-40. In setting out its reasons for requiring the trial court to inform a juvenile offender, the B. S. court stated: “This practice may be well intended, but it does not comport with the statute. K.S.A. 38-1633(b) expressly requires the court to inform the minor of the information specifically contained in the statute.” 15 Kan. App. 2d at 339. The B.S. court further determined that the trial court’s failure to comply with the statute resulted in a record that did not show a knowing and voluntary plea by the juvenile offender. 15 Kan. App. 2d at 339-40. As a result, the B.S. court reversed the trial court’s denial of the juvenile offender’s motion to withdraw his admission and remanded for further proceedings. 15 Kan. App. 2d at 338, 340.
The State contends that B.S. is distinguishable from the current case because in B.S., the trial court had failed to tell the juvenile offender about any of his rights. In contrast, the court advised P.L.B. of all of his rights as required for the acceptance of a plea under K.S.A. 2007 Supp. 38-2344(c). Furthermore, the State asserts that the record shows that P.L.B. understood the sentencing options before pleading, reflecting a knowing and voluntary plea.
Although the record reflects that the trial court enumerated those rights listed in K.S.A. 2007 Supp. 38-2344(c), this does not change the fact that the court also failed to inform P.L.B. of all “the information specifically contained in” K.S.A. 2007 Supp. 38-2344(b), as required by that statute and the B. S. holding. The question posed by this omission by the trial court is as follows: Does the trial court’s failure to comply with K.S.A. 2007 Supp. 38-3244(b)(6) and B.S. result in a record that fails to show a blowing and voluntary plea by P.L.B.?
For guidance in determining this issue, we turn once again to the adult counterpart of the juvenile justice code’s plea provisions. K.S.A. 22-3210(a)(2) contains the criminal code’s equivalent of the requirement in K.S.A. 2007 Supp. 38-2344(b)(6) that a defendant be informed of sentencing alternatives. In re J.C., 260 Kan. at 856. If a review of the entire record demonstrates the plea was knowingly and voluntarily made, the trial court’s failure to strictly comply with K.S.A. 22-3210(a) maybe harmless error. Nevertheless, where the failure to comply results in the defendant not understanding the nature of the charge or consequences of entering a plea, good cause for granting a motion to withdraw a plea may be found. State v. Edgar, 281 Kan. 30, 37-38, 127 P.3d 986 (2006).
The record does not affirmatively show that P.L.B. was aware of the sentencing alternatives available to the trial court when he entered his plea. The requirement that the trial court inform a juvenile offender of dispositional alternatives was established to ensure conformance with constitutional due process requirements. In re J.C., 260 Kan. at 855-56. Knowledge of the sentencing alternatives is a critical part of the plea process and has constitutional implications: “To be constitutionally valid, guilty or no contest pleas and their resulting waiver of rights ‘ “not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Shopteese, 283 Kan. at 340-41.
The State, however, cites to two cases to support its argument that a knowing and voluntary plea was made. The State asserts that in In re J.A., No. 95,232, unpublished opinion filed July 28, 2006, this court found a “similar colloquy” was sufficient to inform a juvenile offender of his rights and establish a waiver of his rights. Nevertheless, the State overlooks that in J.A., “the [district] court [had] informed J.A. of tire sentencing alternatives it could select as a result of him being adjudged a juvenile offender.” Slip. op. at 2. The district court in J.A. complied with the specific requirement that was neglected here. Consequently, J.A. does not support the State’s argument.
The second case cited by the State is W.T.J. v. State, 713 N.E.2d 938 (Ind. App. 1999). Because we are dealing with a specific Kansas statute established to meet constitutional requirements, the applicability of this Indiana case is limited. Furthermore, it seems that the trial court in W.T.J. told the juvenile offender that he might be incarcerated, which was ultimately the sentence given. Also, W.T.J. relied on another Indiana case in which the juvenile offender watched a videotape which included the sentencing alternatives. 713 N.E.2d at 940; M.R. v. State, 605 N.E.2d 204, 206-07 (Ind. App. 1992). In both of these cases, the juvenile offender was furnished more information regarding his possible sentence than the information provided to P.L.B. about his possible sentence. Thus, W.T.J.’s persuasive authority is very questionable.
Timeliness
Next, we must consider the State’s timeliness argument. In determining whether a trial court’s failure to inform a juvenile offender of the consequences of a plea is reversible error, permitting a plea withdrawal, we must consider the totality of the circumstances, including the timeliness of the withdrawal request. See State v. Moses, 280 Kan. 939, 946, 950-52, 127 P.3d 330 (2006).
In support of its untimeliness argument, the State cites to a quote from Nichols contained in Stough. The Nichols court stated that a motion to withdraw plea “ ‘should be filed with reasonable promptness, as soon as defendant or his counsel learns facts which would justify the court in setting aside the plea.’ ” Stough, 273 Kan. at 118-19. The State suggests that inclusion of this language shows that the Stough court “implicitly recognized” such a time limit for a motion to withdraw plea. Moreover, the State contends that P.L.B.’s motion was not filed within the “reasonable promptness” time requirement.
Nevertheless, it is apparent that the Nichols language cited in Stough was included for the purpose of setting forth the background and history of the issue. 273 Kan. at 118. The Nichols language represented die law when “there was ‘no statute specifically pertaining to motions to withdraw pleas of guilty in criminal cases.’ ” Stough, 273 Kan. at 119. After noting Nichols, the Stough court proceeded to state that when K.S.A. 22-3210(d) was passed,
“the legislature placed no limitation on the time within which a motion to withdraw a plea after sentence must be filed. We will not impose such a limit when the legislature has not so provided. We hold the trial court has jurisdiction at any time after a sentence is imposed to permit a defendant to withdraw his or her plea in order to correct manifest injustice.” 273 Kan. at 119.
Nevertheless, in Moses our Supreme Court later quoted the “reasonable promptness” language from Nichols, as cited in Stough, with approval and stated that this was a factor to consider in determining a motion to withdraw a plea, although three justices joined in a concurring opinion stating that they “would not rely on laches or any ‘laches-like’ arguments to reach the outcome in this case.” 280 Kan. at 955; see also Barahona, 35 Kan. App. 2d at 608-10 (citing other jurisdictions that consider timeliness). The Moses court cited a 12-year delay by the defendant in challenging the trial court’s failure to follow K.S.A. 22-3210 as one factor supporting the trial court’s denial of the defendant’s motion to withdraw his plea. 280 Kan. at 950-52.
Here, P.L.B. moved to withdraw his plea just over 4 months following sentencing. Because the main issue here is P.L.B.’s awareness of the sentencing alternatives available to the trial court, it follows that P.L.B.’s attention may not have been drawn to the issue until the trial court sentenced him. P.L.B. moved to modify his sentence a month after sentencing, and offered his motion to withdraw his plea 2 weeks after the motion to modify was denied. As a result, we determine that P.L.B.’s motion to withdraw his plea was timely.
Manifest Injustice
The Moses court considered several other factors in determining whether there was manifest injustice, but the parties here do not offer any argument as to these factors. The factors considered included: there was no factual support in the record for the defendant’s claim that the district court had failed to comply with K.S.A. 22-3210; the defendant received competent representation; the defendant indicated he understood the effect of the plea; the defendant could have brought the claim in earlier actions; the State presented evidence of prejudice it would suffer if it had to go to trial after a lengthy passage of time; thé defendant was familiar with the criminal justice system; and the defendant had never asserted his innocence. All of these factors weighed against the defendant in Moses. 280 Kan. at 950-54. Although some were difficult to determine from the record and lack of argument, it would seem that the only factors not in P.L.B.’s favor were that he apparently received competent representation, that he did not assert his innocence, and that he understood the trial court was not bound by the plea agreement. The factors in P.L.B.’s favor were as follows: that his claims were supported by the plea hearing transcript, that he could not have brought the claim substantially sooner, that there was no showing of prejudice by the State, and that there was no indication that P.L.B. had a previous history with the juvenile justice system.
The totality of the circumstances suggest the trial court erred in denying P.L.B.’s motion to withdraw plea after it had failed to advise P.L.B. of the sentencing alternatives when he entered his plea, as required by K.S.A. 2007 Supp. 38-2344(b). The statutory requirement is in place because of constitutional concerns: the need to inform a juvenile offender of the likely consequences of his or her plea. 260 Kan. at 856. Because the trial court did not tell P.L.B. about the sentencing alternatives that the court could impose upon the acceptance of his plea', we determine that he could not have made a knowing and voluntary plea. Moreover, we determine that a plea under these circumstances would have been unfair. 35 Kan. App. 2d at 608-09. Because the trial court did not apply its discretion within the legal standards of K.S.A. 2007 Supp. 38-2344(b) before accepting P.L.B.’s plea, we determine that the trial court abused its discretion by denying P.L.B.’s motion to withdraw his plea.
Plea vacated, juvenile adjudication reversed, and case remanded to the trial court for further proceedings. | [
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Leben, j.:
Melvin L. Kirk drove a vehicle with windows tinted darker than allowed by Kansas law. A highway patrol trooper stopped Kirk’s vehicle to perform a glass-transparency test that revealed Kirk’s windows had a transparency of only 4%, far below the minimum legal transparency of 35%. While investigating the window tint, Kirk smelled marijuana and air fresheners from within the car. Based on that, he detained Kirk until a drug-dog could check further. Contraband was found, and Kirk was convicted of possession of cocaine with intent to distribute as a third offense and possession of marijuana with intent to distribute.
Kirk now appeals the district court’s denial of his motion to suppress the contraband found in his vehicle. Kirk first contends that the officer didn’t have reasonable suspicion of illegal conduct to stop him or probable cause that a crime had been committed that would authorize searching the vehicle. But it is illegal to drive a car in Kansas with nearly opaque windows, and the district court found that the trooper had a valid basis to stop the vehicle. The district court also found that the trooper had probable cause to search the vehicle based upon the smell of marijuana. The evidence factually supports the district court’s conclusions on both points; they’re also legally correct.
Kirk separately argues that his sentence for possession of cocaine with intent to distribute or sell was wrongly treated as a third conviction; he argues that his 1977 conviction for mere possession of cocaine should not have counted as a prior offense. In 1977, both possession and possession with intent to sell or distribute were together in a single statute so that simple possession was a prior offense for a later possession with intent to sell conviction and vice versa. But the legislature separated the offenses into different statutory sections in 1994 — and the legislature provided in each of these distinct statutes that prior offenses must be “under this section” to count. Kirk is thus correct that his 1977 possession conviction does not count as a prior offense under the present statute for possession with intent to sell or distribute.
I. The District Court Properly Denied Kirk’s Motion to Suppress Evidence Because the Trooper Had a Reasonable Suspicion That Kirk’s Windows Were Illegally Tinted and Probable Cause to Search the Vehicle Based Upon the Odor of Marijuana.
A law-enforcement officer must have a reasonable suspicion that a law is being violated to stop a vehicle, and that suspicion must be based upon articulable facts. K.S.A. 22-2402; State v. Kotas, 35 Kan. App. 2d 769, 773-74, 134 P.3d 677 (2006). On a defense motion to suppress evidence, the State has the burden of proof to show that the search or seizure was lawful. State v. Ibarra, 282 Kan. 530, 533, 147 P.3d 842 (2006). On appeal, though, we must accept the factual findings of the district judge when substantial evidence supports them. We then review the ultimate legal conclusion drawn from those facts de novo, which means that we are not required to give deference to the legal conclusions of the trial judge. State v. Hill, 281 Kan. 136, 140, 130 P.3d 1 (2006).
Kirk argues that the State didn’t present evidence that the trooper had received special training in detection of window-tint violations. Thus, Kirk contends that the officer had no rehable basis upon which to form reasonable suspicion of violation of the window-tinting statute, K.S.A. 8-1749a. The trooper who stopped Kirk did testify that his suspicion was “based upon training and experience in enforcing [the window-tint law.]”
We judge an officer’s conduct in forming reasonable suspicion “in light of common sense and ordinary human experience.” State v. Toothman, 267 Kan. 412, Syl. ¶ 4, 985 P.2d 701 (1999). There’s a substantial difference between windows that are only 4% transparent and ones that are at the legal minimum transparency of 35%. The district court accepted the trooper’s testimony; we find the evidence was sufficient to show reasonable suspicion of a violation of the window-tint statute. As an Ohio court properly noted, “Neither the concepts of probable cause nor ‘articulable suspicion’ would require that an officer have tint meter readings before making a stop for a window tint violation.” State v. Polk, 2008 WL 186660, at *3, ¶¶ 18-19 (Ohio App. 2008) (unpublished opinion) (quoting and approving statement of trial judge); see also United States v. Leal, 235 Fed. Appx. 937, 938-39 (3d Cir. 2007) (unpublished opinion) (upholding traffic stop based solely on officer’s observation of apparent violation of window-tint law).
We note that the officer had reasonable suspicion of another potential traffic-law violation: failure to maintain a single lane as required by K.S.A. 8-1522(a). The trooper observed Kirk’s vehicle drift over the white fog line and briefly travel with two wheels on the gravel outside the traffic lane. That appears to violate K.S.A. 8-1522(a), which requires that “[a] vehicle shall be driven as nearly as practicable entirely within a single lane . . . .” We recognize, however, that a panel of our court has determined that K.S.A. 8-1522(a) is only violated when a vehicle leaves the lane of traffic at a time when that move “cannot be made with safety.” State v. Ross, 37 Kan. App. 2d 126, Syl. ¶¶ 7-8, 149 P.3d 876 (2007), rev. denied 284 Kan. 950 (2007). Another panel of our court has rejected that view and concluded that K.S.A. 8-1522(a) only allows a driver to leave the lane of travel “due to special circumstances such as weather conditions or an obstacle in the road.” State v. Marx, 38 Kan. App. 2d 598, 608, 171 P.3d 276 (2007), rev. granted April 23, 2008. We find that it is unnecessary in this case to choose between the views of the panels in Ross and Marx because the officer had reasonable grounds to stop Kirk’s vehicle based solely on reasonable suspicion of violation of the window-tint statute.
The district court based its finding that the trooper had probable cause to hold Kirk for the drug dog — and ultimately to search the vehicle — on the officer’s detection of the odor of marijuana coming from the vehicle. The Kansas Supreme Court has held that the odor of marijuana coming from a vehicle, when detected by an experienced law-enforcement officer, can provide probable cause to search the passenger compartment of that vehicle. State v. MacDonald, 253 Kan. 320, 325, 856 P.2d 116 (1993); see also State v. Dixon, No. 98,881, unpublished opinion filed April 18, 2008, rev. denied 286 Kan. 1181 (2008) (reversing district court’s order suppressing evidence and finding that experienced officer’s detection of odor of raw marijuana coming from car was sufficient basis for probable cause to search vehicle); State v. Delgado, 36 Kan. App. 2d 653, 658-59, 143 P.3d 681 (2006), rev. denied 283 Kan. 932 (2007) (finding that officer’s detection of odor of marijuana coming from vehicle by itself provided probable cause to search passenger compartment).
Kirk challenges the trooper’s experience in detecting marijuana odors and notes some inconsistencies in the trooper’s testimony about whether he smelled fresh or burnt marijuana. The trooper testified that he had training and experience in detecting marijuana odors. The district court made the factual finding that he did smell marijuana odor coming from the vehicle, a finding that the trooper’s testimony certainly supports. Based on the district court’s factual finding and the holding of MacDonald, the district court properly found that the trooper had probable cause to believe that drug laws had been violated, thus justifying a search of the vehicle’s passenger compartment.
II. Kirk’s 1977 Conviction Under a Prior Statute for Possession of Cocaine Cannot Be Used to Enhance His Sentence for Conviction of Possession of Cocaine with Intent to Sell or Distribute Under K.S.A. 65-4161(c).
Kirk raised one other argument on appeal. He claims that his 1977 conviction for possession of cocaine under K.S.A. 1973 Supp. 65-4127a should not have been counted as a prior conviction under K.S.A. 65-4161(c).
In 1977, possession of cocaine violated K.S.A. 1973 Supp. 65-4127a, which made it illegal either to possess various narcotic drugs or to possess them with the intent to sell or distribute. In 1994, that statute was replaced with separate statutes for possession, K.S.A. 65-4160, and possession with intent to sell, K.S.A. 65-4161. Kirk’s present conviction is for violation of K.S.A. 65-4161(c), which provides for enhanced penalties if the violator “has two or more prior convictions under this section or substantially similar offenses under the laws of another jurisdiction.” (Emphasis added.)
Kirk argues that a conviction may not be counted under K.S.A. 65-4161 as one “under this section” unless it was for possession with intent to sell, not mere possession. The record indicates — and both parties agree — that Kirk’s 1977 conviction was just for possession. Kirk notes that a panel of this court has previously ruled that a conviction for possession of cocaine with intent to sell under K.S.A. 65-4161 may not be used to enhance a sentence for possession of cocaine in violation of K.S.A. 65-4160. State v. Daniels, 28 Kan. App. 2d 364, 17 P.3d 373 (2000). At the time Daniels was decided, K.S.A. 65-4160(b), like K.S.A. 65-4161(c), provided enhanced penalties if the person had a prior conviction “under this section.” Daniels held that a conviction under K.S.A. 65-4161 was not “under this section” for purposes of K.S.A. 65-4160. 28 Kan. App. 2d at 370-71. Thus, a prior conviction for possession with intent to sell cocaine could not be used to enhance the sentence on a later conviction for simple possession of cocaine.
Kirk’s case presents the opposite factual situation. The State attempts to use Kirk’s prior conviction for mere possession to enhance his later sentence for possession with intent to sell, but both the reasoning and the result of Daniels apply here too.
Daniels properly looked to the wording of the statute. In both statutes, the legislature had referred to convictions “under this section.” The Daniels court noted that had the legislature intended to allow mixing and matching of prior convictions, it could have said that prior convictions “under this chapter” or “under this article” would qualify. 28 Kan. App. 2d at 371. We agree. In addition, we note that the legislature knowingly separated into different statutes the crime of simple possession from that of possession with intent to sell. At the same time, the legislature used the specific language “under this section.” It is contrary to the words chosen by the legislature to allow convictions under either statute to qualify as a prior conviction when the legislature intentionally split these offenses into difference sections of the criminal code.
We also note that consideration of the full phrase found in each of the current statutes — “prior convictions under this section or substantially similar offenses under the laws of another jurisdiction” — also supports our conclusion. It would not be logical to assume that the legislature intended in K.S.A. 65-4161, which outlaws possession with intent to sell, to incorporate as countable prior offenses all drug-possession offenses in other states by reference here to “substantially similar offenses” under other jurisdictions. Although a possession offense and a possession-with-intent-to-sell offense are both drug offenses, they’re substantially different just as first-degree murder and involuntaiy manslaughter involve culpable killings but are likewise substantially different. The reference to prior Kansas convictions (“prior convictions under this section”) and to out-of-state convictions (“substantially similar offenses” elsewhere) should be interpreted consistently. And the phrase “prior convictions under this section or substantially similar offenses under the laws of another jurisdiction” should be interpreted consistently in both K.S.A. 65-4160 and 65-4161. We have done so.
The State cites two cases in an attempt to avoid the reach of Daniels, but we do not find them persuasive. In State v. Crank, 262 Kan. 449, 939 P.2d 890 (1997), the court allowed a prior conviction for possession of marijuana under an earlier statute to enhance the sentence of a later conviction for possession under a similar, but renumbered, statute. As the court noted, a prior conviction “under this section” includes one “under the contents of the section, regardless of the section number.” 262 Kan. 449, Syl. ¶ 2. The Crank holding does not justify using a possession convic tion as a conviction “under this section” for a new conviction under a statute targeted specifically to possession with intent to sell.
The second case, State v. Miles, 233 Kan. 286, 662 P.2d 1227 (1983), determined that an out-of-state conviction for the same offense could be counted as a prior conviction. At the time, the Kansas statute allowed for enhanced penalties for a second offense and a further enhancement for a third or later offense. In part because the Kansas statute was based upon a uniform act, the court held that out-of-state convictions for the same offense counted. Miles determined that convictions in other states under essentially identical statutes counted as prior offenses under a Kansas statute referencing “conviction for the second offense” or for “a third or subsequent offense.” 233 Kan. at 297-99. We do not believe that Miles can be applied to give meaning to the “under this section” language of our present statute, especially when the crimes of possession and possession with intent to sell were intentionally separated into different statutory sections by the legislature.
We add that a prior panel, in a comment in an unpublished opinion, has agreed with our conclusion. In State v. Boyd, No. 93,150, unpublished opinion filed October 28, 2005, rev. denied 281 Kan. 1379 (2006), the panel noted that “under the enhancement penalty provisions of K.S.A. 2005 Supp. 65-4161, a prior conviction for possession of cocaine could not be used to enhance the sentence for a sale of cocaine offense.” Slip op. at 9.
Kirk’s 1992 conviction is not at issue; defendant concedes that it was for possession with intent to distribute. Thus, the district court should have sentenced him based on K.S.A. 65-4161(b), which applies when a defendant has one prior conviction “under this section.” Such a defendant is sentenced for a severity-level-2 offense rather than a severity-level-1 offense.
Conclusion
The judgment of the district court is affirmed with respect to the court’s denial of the defendant’s motion to suppress evidence. The sentence entered against the defendant is vacated; the case is remanded with directions to resentence the defendant for a severity-level-2 drug offense under K.S.A. 65-4161(b). | [
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Opinion by
Green, C.:
Barton Bros, sued W. W. Robbins, in the district court of Kingman county, to recover $624.84, damages for alleged false and fraudulent representations concerning the financial standing of H. G. Gorton. The plaintiffs alleged in their amended petition —
“That on or about the 15th day of January, 1888, they were induced by the following false and fraudulent representations of the defendant, who was at the time a banker at Norwich, Kas., in regard to the financial standing of one H. G. Gorton, made to the agents and servants of the plaintiffs, to sell and. ship said H. G. Gorton a bill of goods to the amount of $624.84; that said false and fraudulent representations were as follows, to wit: ‘I consider H. G. Gorton perfectly good for a bill of goods to the amount of $624.84; H. G. Gorton is safe;’ that defendant well knew at the time of making said representations to the agents and servants of the plaintiff that said H. G. Gorton was not able to pay for said goods, and was not fit to be trusted on credit, and that the said H. G. Gorton was, at the time of making said purchase of said stock of goods, insolvent and wholly irresponsible financially, and was at the time of making representations by defendant to the agents and servants of the plaintiffs aforesaid, and was known to the defendant at the time to be so. . . . That by reason of which said false and fraudulent representations plaintiffs have been damaged in the sum of $624.84.”
The plaintiffs alleged that they had been unable to collect anything from Gorton, and that by reason of said false and fraudulent representations they had been damaged in the sum of $624.84, for which they asked judgment. To this amended petition, a general denial was filed.
A trial by the court and a jury was had upon the issues thus joined, and a verdict was returned in favor of the plaintiffs for the amount claimed. A motion for a new trial was overruled, and judgment was entered upon the verdict. The plaintiff' in error brings the case to this court upon numerous assignments of error, which we will now consider.
The ruling of the district court is first challenged in permitting any evidence to be offered by the plaintiffs, for the reason that the amended petition did not state facts sufficient to constitute a cause of action, in this, that it did not allege any intent upon the part of the defendant to cheat, injure or defraud the plaintiffs. The rule in regard to the presumption which may be indulged in to sustain a petition, where the objection is made that it does not state facts sufficient to constitute a cause of action, after the issues have been made by answer, is quite well settled; and it has been held that a petition should be construed liberally, for the purpose of sustaining it. (The State v. School District, 34 Kas. 237; Hazelton v. Union Bank, 32 Wis. 34.) The petition alleged that the defendant knew at the time he made the representations that H. G. Gorton was not able to pay for the goods, and was not fit to be trusted. It is argued that the objection to the introduction of evidence should have been sustained because the petition did not allege that the plaintiff's relied upon the statements said to have been made. The petition alleged:
“And by reason of said false and fraudulent representations of said defendant, plaintiffs sold and shipped said bill of goods to H. G. Gorton, giving him credit therefor, and said Gorton has failed and refused to pay the plaintiffs the amount of said goods.”
We are of the opinion that the allegations are sufficient, especially when challenged after answer.
The further objection is made, that the statement charged in the petition, “I consider H. G. Gorton perfectly good for a bill of goods to the amount of $624.84; H. G. Gorton is safe,” is a matter of opinion, and not a statement of a fact. It is true that the mere expression of an opinion is no fraud, though it be false. “The question,” says Chief Justice Marshall, in Russell v. Clark’s Executors, 9 Cranch, 69, “how far merchants are responsible for the character they give each other is one of much delicacy, and of great importance to the commercial world. That a fraudulent recommendation (and a recommendation known at the time to be untrue would be deemed fraudulent) would subject the person giving it to damages sustained by the person trusting to it, seems now to be generally admitted.”
The case of Pasley v. Freeman, 3 Term Rep. 51, recognizes and establishes this principle:
“Indeed, if an act, in itself immoral, in its consequences injurious to another, performed for the purpose of effecting that injury, be not cognizable and punishable by our laws, our system of jurisprudence is more defective than has hitherto been supposed.”
We think the allegations of the petition bring it within the rule stated in 5 Am. & Eng. Encyc. of Law, page 328:
“If a party makes representations susceptible of knowledge in such a way as to impress upon the other party the truth of such assertion, but knows that they are false, with the intent that the other party shall rely upon them, in case the other party acts upon these representations, it is fraud.” (Wakeman v. Dalley, 51 N. Y. 27; Hazard v. Irwin, 18 Pick. 95.)
Giving the petition the liberal construction which the law says it shall receive, when challenged after answer by an objection to the evidence, we think it was sufficient.
It is next urged that the court erred in admitting the deposition of T. F. Byrnes, for the reason that the conversations detailed by the witness concerning N. E. Gorton had no connection with H. G. Gorton. The witness stated that he went to Norwich in February, 1888, to collect a bill for the firm of C. H. Fargo & Co. against N. E. Gorton. He then went on to detail a conversation had with, the defendant concerning the financial standing of N. E. Gorton, but did not connect N. E. Gorton with H. G. Gorton. They may be one and the same, but it nowhere appears in the deposition that they are the same person. An examination of the deposition satisfies us that the evidence is of such a character as to have influenced the jury. The witness testified that he asked N. E. Gorton to make him a financial statement, which showed him to be solvent; that he asked Robbins if N. E. Gorton was all right, and was assured that he was. We are of the opinion that the objection of the defendant below to the admission of the deposition should have been sustained; that the admission of the evidence was prejudicial to the rights of the defendant.
The last error which we shall notice is the fifth instruction of the court, which reads:
“You are further instructed on this point, that any willful misrepresentation of a material fact, made with the design to deceive another and induce him to enter into a contract or sale he would not otherwise make, will enable the party thus deceived to recover of and from the party making such representations in such sum as the party making such contract or sale has been injured or damaged thereby; and it makes no difference whether the party making such representations knew them to be false or whether he was ignorant of the facts stated, provided the matter stated was material and the party making the statements stated them to be true when he had no apparently good reason for believing them to be true, and when the other party under the circumstances was reasonbly justified in relying on the statements, and did rely on them in making the said contract and sale and was deceived and injured thereby. A party making representations, as of his own knowledge, when in fact he has no knowledge on the subject, stands in the same position as if he had knowledge of the actual facts.”
We think the last sentence in this paragraph of the charge of the court is subject to criticism in this, that it is not applicable in this case. As an abstract legal proposition it may be correct, but was not warranted in this case. The petition charged that the defendant knew at the time that he made the representations that H. G. Gorton was unworthy of credit; hence it was unnecessary for the court to instruct the jury as to a want of knowledge.
Other questions have been presented by counsel in their briefs, but we do not think it necessary to consider them, as the case must go back to the district court for a new trial, for the reason indicated.
We recommend a reversal of the judgment of the district court, on' account of the admission of the deposition of T. F. Byrnes, and that a new trial be granted.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
Henry Roberts brought his action to recover from Chas. J. Dixon $1,500, alleged to have been loaned by Roberts to Dixon on October 20, 1884, upon an oral promise of Dixon to pay the same, with interest thereon at 8 per cent, per annum, within two years from the time the loan was made. The trial resulted in a judgment for Dixon, and Roberts complains of the rulings made in the admission of testimony. After proof of the loan and the terms on which it had been made had been offered by Roberts, testimony was produced by Dixon tending to show that the money furnished to him by Roberts was not a loan, but was given to him to invest in cattle for Roberts, and at his risk, and that, as the investment or venture turned out to be a losing one, there was no money to be paid, and he was not indebted to Roberts. In proof of this theory, he was permitted to show the contents of two written receipts alleged to have been given by him to Roberts when the money was furnished. This secondary testimony was received over objection, without showing the loss or destruction of the originals, or that any reasonable effort had been made by the defendant to- find or produce them. The only foundation or reason given for introducing evidence of their contents was that the originals were not then in the defendant’s possession. This was insufficient. Before secondary evidence of such writing can be received, a party must in general show the loss or destruction of the original, or that he has used reasonable efforts and the means which were accessible to him to find the writing or cause its production; and, if it appears to be in the hands of the adverse party, notice to produce the original is necessary in order to lay a foundation for the introduction of secondary evidence. (1 G-reenl. Ev., §§ 558, 560.) Section 358 of the civil code points out a method by which the defendant might have procured an inspection or the production of the receipts, but no such steps were taken, nor was there any such preliminary proof as warranted the production of oral evidence as to the contents of the receipts. (Johnson v. Mathews, 5 Kas. 118; Shaw v. Mason, 10 id. 184; C. B. U. P. Rld. Co. v. Shoup, 28 id. 394; McCormick v. Roberts, 32 id. 73; Marsh v. Davis, 33 id. 326.)
The defendant was also allowed to prove that he had cattle contracts with parties other than plaintiff, whereby he was furnished money to invest in cattle at the risk of the party furnishing the money. This testimony was clearly incompetent, and its admission material error. It does not appear that Roberts had any connection with these other parties with whom Dixon had contracts. Testimony that Dixon made a certain contract with a third party is no proof of the contract which he made with Roberts. For these errors there must be a reversal of the judgment and a new trial.
All the Justices concurring. | [
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Opinion by
Green, C.:
This was an action brought by the plaintiffs in error to perpetually enjoin Anna and William C. Stein from closing up or obstructing a certain tract of land which was claimed to be a private alley. On the 9th day of June, 1882, Anna Stein owned the fee in lots 107, 105, and the south half of 103; and Anna and William C. Stein, her husband, were the owners of the north half of lot 103 and all of lots 101 and 99, all situated on Quincy street, in the city of Topeka, in Shawnee county. It seems that the owners of said, lots arranged to divide them so that they should face on Fourth street instead of Quincy, as originally surveyed and platted; and that, for the accommodation of the purchasers who might purchase parcels of this land with frontage on Fourth street, there should be set apart a strip of ground 12 feet wide on the north side of lot 99, on Quincy street, to be at some future time used by the owners of the several lots or parcels of land, to be conveyed by them, on Fourth street for a private alley; and Stein and wife, it seems, intended and designed to so reserve the 12 feet of land for this purpose before they sold any of the land. On June 9,1882, Anna and William C. Stein, through their agent, sold and deeded to James H. Johnson the following-described parcel of land, together with all of the appurtenances, to wit:
“The west 25 feet of lots numbered 99,101, 103, 105, and 107, on Quincy street, in the city of Topeka, except a strip 12 feet wide across the north end of said tract reserved for use as a private alley for all of said lots; also a right-of-way over and across said 12-foot strip.”
These five lots, being located on the northwest corner of Quincy and Fourth streets, extended 125 feet on Quincy street and 150 feet back on Fourth street to an alley running north and south in the block. On March 1,1884, Stein and wife deeded to George F. Riley, the deceased husband of the plaintiff in error, the following-described parcel of said lots fronting on Fourth street, to wit:
“Beginning at a point 45 feet west of the southeast corner of lot No. 107 on Quincy street, in the city of Topeka, Kas., and running thence west along Fourth avenue in said city 40 feet; thence north parallel to said Quincy street 113 feet to an alley; thence east 40 feet; thence south 113 feet to the place of beginning.”
The said Steins then and there were reserving a strip of ground 12 feet wide off the north side of lot 99 for a private alley. On September 6, 1884, the Steins conveyed of said lots to W. H. Riley, by warranty deed, the following-described parcel fronting on Fourth street, with all of the appurtenances, to wit:
“ Commencing at a point in the south line, and west of the southeast corner of lot 107, Quincy street, city of Topeka, 85 feet; thence northerly and parallel to Quincy street 113 feet, across lots 107, 105, 103, 101, and 99, to an alley; thence westerly 25 feet along south side of said alley; thence southerly 113 feet, parallel to Quincy street; thence easterly 20 feet, to the place of beginning.”
On the same day they conveyed to Hannah C. Riley the following-described tract:
“Commencing at a point in the south line, and west of the southeast corner of lot 107, Quincy street, city of Topeka, 105 feet; thence northerly and parallel to Quincy street, across lots 107,105,103,101, and 99, Quincy street, 113 feet, to an alley; thence westerly along the south sidle of said alley 20 feet; thence southerly and parallel to Quincy street 113 feet, to Fourth street; thence easterly along Fourth street 20 feet, to the place of beginning.”
The court found that Stein and wife —
“At the time of the conveyances to W. H. Riley and Hannah C. Riley represented to them that the 12-foot strip on the north side of lot 99, on Quincy street, was a private alley from Quincy street west 150 feet to the alley on the west side of said lots, to be used by the purchasers of said lots.”
By these several conveyances, the Steins deeded all of lots 99, 101, 103, 105, and 107, except 45 feet off the east end thereof, which they reserved to themselves; and except the 12-foot strip off the north side of lot 99, which has been referred to in all of the conveyances as an alley. Upop the above state of facts, the court below found for the defendants. The plaintiffs in error and one of the defendants below, James H. Johnson, ask that the judgment of the district court be reversed.
It is contended that, by these several conveyances and the recitals therein, the grantors, while they retained the ownership of the strip of laud designated as a private alley, conveyed to the several purchasers the easement of service of said strip as way to and from the lots sold. The question to be determined in this case is, have William C. Stein and wife, by the execution of these several deeds and other acts, given to the grantees an easement over the ground now claimed as a private alley? The exception and reservation in the Johnson deed is in the following language: “Except a strip 12 feet wide across the north end of said tract, reserved for use as private alley for all of said lots'; also a right-of-way over and across said 12-foot strip.” The other deeds contained recitals as to the alley. Did the grantors convey a right to an alleyway to the grantees by these several deeds? In the case of Lewis v. Beattie, 105 Mass. 411, which was an action for the obstruction of the plaintiff’s easement in a way leading from a highway, and the deed to the plaintiff described the land as running to and bounded on a way 40 feet wide, the grantors were the owners of the fee covered by the way mentioned in the conveyance. The court said: “Standing by itself, this deed would carry the title to the middle of the strip described as a way, with an easement reserved to the grantors over the half conveyed, as well as to whatever rights-of-way existed in others at the time.” (Fisher v. Smith, 9 Gray, 441; Winslow v. King, 14 id. 321.) The rule has been stated: “That when a grantor conveys land bounded on a street or way over his other land, he and those claiming under him are estopped to deny the existence of such street or way.” (Franklin Ins. Co. v. Cousens, 127 Mass. 261; Tobey v. Taun ton, 119 id. 404; Lewis v. Beattie, supra; Howe v. Alger, 86 id. 211.)
In O’Linda v. Lothrop, 21 Pick. 292, where the owner of a narrow strip of land, and also of land adjoining it on the north and on the south, conveyed to the same grantee two parcels of land, one of which is described as bounded south on a “street,” and the other as bounded north on an “intended street,” the strip of land first mentioned being referred to by these words, it was held that the fee in such strip'did not pass by the deed; but that the grantee acquired a right-of-way thereon by implication, or on the principle of estoppel. In that case there was nothing in the deed of right-of-way over the street, but the court held that the grantor was estoped to deny that it was a street or way to the extent of the land referred to, holding that it was an implied covenant on his part that there was such a street.
In Parker v. Smith, 17 Mass. 413, the principal question was the construction of a deed in which a piece of land was described as being bounded southwardly and westwardly on a way or street. The court, through Chief Justice Parker, held that by this description the grantee and his heirs were estopped from denying that there whs a street or way to the extent of the land on those two sides. It was said:
“ We consider this to be not merely a description, but an implied covenant that there are such streets. It probably entered much into the consideration of the purchase that the lot fronted upon two ways which would always be kept open, and, indeed, copld never be shut without a right to damages in the grantee or his assigns.”
As sustaining this doctrine, see also Sutherland v. Jackson, 33 Me. 80; Lindsay v. Jones, 25 Pac. Rep. (Nev.) 297; Story v. Elevated Rld. Co., 90 N. Y. 163; Washburn, Easements and Serv. 266; Bigelow, Estop. 370.
It will be observed by a reference to the clause in the deed to Johnson that the clause as to the reservation of the private alley is more favorable to the grantee than in most, if not all, of the cited cases.
It is recommended "that the judgment of the district court be reversed, and thatfthis cause be remanded to the court below with the instruction to enter judgment upon the findings of fact in favor of the plaintiff and against the defendants, for a perpetual injunction enjoining defendants from obstructing the alley or strip of ground in controversy.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
It is contended on the part of the defendant below that the trial court committed five material errors. They are alleged as follows: (1) The overruling of the de murrer to the petition; (2) overruling the objection of the defendant to the introduction of any testimony under the pe-. tition; (3) overruling the demurrer of the defendant to the evidence of the plaintiff; (4) excluding material testimony •offered by the defendant; (5) striking out material testimony of the defendant after it had been received.
We will discuss the first, second and third objections together, because the principal question presented thereby is, “ that the description of the land is so indefinite the court could not declare a specific performance.” The property described in the contract is as follows: of section 7—23—7, and all of section 18—23—7; the above property to be free and clear of all incumbrances, and being in Sycamore township, Butler county, Kansas.” The decree for the specific performance described the property in the terms of the contract, and the trial court did not attempt in its decree and judgment to find or adjudge what “J of section 7—23—7” was referred to in the contract, or to" be included in the deed required by the decree of specific performance. The trial court very properly overruled the demurrer to the petition, and the objection of the defendant to the introduction of testimony, upon the ground that the description in the contract “ of \ of section 7 ” was too uncertain and indefinite to decree a specific performance, because the petition alleged, among other things, “ that at the time of- the execution of the agreement the defendant was the owner of section 18 and the s mth half of section 7, all in township 23 south, of range 7 east, in Butler county, Kansas, and that the defendant was then the owner of no other real estate in said section 7 than the last above described; and that said real estate last above described was the land intended to be conveyed as therein set forth, and described as ‘ J of section 7—23—7, and all of section 18—23—7/ and being in Sycamore township, Butler county, Kansas.”
It was said in Hollis v. Burgess, 37 Kas. 494:
“It is not essential, however, that the description should be given with such particularity as to make a resort to extrinsic evidence unnecessary. If the designation is so definite that the purchaser knows exactly what he is buying, and the seller knows what he is selling, and the land is so described that the court can, with the aid of extrinsic evidence, apply the description to the exact property intended to be sold, it is enough.” (Fry, Spec. Perf., 3d ed., § 325; Pom. Contr., § 90; Fowler v. Redican, 52 Ill. 405; Bowen v. Prout, 52 id. 354.)
In Hurley v. Brown, 98 Mas. 545, the written contract described the property as “a house and lot of land situated on Amity street.” There being several such, parol evidence was admitted to show that there was one only which the defendant had any right to convey, and that the parties had been in treaty for the sale and purchase of it. The court held that the subject-matter of the contract might thus be identified; and, when so ascertained, the writing might be construed to apply to it, and was thus made sufficiently definite and certain for specific enforcement in equity.
In Mead v. Parker, 115 Mass. 413, the description was “a house on Church street.” The court said:
“ When all the circumstances of possession, ownership, situation of the parties, and of their relation to each other and to the property, as they were when the negotiations took place and the writing was made, are disclosed, if the meaning and application of the writing, read in the light of those circumstances, are certain and plain, the parties will be bound by it as a sufficient written contract or memorandum of their agreement. That parol evidence is competent to furnish these means of interpreting and applying written agreements, .is settled by the uniform current of authorities.”
In Waring v. Ayers, 40 N. Y. 357, the description was “two lots owned by me in 116th street, N. Y., between Eighth and Ninth avenues; said lots being 25 feet front by about 75 feet deep.—E. Ayeks.” The court said:
“Now, if no other lots will answer that description, there is no want of certainty in respect to the subject, i. e., the property to be conveyed. The referee finds that no other lots than those named in the judgment will answer that descrip tion, and that those named in the judgment do answer the description precisely. I know of no: rule of law or equity which' requires the employment of one set of terms or form of words to describe real estate proposed to be conveyed. An agreement to sell and convey the farm in the town of Bath, belonging to me, is definite and certain the moment it appears which farm in the town of Bath does in part belong to me.” (Tethrow v. Anderson, 63 Mo. 86.)
While the allegations' in the petition were sufficient, if proven upon the trial, for a specific performance, we do not think there was evidence received by the court identifying half of section 7—23—7. The trial court, for some reason not apparent, improperly refused to permit the plaintiff below to show that at the time of the execution of the contract Bacon owned the south half of section 7—23—7 east, in Sycamore township, Butler county, and that he was the owner of no other real estate in said section 7 than the south half of said section. If this evidence had been received, the contract as to the half of section 7 would have been sufficiently identified for specific performance. No motion was made upon the part of the plaintiff below for a new trial, and no cross-petition in error is filed in this court. We therefore cannot correct any rulings of the trial court not complained of and not here upon proper proceedings for reversal. As we are neither informed from the contract or evidence received what half of section 7 was meant, Whether the north half, the south half, the east half, or the west half, the description in the record is too indefinite and uncertain.
It is.urged by counsel on the part of plaintiff below, that if the description of the half of section 7 is .too defective, it may be corrected by another or further action for that purpose, and therefore that the judgment should stand. Some cases are cited apparently supporting this view. (Bean v. Valey, 2 Mo. 126; Cooper v. Laney, 39 Ala. 338.) Courts, as a rule, abhor a multiplicity of suits between the same parties growing out of the same transactions. We think the better rule to be that, where a contract describing land to be conveyed is indefinite and uncertain, and therefore is to be reformed on account of the mutual mistakes or omissions of the parties, or where it can be made sufficiently definite and certain by extrinsic evidence, the petition should show all the facts, and what is desired before a specific performance is decreed; and all the matters in controversy, both as to the reformation of the contract, if one is necessary, or the identification of the property by extrinsic evidence, should be settled and disposed of in the same action. Upon the trial, it was urged in the presentation of evidence on the part of the plaintiff below that the description in the written contract of the half of section 7 should have been the south half of said section 7; that Bacon gave to the party writing the contract the description as the “south half of section 7,” but by inadvertence or mistake of the scrivener it was written .“'half of section .7.” If this be true, plaintiff below might have amended his petition so as to have had the contract reformed, with the .proper description as given by the parties to the scrivener.
The claim made upon the part of the defendant below, that if the description of “one-half of section 7” is too indefinite or uncertain in the absence of extrinsic evidence to be enforced, therefore all the descriptions in the contract must be disregarded and the contract itself treated as a nullity, is not reasonable or equitable. If plaintiff below is willing to accept, in payment of his property described in the contract, “all of section 18—23—7, in Sycamore township, Butler county, in this state,” the defendant below cannot complain because of the indefiniteness or uncertainty of “one-half of section 7,” or of the failure of the plaintiff below to obtain a deed for all the property he brought his action to recover. “It is a rule of construction, that where there is a doubt as to the construction of a deed, it shall be taken most favorably for the grantee. Whence, if there are two descriptions in a deed of the land conveyed, and they do not coincide, the grantee is at liberty to elect that which is most favorable to him.” (Sharp v. Thompson, 100 Ill. 447; Melvin v. Proprietors of Locks, 5 Metc. 27; 3 Washb. Real Prop. 628, 629; Esty v. Baker, 50 Me. 331; Wat. Spec. Perf., § 396.)
The case of Becker v. Mason, 30 Kas. 697, referred to, is not applicable. In that case, the contract was not signed by the party to be charged. In such a case, the contract must be proved, if proved at all, by some written note or memorandum of the contract signed by the party to be charged. The infirmity in that case vitiated and destroyed the whole of the contract. In this case, the memorandum of the contract is signed by the party to be charged, and the description of a portion of the land therein is definite and certain ; a part is indefinite and uncertain, in the absence of extrinsic evidence, but the contract may be held valid as to that which is properly and sufficiently described.
Complaint is also made that the plaintiff below failed in his evidence, because of some alleged defects in h'is abstract of title. An abstract of title was furnished within the time required by the contract, and a warranty deed was also executed and delivered according to the contract. Defendant below refused to make any conveyance by warranty deed or otherwise; made no objections to the abstract or called attention to any defects therein. It does not appear from the record that the defects now alleged in the abstract or deed were called to the attention of the trial court. On the other hand, it does appear that the principal defenses in the trial were the indefinite description of the property, a contemporaneous parol agreement between the parties, and that the signature of the defendant to the contract was obtained by fraud.
We perceive no material error in excluding or striking out testimony. There was no proof of any consideration for any new or parol contract changing the original contract of the parties. If the parol contract was made contemporaneously with the contract, as a part thereof, or in connection therewith, it could not be proved, if it altered, varied or contradicted the written contract. (Schoen v. Sunderland, 39 Kas. 758.) The testimony shows that the defendant below resided in Kansas City, Mo., where the property he was trading for is situated, and had resided there for over 20 years, and that he lived about three-fourths of a mile from the same. It further appears from his testimony that he had seen and had had an opportunity to examine the property before he signed the contract; therefore, we do not think any fraud was established, either to obtain his signature to the contract or otherwise. (Wat. Spec. Perf., §317; Story, Eq. Jur., §200, and sub.; Dyer v. Hargrave, 10 Ves. 505; Pratt v. Phillbrook, 33 Me. 17; Hough v. Richardson, 3 Story, 659; Langdon v. Green, 49 Mo. 363.)
If the plaintiff below will, within 30 days, file in writing in the district court of Butler county his written consent to a modification of the judgment rendered in this case, so as to omit therefrom “one-half of section 7—23—7, in Sycamore township, Butler county, in this state,” the judgment will be allowed to stand as thus modified; otherwise, the judgment will be reversed, and the cause remanded for a new trial. If plaintiff below accepts the modification of the judgment as suggested, the costs in this court will be divided; if he does not so accept, a reversal will be ordered, with costs.
All the Justices concurring. | [
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The opinion of the court was delivered by
Allen, J.:
Various amendments were made to the plead ings in this action before trial. The petition, as finally amended and on which the action was tried, contains two counts. The first is on a school-district order, purporting to have been executed by the director and clerk of the defendant district, dated August 20, 1884, for $80. The second count alleges that the plaintiff sold and delivered to the defendant school furniture of the value of $80, on or about August 20, 1884, under a written contract signed by the officers of said defendant and the said plaintiff’s agent. The cause was tried before the court without a jury. Special findings were made. The court finds that the director, clerk and treasurer of the defendant signed a written contract for the purchase of certain school desks and seats, for the total price of $80, but that no meeting of the school-district board was ever held at which said contract was authorized or. ratified, and that such purchase was never authorized by the electors of the district. The court further finds that a school-district order in blank was signed by William Liebeau, as a matter of convenience to L. Weeden, as clerk of the district, for the purpose of enabling said Weeden to pay some small bills against the defendant, and after being thus signed in blank was by said Weeden filled up, executed and assigned to the plaintiff without any authority from said Liebeau. The court also finds that said school furniture was delivered to the defendant; that the defendant took possession of the same, and has had the use and benefit thereof ever since about the 20 th day of August, 1884, and that such school furniture was at such time reasonably worth $80. The court finds as a conclusion of law that the defendant was entitled to recover costs. From this judgment the plaintiff appeals to this court.
No oral argument has been made in the case, and the only explanation of the grounds on which the defendant claims that the judgment of the court cannot be maintained must be gathered from his brief, the whole of which we quote, as follows:
“ The only question in the case, under the pleadings, is: Was the warrant sued on void? The plaintiff elected to rely on and sue on the warrant, and hence the question of quantum meruit cannot apply, and any finding of the trial court as to the value of the goods sold was entirely outside of the case. The court found that there was no authority of the school board or the district ever given for the issuing of the order or making the purchase of the goods. Aikman v. School District, 27 Kas. 129, and eases therein cited, fully sustain the judgment of the court below.”
We think the second cause of action stated in the petition is amply sufficient to authorize a judgment to be entered for the value of the furniture, if the evidence warrants it. It states that the plaintiff sold and delivered to the defendant school furniture, for which the defendant agreed to pay $80; that the defendant received the furniture and has used the same. It is found by the court, and all the evidence in the case shows, that the defendant school district received the school furniture in August, 1884, and has held and used the same ever since the 20th of that month. We are utterly at a loss to understand how the defendant, having kept and used this furniture during all the time from that date to the time of the trial of this action, on the 8 th day of February, 1890—a period of nearly 5J years—can claim to be excused from making any payment therefor. It would seem from the pleadings and the record in the case that the court took the view that the written order set up in the petition, and also the written contract made by the board of directors with the agent of the plaintiff for the furniture, were void because unauthorized. It may be conceded for the purposes of this case that both these written instruments were void, and that no action could be maintained on either or both of them; yet the defendant district, having received and retained the property, which the court finds to have been fairly worth the price stated in the written contract, is bound in common honesty to pay for it. During all the time this furniture has been in the possession of the defendant district it is fair to presume that the schoolhouse which was furnished with the seats and desks purchased from the plaintiff was used in the same manner as schoolhouses are ordinarily used. It is fair to presume that school-district meetings were therein held annually at the time appointed by law. It is fair to presume that the school district board met there, and caused the seats to be placed in the building and to be used by the district. The board and the residents of the school district must all have known of the use of this property, and their continued retention and use of it shows a perféct and complete ratification of the purchase made by the district officers. In the case of Sullivan v. School District, 39 Kas. 347, it was held that a contract for the construction of a schoolhouse made by one member of the school-district board alone, on behalf of the district, might be ratified and made binding on the whole school district. This case came again before this court, and is reported in 48 Kas. 624, and the court then held that —
“A contract for building a schoolhouse, void because made only by one member of the school board, may be ratified and made binding by the action of the school district in completing the building left unfinished by an absconding contractor; by furnishing the same with seats, desks, and other necessary schoolhouse furniture; by occupying the same for school purposes, and by insuring the same.”
This case but enunciates the broad doctrine, supported by very numerous authorities, which we do not deem it necessary to cite, and is founded in reason and justice.
The judgment will be reversed, with an order to the district court of Elk county to enter judgment on the findings of fact in favor of the plaintiff against the defendant for $80, with 7 per cent, interest per annum from the 20th day of August, 1884, to the date of judgment.
All the Justices concurring. | [
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The opinion of the court was delivered by
Allen, J.:
This was a proceeding instituted in the district court of Pratt county, Kansas, to amerce James Ryan, sheriff of Harvey county, for failure to properly serve and return two certain executions. On the 8th day of December, 1886, the plaintiff in error recovered a judgment in the district court of Pratt county, Kansas, against J. D. Caswell, for the sum of $963.98 and costs. On December 20, 1886, a transcript of the journal entry of said judgment was filed in the office of the clerk of the district court of Harvey county. On the 12th day of March, 1887, the plaintiff caused an execution to be issued thereon to the sheriff of Harvey county. This execution the plaintiff alleges was never returned. Afterwards, on the 23d day of July, 1887, the plaintiff caused another execution to be issued, also to the sheriff of Harvey county, and directed said sheriff to levy on certain real estate situated in the city of Newton. -The sheriff returned this execution, “No property found,” March 26, 1888. On March 27, 1888, Smedley Darlington commenced an action in the district court of Harvey county against John D. Caswell and wife, the Union Stove & Machine Works, et al., defendants, to foreclose a mortgage executed by Caswell and wife on certain property in Harvey county. No issue was joined by any of the defendants with the plaintiff. Judgment of foreclosure was entered in his favor.
The Union Stove & Machine Works filed its answer, setting up its judgment before mentioned against the Caswells, alleging the filing of the same in the office of the clerk of the district court of Harvey county, claiming a lien by reason thereof, on the property described in the plaintiff’s mortgage, and asking a foreclosure of its lien, subject only to the claim of the plaintiff.' To this answer the defendants, Caswell and wife, filed a reply admitting the rendition of said judgment, and alleging, among other things, that since the rendition of said judgment, and on December 12, 1886, one William Fisher, being then and there indebted to said Caswell in a sum greater than the amount of said judgment, assumed payment of the same; that the Union Stove & Machine Works took and accepted said William Fisher in full payment and satisfaction of said judgment, taking from the said William Fisher a note for the same, secured by both real and chattel mortgages; that said Union Stove & Machine Works had since foreclosed said mortgage in the district court of Pratt county, Kansas; that said indebtedness of the said William Fisher to the said J. D. Caswell, arose in this manner: that on or about November 27, 1886, the said J. D. Caswell sold and conveyed his stock of merchandise, business house and lot to one William Eastman, who, as part consideration therefor, assumed and promised to pay the note of said J. D. Caswell to the Union Stove & Machine Works, which note was secured by mortgage on the business house and lot aforesaid, and also by chattel mortgage on heating stoves and stock of merchandise aforesaid; that afterwards, on or about December 12, 1886, the said William Eastman sold and conveyed said stock of merchandise to said William Fisher, and said business house and lot to Bertha Fisher, subject, however, to the incumbrances placed on the same by said J. D. Caswell to the Union Stove & Machine Works, as aforesaid, and, as part of the consideration for the transfer of said stock of merchandise and business house and lot, said William Fisher assumed the obligation of said William Eastman, as aforesaid, and agreed to pay said indebtedness of the said J. I). Caswell to said Union Stove & Machine Works; that by reason of th( se transactions said judgment has been fully satisfied, and said Caswell relieved from payment cf the same, and praying cancellation of the said judgment.
By agreement of the parties, the issues joined between the plaintiff and the defendants herein, were transferred to Reno county for trial. Afterwards, on the 13th day of November, 1888, said cause came on for trial in the district court of Reno county, before the court and jury, and the jury rendered a general verdict in favor of the defendant Caswell, and also special fiadings on certain questions of fact. Upon this verdict, said district court rendered a judgment in favor of the Caswells against the plaintiff herein, ordering that said judgment of said Union Stove & Machine Works against said Caswell and wife, rendered in the district court of Pratt county, be released, satisfied, canceled, and held for nothing, and against the plaintiff herein for costs.
Proceedings in error were prosecuted by the plaintiff herein from that judgment, and the judgment of the district court of Reno county was affirmed by this court. (48 Kas. 689.)
The date of the filing of the notice to amerce in this action does not appear from the record, but notice of the motion was served in March, 1888. The hearing of the motion was on the 17th day of May, 1889, about six months after j udgment had been rendered by the district court of Reno county canceling the plaintiff’s judgment against the Caswells. Section 472 of the code provides:
“If any sheriff or other officer shall refuse or neglect to execute any writ of execution to him directed, which shall come to his hands, or shall neglect or refuse to sell any goods and chattels, lands and tenements, . . . such sheriff or other officer shall, on motion in court, and two days’ notice thereof, in writing, be amerced in the amount of said debt, damages, and costs, with 10 per cent, thereon, to and for the use of said plaintiff or defendant, as the case may be.”
While it appears from the record that the judgment of the plaintiff against the Caswells still appeared of record .uncanceled at the time these executions were placed in the hands of the defendant, the judgment which was afterward rendered by the district court of Reno county determined that, on the 12th day of December, 1886, Fisher assumed the payment of the indebtedness which was evidenced by this judgment, and that at the time said executions were in the hands of the defendant the judgment against the Caswells did not evidence an indebtedness from the Caswells to plaintiff, and at the time the motion to amerce the sheriff' was heard and decided by the court in this case this judgment had been duly canceled by the judgment rendered in the district court of Reno county. The statute imposes no liability on the sheriff under a proceeding to amerce beyond the amount of the debt, damages, and costs, with 10 per cent, thereon. No debt existing at the time the motion to amerce was heard, no order of amercement could have been made.
The plaintiff in error complains of the ruling of the court in excluding an agreement between the parties with reference to the value of certain property in Harvey county. Unless the plaintiff had a subsisting judgment, the value of this property could make no difference in the case, and no material error was committed by excluding it. An objection was also made to the admission of certified copies of the record, pleadings and proceedings in the case of Smedley Darlington against J. D. Caswell et al. We think this objection was properly overruled, and that the copies, being duly authenticated, were admissible. Other errors are alleged with reference to the admission of evidence, but we are. unable to perceive that the court committed any substantial error in this respect.
The order of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Green, C.:
William Hogue took passage at Girard on a train operated by the Atchison, Topeka & Santa Eé Railroad Company to go to Walnut. Before reaching the latter place he concluded to go to Erie, 10 miles farther. When the train arrived at Walnut, he got off and went to the ticket office to procure a ticket. The agent was not in the office, but was handling baggage on the platform. Hogue stood at the window of the ticket office until the conductor shouted “All aboard,” when he got on the train. According to his own evidence, he went to the ticket office to obtain a ticket to Erie, but finding no agent within he boarded the train without procuring one. After the train had left Walnut, the conductor passed through the train and demanded a ticket, and the passenger handed him 30 cents. The conductor inquired where he was going, and he replied that he was going to Erie. The conductor demanded 10 cents more, and Hogue inquired why he wanted more than thé regular fare of 3 cents a mile. The conductor answered because he had not purchased a ticket. Hogue replied that when the train reached Walnut he got off to buy a ticket and the agent was not in; that he waited for him and he did not come; that he could not secure a ticket, and expressed the opinion that the conductor should not charge him the excess. The passenger declined to pay the excess, and the conductor notified him that he would have to put him off. The train was stopped, and the conductor asked the passenger what he proposed to do, and he answered, “ I am here; if you want to put me off, you will have to put me off, for I will not get off.” The conductor took hold of the passenger and the latter took hold of the side of the seat and held on. The conductor called the brakeman to his assistance, who picked the passenger up and carried him out on the platform and pushed him off. The passenger grabbed the conductor and they both left the train together and rolled down the bank. The money tendered was found by the brakeman on the car seat and was put in the valise of the plaintiff. The passenger’s baggage was taken off of the train, and he walked back to the depot at Walnut. This was an action brought to recover damages for such expulsion. The jury returned a verdict for $400 damages, $10 of which they assessed as actual damages, and $390 they allowed for indignities suffered. The railroad company brings the case here upon three assignments of error.
The first contention of the railroad company is, that the plaintiff was not entitled to recover, because the ticket office was open for the sale of tickets for at least 30 minutes prior to the departure of the train. Although the agent was temporarily absent therefrom attending to his duties, sufficient facilities were afforded at such a small station as to reasonably accommodate the public. It is urged that it would be unreasonable to require of a railroad company that its agents should remain every minute of the 30 minutes prior to the departure of the train in the ticket office, when there was no reasonable expectation that at the last moment somebody would get off of the train for the purpose of buying a ticket to continue his journey. The reading of the statute is so plain that there is little room for construction. The proviso of the law reads: “This act shall not apply to any passengers taking passage on any railroad train (from any station) at which such railroad company fails to keep tickets on sale, or at which such company shall neglect or fail to keep its ticket office open for the sale of tickets at least 30 minutes immediately prior to the starting of such train.” (Paragraph 1325, Gen. Stat. of 1889.) This question has recently been passed upon by this court, adversely to the contention of the plaintiff ' in error. It was held that if the ticket office of a railroad company was not kept open, with an agent ready upon call to sell tickets long enough before the actual departure of the train, whether delayed or not, to enable passengers to purchase tickets and safely board the train, no excess fare can be collected. The court said:
“It is contended that it will subject the companies to great inconvenience and hardship to require them to keep an agent at his post, not only 30 minutes before the schedule time of departure, but also during the time that trains are unavoidably delayed, as they frequently are. The statute must control ; and its terms are so plain that little question can arise as to their meaning. No right to charge excess fare is given unless the company keeps an office open for the sale of tickets immediately prior to the departure of the trains. No mention is made of the schedule time of starting the trains, nor is there anything in the language of the statute indicating that the office should only be kept open 30 minutes prior to the advertised time of the departure. The exception is expressly made to apply to any passenger taking passage on ‘ any railroad train,’ and requires the ticket office to be open 30 minutes before the starting of such train, and not 30 minutes before the advertised, time of starting such train. It might be that in the absence of a statute a regulation such as contended for might be deemed a reasonable one, such as the courts would enforce; and that seems to have been the holding of the courts in the cases cited by the plaintiff in error. (Railroad Co. v. South, 43 Ill. 176; Swan v. Railroad Co., 132 Mass. 116.) The legislature, however, has determined what a reasonable regulation is in order to found a right for the charge of excess fare, and we are therefore not called upon to determine what in our opinion would be a reasonable regulation in this respect. (Porter v. N. Y. C. Rld. Co., 34 Barb. 353; Nellis v. N. Y. C. Rld. Co., 30 N. Y. 505; Chase v. N. Y. C. Rld. Co., 26 id. 523; A. T. & S. F. Rld. Co. v. Dwelle, 44 Kas. 394.)
Under the authority of the case cited, the court did not err in refusing the instructions requested by the defendant below, or in giving the instructions of which complaint is made.
It is urged that some of the special findings of the jury are evasive and untrue. We have read the evidence in the record and we cannot see wherein the jury evaded answering the special questions, or that there is not evidence to support such special findings.
The last reason assigned for a reversal of the judgment is that the verdict is excessive. The jury found that the plaintiff suffered $10 actual damages. No allowance was made to the plaintiff for personal injuries. The sum of $5 was allowed for loss of time. In answer to the last special finding of fact, the jury said they allowed $390 for indignities suffered. The rule insisted upon by the plaintiff in error is this: “That if a conductor of a railroad train mistakenly enforces a valid rule of the company, and without malice or wantonness applies it to an individual where the rule is not applicable, honestly supposing that he is in the discharge of his duty, there is no ground for allowing damages compensatory of indignity and insult.” Obviously this case comes within the rule, which is amply supported by authorities. The matter of the lawfulness of the fare from Walnut to Erie could have been - settled as well without a forcible expulsion as with it. Indeed, it could have been settled, without any expulsion. The plaintiff could have paid the 10 cents excess demanded and brought his action. He invited and anticipated the expulsion. He said to the conductor: “I am here; if you want me off you will have to put me off, for I will not get off.” He could have prevented the expulsion by paying the excess demanded; and it was clearly his duty to avoid that which he was bound to expect if he persisted in refusing to comply with the request of the conductor. The evidence tended to show that the plaintiff bad brought himself within the rule that where a conductor, in enforcing a valid regulation of the company, in good faith and without unnecessary force, ejects a passenger from a train, the corporation is not liable for indignities suffered or exemplary damages.
(A. T. & S. F. Rld. Co. v. Gants, 38 Kas. 608; A. T. & S. F. Rld. Co. v. Long, 46 id. 260; Payne v. C. R. I. & P. Rld. Co., 45 Iowa, 569; Fitzgerald v. C. R. I. & P. Rld. Co., 50 id. 78; C. H. & D. Rld. Co. v. Cole, 29 Ohio St. 126; Tomlinson v. W. & S. C. Rld. Co., 47 Am. & Eng. Rld. Cas. 620; 2 Wood, Rld. Law, §317.)
We are of the opinion that the verdict of the jury is excessive as to the $390 allowed by the jury for indignities suffered. The defendant in error, in his cross petition, insists that the district court should have submitted the question of exemplary damages to the jury. The court below said to the jury that under the evidence in this case they could not allow exemplary damages. This we think was correct. The observations we have already made render it unnecessary for us to say anything more upon this branch of the case.
It is recommended that the judgment of the district court be modified by striking out the $390 awarded for indignities suffered, and affirmed as to the rest; that if this modification of the judgment be not accepted by the plaintiff below, a new trial will be granted, with costs, but if the modification, as stated, be accepted, the costs of this court will be divided.
By the Court: It is so ordered.
Valentine and Johnston, JJ., concurring.
Horton, C. J.: I agree that the verdict of the jury is excessive, and that the judgment for $390 for alleged indignities ought not to stand. There is an instruction of the trial court which seems to me to have been misleading. Whether prejudicial or not in this case, it is somewhat difficult to determine. The instruction, however, ought not to have been given. It reads as follows:
“If a passenger riding on a ticket to any station desires, for any reason, to extend his journey beyond such station, he is uuder no obligation to leave the train and buy a ticket for such extended journey, if the usual time of stoppage at such station is too short to give a reasonable opportunity to make such purchase and return to the train.”
It appears that Hogue took passage upon the railroad train at Girard for Walnut, and purchased his ticket for that station. Before arriving at Walnut, he changed his mind and concluded to go on to Erie, 10 miles further. If the train, under the rules and regulations of the company, did not stop long enough to permit him to get off and purchase a ticket and then get on again, it would be necessary for him to pay the excess of fare demanded to continue his trip to Erie. If a passenger, having purchased his ticket for a particular station, desires, after his trip is commenced, to extend his journey beyond such station, he will, under the law, be required to pay the excess, unless he leaves the train at a station where it stops long enough for him to purcase a ticket and return to the train; provided, of course, a ticket office is open, as prescribed by the statute. But a railroad company is not required to delay its train and discommode its other passengers merely to permit a passenger to get off at a station and purchase a new ticket, because he is desirous of extending his trip beyond the station for which he holds a ticket. The law is just the contrary to the instruction of the trial court, if it was intended thereby to inform the jury that a passenger can extend his trip, under the circumstances therein stated, without paying the excess of fare. | [
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Opinion by
Strang, C.:
This action was commenced in the district court of Saline county by Crane Brothers Manufacturing Company against J. F. Burrows and the National Hotel Company, on an account against said J. F. Burrows for goods sold and delivered to him, and to have the judgment obtained against Burrows declared a lien on the property of the hotel company in which the goods were kept and used. When the case came on for trial, the plaintiff introduced its evidence and rested. The defendant, the National Hotel Company, demurred to the evidence, which demurrer was sustained. The plaintiff filed a motion for a new trial. This motion was overruled. The plaintiff then asked leave of the court to dismiss its action without prejudice. The court thereupon dismissed the case without prejudice to a new action, over the objection of the defendant, the hotel company, which saved an exception and made a case for this court.
There is but one question here, and that is based upon the action of the court below in dismissing the case without prejudice. It is alleged by the plaintiff in error that the court had no power to dismiss the case without prejudice, after a demurrer to the evidence had been sustained and a motion for a new trial had been overruled. He cites the statute upon the subject, as follows:
“An action may be dismissed without prejudice to a future action: First, by the plaintiff before the final submission of the case to the jury, or to the court when the trial is by the court. . . . Sixth, in all other cases, upon the trial of the action the decision must be upon the merits.”
The plaintiff here insists that the ease had- been finally submitted before it was dismissed by the court, and therefore the court was without power to dismiss the case except with prejudice to a new action. Under the law of this court, we do not think the plaintiff had a right to dismiss his action at the time it was dismissed by the court. But that is not the question in this case. The question is, had the court power to dismiss the case without prejudice at the time it exercised that power? This court has already gone a long way towards the settlement of this question, if, indeed, it has not quite done so. In Ashmead v. Ashmead, 23 Kas. 262-264, this court, by Mr. Justice Brewer, says:
“It will be conceded that, after the final submission of the case, the plaintiff had no right to a dismissal without prejudice. Up to that time she had such right, and could exercise it at her own option without the consent of the defendant or the permission of the court. At that time her rights in that respect ceased. But has not the court the power in its discretion to permit a plaintiff, even after the final submission, to recall that submission and dismiss without prejudice? It would be both strange and harsh if such power did not exist. All this rests within the discretion of the court, and is not the right of a party. Here the court exercised its discretion, and we cannot say there was any abuse of such discretion.”
In the case at bar, the court exercised its discretion, and we cannot now say its action was erroneous without declaring such action an abuse of discretion. There is nothing in the record that would justify this court in concluding that the trial court abused the discretion lodged therein by dismissing this case. For further authority on this question, see Mason v. Ryus, 26 Kas. 464; Schafer v. Weaver, 20 id. 294.
It is therefore recommended that the case be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This was an action in replevin to recover possession of certain personal property by a chattel mortgagee. The plaintiff below, being dissatisfied with the verdict of the jury and the judgment, brings the case here for review. A motion to dismiss the petition in error and ease made has been filed, because the record does not contain all of the evidence offered at the trial. In view of another question, we do not deem the disposition of this motion necessary. The record affirmatively shows that the motion for a new trial was overruled pro forma. This is grievous error, as will be seen from the cases of Nesbit v. Hines, 17 Kas. 316; City of Atchison v. Byrnes, 22 id. 65; Clark v. Imbrie, 25 id. 424; The State v. Bridges, 29 id. 138; M. A. & B. Rld. Co. v. Keeler, 32 id. 163; Insurance Co. v. Neff, 43 id. 457; The State v. Summers, 44 id. 637.
For the error of the court in overruling the motion for a new trial pro forma, we recommend that the judgment be reversed, and a new trial granted.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Allen, J.:
The record in this case is substantially a duplicate of the record in the preceding case, of The First National Bank of Kingman v. Joseph Gerson, just decided, and all the questions herein presented might better have been embodied in one case. In this case George Gerson & Co. are made defendants in error, and the error complained of is that the district court dissolved the order of attachment issued in the action, on the motion of George Gerson & Co. The proof in the case is identical with the one we have just decided, and a restatement of the facts is unnecessary. In order to dispose of this case, it is only necessary for us to say whether or not the facts already «onsidered in the other case are such that we must hold that the district court erred in discharging the attachment. We have held that the chattel mortgage given to Joseph Gerson was void. It is claimed by both the Gersons that Joseph Gerson took possession of the entire stock of goods under that void chattel mortgage. He (Joseph Gerson), after having so obtained possession of the goods, could not lawfully sell them, because the chattel mortgage under which possession was given was a nullity. Joseph Gerson, not being a druggist, and having no permit to sell intoxicating liquor, could not lawfully dispose of the liquors contained in the stock, and apply the proceeds to the payment of his claim; therefore, the goods were disposed of in such manner as necessarily to hinder and delay creditors, if not for the purpose of intentionally defrauding them. This of itself is sufficient to sustain the attachment. It follows, therefore, that the district court erred in dissolving the attachment, on the motion of the defendants, and its order must be reversed, and the case remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an action of replevin, brought by Joseph MoElhone against A. J. Ream, George Adams, Geo. Talbot, and D. E. Kelley, to recover the possession of a span of mules. He claimed to have a special ownership by virtue of a chattel mortgage, executed by the owner of the mules on October 5, 1887, to one White, who had assigned the same to McEIhone. The answer of Ream was a general denial, and an allegation that on October 6, 1887, John Gosney, the owner of the mules, executed and delivered to the defendant his promissory note for $300, due on demand, and, to secure the payment thereof, executed and delivered a chattel mortgage upon the mules in question. He further alleged, that before any demand was made he sold and delivered the note and mortgage to Kelley, and had no interest in the mules at the commencement of the suit, nor for a long time prior thereto. Kelley answered by a general denial, and by an allegation that the note mentioned by Ream had been transferred to him, together with the mortgage upon the mules, and that prior to any demand upon him the note and mortgage were transferred to Alex. Thompson. He disclaimed any interest in the property, and he alleges that he has not had the possession or control of the same at any time since the commencement of the suit, nor since the demand was made upon him for the mules. Adams and Talbot jointly answered that Adams was a constable, and that Alex. Thompson delivered to him the chattel mortgage which has been mentioned, and directed him to proceed and take the mules; that on October 7, Adams employed Talbot to go with him to take possession of them under the chattel mortgage, and that they took possession of them and immediately delivered them to Alex. Thompson. They alleged that they were acting as the agent of Thompson, and that they had not the possession of the property. A trial was had without a jury, which resulted in a judgment in favor of McEIhone against all the defendants.
Complaint is made that the finding and judgment are not sustained by sufficient evidence. It appears that McEIhone held by assignment a first mortgage upon the mules in dispute, and that John Gosney, the owner of the mules, had also executed a mortgage upon them to A. J. Ream, on October 6, 1887, to secure an indebtedness of $300. Ream transferred the note' and mortgage to Kelley, and it appears that neither of them had possession or control of the mules at the time of the demand, or, in fact, at any previous time. Each of them disclaimed ownership or right of possession, and, according to the testimony of the plaintiff himself, they told the sheriff, while in search of the property, that they made no claim to the same. The validity of the debt and the second mortgage, transferred by Ream to Kelley, and by Kelley in turn to Thompson, has not been attacked. The fact that each held and transferred the mortgage upon the mules does not of itself show that they were connected with Adams, Talbot and Thompson in the effort to deprive McElhone of the mules, or that they were wrongfully detaining them. Adams and Talbot took and held possession of the mules for a time, and afterward they were shifted to the possession of Thompson. We think there is testimony, under the authority of Schmidt v. Bender, 39 Kas. 439, to sustain the judgment as against them. The manner in which they took possession, the statements which they made concerning their right and authority,' together with the subsequent disposition of the mules, by which they were transferred to Thompson, who resided in another county, satisfy us that the judgment against them should stand. It is not shown, however, that Ream or Kelley ever had any possession, or claimed any right to the possession, of the mules. Neither is it shown that they had any connection with Talbot and Adams in the wrongful taking of the property. It is claimed by the defendant in error that they were engaged with.Adams and Talbot in a conspiracy to gain possession of the property and transfer it beyond his reach, and possibly a fuller inquiry than was made might connect them with the transaction, but the testimony in the record does not. It is true that one witness testified that Talbot told him that he was acting for Kelley in taking the mules, but this evidence was mere hearsay. The authority of Kelley cannot be shown in this manner. It is generally competent to prove parol authority by the testimony of the person who claims to possess such authority; but it cannot be proved by testimony of the oral declarations of the supposed agent himself. (Machine Co. v. Clark, 15 Kas. 492; Mo. Pac. Rly. Co. v. Stults, 31 id. 752.)
The judgment of the district court will be modified to this extent: It will be affirmed as against George Adams and George Talbot, but there will be a reversal of the judgment as to A. J. Ream and D. E. Kelley. The cause will be remanded for a new trial as against the two latter parties.
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Opinion by
Strang, C.:
Action was brought in this case upon two distinct written agreements, as follows:
“682. St. Joseph, Mo., April 25, 1887.
“ I agree to pay Messrs. Duff & Ellson $682 out of William Plank’s board bill for April, 1887, provided the board bill amounts to $1,400, and the C. K. & N. Railway Company pays it to me. J. D. McNeely.”
“St. Joseph, Mo., May 12, 1887.
“Messrs. Duff & Ellson: You will please let F. Plank have what meat he may want to run the boarding house in Horton, from the first of May to further orders, and I will pay you for the same. J. D. McNeely.”
These transactions were had during the period when the Rock Island railway was building in Kansas. J. D. Mc-Neely was a wholesale grocery man in St. Joseph, Mo.; Duff & Ellson were conducting a retail meat business in Horton, this state, and William Plank and wife were running a boarding house at Horton, and boarding the construction force of the C. K. & N. railway. McNeely was furnishing groceries and provisions to Plank and wife for the board of the railway laborers, and was, under an agreement between Plank, the company, and himself, to receive his pay directly from the company. Duff & Ellson were also letting Plank and wife have meat, lard and ice for use in said boarding house, and on the 25th day of April, 1887, Plank and Duff, representing the firm of Duff & Ellson, went to St. Joseph, and after an interview with McNeely, in which they informed him that Plank’s board bills for April, to be paid by the company, would amount to $1,500, he gave Duff, for the firm which he represented, the writing sued on in the first cause of action. Afterward, on June 7, McNeely paid $400, which was indorsed on said written instrument. The first cause of action, which was on said'instrument, was for the balance due thereon. Duff & Ellson claimed to have sold Plank, or his wife, F. Plank, on the order of McNeely, $318.85 worth of meats, including some ice and lard, and they also claimed they had sold William Plank before that time $63.25 worth of meat. Duff & Ellson had in the meantime purchased $191 worth of bacon of McNeely, for which they gave him credit, after deducting the bill of Plank for $63.25, and claimed a balance due on the second cause of action of $190.70, and interest. The defendant answered, claiming that he was only to pay Duff & Ellson the amount set out in plaintiff’s first cause of action on condition that the C. K. & N. Railway Company paid him $1,400 on Plank’s board bills for April, 1887, and then alleged that he only received $982 from the company; that he had paid the $400 indorsed on said writing while both he and Duff, representing Duff & Ellson, believed the bills of Plank for April would amount to $1,400; and that, therefore, said sum had been paid and received through a mutual mistake, and on an agreement that they (Duff & Ell-son) would pay him back the $400, with interest at 10 per cent., if he (McNeely) did not receive from the company $1,400 on Plank’s bills for the month of April, and he therefore demanded judgment against the plaintiff for the $400 aud interest. He also claimed to have sold to the plaintiffs bacon to the amount of $191.40, for which he also claimed judgment. The case was tried by a jury, and the following findings were made:
“1. At the time the defendant, J. D. McNeely, paid the $400 on said written instrument, did he (J. D. McNeely) believe that there was due said William Plank, for boarding the C. K. & N. Co.’s men for the month of April, 1887, the sum of $1,400? A. No.
“ 2. At or before the time the defendant paid the $400 on said written instrument, did Duff & Ellson promise to pay the same back to said J. D. McNeely, if there was not $1,400 due William Plank from said railway company for boarding its men for the month of April, 1887? A. No.
“3. Was said $400 paid on said written instrument under the mutual belief of plaintiffs and defendant that there was $1,400 or more due said William Plank from said railway company for boarding its men for the month of April, 1887? A. No.
“4. How much do you find that Duff & Ellson owed J. D. McNeely for bacon, etc., furnished them by said J. D. McNeely? A. ($128.15) one hundred and twenty-eight dollars and fifteen cents.
“5. How much meat did plaintiffs furnish F. Plank on said order, from May 12, 1887, to the time said account closed? A. ($161) one hundred and sixty-one dollars.
“6. How much was due William Plank from said C. K. & N. Rly. Co. tor boarding its men for the month of April, 1887? A. $998.
“7. How much did defendant, J. D. McNeely, collect from said C. K. & N. Rly. Co. for board due William Plauk for the month of April, 1887? A. ($992) nine hundred and ninety-two dollars.”
.The jury also returned into court a general verdict for the plaintiffs in the sum of $36.72. A motion for a new trial was argued and overruled, and the case is brought to this court by the defendant below for review. It is alleged that the court below erred in receiving and also in rejecting testimony.
With our view of this case, the first cause of action is entirely eliminated from it. The findings of the jury negative all the claims of the defendant with respect to this cause of action, and the admission of the parties, the findings of the jury, that McNeely only received from the railway company the sum of $982 on the board bills of Plank for the month of April, 1887, aud the instruction of the court in this matter negatived the right of the plaintiff to recover anything on this cause of action. So far as the second cause of action is concerned, there are two questions which challenge the attention of the court: First, did the trial court err in admitting, over the objection of the defendant therein, the evidence of the witnesses who testified concerning the amount of meat sold by Duff & Ellson to F. Plank, on the order which is made the basis of said second cause of action ? The plaintiff in error contends that as the witnesses could' not testify as to the amount or value of the meat sold, when first on the stand, they should not have been permitted to testify after having refreshed their recollections by referring to the book of accounts which had been rejected as evidence when.it was offered in proof of the account. We do not think this contention is valid. As we understand the rule, the witness may refresh his recollection by any book or memoranda containing the account, or so much of it as is sufficient to refresh his recollection, whether it is in such form that it would be. received in evidence or not, and then testify, if he has any independent recollection of the transaction. The witnesses whose evidence is complained of seemed to know but little about the transaction even after they had refreshed their recollections, but they did claim to have some independent recollection of the value of the meat sold. One witness said it was somewhere from $50 to $60, but finally fixed it, as within his knowledge, at $30 for the period of time during which he had charge of the books, while the other finally fixed the the amount sold while he had charge at $131. Their evidence, even after they had access to such information as the book contained, was halting and lame, and such evidence as the jury trying the case would have been justified in giving little or no consideration to; but while we think the jury would have been justified in giving such evidence little weight, because of its apparent want of credibility, the court could not exclude it as being incompetent.
The next or last question for us to consider is, whether the verdict and findings of the jury are sustained by the evidence. The jury find, in answer to the fourth question submitted to them, that Duff & Ellson owed J. D. McNeely, for bacon furnished them by him, $128.15, while all the evidence in the case shows that they owed him for such bacon $191.40, and this amount was admitted by the pleading. The plaintiffs attached to their petition an exhibit showing the amount of bacon purchased by them of McNeely, and its value was fixed at that amount. The jury were led to this mistake by the statement of the witness Duff, who said, in answer to a question on cross-examination, when he was called by the defendant below to prove the amount of bacon sold by McNeely to Duff & Ellson, that $63.25 worth of that bacon was applied on the bill sold between the 25th of April and May 1. The redirect examination of said witness showed that the bill of $63.25 was a bill of William Plank, charged to William Plank, and sold to him between Apr,il 25 and May 1, and that it could not have been sold under the order of McNeely to Duff & Ellson to sell meat to E. Plank to run the boarding house from May 1 un til further orders. This matter was again referred to by Duff, when recalled by the plaintiffs below, as follows: “Well, I told him [McNeely] I wanted some bacon, and he said he would furnish me bacon in this running account that we had. That was on the F. Plank running account.” This evidence of Duff’s precludes the idea that Duff & Ellson had the right to offset the bill of $63.25 sold to William Plank. And this is all the evidence in the record on this subject; so that it follows that there is no evidence in the record to support the action of the jury in deducting the $63.25 from the $191.40, due McNeeley for bacon.
For this error; the judgment of the court will have to be reversed, and the case remanded for further proceedings.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Allen, J.:
This action was brought by the defendants in error against Marion Cross, on a promissory note for $100, and interest, dated April 30,1886. The note was payable to Charles C. Putt & Co., and by them indorsed to plaintiffs. The defendant admitted the execution of the note, and alleged that the only consideration therefor was a certain horse, bought by the defendant and others from Charles C. Putt & Co. for $1,500. He alleges that $800 of the purchase price had been paid; that the horse was warranted to be sound and healthy, and a safe foal getter and breeder, and claims that the note is still the property of Putt & Co. He claims that the horse was not as warranted, and the $800 paid is more than the horse is fairly worth. A jury trial was had, resulting in a verdict in favor of. the plaintiffs for $100, on which judgment was entered. No question is raised by the defendants in error as to the jurisdiction of this court, though it will be perceived that the amount for which judgment was rendered, exclusive of costs, is exactly $100.
We are not asked to decide whether this case falls within the provision of § 1, chapter 245, of the Laws of 1889. As the view we take of, this case compels an affirmance of the judgment, we do not deem it necessary to consider the jurisdictional question. Many exceptions were preserved to the rulings of the trial court on the admission of evidence before the jury. We have carefully and patiently examined the records, and are unable to perceive any material error in that respect.
It is claimed that the court erred in refusing to permit the •defendant to show the meaning of the terms “breeder and foal getter,” as set out in the guaranty mentioned in defendant’s answer, by showing what was said between the parties at the time the guaranty was written. The meaning of the terms used seems to us clear, and we fail to perceive any materiality in the testimony offered. The question as to the condition and performance of the horse was testified to very fully by numerous witnesses, and the question as to whether •he complied with the terms of the guaranty was fairly submitted to the jury.
It is also contended that the court erred in refusing to require one of the plaintiffs, Blackstock, to answer the following •question: “What is your usual course with reference to commercial paper, taken in the way this was taken from Putt & Co.?” And also in refusing to require Fred. T. Putt to answer the following question: “Did you ever sell them any notes that were not good but what you would make them •good?” We perceive no error in the ruling of the court on this testimony.
Counsel for the plaintiff in error also contends that the •court erred in its instructions to the jury, because it failed to state that, in order to cut off defenses which the defendant •might have had against the payee of the note, it must appear that the holder took the paper in the usual or regular course of business. The instructions in the case were full, and, we think, stated the law correctly. While it is true that the phrase “in the usual or regular course of business” does not occur in so many words in the instructions, we think, taken •as a whole, it fairly includes the idea.. We have examined the cases cited by the counsel for the plaintiff in error from 37 Conn. 205, (Roberts v. Hall,) and 48 Ark. 454, (Tabor v. Bank,) and they uphold the doctrine, to which we assent, that in order to protect the plaintiff against defenses the paper must have been taken in the usual and regular course of business. We fail to discover anything in this case which shows that the transaction between Putt & Co. and the plaintiffs was unusual. Plaintiffs were bankers; they bought this with other notes from Putt & Co., and placed the amount paid for the notes to the credit of Putt & Co. in their general account. The transaction, so far as the evidence discloses, is entirely regular. The cases to which we are cited show an entirely different state of facts. The Connecticut case shows a transfer by the payee to the holder to collect, and apply the proceeds to pay certain debts of the payee, and the balance to be paid to the plaintiff’s wife. Under these circumstances, the holder of the note could neither claim to be an innocent purchaser for value, nor to have bought the same in the usual course of business.
The question as to good faith of the plaintiffs in purchasing the note was fairly submitted to the jury; the jury found a verdict for the plaintiffs for $100 only. If the plaintiffs were bona fide holders of the notes, in such manner as to cut off all defenses existing between the original parties to the instrument, they were entitled to interest as well as the principal, which plaintiff in error contends amounted to $22.35. Plaintiff in error contends, therefore, that the jury found in his favor on the question of good faith in the sale of the note by Putt & Co. to Blackstock & Co. If we concede this claim of plaintiff in error to be correct, as there was much conflicting evidence as to quality, value and performance of the horse, the verdict of the jury seems to be conclusive on the whole matter, and we do not see how he was prejudiced by a failure of the court to instruct the jury that in order to cut of defenses between the original parties the note must have been taken in the usual course of business.
On the whole record we find no substantial error prejudicial to the defendant below, and the judgment will be affirmed.
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Opinion by
Green, C.:
Wm, H. Clark, as assignee for Hanway Bros., commenced this action against the Western Security Company, W. C. Bradley, the First National Bank of Garnett, J. S. Hanway, S. B. Hanway, W. H. B. Hanway, partners as Hanway Bros., in the district court of Franklin county,- and asked judgment against the Western Security Company for the sum of $20,000 on account of certain notes and a mortgage which Hanway Bros, had executed to W. C. Bradley, an officer of the security company. It was alleged that Hanway Bros, entered into an agreement with the security company whereby it was agreed that the latter should procure a loan for the former for the said sum of $20,000; that in pursuance of such agreement they executed notes and a mortgage for the amount, but the sum had never been paid. The security company answered that it was employed to procure a loan with eastern parties for Hanway Bros., and to facilitate the negotiations the latter executed the notes and mortgage referred to in the petition; that they represented that the security offered was worth $63,000, when in fact the land offered was worth less than $20,000; that it had advanced sums of money to Hanway Bros, upon the strength of making the loan, but was unable to procure the loan on account of the inadequacy of the security and false representations.
The First National Bank of Garnett answered that Han- way Bros, were indebted to it in a large sum of money, and, in order to secure the same, assigned to the bank all of their right and claim upon the Western Security Company for the money due on the loan, and for which they had executed their notes. The bank alleged that the Western Security Company, by M. E. Black, a duly-authorized agent, executed and delivered to Hanway Bros, its certain writing or duebill, to wit:
“Lane, Kas., May 11, 1887.
“There is due Hanway Bros., of Lane, ($17,000) seventeen thousand dollars on their loan made of Western Security Company, including the amount to be paid for the purpose of releasing incumbrances now on the land described in said loan, and one dollar and fifty cents ($1.50) for recording mortgages.
M. E. Black,
Eor Western Security Company.”
It was further alleged that said duebill was duly assigned to the bank. The bank asked for a judgment against the security company. The court below found in favor of the security company, not only as to the plaintiff, but as between the bank and the company. The bank brings the case here.
The only reasons assigned why the plaintiff in error should have been granted a new trial are, that the Y/estera Security Company had personally examined all of the property of Hanway Bros, upon which the proposed loan was to be made; that the agent of the company executed the duebill referred to; that the mortgage was placed upon record, and that the note and mortgage were sent back east to be negotiated; that afterward the plaintiff in error loaned Hanway Bros. $1,100 at one time, and a larger sum still later. These facts might all be true, and still the conclusion and judgment reached by the trial court would be correct. The court found that the mortgage was placed upon record in the usual course of business, and the security company undertook, through its eastern managers, to place the loan; that it advanced money to Han-way Bros. The firm finally made an assignment, and the company made no further effort to make the loan. The court further found that the security company made all rea sonable efforts to find a customer for the loan until the failure, when further efforts were useless.
We have examined the evidence, findings of fact, and conclusions of law, and see no good reason why the judgment of the district court should be disturbed. A judgment of affirmation is advised.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Luckert, J.:
On petition for review, we examine the Court of Appeals’ decision reversing Dennis W. Thompson’s conviction for possession of lithium metal with the intent to manufacture a controlled substance and vacating his sentences for manufacture of methamphetamine and possession of pseudoephedrine with the intent to manufacture a controlled substance. State v. Thompson, 2008 WL 142103 (Kan. App. 2008) (unpublished opinion).
The following issues are subject to our review: (1) Are Thompson’s convictions of possession of pseudoephedrine with the intent to manufacture a controlled substance and possession of lithium metal with the intent to manufacture a controlled substance, both in violation of K.S.A. 65-7006(a), multiplicitous; (2) in sentencing Thompson for his conviction for possession of pseudoephedrine with the intent to manufacture a controlled substance, did the district court err by imposing a sentence in conformity with a severity level 1 drug felony rather than employing the identical offense sentencing doctrine and imposing a sentence for a severity level 4 drug felony which is the. sentence for possession of drug paraphernalia with the intent to manufacture; and (3) in sentencing Thompson for his conviction for manufacture of methamphetamine, did the district court err by imposing a sentence in conformity with a severity level 1 drug felony rather than employing the identical offense sentencing doctrine and imposing a sentence for a severity level 4 drug felony which is the sentence for possession of drug paraphernalia with the intent to manufacture?
Facts and Procedural Background
This is the second time this case has been before dais court oia petition for review. Because the detailed facts are reported in the related previous appellate opinions of this court and tiae Court of Appeals, we will not extensively narrate the underlying facts and circumstances. See State v. Thompson, 36 Kan. App. 2d 151, 138 P.3d 398 (2006), rev'd and remanded 284 Kan. 763, 166 P.3d 1015 (2007) (Thompson I). Some discussion of the procedural background of the case is necessaiy to an understanding of the issues in this appeal, however.
Thompson was convicted by a jury of five felonies and two misdemeanors and sentenced to a controlling term of 158 months’ imprisonment. His convictions involved the following drag-related offenses: (1) manufacture of methamphetamine in violation of K.S.A. 65-4159, a severity level 1 drag felony; (2) possession of pseudoephedriiae with the inteaat to manufacture a controlled substance in violation of K.S.A. 65-7006(a), a severity level 1 drag felony; (3) possession of lithium metal with the intent to manufacture a controlled substance in violation of K.S.A. 65-7006(a), a severity level 1 drag felony; (4) possession of methamphetamine in violation of K.S.A. 2007 Supp. 65-4160, a severity level 4 drug felony; (5) possession of drug manufacture paraphernalia in violation of K.S.A. 65-4152(a)(3), a severity level 4 drug felony; (6) possession of marijuana in violation of K.S.A. 65-4162(a)(3), a class A misdemeanor; and (7) possession of drug use paraphernalia in violation of K.S.A. 65-4152(a)(2), a class A misdemeanor.
Before trial, Thompson had filed a suppression motion and a motion in which he argued the various charges were multiplicitous. The district court had denied Thompson’s requests for relief. Consequently, the district court sentenced Thompson on the seven counts and imposed the sentence corresponding to that crime’s severity level.
On appeal from the jury verdict and district court rulings, Thompson raised a number of issues before the Court of Appeals. He challenged the district court’s denial of his motion to suppress the evidence recovered from the search of Thompson’s vehicle and garage. In addition, he challenged his multiple drug-related convictions based upon sufficiency of the evidence, evidentiary error, and multiplicity. Finally, he challenged his sentences. The Court of Appeals rejected Thompson’s argument regarding sufficiency of the evidence but reversed his convictions after holding that the district court erred in denying Thompson’s motion to suppress. As a result of this ruling, the Court of Appeals did not decide the other issues.
This court subsequently granted the State’s petition for review on the single suppression issue and denied Thompson’s cross-petition for review in which he sought review of the Court of Appeals’ ruling that there was sufficient evidence to support his conviction of manufacture of methamphetamine. In Thompson I, we reversed the portion of the Court of Appeals’ decision regarding the suppression of evidence and remanded the case to the Court of Appeals for consideration of the issues not addressed in the panel’s opinion.
On remand, in State v. Thompson, 2008 WL 142103 (Thompson II), the Court of Appeals once again concluded sufficient evidence supported Thompson’s conviction of manufacture of methamphetamine and also, for the first time, addressed and rebuffed Thompson’s arguments regarding evidentiary error. In addition, applying State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006), which was filed after Thompson’s briefs were submitted, the Court of Appeals rejected most of Thompson’s multiplicity arguments.
But the Court of Appeals agreed with three of Thompson’s arguments. First, regarding Thompson’s convictions, the panel concluded his conviction for possession of lithium metal with the intent to manufacture is multiplicitous with his conviction for possession of pseudoephedrine with the intent to manufacture a controlled substance. Based upon this, the panel reversed Thompson’s conviction for possession of lithium metal with the intent to manufacture a con trolled substance, a severity level 1 drug felony. The other two successful arguments related to the application of the identical offense sentencing doctrine. Applying that doctrine, the panel reversed Thompson’s two remaining severity level 1 drug felony convictions — manufacture of methamphetamine and possession of pseudoephedrine with the intent to manufacture a controlled substance — and remanded for new sentences commensurate with severity level 4 drug felony offenses. Thompson II, 2008 WL 142103, at *4-5.
Both parties filed petitions for review. We granted the State’s petition for review in which it sought review of the multiplicity and sentencing issues on which the Court of Appeals had ruled in favor of Thompson. We denied Thompson’s cross-petition for review in which he sought (1) review of the holdings relating to the admission of certain trial testimony, and (2) reversal of his conviction of manufacture of methamphetamine based upon sufficiency of the evidence. This court has jurisdiction under K.S.A. 20-3018(b).
Possession of Precursors
The State charged Thompson with two violations of K.S.A. 65-7006(a), one for posses sion of pseudoephedrine with the intent to manufacture methamphetamine and one for possession of hthium metal with the intent to manufacture methamphetamine.
K.S.A. 65-7006(a) provides:
“(a) It shall be unlawful for any person to possess ephedrine, pseudoephedrine, red phosphorus, lithium metal, sodium metal, iodine, anhydrous ammonia, pressurized ammonia or phenylpropanolamine, or their salts, isomers or salts of isomers with intent to use the product to manufacture a controlled substance.”
Although a current violation of K.S.A. 65-7006(a) is a severity level 2 drug felony, the version of the statute in effect at the time Thompson committed these offenses, K.S.A. 65-7006(a) (Furse 2002), ranked a violation of the provision as a severity level 1 drug felony.
The State argues the two severity level 1 drug offenses under K.S.A. 65-7006(a) should be affirmed because the legislature, by listing individual substances in the statute without inserting any limiting language, indicated its intent to permit a separate prosecution for each substance, meaning Thompson could be convicted in separate counts for possession of pseudoephedrine and for possession of lithium metal. The district court accepted this view.
In reviewing the district court’s determination, the Court of Appeals, applying the controlling authority of Schoonover, disagreed. The panel construed K.S.A. 65-7006(a) to require a single unit of prosecution for multiple items possessed within the statutory list. In other words, an accused cannot be separately prosecuted for the possession of each of the items listed in the statute. See Thompson II, 2008 WL142103, at *5. Consequently, the Court of Appeals held that Thompson’s convictions of possessing two of the prohibited items are multiplicitous.
In its petition for review, the State contends that the Court of Appeals erred in its statutory interpretation of K.S.A. 65-7006(a).
Standard of Review/Statutory Construction
Questions involving multiplicity and statutory interpretation are questions of law subject to unlimited appellate review. State v. Harris, 284 Kan. 560, Syl. ¶ 3, 162 P.3d 28 (2007); State v. Fisher, 283 Kan. 272, 312, 154 P.3d 455 (2007); State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).
When reviewing a statute, an appellate court first attempts to give effect to the intent of the legislature as expressed. When the language of a statute is plain and unambiguous, the court must give effect to that language, rather than determine what the law should or should not be. The court will not speculate as to legislative intent or read such a statute to add something not readily found in it. Harris, 284 Kan. at 572; State v. Post, 279 Kan. 664, 666, 112 P.3d 116 (2005). The court will not resort to canons of statutory con struction or consult legislative history if the language of a statute is clear and unambiguous as written. See State v. Robinson, 281 Kan. 538, 539-40, 132 P.3d 934 (2006).
Double Jeopardy Analysis
This court has consistently stated that multiplicity is the charging of a single offense in several counts of a complaint or information. State v. Scott, 286 Kan. 54, Syl. ¶ 4, 183 P.3d 801 (2008); 284 Kan. 560, Syl. ¶ 1; see K.S.A. 21-3107(1). The principal danger of multiplicity is that it creates the potential for multiple punishments for a single offense, which is prohibited by the Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. Fisher, 283 Kan. at 312.
In Schoonover, this court announced an analytical framework for determining whether convictions subject a defendant to double jeopardy. “[T]he overarching inquiry is whether the convictions are for the same offense.” 281 Kan. at 496. This inquiry is broken into two components, both of which must be met for there to be a double jeopardy violation: (1) Do the convictions arise from the same conduct and, if so, (2) by statutory definition, are there two offenses or only one? 281 Kan. at 496.
With regard to the first prong of the double jeopardy analysis, if the convictions are not based upon the same conduct, the analysis ends. 281 Kan. at 496-97. The Schoonover court provided some factors to consider if the conduct is unitary, i.e., the same:
“(1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct.” 281 Kan. 453, Syl. ¶ 16.
With regard to the second prong of the double jeopardy analysis — whether the statutory provisions provide for two offenses or only one — the test to be applied depends on whether the convictions arise from a single statute or from multiple statutes. 281 Kan. at 497-98. If the convictions are based upon different statutes, the convictions are multiplicitous only when the statutes upon which the convictions are based contain an identity of elements.
As in Thompson’s case, however, when a double jeopardy issue arises from convictions for multiple violations of a single statute, this court applies the “unit of prosecution” test. 281 Kan. at 471-72. In a unit of prosecution case, the court asks how the legislature has defined the scope of conduct composing one violation of a statute. Under this test, the statutory definition of the crime determines what the legislature intended as the allowable unit of prosecution. There can be only one conviction for each unit of prosecution. 281 Kan. at 497-98.
(1) Unitary conduct
Applying the first prong of the double jeopardy test, the Court of Appeals concluded there was unitary conduct in Thompson’s possession of pseudoephedrine and lithium metal in that lithium batteries and pseudoephedrine were found in Thompson’s car at the same time and location, and there was no intervening event or fresh impulse apparent from the record. Thompson II, 2008 WL 142103, at *4.
A similar conclusion was drawn by this court in Schoonover, where the defendant was arrested inside a vehicle described as a “rolling meth lab.” 281 Kan. at 498. Although the ingredients and drug manufacturing paraphernalia in Schoonover’s vehicle had presumably been gathered from various locations, and some of the manufacturing process had likely occurred in a location other than the vehicle, this court determined: “[Tjhese actions are part of one transaction of manufacturing methamphetamine and do not lead to a conclusion there were separate events.” 281 Kan. at 499-500. In addition, the only evidence regarding time was an opinion that a cooler containing anhydrous ammonia was probably there no more than 6 hours. Moreover, there was no evidence of an intervening event in the methamphetamine production cycle and no evidence of a fresh criminal impulse of starting a new manufacturing process. The Schoonover court concluded, therefore, that the convictions arose from unitary conduct. 281 Kan. at 500.
Here, although Thompson’s vehicle, unlike Schoonover’s vehicle, was not a rolling meth lab (it was alleged, instead, that diere was a working meth lab in Thompson’s garage), Thompson’s ac tions — possessing lithium metal and pseudoephedrine with intent to manufacture a controlled substance — were part of one transaction of manufacturing methamphetamine and do not lead to a conclusion that there were separate events. Law enforcement officers found methamphetamine in Thompson’s vehicle in powder form and dissolved in liquid, and lab results showed the liquid solution contained a byproduct of the “Nazi” manufacture method. When an officer found the lithium batteries and pills in Thompson’s vehicle and asked him where the items came from, Thompson said they came from his garage. With this information and Thompson’s consent, law enforcement officers searched Thompson’s garage and found various manufacturing paraphernalia, such as an electronic scale, solvents, isopropyl alcohol, plastic bottles, anhydrous ammonia, and tubing. The record contains no evidence of an intervening event or fresh impulse.
The Court of Appeals correctly determined that Thompson’s convictions of possession of pseudoephedrine with the intent to manufacture methamphetamine and possession of lithium metal with the intent to manufacture methamphetamine arose from unitary conduct.
(2) Unit of prosecution test
Because Thompson’s charges arose out of the same conduct, we continue to the second prong of the double jeopardy test, determining whether there are two offenses or only one. In this case, because the two convictions in question arise from two violations of a single statute rather than multiple statutes, the unit of prosecution test applies. We must determine whether the legislature intended Thompson’s conduct to constitute “only one violation of the statute or to satisfy the definition of the statute several times over.” Harris, 284 Kan. at 572-73.
In examining the statutory language that makes it unlawful to possess any one of the listed items “with intent to use the product to manufacture a controlled substance,” the Court of Appeals posed several questions before coming to its determination regarding legislative intent:
“Did the legislature intend that upon discovering a complete methamphetamine lab with the presence of all the items listed in the statute, the person possessing the lab could be charged with 10 or more violations of K.S.A. 65-7006? If multiples of each item are found, was the intent that there should be virtually no end to the number of violations to be charged? And given that the statute specifies that each violation is a severity level 1 felony, did the legislature intend that the potential maximum penalty, if imposed consecutively for each offense, could potentially exceed that for the most severe and heinous crime within our criminal code? We simply do not believe this is a likely legislative intent.” Thompson II, 2008 WL 142103, at *5.
The Court of Appeals reasoned, instead, that the legislature provided a rather exhaustive list of items typically used in the manufacture of methamphetamine “to facilitate relative ease in prosecuting anyone possessing any of these items on a ‘stand alone’ basis.” Thompson II, 2008 WL 142103, at *5. This determination, according to the panel, is consistent with the penalty provided by the legislature — a penalty for a severity level 1 drug felony. And the panel observed that although the legislature could have provided that each item possessed within the list constitutes a separate violation of the statute, it did not do so. Cf. K.S.A. 65-4141(a) (“Each separate use of a communication facility may be charged as a separate offense under this subsection.”).
The State disagrees with the Court of Appeals’ interpretation of the legislature’s definition of the scope of conduct in K.S.A. 65-7006(a) and contends that if the legislature intended to apply a one-time “cumulative prohibition” on the enumerated items, it could have shown this intent by using limiting language in the statute, such as “or a combination of any of the products.” But no limiting language was placed in the statute.
Moreover, the State points out that the Uniform Controlled Substances Act, K.S.A. 65-4101 et seq., contains statutes in which separate prohibited criminal acts are listed under a single statute, yet, in the State’s view, the legislature unquestionably intended to permit the prosecution of certain multiple offenses. The State points to K.S.A. 2007 Supp. 65-4160(a), in which the legislature malees it “unlawful for any person to possess or have under such person’s control any opiates, opium or narcotic drugs, or any stimulant designated in subsection (d)(1), (d)(3), or (f)(1) of K.S.A. 65-4107.” The same statute also provides that “[a]ny person who violates this subsection shall be guilty of a drug severity level 4 felony.” K.S.A. 2007 Supp. 65-4160(a); see also K.S.A. 2007 Supp. 65-4161 (unlawful acts relating to sale or distribution of opiates, opium, narcotic drugs, or designated stimulants; acts within 1,000 feet of school property).
The State hypothesizes for example that, under K.S.A. 2007 Supp. 65-4160(a), if an individual possesses the opiate heroin, the narcotic cocaine, and the stimulant methamphetamine, the legislature intends an allowable unit of prosecution for each of those multiple offenses. No one would suggest, according to the State, that an individual found in possession of all three drugs could be prosecuted for only one felony because three violations fall under the same statute. The State contends that the same logic would apply to the items listed under K.S.A. 65-7006(a).
The State’s argument ignores a serious question of whether possession of the opiate heroin, the narcotic cocaine, and the stimulant methamphetamine would be considered unitary; ordinarily, for example, the possession of heroin would be prompted by a separate impulse from possession of cocaine or possession of methamphetamine. As such, under K.S.A. 2007 Supp. 65-4160(a), it is very likely a double jeopardy analysis would end with a determination the conduct was not unitary. In contrast, a defendant might gather several items listed in K.S.A. 65-7006(a) when motivated by a single impulse, i.e., a unitary intent to conduct one manufacturing process.
In addition, the State’s hypothetical is not analogous in another aspect: the gravamen of the offense in K.S.A. 2007 Supp. 65-4160(a) is clearly possession of each specified controlled substance in the statute — heroin, cocaine, and methamphetamine — and the legislature criminalized the possession or control of “any” of those drugs. But the statute in our case, K.S.A. 65-7006(a), does not contain the word “any.” Moreover, mere possession is legal; it is only when the possession of one or more of the specified items is accompanied by the intent to manufacture methamphetamine that the action becomes illegal.
Yet, as is evident from the Court of Appeals’ discussion and from the State’s arguments in its petition for review, the unit of prose cution has not been defined in the plain statutory language and the legislature’s intent in K.S.A. 65-7006(a) is unclear.
In such a situation, the rule of lenity applies. State v. Pham, 281 Kan. 1227, 1248, 136 P.3d 919 (2006) (“Where the legislative intent is unclear, we apply the rule of lenity.”); Schoonover, 281 Kan. at 470 (“[T]he application of the rule of ienity to single-statute unit of prosecution cases is well established.”). Under the rule of lenity, statutory silence and ambiguity regarding the unit of prosecution is construed in favor of the defendant.
This court in Schoonover cited the example of Bell v. United States, 349 U.S. 81, 99 L. Ed. 905, 75 S. Ct. 620 (1955), which analyzed whether the Mann Act was violated once or twice by the transportation of two women across state lines for immoral purposes. The United States Supreme Court held there was only one violation because Congress had failed “ ‘clearly and without ambiguity’ ” to “provide for . . . two convictions for the act.” Schoonover, 281 Kan. at 472 (citing 349 U.S. at 84). “ “When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity.’ ” 281 Kan. at 472 (citing 349 U.S. at 83). Thus, the rule of lenity dictates that we resolve any uncertainty against turning a single transaction into multiple offenses. See Project, Twenty-Ninth Annual Review of Criminal Procedure, 88 Geo. L.J. 879, 1293 (2000) (“when the government seeks to prove that a single act or occurrence results in multiple violations of the same statute, the rule of lenity requires only one punishment unless legislative intent to impose multiple punishments is shown”); Solan, Law, Language, and Lenity, 40 Wm. & Mary L. Rev. 57 (1998) (tracing the evolution of the rule of lenity). Moreover, as this court stated in Schoonover: “The determination of the appropriate unit of prosecution is not necessarily dependent upon whether there is a single physical action or a single victim. Rather the key is the nature of the conduct proscribed.” 281 Kan. at 472.
The State argues the single unit of conduct proscribed by K.S.A 65-7006(a) is possessing multiple packets of the same controlled substance. This interpretation is not expressed in the plain language of K.S.A. 65-7006(a). Rather, the statute proscribes posses sion of products with the intent to manufacture, and that intent to manufacture forms the unit of prosecution.
This view of a very similar statute was recently adopted by the Washington Court of Appeals. In State v. Gaworski, 138 Wash. App. 141, 156 P.3d 288 (2007), the defendant was convicted of two violations of Wash. Rev. Code § 69.50.440, one for possession of pseudoephedrine with the intent to manufacture methamphetamine and one for possession of anhydrous ammonia with the intent to manufacture methamphetamine. The defendant argued on appeal that where an accused possesses the precursors at the same time and location and has a single manufacturing operation, the State cannot separately prosecute each possession. The State countered that the legislature, by listing individual substances in the statute, indicated its intent to permit a separate prosecution for each substance.
Wash. Rev. Code § 69.50.440 provided:
“It is unlawful for any person to possess ephedrine or any of its salts or isomers or salts of isomers, pseudoephedrine or any of its salts or isomers or salts of isomers, pressurized ammonia gas, or pressurized ammonia gas solution with intent to manufacture methamphetamine, including its salts, isomers, and salts of isomers.”
The Gaworski court first observed that under the plain language of the statute, a crime occurs (1) whenever a person possesses any one of the listed ingredients (2) with the intent to manufacture methamphetamine. The court then stated: “Had the legislature banned simple possession of these ingredients, regardless of intent, there would be no question but that separate prosecutions were authorized for each substance.” Gaworski, 138 Wash. App. at 149.
Looking to prior Washington appellate cases involving the application of the unit of prosecution test in the context of possession of controlled substances with the intent to manufacture or deliver, the Gaworski court noted that in those cases, “the unit of prosecution turned on the nature of the defendant’s intent.” 138 Wash. App. at 149. The Gaworski court cited Personal Restraint of Davis, 142 Wash. 2d 165, 12 P.3d 603 (2000), where Davis’ two “ wholly self-contained’ ” marijuana grow operations in different towns showed evidence of two separate intents to manufacture marijuana, and the Washington Supreme Court held that Davis was properly convicted of two counts of possession of marijuana with the intent to deliver. Gaworski, 138 Wash. App. at 150 (citing Davis, 142 Wash. 2d at 176).
Another example cited by the Gaworski court was State v. McFadden, 63 Wash. App. 441, 820 P.2d 53 (1991), where the defendant brought 5.5 grams of cocaine into an apartment during a buy-bust operation with an immediate intent to deliver, and this was found to be distinct from the defendant’s intent for future deliveiy of 83.9 grams of cocaine remaining outside in his van. The McFadden court held those two convictions did not violate double jeopardy. Gaworski, 138 Wash. App. at 150 (citing State v. Adel, 136 Wash. 2d 629, 965 P.2d 1072 [1998] [discussing McFadden, 63 Wash. App. at 452]).
The Gaworski court contrasted Davis and McFadden with State v. Lopez, 79 Wash. App. 755, 904 P.2d 1179 (1995), where law enforcement officers, arresting the defendant in his car, found cocaine on the floorboard and on the defendant’s person. The Lopez court held the evidence showed only one future intent to deliver cocaine, and the defendant could be convicted of only one count of possession with the intent to deliver. Gaworski, 138 Wash. App. at 150 (citing Adel, 136 Wash. 2d at 638-39 [discussing Lopez, 79 Wash. App. at 762]).
Focusing on its own case, the Gaworski court then emphasized that possession of precursor chemicals is not illegal unless the possession is joined with the intent to manufacture methamphetamine. The court further observed that the defendant had only one manufacturing operation. Because Wash. Rev. Code § 69.50.440 failed to state whether possession of each and eveiy item in the statute for a single manufacturing operation could be prosecuted separately, the Gaworski court applied the rule of lenity and held there was a single unit of prosecution in the statute. Consequently, the defendant’s two convictions for possession of precursor chemicals violated double jeopardy. 138 Wash. App. at 150.
As in Gaworski, in enacting K.S.A. 65-7006(a), the Kansas Legislature failed to state whether possession of each item in the statute for a single manufacturing operation may be prosecuted sep arately. Clearly, however, under the plain language of K.S.A, 65-7006(a), a crime occurs (1) whenever a person possesses any one of the listed items (2) with the intent to manufacture a controlled substance. It is the combination of these elements that forms the crime, and a unitary intent to manufacture forms the unit of prosecution. Consequently, the nature of the conduct proscribed in K.S.A. 65-7006(a), the required intent, and the rule of lenity require the conclusion that only a single unit of prosecution exists in K.S.A. 65-7006(a) if a defendant’s conduct is unitary, even if the defendant possesses several of the items listed in the statute. In such a circumstance, a defendant cannot be sentenced for possessing each listed substance.
Applying that rule in this case, because Thompson’s conduct and intent to manufacture were unitary, his convictions of possession of a lithium metal and his conviction of possession of pseudoephedrine, both with the intent to manufacture methamphetamine, subject Thompson to double jeopardy. The Court of Appeals correctly determined that one of these convictions must be reversed. The panel reversed Thompson’s conviction of possession of lithium metal with intent to manufacture a controlled substance, and we affirm this holding.
Sentence for Possession of Pseudoephedrine
Thompson’s conviction of possession of pseudoephedrine with the intent to manufacture methamphetamine in violation of K.S.A. 65-7006(a) was a severity level 1 drug felony, and the sentencing court imposed a sentence accordingly. On appeal, Thompson challenged the severity level applied for purposes of sentencing. The Court of Appeals, on remand, considered this issue and determined that Thompson’s sentence for possession of pseudoephedrine with the intent to manufacture a controlled substance must be vacated, and, under the identical séntencing offense doctrine and State v. Campbell, 279 Kan. 1, 106 P.3d 1129 (2005), Thompson must be resentenced for this conviction in accordance with a severity level 4 drug felony, the sentence that would apply for a conviction of possession of drug paraphernalia with the intent to manufacture. Thompson II, 2008 WL 142103, at *5-6.
Even though Campbell resolved this issue, the State argues that in Schoonover this court “effectively overruled” Campbell. Accordingly, the State suggests the Court of Appeals erred in relying on Campbell and urges this court to find that the district court correctly imposed a severity level 1 drug felony sentence.
Standard of Review
Interpretation of a statute is a question of law over which an appellate court has unlimited review. State v. Drayton, 285 Kan. 689, 714, 175 P.3d 861 (2008); State v. McCurry, 279 Kan. 118, 121, 105 P.3d 1247 (2005).
Kansas’ Identical Offense Sentencing Doctrine
In Campbell, this court applied the identical offense sentencing doctrine analysis from State v. McAdam, 277 Kan. 136, 144, 83 P.3d 161 (2004), to conclude that possession of drug paraphernalia with the intent to manufacture methamphetamine in violation of K.S.A. 65-4152(a)(3) was identical to possession of ephedrine or pseudoephedrine with the intent to produce a controlled substance in violation of K.S.A. 65-7006(a). The Campbell court stated:
“In the circumstances of this case, the elements of the offense were knowingly possessing ephedrine or pseudoephedrine with the intent to use it to manufacture a controlled substance. The elements were the same whether Campbell had been charged under the ephedrine statute or the drug paraphernalia statute.” 279 Kan. at 16.
Because the elements of the statutes were identical to the extent of the overlap between the two provisions, Campbell was entitled to receive the benefit of the identical offense sentencing doctrine. In other words, he was entitled to be sentenced under the lesser penalty provision for violation of K.S.A. 65-4152(a)(3), a severity level 4 drug felony. 279 Kan. at 16-17.
In arguing this ruling was effectively overruled in Schoonover, the State emphasizes our statements in Schoonover that K.S.A. 65-4152(a)(3) and K.S.A. 65-7006(a) were not identical and prosecution under both provisions did not violate double jeopardy. Specifically, the State argues: “Since the statutes are not identical but overlapping, Campbell is no longer controlling and it becomes a legal imperative that U.S. v. Batchelder, 442 U.S. 114, 60 L. Ed. 2d 755, 99 S. Ct. 2198 (1979) governs the instant case and that lenity does not apply.”
This argument ignores Schoonover s discussion of Campbell and mixes the structure of a double jeopardy analysis with the due process analysis applied under the Kansas identical offense sentencing doctrine. As we explained in State v. Fanning, 281 Kan. 1176, 135 P.3d 1067 (2006):
“To distinguish between the analytical approach used in these cases, it is important to note that McAdam and Campbell involved a sentencing issue, while Schoonover and Patten [280 Kan. 385, 122 P.3d 350 (2005),] involved a multiplicity issue. McAdam and Campbell challenged their sentences, not the underlying convictions. Schoonover and Patten challenged their convictions. Because of this distinction in issues, we are not required to apply the same analytical framework to both types of cases.” 281 Kan. at 1182.
Even though Schoonover and Campbell utilize different analytical frameworks, both cases discuss die United States Supreme Court’s decision in Batchelder, 442 U.S. 114, on which the State relies in this case. In Batchelder, the Court was considering overlapping provisions of the Omnibus Crime Control and Safe Streets Act of 1968. See 18 U.S.C. § 922(h) (2006); 18 U.S.C. App. § 1202(a) (1976) (repealed 1986). One provision criminalized possession of a gun by a person who was a convicted felon, was an illegal alien, had renounced citizenship, had been adjudicated mentally ill, or was a dishonorably discharged serviceman. 18 U.S.C. App. § 1202(a). The other provision criminalized possession of a gun by a convicted felon, fugitive from justice, unlawful user of narcotics, or a person adjudicated as “mentally] defective.” 18 U.S.C. § 922(h); 18 U.S.C. § 924(a). One provision was a felony, the other a misdemeanor. Batch-elder was a convicted felon who possessed a gun and, thus, could have been convicted under either provision.
The Seventh Circuit Court of Appeals found the overlapping provisions to be identical to the extent of the overlap regarding convicted felons and reversed the sentence because the trial court had imposed the harsher penalty. In part, the Seventh Circuit reasoned, the “prosecutor’s power to select one of two statutes that are identical except for their penalty provisions” implicated “important constitutional protections.” United States v. Batchelder, 581 F.2d 626, 631 (7th Cir. 1978), rev’d 442 U.S. 114, 99 S. Ct. 2198, 60 L. Ed. 2d 755 (1979).
The United States Supreme Court reversed, rejecting the prosecutorial discretion justification and all of the other rationales on which the Seventh Circuit’s decision was based. The Court adopted an analytical framework for an examination of duplicative statutes when challenged on equal protection and due process grounds. The analysis requires testing: (1) whether the statutes violated due process for lack of notice and vagueness; (2) whether the existence of the duplicative statutes implicated due process and equal protection interests in avoiding excessive prosecutorial discretion and in obtaining equal justice; and (3) whether such prosecutorial discretion amounts to an impermissible delegation of legislative authority. Regarding the second consideration and the Seventh Circuit’s concern regarding unfettered prosecutorial discretion, the Court stated:
“Contrary to the Court of Appeals’ assertions, a prosecutor’s discretion to choose between §§ 922(h) and 1202(a) is not ‘unfettered.’ Selectivity in the enforcement of criminal laws is, of course, subject to constitutional constraints. And a decision to proceed under § 922(h) does not empower the Government to predetermine ultimate criminal sanctions. Rather, it merely enables the sentencing judge to impose a longer prison sentence than § 1202(a) would permit and precludes him from imposing the greater fine authorized by § 1202(a). More importantly, there is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and die discretion he exercises when choosing one of two statutes with identical elements. In the former situation, once he determines that the proof will support a conviction under either statute, his decision is indistinguishable from the one he faces in the latter context. The prosecutor may be influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause.” 442 U.S. at 124-25.
Kansas decisions have not followed Batchelder, however. In 1987, 8 years after the Supreme Court’s decision in Batchelder, this court took the view that had been expressed by the Seventh Circuit Court of Appeals and held that where two statutes criminalize die same conduct and the overlapping provisions contain “identical offenses, a defendant can only be sentenced under the lesser penalty.” State v. Clements, 241 Kan. 77, 83, 734 P.2d 1096 (1987). The court explained the rationale of its decision by stating:
“[T]he decision as to which penalty to seek cannot be a matter of prosecutorial whimsy in charging.” 241 Kan. at 83. Two years later, the court reaffirmed the position in State v. Nunn, 244 Kan. 207, 229, 768 P.2d 268 (1989).
Neither the Clements nor the Nunn courts cited Batchelder, but clearly the rationale and the holding of the decisions departed from the United States Supreme Court’s decision. Kansas is not the only state to have taken this view. E.g., People v. Estrada, 198 Colo. 188, 191-92, 601 P.2d 619 (1979) (Supreme Court’s reasoning in Batch-elder is not persuasive; “We find a penalty scheme that provides widely divergent sentences for similar conduct and intent to be irrational.”); see 4 LaFave, Criminal Procedure § 13.7(a), pp. 95-99 (2d ed. 1999) (suggesting that state courts need not retreat from preBatchelder decisions holding unconstitutional those statutes which provide different punishment for exactly the same conduct).
Sixteen years after the decision in Clements, this court was called upon to apply the identical offense sentencing doctrine in the context of a drug offense in State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), and then again in Campbell, 279 Kan. 1, also in 2004. The statutes at issue in McAdam, K.S.A. 65-4159(a) and K.S.A. 65-4161(a), were enacted in 1990 and 1994, respectively. The statutes at issue in Campbell and in the present case, K.S.A. 65-4152(a) and K.S.A. 65-7006, were enacted in 1981 and 1999, respectively. Hence, Kansas’ identical offense sentencing doctrine had been in place for decades before the legislature acted, presumably with knowledge of the law. See In re Adoption of G.L.V., 286 Kan. 1034, 190 P.3d 245 (2008) (Courts presume “ ‘the legislature had and acted with full knowledge and information as to the subject matter of the statute, as to prior and existing law and legislation on the subject of the statute and as to the judicial decisions with respect to such prior and existing law and legislation. [Citations omitted.]’ ”).
The Campbell court discussed Batchelder and quoted extensively from a treatise in which the authors described the reasoning of Batchelder as “wanting.” 279 Kan. at 13-15 (quoting 4 LaFave, Criminal Procedure § 13.7[a], p. 99). After discussing Batchelder, the Campbell court reaffirmed the long-standing Kansas doctrine that a defendant can only be sentenced to the lesser of two sen tences provided for in overlapping provisions with identical elements. 279 Kan. at 16-17. McAdam and Campbell have been applied in several subsequent cases. E.g., State v. Cooper, 285 Kan. 964, 179 P.3d 439 (2008); State v. Fanning, 281 Kan. 1176, 135 P.3d 1067 (2006); State v. Stevens, 278 Kan. 441, 101 P.3d 1190 (2004).
In comparison to our departure from United States Supreme Court precedent on state law grounds in the due process and equal protection area of sentencing under duplicative provisions, we adopted the Court’s double jeopardy analysis in Schoonover. In doing so, we again discussed Batchelders categorization of overlapping provisions. Schoonover, 281 Kan. at 503.
In addition, we discussed Ball v. United States, 470 U.S. 856, 84 L. Ed. 2d 740, 105 S. Ct. 1668 (1985), in which the Court considered overlapping provisions in a double jeopardy context. In Ball, the Court held that overlapping statutes could subject a defendant to double jeopardy. In fact, the Court concluded there was a double jeopardy violation as a result of the convictions and sentences pursuant to the overlapping provisions at issue. In reaching this conclusion, the Court indicated the starting point for such an analysis is the identical elements test, which the Court referred to as a “tool” for discerning legislative intent. Applying that test to the overlapping provisions in question, the Court concluded the elements in the portions of the statutes that overlapped were identical. In addition, the Court emphasized that the ultimate question in double jeopardy cases was to ascertain legislative intent and determine whether the legislature intended two punishments. The Court indicated that even if elements were identical, if it was clear that the legislature intended multiple punishments, a double jeopardy violation did not result. 470 U.S. at 860 n.7, 861. The statutes under consideration in Ball did not contain any indication of such an intent. Consequently, the Court applied the rule of lenity and determined the identical elements meant the legislature intended that there be only one punishment. 470 U.S. at 862.
Thus, Ball and Batchelder shared a focus on overlapping statutory provisions. But in all other respects the analytical framework differed, and, when read together, the' two cases illustrate the difference between a due process and a double jeopardy analysis. Because of these differences, the State is incorrect in concluding that Schoonover — a double jeopardy case — is determinative of the due process issue involved in this case.
Moreover, the State is incorrect in suggesting that the identical elements test is applied to the entire statute rather than the overlapping provisions. Ball, 470 U.S. at 860, illustrates otherwise, and, certainly, Campbell, 279 Kan at 16-17, applies the elements test to the overlapping provisions. Additionally, in Schoonover, we stated that the initial inquiry when attempting to discern legislative intent was to apply the identical elements test to the overlapping provisions. 281 Kan. at 502-03. We acknowledge that we used some confusing language in Schoonover when we stated: “[Wjhile the overlap gives rise to the special sentencing rule imposed in . . . Campbell . . . there is not an identity of elements in the statute as must be shown under the double jeopardy rule.” (Emphasis added.) 281 Kan. at 504.
To clarify, double jeopardy concerns arise if there are identical elements in overlapping provisions of two statutes. Our discussion in Schoonover was directed to our reading of the overall statute as part of our effort to discern legislative intent, and it was incorrect to state or imply that there needed to be an identity of elements when both statutes, as opposed to the overlapping provisions, are compared. In Schoonover, we did not disagree with Campbell’s assessment that the elements were identical to the extent of the overlap. Rather, we were impelled to examine the purpose and provisions of the entire statute because of (1) Ball’s guidance that identical elements are only a tool in discerning legislative intent and (2) our recognition in Campbell that the array of statutes dealing with ephedrine was intended to punish separately and repeatedly the possession of the various chemicals utilized in the hazardous methamphetamine manufacturing process. See Schoonover, 281 Kan. at 503-04; Campbell, 279 Kan. at 7-8.
This intent did not impact the analysis at issue in Campbell. If the elements in overlapping provisions are identical, the due process considerations involved in Kansas’ identical offense sentencing doctrine apply and a defendant may only be sentenced to the lesser punishment provided for in the identical, overlapping provisions. This is in contrast to the role of the identical elements test in a double jeopardy analysis. In a double jeopardy analysis, the identical elements test is not absolutely determinative; it is a tool to determine legislative intent and, when considered with the rule of lenity, will usually mean the legislature intended only one punishment. If, however, there is a clear expression of legislative intent to provide multiple punishments for the same conduct, double jeopardy is not violated even if overlapping provisions have identical elements.
Thus, Schoonover did not overturn Campbell, either explicitly or implicitly, and Campbell controls the outcome of this issue. The Court of Appeals correctly determined that, under Kansas’ identical offense sentencing doctrine, a defendant, including Thompson, who is convicted of possession of ephedrine or pseudoephedrine with the intent to produce a controlled substance in violation of K.S.A. 65-7006(a) should be sentenced to a severity level 4 drug felony as provided for a conviction of possession of drug paraphernalia with the intent to manufacture methamphetamine in violation of K.S.A. 65-4152(a)(3) because the two statutes contain overlapping, identical elements relating to the knowing possession of ephedrine or pseudoephedrine with the intent to manufacture.
As a result, Thompson’s sentence for possession of pseudoephedrine with intent to manufacture is vacated and the case is remanded in order for Thompson to be resentenced to a severity level 4 drug felony.
Sentence for Manufacture of Methamphetamine
Finally, the State takes issue with Thompson’s sentence for one count of manufacture of methamphetamine. Under K.S.A. 65-4159(b), the crime of manufacturing methamphetamine is a severity level 1 drug felony, and the district court imposed a sentence accordingly.
As in the previous issue, Thompson argued on appeal that the district court should have sentenced him to a severity level 4 drug felony sentence under the identical offense sentencing doctrine. The Court of Appeals agreed and held: “[T]he facts of the case demonstrate that the defendant used drug paraphernalia with an intent to manufacture methamphetamine” and that the “use of drug paraphernalia with intent to manufacture is identical to manufacturing methamphetamine.” Thompson II, 2008 WL 142103, at *6. The Court of Appeals remanded for resentencing.
Standard of Review
We apply the same standard of review that was applied to the previous issue. Interpretation of a statute is a question of law over which an appellate court has unlimited review. Drayton, 285 Kan. at 714; McCurry, 279 Kan. at 121.
State v. Cooper
Approximately 2 months after the Court of Appeals’ decision in Thompson II, we considered the same sentencing question before us today and came to the opposite conclusion of the Court of Appeals.
In State v. Cooper, 285 Kan. 964, 179 P.3d 439 (2008), this court cited Fanning for the conclusion that “[o]ffenses are identical when they have the same elements” and we reiterated that “for sentencing purposes, an appellate court must consider the statutory elements in conjunction with the underlying facts” in order to determine the extent of the overlap between the two provisions. 285 Kan. at 966. The Cooper court concluded that K.S.A. 65-4159(a), which defines the offense of manufacture of methamphetamine, and K.S.A. 65-4152(a)(3), which defines the offense of use of drug paraphernalia, are not identical offenses because nothing in the former statute requires the State to prove, as does the latter statute, that a defendant used drug paraphernalia to manufacture methamphetamine. 285 Kan. at 967.
“Although, as a factual matter,” Cooper further explained, “paraphernalia must have been used to manufacture methamphetamine, the State is not required to prove this fact.” 285 Kan. at 967. In addition, the jury would not be instructed that it must find beyond a reasonable doubt that the defendant possessed paraphernalia for the purpose of manufacturing methamphetamine. The Cooper court also observed that the legislature designed the statutes to more severely punish those who manufacture meth amphetamine and less severely punish tiróse who merely possess drug paraphernalia used to manufacture methamphetamine. 285 Kan. at 967-68.
The Court of Appeals did not have the benefit of the Cooper analysis; nevertheless, Cooper controls. Thompson’s convictions for manufacture of methamphetamine and possession of drug paraphernalia used to manufacture methamphetamine are not identical for sentencing purposes.
Therefore, the Court of Appeals erred in holding that Thompson should have received a lesser, severity level 4 drug felony sentence for his conviction of manufacture of methamphetamine. Manufacturing methamphetamine under K.S.A. 65-4159(a) is not identical to using drug paraphernalia to manufacture methamphetamine under K.S.A. 65-4152(a)(3), and a defendant convicted of manufacturing methamphetamine may be sentenced to a severity level 1 drug felony sentence.
Because the Court of Appeals determined Thompson should have received a lesser, severity level 4 drug felony sentence for his conviction of manufacture of methamphetamine, it did not address his alternative argument that he should have been sentenced using a level 3 drug severity under the holding of State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004). To construct this argument, Thompson suggests in his brief that the State failed to prove and the jury was not instructed to find that the manufacture occurred on or after May 20, 2004, the effective date of legislative amendments which reverse the effect of the McAdam holding and malee the offense of manufacture of methamphetamine a severity level 1 drug felony. See L. 2004, ch. 125, sec. 1. The case is remanded to the Court of Appeals to consider those alternative issues raised by Thompson.
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The opinion of the court was delivered by
Luckert, J.:
In this appeal, a natural father seeks to set aside the adoption of his newborn child. Although he did nothing during the pregnancy to assume parenting responsibilities and preserve his liberty interest in fatherhood, he asserts this should be excused and a liberty interest should be recognized because the natural mother induced his inaction by lying to him about the pregnancy and the birth. Then, she lied to the district court regarding the father’s identity, preventing him from receiving notice and an opportunity to be heard in the adoption. Consequently, according to his argument, the adoption is void.
The district court rejected these arguments, and we affirm that ruling. A liberty interest, which results in the right to notice, is created by a developed familial relationship, not just biology. In a newborn adoption situation, a father must demonstrate a full commitment to parenting during the pregnancy, and in this case the natural father’s opportunity to parent did not develop into a full parenting relationship that warrants constitutional protection. Even though the father may be blameless in this failure that was induced by the natural mother’s fraud, his belated attempt to assert a parental interest, beginning 6 months after the adoption was final, cannot overcome the fully matured interests of the State and the adoptive family in the permanency and stability of the adoption.
Factual Background and Pretrial Procedural History
This case began in New York, where the natural mother, N.T., became sexually involved with the natural father, M.P. N.T. informed M.P. in mid-October 2003 that she was pregnant with his child. Then, just before Thanksgiving, N.T. left New York to visit her parents in Wichita. She later decided to stay in Kansas.
After leaving New York, N.T. refused to give M.P. the address where she was living, but the couple remained in telephone contact. M.P.’s cell phone records show that as early as November 25, 2003, he was making calls to Wichita.
In a phone call on January 22, 2004, N.T. falsely informed M.P. that she had undergone an abortion. She later testified that she did so because she knew M.P. would not consent to an adoption. After the conversation in which N.T. lied about the abortion, M.P. continued to question N.T. about the pregnancy, doubting her veracity. In May 2004, M.P.’s expression of skepticism led to an argument with N.T. that temporarily stopped their telephone contact.
After a period of time but before the child was bom, M.P. and N.T. began talking again and continued to do so throughout the remainder of the pregnancy and following their child’s birth on June 24, 2004, in Wichita. During this time, M.P. continued to express his doubts about N.T.’s truthfulness, making statements like, “Why do I have a feeling you’re lying to me?” and “I know I have a child, I can feel it.” M.P. told a friend that he thought he had a daughter, and he bought a pair of earrings before Christmas 2004, apparendy as a gift for the child he imagined he might have.
M.P. was not the only one deceived by N.T. N.T. told her mother, other family members, and friends that the baby died at delivery. She also deceived the adoption agency regarding the identity of the father, claiming not to know his last name and to have only vague information about where he lived.
The day after the birth, N.T. directed that A.A.T. be given to the adoptive parents, who took the baby home from the hospital. The adoptive parents filed their petition for adoption and for ter mination of the parental rights of the father on July 1, 2004, when A.A.T. was 1 week old. As part of this proceeding, N.T. again lied. She executed an affidavit that gave a false surname for the newborn child’s putative father. She also falsely stated that the father was “not willing to be of assistance to [her] during the pregnancy and with regard to these proceedings” and that she had no personal knowledge of his background information.
A guardian ad litem (GAL) was appointed to represent the putative father. After interviewing N.T., the GAL filed an affidavit with the court, passing on incorrect information supplied by N.T., including a false surname for the putative father and representations that N.T. had not contacted the father since her second month of pregnancy and that he was aware of her intent to place their child for adoption. In addition, N.T. failed to pass along information such as M.P.’s address.
Although there is some evidence that at the hospital N.T. told a representative of the adoption agency that she had just spoken to A.A.T.’s father, and that the agency did not follow up on this lead, an agency representative later testified that she had no recollection of N.T. making a statement to this effect. The representative also said she would have notified the GAL if she had been told about a recent conversation between N.T. and the child’s father.
In the absence of correct information about M.P. and his willingness or unwillingness to relinquish his parental rights under K.S.A. 59-2124, a notice including the inaccurate name of the putative father and “To Whom It May Concern” was published in the New York Post on July 30, 2004, and August 6, 2004. See K.S.A. 59-2136(e), (f) (if father identified to satisfaction of court, or more than one man identified as possible father, each shall be given notice of adoption proceedings by personal service, certified return receipt requested, or “in any other manner court directs”). The item in the New York Post, which circulates to every county in New York, also contained A.A.T.’s last name and stated that Kansas was the location of the proceeding. Nothing was done to provide actual notice of the adoption to M.P.
No father appeared before the court. The natural father’s parental rights thus were terminated and the adoption decree was finalized on August 24, 2004. See K.S.A. 59-2136(g) (if no person appears claiming to be father and claiming custodial rights, court shall enter order terminating father s parental rights).
In late December 2004, when A.A.T. was 6 months old, N.T. finally told M.P. the truth. Within 6 weeks, M.P. had retained Kansas counsel and had begun this action to set aside the adoption pursuant to K.S.A. 59-2213 and K.S.A. 60-260(b). M.P., possibly with the assistance of his lawyer, had been able to obtain the names, residential address, and church affiliation of the adoptive parents.
M.P. requested DNA testing to confirm paternity, a status conference to set a discovery schedule, and “orders to proceed with the case.” The adoptive parents moved to dismiss. At a March 23, 2005, hearing, the district court ordered the matter to proceed and considered whether genetic testing should be performed to determine if M.P. was the father and thus had standing to challenge the adoption. The attorneys present agreed that the adoptive parents were entitled to a Ross hearing to determine whether such testing was in A.A.T.’s best interests. See In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989). A GAL was appointed for A.A.T.
Before the Ross hearing could be held, M.P. advocated for a different approach, submitting a memorandum arguing that the Ross hearing was unnecessary. The district court was persuaded, and the adoptive parents took an interlocutory appeal to our Court of Appeals. The Court of Appeals affirmed the district court in In re Adoption of A. A.T., No. 95,914, unpublished opinion filed December 22, 2006.
Upon remand, DNA tests were performed. The results confirmed M.P.’s paternity of A.A.T. M.P. then sought a trial on the issue of whether the adoption should be set aside and requested visitation with A.A.T. pending resolution of the issue. The record on appeal is silent on the district court’s decision on the visitation question. The information before us indicates that A.A.T. has been living exclusively with the adoptive parents since leaving the hospital with them as a newborn. Recently, M.P. filed a motion with this court renewing his request to have visitation with A.A.T.
District Court’s Ruling on the Adoption
After trial, the district court refused to set aside the adoption decree. The court found, inter alia, that the adoption agency and adoptive parents had acted in good faith in the adoption proceeding. The court also found that M.P. had not abandoned N.T. during her pregnancy and that M.P. had not learned of A.A.T.’s birth until December 24 or 25, 2004. Still, the court further found that M.P. “should have known and did suspect [N.T.] was still pregnant with his child and she gave birth to his child.” Under these circumstances, M.P. “should have taken action to determine whether [N.T.] had had an abortion or was still pregnant . . . and . . . gave birth to his child.”
The district court ruled against M.P. on his argument under K.S.A. 59-2213, which provides that a court shall have continuing control over its own probate orders, judgments, and decrees for 30 days. Under this statute, the court held M.P.’s effort to set aside the adoption decree was time-barred.
The district court also rebuffed M.P.’s arguments under K.S.A. 60-260(b), which controls vacation or modification of probate judgments after the 30-day time limit of K.S.A. 59-2213 has passed. Under K.S.A. 60-260(b)(2), the court refused to set aside the adoption decree based on newly discovered evidence because “M.P. should have taken action to verify whether N.T. had an abortion.” Under subsection (b)(3), which allows a judgment to be set aside for fraud, the district court ruled that N.T. was not an adverse party and that fraud justifying relief must have been committed by an adverse party. The court also rejected subsection (b)(4) as a basis for setting aside the adoption decree as void; in the court’s view, although M.P. did not have notice of the adoption proceeding, the decree was not void because, again, “[M.P.] should have taken action to protect his parental rights.” Finally, the court considered the so-called catch-all provision of subsection (b)(6) and determined M.P. was not entitled to relief under that provision.
Arguments Raised on Appeal
M.P. relies on K.S.A. 60-260(b) in this appeal, transferred to this court from our Court of Appeals pursuant to K.S.A. 20-3017 and Supreme Court Rule 8.02 (2007 Kan. Ct. R. Annot. 62). He first asserts that the adoption decree was void under K.S.A. 60- 260(b)(4) because he did not receive notice of the proceeding in violation of his rights to substantive and procedural due process. M.P. argues that he had a constitutionally protected liberty interest in his fatherhood of A.A.T. and that he could not be deprived of it without his consent or compliance with the Kansas Adoption and Relinquishment Act (Act), K.S.A. 59-2111 through K.S.A. 59-2144, i.e., due process of law. He asserts that N.T.’s fraud cut off his ability to assert his interest before the adoption decree was entered and that his only recourse has been his timely and diligent prosecution of this action. Because his consent was required and not obtained and there was no other basis to support termination of his parental rights, M.P. argues, the adoption decree is void.
In response, the adoptive parents argue that M.P. had a mere biological link and bore the burden to discover A.A.T.’s existence and transform that biological link into a full and enduring relationship worthy of constitutional protection. They also assert that M.P. was not denied due process because he “wholly neglected his parental responsibilities” and therefore the Act constitutionally allowed termination of his parental rights.
We also have the benefit of an amicus brief filed by the American Academy of Adoption Attorneys, which argues that a child has a constitutional interest in the protection of his or her “established family,” here, the adoptive parents. The Academy contends this right must trump any mere “possessory” right of another. The Academy also supports the adoptive parents’ responses to M.P.’s issues, arguing that the district court did not abuse its discretion by refusing to set aside the decree and that substantial competent evidence supported termination of'M.P.’s parental rights under K.S.A. 59-2136(h).
If we do not accept M.P.’s argument that the adoption is void, he argues alternatively that (1) the district court misinterpreted the phrase “adverse party” in K.S.A. 60-260(b)(3), meaning the decree must be set aside on the basis of N.T.’s fraud and (2) the district court abused its discretion by failing to set aside tire decree because of newly discovered evidence under K.S.A. 60-260(b)(2), specifically evidence of M.P.’s identity as A.A.T.’s biological father.
M.P. does not argue for relief under K.S.A. 60-260(b)(6); instead, he argues the district court erred in relying upon the provision because it applies only if there is no other applicable grounds for relief and, according to him, three other provisions do apply.
Analysis
K.S.A. 60-260 expressly provides for relief from district court decisions in certain circumstances. See In re Marriage of Leedy, 279 Kan. 311, 321, 109 P.3d 1130 (2005). K.S.A. 60-260(b) reads in pertinent part:
“On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: ... (2) newly discovered evidence . . .; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void .... The motion shall be made within a reasonable time, and for reasons ... (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subsection (b) does not affect the finality of a judgment or suspend its operation. This section does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or ... to set aside a judgment for fraud upon the court.”
Issue 1: Is the Adoption Decree Void?
The parties disagree about the proper standard of review applicable to the first issue raised by M.P., i.e., whether the adoption decree is void under K.S.A. 60-260(b)(4). M.P. seeks application of a de novo standard. The adoptive parents argue for an abuse of discretion standard.
Although abuse of discretion is generally the correct standard for review of district court decisions under K.S.A. 60-260(b), see In re Marriage of Reinhardt, 38 Kan. App. 2d 60, Syl. ¶ 1, 161 P.3d 235 (2007), this is not so when a judgment is attacked as void under K.S.A. 60-260(b)(4). A judgment is void and therefore a nullity if a court lacked jurisdiction to render it or acted in a manner inconsistent with due process. Automatic Feeder Co. v. Tobey, 221 Kan. 17, 21, 558 P.2d 101 (1976); Board of Jefferson County Comm'rs v. Adcox, 35 Kan. App. 2d 628, 635-36, 132 P.3d 1004 (2006). A district court has no discretion to exercise in such a case; either a judgment is valid or it is void as a matter of law. Thus, a reviewing appellate court must apply a de novo standard once a district court has made the necessary findings of fact. See In re Marriage of Hampshire, 261 Kan. 854, 862, 934 P.2d 58 (1997); Adcox, 35 Kan. App. 2d at 635.
The necessary, underlying findings of fact are reviewed under a different standard of review; Findings of fact are reviewed on appeal to determine if they are supported by substantial competent evidence and are sufficient to support the conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a finding. Owen Lumber Co. v. Chartrand, 283 Kan. 911, 915-16, 157 P.3d 1109 (2007). An appellate court must not reweigh the evidence, substitute its evaluation of the evidence for that of the district court, or pass upon the credibility of the witnesses. See In re Estate of Sauder, 283 Kan. 694, 718, 156 P.3d 1204 (2007).
Underlying Findings of Fact
In this case, many of the district court’s findings of fact are not disputed. For example, there is no disagreement with the findings that N.T. lied to M.P. and took extraordinary measures to prevent him from knowing about the birth of his child. Nor is it disputed that N.T. falsified her affidavit and gave false information to the court regarding the identity of the putative father. Also, the parties do not dispute the district court’s finding that the adoption agency and the adoptive parents acted in good faith and without knowledge of N.T.’s deceptions.
Arguments are made regarding other findings, however. As evidenced by the separate opinions of this court, some disagree with the district court’s findings that M.P. “should have known and did suspect [N.T.] was still pregnant with his child and she gave birth to his child” and that he took no action to protect his parental rights. Although the evidence could be reweighed to reach contrary findings regarding whether M.P. should have known of the continued pregnancy and the birth, that is not our role. Our task is to determine if the district court’s findings are supported by substantial competent evidence, and we conclude they are. In fact, M.P. testified to his suspicions and his inaction.
Other evidence establishes that had he acted on those suspicions, it would have required relatively little effort for M.P. to have discovered the continued pregnancy or the birth of the child. N.T. testified that, although she discouraged contact between M.P. and her mother, her mother would have confirmed the continued pregnancy had M.P. asked. In addition, through M.P.’s phone records he could determine where N.T. was, and he had a Wichita address for N.T.’s sister.
Fourteenth Amendment Framework
In light of these circumstances, we must determine whether M.P. had a constitutionally protected liberty interest under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, the only basis M.P. asserts for his claim that he was entitled to notice of the adoption proceeding. The Due Process Clause is invoked only when the State takes action to deprive any person of life, liberty, or property. Lehr v. Robertson, 463 U.S. 248, 256, 77 L. Ed. 2d 614, 103 S. Ct. 2985 (1983).
If life, liberty, or property is at stake, procedural due process requires the State to provide notice of a potential deprivation of the interest and an opportunity to be heard regarding the deprivation. Baldwin v. Hale, 68 U.S. (1 Wall) 223, 233, 17 L. Ed. 531 (1863). It is necessarily implied that both the notice and opportunity to be heard must be provided at a meaningful time and in a meaningful manner to comport with the constitutional guarantee. Fuentes v. Shevin, 407 U.S. 67, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (1972); Armstrong v. Manzo, 380 U.S. 545, 14 L. Ed. 2d 62, 85 S. Ct. 1187 (1965); Alliance Mortgage Co. v. Pastine, 281 Kan. 1266, 1275, 136 P.3d 457 (2006).
In arguing that he has a liberty interest, M.P. relies upon the United States Supreme Court’s recognition of a natural parent’s right to “the companionship, care, custody, and management” of his or her child as a liberty interest far more important than any property right. Santosky v. Kramer, 455 U.S. 745, 758-59, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982); Lassiter v. Department of Social Services, 452 U.S. 18, 27, 68 L. Ed. 2d 640, 101 S. Ct. 2153 (1981); see also Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972) (parents have protected liberty interest in controlling their children’s religious upbringing); Pierce v. Society of Sisters, 268 U.S. 510, 69 L. Ed. 1070, 45 S. Ct. 571 (1925) (parents have protected liberty interest in the way they choose to educate their children); Meyer v. Nebraska, 262 U.S. 390, 67 L. Ed. 1042, 43 S. Ct. 625 (1923) (parents have protected liberty interest in controlling their children’s education). Similarly, this court has long recognized that “parental rights are fundamental in nature and are constitutionally protected.” In re Adoption of McMullen, 236 Kan. 348, 352, 691 P.2d 17 (1984).
Obviously, the liberty interest of a natural parent has its origin in the biological connection between the parent and the child. Nevertheless, a biological relationship does not guarantee the permanency of the parental rights of an unwed natural father. See In re K.M.H., 285 Kan. 53, 77, 169 P.3d 1025 (2007), cert. denied 129 S. Ct. 36 (2008) (no parental rights arose for sperm donor who had no written agreement with mother). Rather, “[t]he significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring.” Lehr, 463 U.S. at 262. The opportunity is lost, however, if the natural father does not come forward to “demonstrate[] a full commitment to the responsibilities of parenthood.” 463 U.S. at 261.
Decisions Regarding Unwed Fathers
Several decisions of the United States Supreme Court establish this principle and emphasize the importance of an actual relationship of parental responsibility as distinguished from a mere biological relationship.
In the earliest of the Supreme Court decisions involving an unwed father, Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972), the Court clarified that the liberty interest of a natural parent could attach to an unwed father. Therefore, an Illinois statute that conclusively presumed every father in such circumstances to be an unfit parent was declared unconstitutional.
Peter Stanley, Sr., although not married to his children’s mother, had always acted as a parent to them and had lived periodically with their mother for 18 years. When the mother died, the children were immediately made wards of the state and were eligible for adoption. Stanley claimed he was denied due process of the law because he was refused a hearing on his fitness as a parent before his children were declared wards. The Supreme Court agreed, finding he was entitled to a hearing. 405 U.S. at 658-59; compare Armstrong, 380 U.S. at 550 (recognizing divorced natural father’s liberty interest in parental relationship, requiring notice of adoption proceedings to satisfy due process).
Six years after Stanley, the Court decided Quilloin v. Walcott, 434 U.S. 246, 254, 54 L. Ed. 2d 511, 98 S. Ct. 549, reh. denied 435 U.S. 918 (1978), addressing the rights of an unwed father in a stepparent adoption and whether those rights were protected adequately by application of a “ ‘best interests of the child’ ” standard.
Under Georgia law, an unwed father who had not legitimated his child was not permitted to object to an adoption. Leon Webster Quilloin had not petitioned to legitimize his 11-year-old before the adoption petition was filed; and he had never sought actual or legal custody or otherwise assumed any significant responsibility with respect to the child’s supervision, education, protection, or care. In these circumstances, the Court held, Quilloin had not grasped his opportunity to assert his constitutional rights, and due process did not require any more than a finding that the adoption and denial of legitimation were in the best interests of the child. 434 U.S. at 255.
The Court followed its Quilloin decision with Caban v. Mohammed, 441 U.S. 380, 60 L. Ed. 2d 297, 99 S. Ct. 1760 (1979). In Caban, a putative father challenged a New York statute that allowed an unwed mother to veto the adoption of her child by withholding consent but prevented an unwed father from doing so without showing the adoption was not in the best interests of the child. Appellant Abdiel Caban had developed substantial relationships with his 6-and 4-year-old children before the adoption proceedings began.
The Court held that New York did not have a compelling interest in treating Caban differently from the children’s mother and thus the statute violated equal protection. 441 U.S. at 394. Although the Court stated that a difference between maternal and paternal roles in the care of a newborn might justify distinct treatment, it suggested that any gender distinction between parents would become less acceptable as a basis for legislative line drawing as a child grows older. 441 U.S. at 388-89.
The analysis in Stanley, Quilloin, and Caban, which established that an unwed father who admitted paternity and had established a substantial relationship with his child would be able to protect his rights under due process and equal protection theories, provided the necessary stepping stones for the Court’s 1983 opinion in Lehr, 463 U.S. 248, which focused upon the right to notice in an adoption proceeding.
Jonathan Lehr, an unwed father, was not given actual notice of his 2-year-old child’s proposed adoption and sought to have it declared void because the lack of notice violated his constitutional rights to due process and equal protection. During his child’s life, Lehr did nothing to protect his legal interest; he filed no legal actions and did not file with New York’s putative father registry.
In discussing whether Lehr had a liberty interest, the Court reaffirmed its holdings in Caban, Quilloin, and Stanley, noting that a mere biological connection did not give rise to a liberty interest. Lehr, 463 U.S. at 261. Further echoing its previous holdings, the Court emphasized the natural father’s opportunity ripens into a liberty interest only when he “grasps that opportunity and accepts some measure of responsibility for the child’s future.” 463 U.S. at 262. The Court warned that if the father “fails to do so, the Federal Constitution will not automatically compel a State to listen to his opinion of where the child’s best interests he.” 463 U.S. at 262.
Throughout the opinion, the Court continued to emphasize the “constitutional importance of the distinction between an inchoate and a fully developed relationship.” 463 U.S. at 261 n.17. Comparing Stanley and Caban, in which the Court recognized a developed parent-child relationship, with Quilloin, in which the relationship was not recognized, the Court contrasted the strength of the resulting due process protection:
“When an unwed father demonstrates a full commitment to the responsibilities of parenthood by ‘com[ing] forward to participate in the rearing of his child,’ [citation omitted], his interest in personal contact with his child acquires substantial protection under the Due Process Clause. . . . But the mere existence of a biological link does not merit equivalent constitutional protection.” 463 U.S. at 261.
The Court held Lehr did not have a fully protected interest, stating: “In this case, we are not assessing the constitutional adequacy of New York procedures for terminating a developed relationship. Appellant has never had any significant custodial, personal, or financial relationship with [his child], and he did not seek to establish a legal tie until after she was two years old.” (Emphasis added.) 463 U.S. at 262.
The majority did not expand upon the facts that gave rise to this conclusion. In contrast, the dissenting opinion focused upon Lehr’s efforts, discussing Lehr’s substantial attempts to develop a personal and financial relationship with his child and, albeit late, a legal relationship. The dissent explained that Lehr lived with the child’s mother during the pregnancy, and the mother acknowledged to friends and relatives that Lehr was the child’s father. After the child was bom, Lehr visited the hospital every day. The mother falsely told Lehr she had identified him as the child’s father on state forms.
Upon her discharge from the hospital, however, the mother thwarted any future relationship between Lehr and his child. Over the next 2 years, the mother attempted to conceal the child. Occasionally, Lehr would locate the mother and child, at which times he would visit the child to the extent the mother would allow. Each time, the mother would move again. At one point Lehr hired a detective agency when he was unable to locate his child. Through these efforts, he again made contact and learned that the mother had married. At that point, the mother threatened Lehr with arrest if he did not stay away. As a result, Lehr hired an attorney and requested visitation. During this time, Lehr’s offers of financial assistance had been refused.
As soon as Lehr threatened legal action, the mother’s husband initiated adoption proceedings with the mother’s consent. Lehr was not given notice of the proceeding, and, in a different court, he filed a petition requesting a determination of paternity, an order of support, and reasonable visitation privileges. At some point be fore the adoption was finalized, the mothers attorney advised the judge of the pending paternity action. The judge in the adoption proceeding stayed the paternity action, and, as a result of the stay, Lehr became aware of the adoption proceeding. Lehrs attorney then called the judge in the adoption proceeding and was advised the adoption had been finalized earlier in the day.
Apparently, none of these facts was relevant to the majority’s determination of the case because the majority did not mention Lehr’s efforts to establish a relationship with his child or the mother’s efforts to thwart the development of the relationship; the majority noted only that Lehr had not filed with New York’s putative father registry or otherwise protected his legal rights until after the adoption was filed. The Supreme Court’s focus was upon whether the state of New York had “adequately protected his opportunity to form such a relationship.” 463 U.S. at 262-63.
Considering New York’s statutes regarding notice requirements in adoption proceedings, the Supreme Court concluded the provisions adequately protected putative fathers and were designed to include “putative fathers who are likely to have assumed some responsibility for the care of their natural children. If this scheme were likely to omit many responsible fathers, and if qualification for notice were beyond the control of an interested putative father, it might be thought procedurally inadequate.” 463 U.S. at 263-64. The classifications into which most responsible fathers were deemed to fall included men who had married the mother, had been identified as the father by the mother in a sworn statement, had filed with the putative father registry, had been adjudicated as the father, had been identified as the father on the birth certificate, or had lived with the mother and child and held himself out as the father. Lehr was not a member of any of those classes.
Of these various classifications and available remedies, the district court had focused upon Lehr’s failure to file with New York’s putative father registry, a remedy totally within his control, and concluded he was not entitled to notice because he had not registered. On appeal, the Supreme Court concluded that imposing a registration requirement was not “arbitrary” because strict compliance with the procedure furthered the State’s legitimate interest in facilitating adoptions. The court noted an open-ended notice requirement would burden adoptions, threaten the unwed birth mother s privacy, and impair the finality of adoptions. Given those goals, the Court rejected an argument that ignorance of the registry should excuse the failure to file a putative father notice. 463 U.S. at 264-65.
Ultimately, the Supreme Court determined there were steps that Lehr could have taken that made “the right to receive notice . . . completely within [Lehr’s] control,” and his failure to take advantage of available legal procedures doomed his assertion that he had fully seized the opportunity to establish a relationship with his child. See 463 U.S. at 264; see also Quilloin, 434 U.S. 256 (holding Georgia statute requiring unmarried father to legitimate child in order to have veto authority over adoption did not deprive him of due process or equal protection rights).
The Court also rejected Lehr’s equal protection claim, reasoning that Lehr and the child’s mother were not similarly situated because the mother had had a custodial relationship with the child while Lehr had not. Lehr, 463 U.S. at 267-68.
Newborn Adoption Cases
Although Lehr and the other decisions of the Supreme Court provide guidance, none address a newborn adoption, leaving it to the state courts to determine how to measure whether a putative father of a newborn child has fully and completely grasped his opportunity to parent. See Note, He Said, She Said: Diverging Views in the Emerging Field of Fathers’ Rights, 46 Washburn L.J. 163, 180 (Fall 2006) (“Although the Supreme Court has offered guidance in cases involving unwed fathers and older children, it has been slow to address the rights of unwed fathers in newborn adoptions. . . . The Court’s reluctance suggests that it is currently 'unwilling to address the question of whether an unwed father has a legal interest in — and thus the right to veto the adoption of — a child he sired out of wedlock and with whom he has not yet had an opportunity to develop a relationship.’ ”); Resnik, Seeking the Wisdom of Solomon: Defining the Rights of Unwed Fathers in Newborn Adoptions, 20 Seton Hall Legis. J., 363, 389-90 (1996) (“The Supreme Court has avoided addressing the issue of newborn adoptions in its past unwed father decisions. . . . [Rjecent refusals to grant certiorari in [such] cases . . . indicate that the Supreme Court remains unwilling to address the question of whether an unwed father has a legal interest in — and thus the right to veto the adoption of — a child he sired out of wedlock and with whom he has not yet had an opportunity to develop a relationship” and “[t]he Supreme Court’s obstinacy has left the states wide latitude in crafting solutions to the dilemma posed by unwed fathers and newborn adoptions.”).
Two of the first newborn adoption cases to apply Lehrs requirement that the putative father must have taken some measure of the responsibility for the child’s future were Matter of Baby Girl S., 141 Misc. 2d 905, 535 N.Y.S.2d 676 (1988), aff'd without op. 150 A.D.2d 993, 543 N.Y.S.2d 602 (1989), aff'd sub nom. Matter of Raquel Marie X., 76 N.Y.2d 387, 559 N.Y.S.2d 855, 559 N.E.2d 418, cert. denied sub nom. Robert C. v. Miguel T., 498 U.S. 984 (1990), and its companion, Matter of Raquel Marie X., 76 N.Y.2d 387.
New York’s highest court, considering the consolidated appeal of the two cases, first compared Caban with Quilloin and Lehr. From those cases, the New York court discerned that “it is apparent that the biological parental interest can be lost entirely, or greatly diminished in constitutional significance, by failure to timely exercise it or by failure to take the available legal steps to substantiate it.” 76 N.Y.2d at 402. Based upon this concept, the New York court concluded that the father of a newborn child is entitled to constitutional protection of his rights “so long as he promptly avails himself of all the possible mechanisms for forming a legal and emotional bond with his child.” (Emphasis added.) 76 N.Y.2d at 402; see also Matter of Robert O. v. Russell K., 80 N.Y.2d 254, 263, 590 N.Y.S.2d 37, 604 N.E.2d 99 (1992) (father must “ promptly take[] every available avenue to demonstrate that he is willing and able to enter into the fullest possible relationship with his child’ ”). In Matter of Baby Girl S. and Matter of Raquel Marie X., the court determined the putative fathers in both cases had met this standard. 76 N.Y.2d at 402-03.
The tests formulated by other courts have been similar, although most have stopped short of the New York requirement that all available opportunities must have been seized. E. g., Adoption of Kelsey S., 1 Cal. 4th 816, 849, 4 Cal. Rptr. 2d 615, 823 P.2d 1216 (1992) (father must “promptly come forward and demonstrate a full commitment to his parental responsibilities”); In re Adoption of B.G.S., 556 So. 2d 545, 550 (La. 1990) (father of newborn child must “demonstrate that he is fit and committed to the responsibilities of parenthood” and “show that he has taken concrete actions to grasp his opportunity to be a father”); Heidbreder v. Carton, 645 N.W.2d 355, 372-73 n.12 (Minn.), cert. denied 537 U.S. 1046 (2002) (father must “affirmatively demonstrate a commitment” to parenting responsibilities; merely maintaining contact with mother by e-mail, contacting attorney, and attempting to locate mother does not indicate an “intent to rear the child”); In re Dixon, 112 N.C. App. 248, 251, 435 S.E.2d 352 (1993) (father must discover birth of child and take statutory steps to demonstrate his commitment to child); In re Baby Boy K., 546 N.W.2d 86, 97 (S.D. 1996) (“Because children require early and consistent nurturing of their emotional as well as physical needs, an unwed father must act quickly to grasp the opportunity interest in his biological child.”); In re Adoption of B.V., 33 P.3d 1083, 1086 (Utah App. 2001) (unwed biological father “ ‘ “must fully and strictly comply” with statutory conditions or “ ‘ “is deemed to have waived and surrendered any right in relation to child” ’ ”; he must initiate proceeding to establish paternity, and if he has knowledge of the pregnancy, pay reasonable amount of expenses); In re C.L., 178 Vt. 558, 560-61, 878 A.2d 207 (2005) (father must assume responsibilities in “reasonable” time and reasonableness judged from the perspective of the child’s needs); Pamess, Participation of Unwed Biological Fathers in Newborn Adoptions: Achieving Substantive and Procedural Fairness, 5 J. L. & Fam. Stud. 223, 229-30 (2003) (“paternity standards often require that proof of biological ties be accompanied by some conduct prior to birth or around the time of birth that evinces "a settled purpose to assume parental duties’ ”; “unwed fathers who step up at birth to raise their children can be too late, as they may have failed to provide adequate prebirth sup port, at times even [though] their attempts were thwarted by unwed mothers”); Buchanan, The Constitutional Rights of Unwed Fathers Before and After Lehr v. Robertson, 45 Ohio St. L.J. 313, 364 (1984) (“The need for early assurance of permanence and stability is an essential factor in the constitutional determination of whether to protect a parent’s relationship with his or her child. The basis for constitutional protection is missing if the parent seeking it does not take on the parental responsibilities timely.”).
The outcomes in these cases are not perfectly consistent, given variability in fact situations and state laws. See Pamess, 5 J. L. & Fam. Stud, at 237. Some states limit the time period during which an adoption can be set aside, regardless of the circumstances; some require statutory compliance with procedures such as filing with a putative father registry; and others specify criteria to be used in judging motions to set aside.
Despite these differences, as we synthesize these holdings, common factors emerge. In general, a putative father has a liberty interest affording a right to notice of proceedings to adopt his newborn child if he: (1) diligently took affirmative action that manifested a full commitment to parenting responsibilities and (2) did so during the pregnancy and within a short time after he discovered or reasonably should have discovered that the biological mother was pregnant with his child.
Regarding the first factor, to determine if a natural father of a newborn child has taken diligent, affirmative action, courts measure the putative father’s efforts to make a financial commitment to the upbringing of the child, to legally substantiate his relationship with the child, and to provide emotional, financial, and other support to the mother during the pregnancy. Following the holdings in Quilloin and Lehr, often courts have required the father to use those legal mechanisms within his control that would entitle him to notice under the state’s statutes, i.e., acknowledge or prove paternity, agree to a support order, or file with a putative father registry, and have done so even if a statute does not specify that adherence is required. E.g., Allen v. Allen, 48 F.3d 259 (7th Cir. 1995) (no constitutional infirmity in state court proceedings in which biological father was excluded because he had failed to es tablish parentage according to state law); In re Adoption of S.J.B., 294 Ark. 598, 745 S.W.2d 606 (1988) (failure of father to inquire into possibility of pregnancy or bring paternity action meant no due process interest); D.L.G., Sr. v. E.L.S., 774 S.W.2d 477 (Mo. 1989) (due process did not require notice of adoption where biological father failed to legally establish paternity); Friehe v. Schaad, 249 Neb. 825, 545 N.W.2d 740 (1996) (failure to file notice of intent to claim paternity within 5 days of child’s birth as required by statute curtailed father’s rights in adoption proceedings).
This principle has been applied in many cases where the father was unaware of the child’s existence. See, e.g., In re Adoption of S.J.B., 294 Ark. 598, 600, 745 S.W.2d 606 (1988) (although father unaware of child, notice of adoption proceeding not constitutionally required when “biological father was not interested enough in the outcome of his sexual encounter ... to even inquire concerning the possibility of her pregnancy”); In re Zacharia D., 6 Cal. 4th 435, 452-53, 24 Cal. Rptr. 2d 751, 862 P.2d 751 (1993) (biological father unaware of paternity until child 15 months old not constitutionally entitled to reunification services); In re Tinya W., 328 Ill. App. 3d 405, 409-10, 765 N.E.2d 1214, 1218 (2002) (court properly found father unfit based on failure to provide any financial or emotional support to child, despite father’s lack of awareness of paternity); In re Paternity of Baby Doe, 734 N.E.2d 281 (Ind. App. 2000) (State’s interest in child’s early permanent placement precludes father from contesting adoption when unaware of paternity, not timely included on putative father registry).
The second factor — timeliness or promptness of the father’s action — has been emphasized, often being cited as the most critical factor. In a newborn adoption, the father’s opportunity to make a commitment to parenting must have been grasped during the pregnancy and in a prompt and timely manner as measured by the fleeting opportunity availed to the father under the circumstances of the case, in other words, within a short time after he discovered or reasonably should have discovered that the mother was pregnant with his child.
The need for promptness reflects the reality of the newborn adoption situation; which provides the father with only a limited time in which to act. Petition of Steve B.D., 112 Idaho 22, 25, 730 P.2d 942 (1986). The necessity of promptness results from two primary considerations. First, in a newborn adoption case, the window of opportunity for a father to have grasped an opportunity interest is constrained by the biological reality that the mother bears the child during pregnancy. As one court noted, during a pregnancy a mother must make many important decisions including whether to have an abortion, prepare an adoption plan, or keep the child. Recognizing that the natural mother, in making these decisions, “may well need emotional, financial, medical, or other assistance,” the court concluded the natural father, as one of two people responsible for the pregnancy, must have “ ‘promptly’ demonstrated a ‘full commitment’ to parenthood during pregnancy and within a short time after he discovered or reasonably should have discovered that the biological mother was pregnant with his child.” Adoption of Michael H., 10 Cal. 4th 1043, 1054, 43 Cal. Rptr. 2d 445, 898 P.2d 891 (1995), cert. denied sub nom. Mark K. v. John S., 516 U.S. 1176 (1996). While a father cannot assume the physical aspects of pregnancy, he may assist with the financial and emotional aspects of the pregnancy and assure the mother of his commitment to fully assume parenting responsibilities both during the pregnancy and throughout the child’s lifetime, including being a sole parent if necessary.
The second reason a natural father’s actions must be timely was emphasized in Lehr v. Robertson, 463 U.S. 248, 263-64 n.20, 77 L. Ed. 2d 614, 103 S. Ct. 2985 (1983): States have an interest in being able to determine as early as possible in a child’s life the rights, interests, and obligations of all parties, in eliminating the risk of unnecessary controversy that might impair the finality of an adoption, in encouraging adoptions, in protecting the adoption process from unnecessary controversy and complication, and in protecting the privacy and liberty interests of the natural mother and all parties to the adoption. As the California court stated in Adoption of Michael H.:
“[I]f an unwed father is permitted to ignore his parental role during pregnancy but claim it after birth, it will often be very difficult to know with certainty whether he will be able to successfully contest an adoption until after the child is bom. This uncertainty could well dissuade prospective adoptive parents from attempting to adopt the children of unwed mothers who . . . have chosen for whatever reason not to keep their child and raise it themselves. And that result would frustrate the state’s clear interest in encouraging such adoptions and providing stable homes for children. [Citations omitted.]” 10 Cal. 4th at 1056.
In addition, the finalization of an adoption gives rise to a legal relationship between the adoptive parents and the child, creating liberty interests. See Smith v. Organization of Foster Families, 431 U.S. 816, 844 n.51, 53 L. Ed. 2d 14, 97 S. Ct. 2094 (1977) (adoptive parenthood is “legal equivalent of biological parenthood”); K.S.A. 38-1111 (“parent and child relationship” defined as “the legal relationship existing between a child and the child’s biological or adoptive parents”).
In this case, M.P. did not diligently take affirmative action that manifested a full commitment to parenting responsibilities during the pregnancy and within a short time after he discovered N.T. was pregnant with his child. In fact, M.P. does not suggest he took affirmative steps that demonstrated his commitment to parenting. His only suggestion regarding his assumption of parental duties is a statement in his brief that “N.T. knew M.P. would have done anything N.T. asked to support her during her pregnancy.” However, standing ready and being willing to provide support is insufficient; parenting responsibilities must be assumed; affirmative action must be taken. Furthermore, the record does not evidence any support, financial or otherwise, being provided, with the exception of some insignificant financial payments of $200 for airfare and “$20 here, $20 there.”
Tellingly, M.P. offers no explanation of his failure to act during the time between his learning of the pregnancy and N.T.’s he about the abortion, the period when N.T. was making decisions regarding adoption. Later, there was no attempt to locate N.T., confirm the pregnancy, substantiate his legal rights, or take other action even though the district court found that M.P. “should have known and did suspect [N.T.] was still pregnant with his child and she gave birth to his child.”
M.P. failed to grasp the fleeting opportunity available to him to establish a firm commitment to parenting.
Fraud
M.P. suggests, however, that these considerations do not apply when the father’s ability to commit to fatherhood is thwarted by the mother’s actions. He suggests the calculus changes from a biology-plus-developed-parenting-relationship formula to a biology-plus-fraud formula when the natural mother is an active agent in preventing actual notice to the natural father.
This issue has not been addressed directly by the United States Supreme Court. Clearly though, in Lehr, the majority did not consider the mother’s efforts to thwart the father as even deserving of mention. In contrast, the mother’s actions were a focus of the dissenting opinion and explain much of the difference in analysis between the two opinions. Nevertheless, the Lehr majority did note “[t]here is no suggestion in the record that [the mother] engaged in fraudulent practices that led [the father] not to protect his rights.” 463 U.S. at 265 n.23. Thus, the question of whether fraud would change the Supreme Court’s view was left unanswered.
State courts have faced the issue, however. The cases reflect that mothers, with some frequency and for a variety of reasons (many of which are very weighty), fail to provide information regarding the putative father or provide inaccurate information. Gonzalez, The Rights of Putative Fathers to Their Infant Children in Contested Adoptions: Strengthening State Laws that Currently Deny Adequate Protection, 13 Mich. J. Gender & L. 39, 67-68 (2006) (discussing personal safety, privacy interests of mother, and other considerations). When this happens, competing interests are pitted against each other, including the mother’s constitutionally protected privacy interest. See Evans v. S.C. Dept. of Social Security, 303 S.C. 108, 110, 399 S.E.2d 156 (1990); Note, The Unwed Father and the Right to Know of His Child’s Existence, 76 Ky. L. J. 949 (1988); Gonzalez, 13 Mich. J. Gender & L. at 67-68.
Although there are variances, in general, the cases have not focused upon the natural mother’s intent, the reason she was not forthcoming, whether the fraud was concealment by silence (simply failing to inform the father or the court of information) or active (knowingly misstating information), or whether the fraud was in trinsic or extrinsic. Rather, the analysis has focused upon whether the State is justified in ending the putative father’s opportunity to develop a relationship and in recognizing the finality of the adoption even though the father’s opportunity was burdened and truncated by the birth mother’s fraud.
In general, the cases conclude that as long as the state’s statutes provide a process whereby most responsible putative fathers can qualify for notice in an adoption proceeding, the interests of the State in the finality of adoption decrees, as discussed in Lehr— providing a child stability and security early in life, encouraging adoptions, protecting the adoption process from unnecessary controversy and complication, and protecting other parties’ privacy and liberty interests — justify a rule that a putative father’s opportunity to develop a parenting relationship ends with the finalization of a newborn child’s adoption even if the reason the father did not grasp his opportunity was because of the mother’s fraud. See Lehr, 463 U.S. at 264-65.
This conclusion is supported by the decision in Matter of Robert O. v. Russell K., 80 N.Y.2d 254, 590 N.Y.S.2d 37, 604 N.E.2d 99 (1992). In that case, New York’s highest court concluded a putative father who had assumed no responsibility during a pregnancy did not have a due process interest even though the father was unaware of the child’s birth until after the adoption had been finalized. The natural parents were living together at the time of conception but, soon thereafter, the father moved out and terminated contact with the mother. The mother did not inform the father of the pregnancy, apparently because she did not want him to believe she was trying to coerce him into reconciliation. The mother placed the child for adoption. Later, the natural parents reconciled and married. Then, 18 months after the birth and 10 months after the adoption was finalized, the mother ended her fraud by silence and told the father of his child. As in this case, once learning of his child’s birth, the father immediately and diligently took action to assert his legal connection with the child.
The New York court concluded, however, that this was too late and rejected the father’s suggestion that “the Constitution also protects the custodial opportunity of the ‘unknowing’ unwed father who does nothing to manifest his parental willingness before placement because he is unaware of the child’s existence.” 80 N.Y.2d at 262-63. The court emphasized that “the opportunity, of limited duration, to manifest a willingness to be a parent . . . becomes protected only if grasped.” 80 N.Y.2d at 265. The court concluded:
‘‘[T]he timing of the father s actions is the ‘most significant’ element in determining whether an unwed father has created a liberty interest. [Citation omitted.] States have a legitimate concern for prompt and certain adoption procedures and their determination of the rights of unwed fathers need not be blind to the ‘vital importance’ of creating adoption procedures possessed of ‘promptness and finality,’ promoting the best interests of the child, and protecting the rights of interested third parties like adoptive parents (Lehr v. Robertson, [463 U.S.] at 263-66 n.25). Recognizing those competing interests — all of which are jeopardized when an unwed father is allowed to belatedly assert his rights . . . the period in which the biological father must manifest his parental interest is limited in duration: if the father’s actions are untimely, the State can deny a right of consent. . . .
“To conclude that petitioner acted promptly once he became aware of the child is to fundamentally misconstrue whose timetable is relevant. Promptness is measured in terms of the baby’s life not by the onset of die father’s awareness. The demand for prompt action by the father at the child’s birth is neither arbitrary nor punitive, but instead a logical and necessary outgrowth of the State’s legitimate interest in the child’s need for early permanence and stability.” 80 N.Y.2d at 264.
In Matter of Robert O., the majority and concurring opinion debated whether the opportunity was a constitutionally protected interest subject to a balancing of interests under a traditional due process test or was merely an opportunity that became extinguished once the adoption was finalized. The majority adopted the latter view because the inchoate interest had never ripened into a liberty interest. 80 N.Y.2d at 265. Compare Lehr, 463 U.S. at 270 (White, J., dissenting) (criticizing majority for using weight rather than nature of interest at stake) with Wells v. Childrens Aid Soc. of Utah, 681 P.2d 199 (Utah 1984) (using balancing to determine strength of protection to be afforded biological father), and Adoption of Michael H., 10 Cal. 4th at 1055 (weighing various interests when determining whether father promptly and diligendy grasped opportunity to parent).
The South Dakota Supreme Court adopted a similar rationale in In re Baby Boy K., 546 N.W.2d 86 (S.D. 1996), a case where the natural mother misrepresented the natural father’s identity to the court:
“When a putative father is ignorant of his parenthood due to his own fleeting relationship with the mother and her unwillingness to later notify him of her pregnancy, the child should not be made to suffer. The trial court in this case was faced with a child who was unwanted by his mother and unknown to his father. After sixty days had passed and no one had asserted a paternal interest, the State’s obligation to provide this unwanted and unclaimed child with a permanent, capable, and loving family became paramount. [Father’s] assertion, another month later, that Mother should have told him if he happened to father a child, cannot overcome the State’s fully matured interest in protecting the child’s permanent home.
“We also note Mother’s alleged dishonesty was a private act in which the State was also deceived. [Father] cannot claim illegal state action where the State was itself a victim rather than a perpetrator. [Citation omitted.]” 546 N.W.2d at 101.
Yet another example of a case using a similar analysis is Petition of Steve B.D., 112 Idaho 22, a case relied upon by the adoptive parents in this case. In Steve B.D., the natural mother misrepresented the identity of the natural father to the court. The father was aware of the child’s birth, but the mother engaged in an elaborate scheme to hide the adoption proceeding from the father. At the same time, she hid the father’s identity from those involved in the adoption.
In considering whether the father had a liberty interest, the Idaho court did not allow the mother’s deceptions to serve as an excuse for the father’s failure to establish a relationship with his child:
“As previously observed, a violation of the Fourteenth Amendment cannot be premised upon the independent actions of a private individual. The essential fact is that [the father] failed to initiate either contact with the child or any legal actions to establish his interest, whether or not [the father] was to blame for these failures.” 112 Idaho at 26.
The court emphasized that an unwed father’s “fleeting opportunity may pass ungrasped through no fault of the unwed father or perhaps due to the interference of some private third party; nevertheless, once passed, the unwed father is left without an interest cognizable under the Fourteenth Amendment.” 112 Idaho at 25 (citing Lehr, 463 U.S. at 267-68).
Finally, the court noted that the adoption proceedings had progressed for 4 months by the time the father asserted his desire to parent the child. Balancing the various interests, the court concluded the adoption should not be set aside:
“By that point, the time had passed for [the father] to assert an interest in a relationship with the child sufficient to reverse the already well-advanced adoption proceedings and sever the already well-established bond between baby and adoptive parents. To effectively assert an ‘opportunity’ interest, an unwed father must act early in proceedings on custody and adoption. [Citation omitted.].” 112 Idaho at 26.
Almost 20 years later, in Doe v. Roe, 142 Idaho 202, 127 P.3d 105 (2005), the Idaho Supreme Court again rejected an unwed natural father’s assertion of his interest in his child because of his failure to establish his rights, either pursuant to statute or by timely establishment of a relationship. 142 Idaho at 206.
Roe involved a child bom during the mother’s marriage to a man other than the natural father. The mother and her husband were later divorced. During the divorce proceeding, the husband learned he was not the natural father of the child; he therefore filed an action to adopt the 4-year-old child and to terminate the parental rights of the natural father. At the mother’s encouragement, the natural father took a paternity test, which established that he was the child’s biological father. He then objected to termination of his rights, claiming he did not assert an interest earlier because he was unaware the child was his.
A magistrate judge determined that the absence of natural father’s previous contact with the child was “ legitimate’ ” and “ ‘for just cause, as [Father] believed the child was not his as he was repeatedly told so by [Mother].’ ” 142 Idaho at 205.
The Idaho Supreme Court reversed. The court relied upon its earlier analysis in Steve R.D. and determined the natural father’s opportunity interest had passed ungrasped. Roe, 142 Idaho at 206-07. It noted that there was no dispute that the natural father had engaged in regular sexual contact with the mother within a couple of weeks of the estimated date of conception, that the mother told the natural father by telephone immediately after she found out she was pregnant, and that he was aware when the child was bom. At a minimum, therefore, the natural father was aware of the strong possibility of his biological link to the child. Despite this, he “did absolutely nothing to definitively determine whether the child was his, pay support for the child and assert his parental rights” for 4 years. 142 Idaho at 206.
Under similar rationales, several other courts have rejected fraud or deception as a substitute for showing that a parenting relationship had been established by an unwed father. E. g., Matter of Juvenile Action No. JS-8490, 179 Ariz. 102, 106, 876 P.2d 1137 (1994) (stating the requirement that an unwed father grasp his opportunity interest “includes investigating the possibility that the child might be his”); Adoption of G., 529 A.2d 809 (Me. 1987) (even though biological father sent letter approximately 3 weeks after birth to judge in adoption proceeding, court determined best interests of child weighed in favor of allowing child to stay with adoptive parents); State ex rel T.A.B. v. Corrigan, 600 S.W.2d 87, 91-92 (Mo. App. 1980) (holding mother had no obligation to reveal identity of father of illegitimate child placed for adoption where father had not asserted his paternity); Matter of Child Whose First Name is Baby Girl, 206 A.D.2d 932, 933, 615 N.Y.S.2d 800 (1994) (holding “the attempt by the father to measure the timeliness of his parental efforts from the date he contends he became aware of the existence of the child is not supported in law”); Matter of Adoption of A.M.B., 514 N.W.2d 670, 673 (N.D. 1994) (mother’s attempts to frustrate father’s visitation with illegitimate child do not alone excuse the noncustodial parent from efforts to build a relationship with the child); Hylland v. Doe, 126 Or. App. 86, 93-94, 867 P.2d 551, rev. denied 318 Or. 478 (Or. 1994) (ruling that mother’s concealment of newborn child’s whereabouts did not excuse father of his obligation to timely assert his paternity in accordance with Oregon law); Evans, 303 S.C. 108 (birth mother’s privacy interest in not revealing identity of biological father outweighs other interests; John Doe notice allowed).
Summarizing the rationale expressed in these cases, one commentator noted: “Blood gives the father the absolute first chance to perform the constitutional duties [of parenting]. If he fails, regardless of his blamelessness, the critical requirement of stability for the child precludes a second chance.” Buchanan, The Constitutional Rights of Unwed Fathers Before and After Lehr v. Robertson, 45 Ohio St. L.J. 313, 368 (1984).
On the other hand, there are cases in which courts have ruled in putative fathers’ favor. Generally, however, there was some circumstance that caused the interests to balance differently. For example, in some cases the adoption was not finalized or the adoptive parents were aware there were questions about the father’s identity when they assumed custody or shortly thereafter. See, e.g., In re Petition of Doe, 159 Ill. 2d 347, 350-51, 638 N.E.2d 181, cert. denied 513 U.S. 994 (1994) (when assuming temporary custody prospective adoptive parents knew birth mother was refusing to disclose biological father’s identity; and father’s-identity, desire to parent, and refusal to consent was known 57 days later). Similarly, if the father made efforts to provide financial or emotional support or to protect his legal interests but the attempts were futile because of factors outside his control, the balance may shift. See, e.g., Doe v. Queen, 347 S.C. 4, 552 S.E.2d 761 (2001) (court order prevented father’s contact with mother but father placed support payments in savings account); Nale v. Robertson, 871 S.W.2d 674 (Tenn. 1994) (father timely filed notice with putative father registry but adoption agency did not learn of notice; adoptive parents told of father’s identity 3 months after child’s birth). Rarely, however, have the mother’s actions alone been sufficient to shift the balance of interests to the point the court determined the State was not justified in ending the father’s opportunity to assert his right to parent.
Kansas Adoption Statutes
With this discussion of cases in mind, we turn to the Kansas Adoption and Relinquishment Act, K.S.A. 59-2111 through K.S.A. 59-2144, and the specifics of this case.
The general rule of the Kansas Adoption and Relinquishment Act is that the consent or relinquishment of both known natural parents is required for an adoption. See K.S.A. 59-2129 (consent to adoption shall be given by living parents of child); K.S.A. 59-2124 (relinquishment of child to agency must be accompanied by form executed by both parents). Departure from this general rule is permitted only if specific statutory requirements are met. See In re Adoption of X.J.A, 284 Kan. 853, 881, 166 P.3d 396 (2007) (statutorily required consent prerequisite to district court jurisdiction to render valid adoption decree); In re Adoption of Trent, 229 Kan. 224, 228, 624 P.2d 443 (1981) (consent by the natural parents to adoption of their child is essential requisite to jurisdiction on part of court to render a valid decree of adoption; although invalidly acknowledged in Missouri before a Kansas notary public, where consent freely and voluntarily given and was executed in substantial compliance with statutory requirements, consent valid); In re Marsolf 200 Kan. 128, 131-32, 434 P.2d 1010 (1967) (“It is well settled that 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.”) (citing In re Thornton, 184 Kan. 551, 337 P.2d 1027 [1959]; 2 Am. Jur. 2d, Adoption §§ 24, 70; 2 C.J.S., Adoption of Children §§ 18, 45c); In re Sharp, 197 Kan. 502, Syl. ¶ 2, 419 P.2d 812 (1966) (consent of natural parents required unless clearly proved facts warrant exception).
Here, N.T. relinquished custody to the adoption agency, but M.P. neither consented to the adoption nor relinquished custody. In such a case, K.S.A. 59-2136(e) requires a petition to terminate the father’s parental rights.
Addressing the right to notice of the proceedings, the statute provides that “[i]n an effort to identify the father, the court shall determine by deposition, affidavit or hearing” if any man (1) is a presumed father under K.S.A. 38-1114, (2) has been determined the father by a court, (3) would be considered a father as to whom the child is a legitimate child under any state’s laws, (4) has provided or has promised to provide support to the mother during the pregnancy or to the child after birth, (5) cohabitated with the mother at the time of conception or at birth, or (6) has formally or informally acknowledged or declared possible paternity. K.S.A. 59-2136(e).
These provisions, like the New York statutes considered in Lehr, place several mechanisms within a man’s control which, if exercised, entitle him to notice of adoption proceedings. In addition, these categories, like those in New York, are likely to cover responsible fathers who have stepped forward to assume parenting responsibilities.
There is no showing that any of these mechanisms was utilized by M.P., explaining why he bases his arguments on a constitutional, rather than statutory, right to notice.
New York Procedures
In addition to the Kansas procedures that were available to M.P., Kansas law grants full faith and credit to any proceedings or actions taken under the laws of another state. K.S.A. 38-1114(d). Hence, under the unique facts of this case, M.P. could have availed himself of legal protections available in New York — the state of his domicile, the location of the child’s conception, N.T.’s location when M.P. first learned of the pregnancy, and the location to which N.T. promised to return. This means M.P. could have utilized the putative father registry as discussed in Lehr, 463 U.S. 248. See Matter of Robert O., 80 N. Y.2d 254 (father who failed to, inter alia, register with putative father registry cannot vacate adoption even though unaware of child’s birth). In addition, New York allows paternity proceedings to be “instituted during the pregnancy of the mother.” 29A Judiciary, Family Court Act § 517 (McKinney 1999).
M.P.’s use of these procedures might not have guaranteed he would receive notice in Kansas. Yet, cases from other jurisdictions illustrate that a putative father may develop a liberty interest or at least strengthen his argument that he has a liberty interest by attempting to utilize the procedure of his home state even though the mother moved to another state.
For example, in Pena v. Mattox, 880 F. Supp. 567 (N.D. Ill.1995), both the father and mother were residents of Illinois. The mother was taken to Indiana to give birth, and the child was placed for adoption in Indiana. The father did not know of the child’s birth or the initiation of adoption proceedings. When he became aware of the adoption he brought an action for relief under 42 U.8.C. § 1983 and for other causes of action. The federal court granted the defendants’ motion to dismiss, finding the father did not have a liberty interest because he failed to seize opportunities to develop a relationship with his child. 880 F. Supp. 570-74.
In reaching this conclusion, the court concluded the fact the putative father “now may stand ready to accept the responsibilities of a father” was not a sufficient basis for the court to find a constitutionally protected liberty interest. 880 F. Supp. at 574. Instead, what was determinative was that the father failed to use the procedures of either Indiana or Illinois. The court noted the father could have brought a paternity action in Illinois, his home state, as soon as he was aware of the pregnancy and before the mother and her family prevented him from knowing about the child’s location or adoption. In addition, he had several procedures available to him in Indiana, including a registry and paternity proceedings. 880 F. Supp. at 572-73.
Responding to the father’s arguments regarding the procedural and substantive difficulties he would have faced if he pursued these procedures, the court stated:
“It is important to note that this Court does not measure the constitutional interests present in this case by asking whether [the father] could have successfully established and protected his parental rights, however defined or limited. In the proper analysis, our focus is on the process established and available to [the father] to assert his rights in Illinois and Indiana, not on whether [he] could have succeeded in obtaining custody, visitation or any other rights of a parent.” 880 F. Supp. at 573.
Ultimately, his failure to act promptly meant “he lost the wondrous opportunity and massive responsibilities of fatherhood.” 880 F. Supp. at 574.
In a second case involving the procedures of multiple states, Heidbreder v. Carton, 645 N.W.2d 355 (Minn. 2002), the mother moved from Iowa — where the child was conceived — to Illinois and later Minnesota — where the child was bom and placed for adoption. Although the mother maintained e-mail contact with the father, she did not tell him where she was and instmcted her family and friends not to give him any information about her location. The father was aware of the pregnancy and had expressed his desire that the child not be placed for adoption. The mother had told him she would never do this. The father met with an attorney to discuss visitation and child support, and the two of them discussed hiring a private investigator to find the mother. The father, however, took no steps to locate the mother. Nor did he initiate a paternity action or register with the Iowa Declaration of Paternity Registry.
In filling out the birth certificate information, the mother left blank the space for the father s name. Adoption proceedings were initiated, and the adoptive parents took the child home from the hospital. Thirty-one days after the child’s birth, the natural father learned of the birth. Through a website, the father learned of the Minnesota Fathers’ Adoption Registry and completed and mailed the necessary forms. The forms were postmarked 31 days after the birth; the law required fathers to register within 30 days of the birth. Alternatively, if a father filed a paternity action within 30 days of the child’s birth and the action was still pending at the time of an adoption, he would gain rights in the adoption. The father in Heidbreder had not taken this step.
Because the father had failed to avail himself of the legal remedies in a timely fashion, the Minnesota Supreme Court held he was not entitled to notice of the adoption proceeding. 645 N.W.2d at 366-67, 369-70. Although the focus of the decision was on the father’s failure to comply with Minnesota requirements, the court also noted that the father could have taken steps in his home state of Iowa to assert paternity. Exercising the option “would have put [the father] in a position to argue he established a sufficient commitment to warrant due process protections” even if there were procedural problems with fully prosecuting such an action in the mother’s absence from the jurisdiction. 645 N.W.2d at 376. The court also discussed the impact of the Iowa registry. The court noted that if the father had registered in Iowa he would not have automatically been entitled to notice in the Minnesota proceeding but, like with the paternity action, it might have created a due process interest. Although the court did not decide the question because the father had not registered in Iowa, it stated: “If registration with an adoption registry in any state is, by itself, sufficient to demonstrate a substantial commitment to the child, then arguably a putative father is entitled to due process protection regard less of whether state law recognizes such registration.” 645 N.W.2d at 376 n.16.
In contrast, where a father utilized the procedure of his home state, even though unsuccessfully, the court held he had established a liberty interest. In In re M.N.M., 605 A.2d 921 (D.C. 1992), the mother hid the location of the child and the adoption proceeding from the natural father. One week after the child’s birth, the father filed a paternity action which led to him deposing the natural mother and the child’s natural grandfather (the mother’s father) in a futile attempt to determine where the adoption proceeding was filed. Having a suspicion the proceeding was filed in the Washington, D.C., area, the natural father sent letters to judges in Maryland, Virginia, and the District of Columbia. Based upon these efforts and attempts to protect his legal rights, the court held the father had established a liberty interest. See 605 A.2d at 927-30.
Finalization of A. AT.’s Adoption
In this case, M.P. did not utilize the legal procedures available to him in New York, nor did he pursue any procedures in Kansas, either during the first trimester of thé pregnancy or later when he suspected that N.T. was still pregnant. Both states had. established processes sufficient to protect his interest.
Having failed to protect himself, M.P.’s right to notice was contingent upon N.T. advising the court of sufficient information to result in actual notice. Instead of assuring M.P. received notice, N.T., by affidavit, provided a surname other than M.P.’s as the putative father and, as a result, M.P. was not identified as a possible father of the child.
Following the statutory procedure, the district court fulfilled its obligation to determine by affidavit the identity of tire father. Neither the court nor the parties to the adoption — the adoption agency and the adoptive parents — had any way of knowing the affidavit or the information N.T. provided the GAL was false. Thus, to all concerned, a putative father was identified.
Once identified, the putative father is entitled to notice under K.S.A. 59-2136(e)(6) (notice be given to “every person identified as a father or a possible father”); see also K.S.A. 59-2136(f). Notice is to be provided by certified mail “or in any manner the court may direct.” K.S.A. 59-2136(f). Because an exact address for the identified father was not given by N.T., notice by publication was allowed.
The statute provides further:
“(g) If, after the inquiry, the court is unable to identify the father or any possible father and no person has appeared claiming to be the father and claiming custodial rights, the court shall enter an order terminating the unknown father’s parental rights with reference to the child without regard to subsection (h). If any person identified as the father or possible father of the child fails to appear or, if appearing, fails to claim custodial rights, such person’s parental rights with reference to the child shall be terminated without regard to subsection (h).” K.S.A. 59-2136(g).
In reliance upon this provision, after the court utilized the statutory procedures to identify the putative father, the adoption of A.A.T. was finalized based upon the court’s and parties’ belief that the father had been identified but had not appeared.
Under the statute, if a father does not appear, the father’s rights shall be terminated and, thereby, the adoption can be finalized. By calling for the termination of parental rights, the provision brings finality to the adoption.
A different procedure applies if the mother identifies the putative father, notice is given, and the father enters an appearance in the adoption proceeding. If the father appears and asserts parental rights, several rights attach, including the right to appointed counsel and a hearing regarding whether paternal rights can be terminated. K.S.A. 59-2136(h) defines the criteria to be applied in the termination proceeding.
When applying K.S.A. 59-2136(h), Kansas appellate courts have strongly endorsed the parental preference doctrine, required strict compliance, and diligently enforced the clear and convincing evidence standard. See, e.g., In re Adoption of X.J.A., 284 Kan. at 881; In re Adoption of Baby Boy B., 254 Kan. 454, 456, 866 P.2d 1029 (1994); In re Adoption of F.A.R., 242 Kan. 231, 747 P.2d 145 (1987); In re Adoption of Trent, 229 Kan. at 228; In re Adoption of Baby Girl S., 29 Kan. App. 2d 664, 667, 29 P.3d 466 (2001) aff'd 273 Kan. 71, 41 P.3d 287 (2002); In re Adoption of Baby Boy S., 22 Kan. App. 2d 119, 912 P.2d 761, rev. denied 260 Kan. 929, cert. denied 519 U.S. 870 (1996); In re K.D.O., 20 Kan. App. 2d 559, 889 P.2d 1158 (1995); In re Baby Boy N., 19 Kan. App. 2d 574, 874 P.2d 680, rev. denied 255 Kan. 1001, cert. denied 513 U.S. 1018 (1994); In re Lathrop, 2 Kan. App. 2d 90, 575 P.2d 894 (1978).
Although M.P. makes it clear the provisions of K.S.A. 59-2136(h) are not at issue in this appeal, his arguments imply that Kansas’ parental preference doctrine should be given weight even after the adoption is finalized. His position creates a tension with the rights of the adoptive family and the State because voiding the adoption would be in derogation of the matured rights of the State and the adoptive family. See K.S.A. 38-1111 (defining “parent and child relationship” as “the legal relationship existing between a child and the child’s biological or adoptive parents.”); see also Smith v. Organization of Foster Families, 431 U.S. 816, 844 n.51, 845-46, 53 L. Ed. 2d 14, 97 S. Ct. 2094 (1977) (noting adoption was the “legal equivalent of biological parenthood” and holding that “liberty interests may in some cases arise from positive-law sources” making it “appropriate to ascertain from state law the expectations and entitlements of the parties”).
Undoubtedly, the human and emotional tensions of this case are enormous, creating sympathy for M.P.’s position and little doubt about the sincerity of his present desire for custody. Nevertheless, the critical fact remains that the opportunity to assert his interest in parenting slipped away without any involvement of the State. The interests of the State and the adoptive family justify a conclusion that M.P.’s opportunity to demonstrate his commitment to parenting passed without developing into a liberty interest.
We hold that M.P. did not have a liberty interest in a relationship with A.A.T. and that the State did not deny him the opportunity to establish such a relationship. Consequently, we affirm the district court’s conclusion that the adoption is not void.
Issue 2: Must the adoption be set aside because of fraud?
M.P.’s first alternative argument for setting aside the adoption decree is based on K.S.A. 60-260(b)(3), which provides that “fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party” can justify relief from a judgment. Fraud entitling a party to relief from a judgment under K.S.A. 60-260(b)(3) must be committed by an adverse party.
Although the typical standard of review for a district court’s application of the fraud rule under K.S.A. 60-260(b)(3) to a set of facts is abuse of discretion, see In re Marriage of Hampshire, 261 Kan. 854, 862, 934 P.2d 58 (1997); In re Marriage of Reinhardt, 38 Kan. App. 2d 60, 161 P.3d 235 (2007), we agree with M.P. that the question of whether N.T. was an “adverse party” involves statutory interpretation. This raises a preliminary question of law over which this court has de novo review. See In re K.M.H., 285 Kan. 53, 79-80, 169 P.3d 1025 (2007), cert. denied 129 S. Ct. 36 (2008).
M.P.’s argument that the “adverse party” language is meant to relate only to “other misconduct” and not to “fraud” is not persuasive. When this court is asked to interpret a statute, we first attempt to give effect to the intent of the legislature as expressed through the language enacted. If a statute is plain and unambiguous, as we find this to be, this court will neither speculate regarding legislative intent nor read the statute to add something not readily found in it. There is no need to resort to statutory construction. “It is only if the statute’s language or text is unclear or ambiguous that we move to the next analytical step, applying canons of construction or relying on legislative history construing the statute to effect the legislature’s intent.” 285 Kan. at 79 (citing CPI Qualified Plan Consultants, Inc. v. Kansas Dept. of Human Resources, 272 Kan. 1288, 1296, 38 P.3d 666 [2002]; State v. Robinson, 281 Kan. 538, 539-40, 132 P.3d 934 [2006]).
We see no ambiguity in the wording of K.S.A. 60-260(b)(3). It lists three ways in which relief from a court order may be obtained: fraud, misrepresentation, or other misconduct. Regardless of whether one reads the phrase “of an adverse party” to modify all three possibilities explicitly or only “other misconduct” explicitly, one ends up with the same interpretation. The legislature’s choice of listing implies equality among the elements in the list. The plain meaning of the words bears this out. Fraud certainly qualifies as misconduct; so does misrepresentation. “[Ojther misconduct of an adverse party” references the two other specifically stated types of misconduct. Its third position in the list also tells the reader that each of the three examples of misconduct in the list shares the modifying characteristic of the last, i.e., that it must be the misconduct “of an adverse party.”
We also note that the language of K.S.A. 60-260(b)(3) is identical to Rule 60(b) of the Federal Rules of Civil Procedure. Our interpretation is consistent with that of at least three federal circuit courts of appeals. See, e.g., Frederick v. Kirby Tankships, 205 F.3d 1277, 1287 (11th Cir. 2000) (to obtain relief under federal rule, the losing party must prove the prevailing party obtained verdict through fraud, misrepresentation, or other misconduct); Atkinson v. Prudential Property Co., Inc., 43 F.3d 367, 372-73 (8th Cir. 1994) (to prevail on motion to vacate judgment for fraud, movant must show, with clear and convincing evidence, that opposing party engaged in fraud or misrepresentation that prevented movant from fully and fairly presenting its case); Varden v. Danek Medical, Inc., 58 Fed. Appx. 137, 139 (6th Cir. 2003) (unpublished opinion) (not entitled to relief under federal rule because plaintiff s attorneys, of whose actions he complained, were not “adverse parties” to the action and motions were filed more than 1 year after court’s dismissal of judgment).
Adoptions are not perfectly analogous to the usual adversary proceedings in our courts. In this case, to the extent M.P. has an adverse party, that role is filled by the adoptive parents, who filed the petition for termination of M.P.’s parental rights. As noted above, the district court found that the adoptive parents and the adoption agency acted in good faith, and M.P. does not argue otherwise. N.T. had already voluntarily relinquished her parental rights and had surrendered custody of A.A.T. Under these circumstances, we affirm the district court’s decision that N.T. did not qualify as an “adverse parly” and that M.P. is not entitled to relief under K.S.A. 60-260(b)(3).
Issue 3: Must the adoption be set aside because of the discovery of new evidence?
M.P.’s second alternative argument is that K.S.A. 60-260(b)(2) allows a court to reheve a party from a final judgment when there is “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under K.S.A. 60-259.” K.S.A. 60-259 requires a motion for new trial within 10 days. Ten days after the final adoption decree, M.P. had not been told by N.T. of A.A.T.’s birth or adoption. Under K.S.A. 60-260(b)(2), newly discovered evidence must be so material that its introduction would have been likely to produce a different result. Further, M.P. bears the burden of proof to show that newly discovered evidence of N.T.’s lies and his fatherhood could not have been discovered before trial through his exercise of due diligence. See State v. Munyon, 240 Kan. 53, 63, 726 P.2d 1333 (1986); Plains Transport of Kansas, Inc. v. Baldwin, 217 Kan. 2, 8, 535 P.2d 865 (1975).
Our standard of review on this issue is abuse of discretion. In re Marriage of Hampshire, 261 Kan. at 862.
The district court denied relief under K.S.A. 60-260(b)(2) because, it said, M.P. “should have taken action to verify whether [N.T.] had an abortion.” M.P. asserts that “[tjhere was little, if anything, M.P. could have done to discover N.T. had lied to him about the abortion .... While the district court in its decision stated M.P. had numerous ‘red flags,’ there was simply no reasonable way for M.P. to determine whether N.T. was lying to him.”
Without addressing whether a party in M.P.’s position who did not participate in a proceeding can argue newly discovered evidence as a basis for relief from a judgment, we conclude the district court did not abuse its discretion in determining the natural father, by exercising reasonable diligence, could have discovered the natural mother’s he about obtaining an abortion and her concealment of the birth and adoption of their child. For example, M.P.’s explanation for not asking N.T.’s mother about the abortion was that he did not want to talk to someone who did not like him, which was what N.T. had reported in an effort to prevent the contact. Even though it may have been uncomfortable and awkward for M.P. to have talked to N.T.’s mother, he could have done so in an effort to verify or dispel his suspicions. Consequently, the evidence could have been discovered with minimal diligence, and M.P. is not entitled to relief from the judgment under K.S.A. 60-260(b)(2).
Visitation
Finally, we address M.P.’s recent motion for visitation pending resolution of this case. Based upon our ruling that M.P. has no continuing interest, the motion is denied as moot.
Affirmed.
Johnson, J., not participating.
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The opinion of the court was delivered by
Nuss, J.:
Carl Lee Baker was convicted of felony murder and kidnapping and received consecutive sentences of life without the possibility of parole for 20 years (hard 20) for the murder and 233 months in prison for the kidnapping. He now appeals his convictions and sentences. Our jurisdiction is under K.S.A. 22-3601(b) (conviction of an off-grid crime).
The issues on appeal, and our accompanying holdings, are as follows:
1. Did the trial court err in refusing Baker s request to instruct on compulsion? No.
2. Did the trial court abuse its discretion in admitting three postmortem photographs of the victim’s body? No.
3. Did the prosecutor commit reversible misconduct when using a sports team analogy to explain the concept of aiding and abetting to the jury? No.
4. Did the trial court erroneously impose an enhanced sentence based upon prior criminal history without requiring those crimes be proved beyond a reasonable doubt? No.
Accordingly, we affirm Baker s convictions and sentences.
FACTS
In July 2006, defendant Baker and three others were arrested and charged with the kidnapping and felony murder of David Owen. Baker gave a videotaped oral statement and a written statement to police. He also participated in a videotaped reenactment of the events leading to Owen’s death. Information from those communications, as well as the trial testimony and written statement of accomplice John Cornell, provided virtually all of the following facts to the jury. The facts are best understood when presented by stages.
Stage One
Baker had been hving in a “hobo camp” in the woods near the Topeka Rescue Mission. Other homeless people living in the camp included Cornell, Charles Hollingsworth, and Hollingsworth’s girlfriend, Kim Sharp. The others would leave the camp to eat at the Rescue Mission several times a day, to panhandle, and to do other things. Baker never left the camp, however, because according to him, contact with the police would mean they would “put me right back in the penitentiary” due to an outstanding arrest warrant. As the interviewing officer confirmed with Baker, “[Everybody was looking for you” — “you’re warranted.” Cornell confirmed that Baker “was running from the police.”
Late one afternoon in mid-June 2006, after Baker had been hving in the camp for 4-6 days, he and the others were conversing when Owen interrupted. Owen was a self-appointed homeless advocate who, in efforts to break their homelessness cycle, disrupted or damaged such camps and insisted that the inhabitants call their families. He offered the inhabitants the use of his cell phone and phone cards.
All the camp inhabitants that day rejected Owen s offers and became irritated because he would not leave. Baker told him to “just get the hell out of the camp” and “get the fuck out of here.” An argument soon erupted between Owen, Baker, and Hollingsworth in which they got within 6 inches of each other s faces. Owen threatened to call the police and reached into the briefcase he was carrying. According to Baker, he did not want the police called because of his outstanding warrant. Hollingsworth grabbed Owen’s arm and knocked a cell phone out of his hand. Hollingsworth then grabbed the briefcase from Owen and tossed it on the ground.
After grabbing the briefcase, Hollingsworth slammed Owen to the ground and hit him. Hollingsworth then picked Owen up and forced him onto a bench. Sharp picked up Owen’s phone and briefcase and began going through its contents. She found photographs taken by him which showed the damage he had inflicted in other homeless camps. Enraged by the photographs, Sharp began throwing the contents of the briefcase, including Owen’s cell phones, papers, and photographs, and eventually the briefcase itself, into an incinerator in the camp. Owen protested while she destroyed his belongings.
Ron Greene, another homeless person, entered the camp at this time, looking for another inhabitant, Mark Brown. Hollingsworth did not know Greene and asked the others who Greene was. Cornell replied that he was “an all right guy,” and Sharp vouched for him as well.
Stage Two
Hollingsworth grabbed Owen by the arm and lifted him from the bench. Hollingsworth then led Owen out of the camp, grabbing an axe out of a tree as he left. Sharp later followed Hollingsworth and Owen to a spot in the woods 30-40 yards away that was not visible from the camp. Baker, Cornell, and Greene remained in the camp.
Hollingsworth eventually yelled back in the direction of the camp for a rope. Baker retrieved a rope and a machete from his tent and, with machete in hand, gave the rope to Cornell. Baker instructed him to take it to Hollingsworth.
Cornell took the rope to Hollingsworth where he saw Owen on his knees with Hollingsworth standing over him, axe in hand. Sharp told Cornell not to worry. They were not going to kill Owen, she said, but were “just going to tie him up and make him sleep out with the mosquitos and snakes” so he would know what it was like for homeless people when he had damaged one of their camps. Cornell returned to the camp, rejoining Baker and Greene. In die meantime, Baker had thrust the machete through his belt.
Stage Three
According to Bakers brief, 10 minutes later Hollingsworth led Owen back to the camp, accompanied by Sharp. Owen s hands were tied behind his back; the rope was tied around one wrist, then wrapped up around the front of his neck and down to the other wrist. A rag had been stuffed in his mouth.
After sitting Owen back on the bench, Hollingsworth placed the axe on the table. Immediately upon seeing this, Greene said, ”[W]ell, tell Mark [Brown] I’ll be back later,” and left the camp. Hollingsworth and Baker then took several minutes to roll themselves cigarettes. According to Baker’s statement, when the rolling was completed Hollingsworth said that they needed to “take him over and get rid of this bastard ’cause he had to die.’ ” Also according to Baker’s statement, Hollingsworth told him that he had to “help him drag him [Owen] down to the river.” Hollingsworth lifted Owen from the bench and began to lead him out of the camp. Hollingsworth did not pick up the axe. Baker’s machete remained thrust through his belt, and Sharp and Cornell remained in the camp.
Stage Four
According to Baker’s statement, Owen was able to walk but dragged his feet and did not fully cooperate. Baker and Hollingsworth each held an arm and, half-cariying and half-leading, took him, bound and gagged, over the dike and toward the river. While they descended the dike, Owen sat down and refused to walk. Hollingsworth then struck Owen and dragged him by his feet down the rocks. After reaching the bottom, Hollingsworth forced Owen up, and the three men continued across the open area to the railroad bridge.
According to Baker, he and Hollingsworth eventually led Owen into the woods by the river near the railroad bridge. There, while Baker watched, Hollingsworth tied Owen to a tree. He anchored Owen’s head to the tree with a rope around his neck and then connected the rope to Owen’s feet. If Owen lowered his feet, the neck rope would tighten and choke him. While Baker watched, Hollingsworth then twice kicked Owen in the head with his steel-toed boot, rendering him unconscious. Baker and Hollingsworth then walked back to the camp. According to Cornell, they were gone about 10-15 minutes.
Stage Five
Upon Baker’s and Hollingsworth’s return, rejoining Sharp and Cornell, Sharp asked Hollingsworth about Owen. Hollingsworth responded, “[Hje’s probably dead by now . . . because when we left, he was turning blue.” Hollingsworth, Cornell, Sharp, and Baker all remained in the camp that night and did not go to the nearby Rescue Mission for dinner. Later in the evening, Cornell and Baker left the camp to look for firewood. Baker told Cornell that “Charles [Hollingsworth] lynched [Owen].”
Stage Six
The next day, everyone went to the Rescue Mission to eat except for Baker, again because of his outstanding arrest warrant. According to Baker’s reenactment, that afternoon he and Hollingsworth returned to where they had left Owen. He was dead. Hollingsworth told Baker they had to move Owen to a place where no one would find him. They then dragged his body closer to the river. There, they removed Owen’s shoes, socks, and eyeglasses. They also recovered pieces of the rope that Hollingsworth had used to tie him up. Baker and Hollingsworth took these items back to the camp where they were burned.
Stage Seven
A few days later, Baker, Hollingsworth, and Sharp moved to another camp. Cornell also moved to a different location.
Stage Eight
Following up on Owen’s parents’ missing person complaint, police found his body approximately 2 weeks later. Baker was arrested approximately 2 weeks after that at another homeless camp. He was eventually tried on charges of felony murder and kidnapping. After his convictions, he was sentenced to life in prison without the possibility of parole for 20 years for felony murder and 233 months in prison for the kidnapping conviction, with the sentences to run consecutively.
Additional facts will be provided as necessary to the analysis.
ANALYSIS
Issue 1: The trial court did not err in refusing to instruct on compulsion.
Baker argues that the trial court erred when it refused to give a jury instruction on compulsion in violation of his absolute right to present his theory of defense, citing State v. Irons, 250 Kan. 302, 309, 827 P.2d 722 (1992). The State counters that the court was not required to give the instruction because insufficient evidence was presented to support it. See State v. Myers, 233 Kan. 611, 616, 664 P.2d 834 (1983).
We articulated our standard of review in State v. Oliver, 280 Kan. 681, 706, 124 P.3d 493 (2005):
“ ‘The district court ‘must instruct the jury on the law applicable to the defendant’s theories for which there is supporting evidence.’ State v. Williams, 277 Kan. 338, 356, 85 P.3d 697 (2004). ‘A defendant is entitled to an instruction on his or her theory of the case even though the evidence thereon is slight and supported only by the defendant’s own testimony. [Citation omitted.]’ State v. Bell, 276 Kan. 785, 792, 80 P.3d 367 (2003). Further . . . this court reviews the evidence in the light most favorable to the party requesting the instruction when considering the district court’s refusal to give a requested instruction. Williams, 277 Kan. at 356.”
We clarified this basic standard in State v. Anderson, 287 Kan. 325, 334, 197 P.3d 409 (2008) to provide that the evidence, although viewed in the light most favorable to the defendant, must also be sufficient to justify a rational factfinder finding in accordance with his or her theory.
The legislature has addressed the defense of compulsion in K.S.A. 21-3209, which states:
“(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.”
PIK Crim. 3d 54.13 echoes the statute.
In this court’s interpretation of compulsion, however, it has expanded the statutory factors and has repeatedly held that
“to constitute the defense of compulsion, coercion or duress must be present, imminent, impending, and continuous. It must be of such a nature as to induce a well-grounded apprehension of death or serious bodily injury to oneself or one’s family if the act is not done. The doctrine of compulsion cannot be invoked as an excuse by one who had a reasonable opportunity to escape the compulsion or avoid doing the act without undue exposure to death or serious bodily harm. A threat of future injury is not enough. [Citations omitted.]” (Emphasis added.) State v. Matson, 260 Kan. 366, 385, 921 P.2d 790 (1996).
Baker contends there is “sufficient evidence” indicating that he (1) acted under compulsion, e.g., a threat of imminent death or serious bodily harm, and (2) had no reasonable opportunity to escape. He argues that both are therefore jury questions. Baker further asserts that the trial judge agreed he was under compulsion when the judge stated during tire instruction conference, “I think it’s a fair inference that having witnessed Mr. Hollingsworth’s treatment of Owen instilled a reasonable fear of bodily harm in Mr. Baker.”
As for more evidence of compulsion and a lack of reasonable opportunity to escape, Baker argues that Hollingsworth was younger and bigger than Baker. According to Detective Michael Barron, Hollingsworth was 18 years old, 6'2" tall, approximately 230 pounds, and of athletic build, while Baker, who had just turned 60, was 6'1" and weighed 195 pounds. Baker additionally argues that Hollingsworth ordered him to assist Hollingsworth in dragging Owen to the river and that Baker did this out of fear. Baker relies upon Cornell's testimony that Hollingsworth walked around camp with an axe or knife “all the time” and that it “would have been stupid verging on suicidal” to try to leave the camp. Baker also points to Cornell’s testimony that he was afraid to leave the camp because he had been a witness to Owen’s abduction and that “anyone who talked would get it.” Baker himself told the police Hollingsworth threatened that he, Cornell, and Sharp “would be next” if they told anyone, and that Hollingsworth had “a hell of a temper.”
The State responds with a multitude of reasons as to why the trial court was correct in denying the instruction request. It argues that (1) Baker was not compelled by any threat to him from Hollingsworth; (2) even if Hollingsworth actually threatened Baker that if he told anyone, “he would be next,” the threat was made after the kidnapping and death and was a threat regarding future injury which could not qualify as imminent; (3) any coercion or duress was not continuous or imminent because Baker, Greene, and Cornell — and later just Baker and Greene — were alone in the camp at one time and Baker operated independent of Hollingsworth; (4) even if, as the trial court suggested, Baker experienced a well-grounded apprehension of death or bodily injury from witnessing Hollingsworth’s treatment of Owen, he made no attempt to escape or withdraw when presented with the opportunity. Baker chose instead to remain in camp and to eventually assist Hollingsworth in moving Owen from the camp to the river.
We begin our analysis of these numerous arguments with what appeared to be the trial court’s primary reason for denial of the instruction: Baker had a reasonable opportunity for escape or withdrawal. As mentioned, the doctrine of compulsion cannot be in voiced by one who had a reasonable opportunity to escape or avoid the criminal act without undue exposure to death or serious bodily harm. State v. Jackson, 280 Kan. 16, 28, 118 P.3d 1238 (2005), cert. denied 546 U.S. 1184 (2006); Myers, 233 Kan. at 615 (opportunity to escape or withdraw from the criminal activity). According to Baker s counsel at oral arguments, Baker relies principally upon State v. Hunter, 241 Kan. 629, 740 P.2d 559 (1987), to deny he had such an opportunity. The State relies principally upon Myers, 233 Kan. 611. Our inquiry on whether sufficient evidence exists to warrant the instruction (see Anderson, 287 Kan. at 330-36) is obviously fact-sensitive, requiring a detailed review of those cases and comparing their levels of evidence to that of the instant case.
In Hunter, the defendant was convicted, among other things, of two counts of felony murder and aggravated kidnapping for his participation with three others in a western Kansas criminal venture. He argued on appeal that the trial court erred in refusing his requested instruction on his compulsion defense. This court agreed, reversing and remanding for a new trial.
Hunter was a hitchhiker picked up in Wichita by Daniel Remeta, Remeta’s girlfriend Lisa Dunn, and Mark Walters. On the way north to Salina, Remeta fired a .22 caliber handgun out of the car window. At Salina, when Hunter asked to be let out of the car, Remeta refused. He talked about a hitchhiker he wished he had killed; took out two .357 Magnum bullets and asked Hunter if he thought they could kill Hunter; then told Hunter he had shot a girl five times with one of tire weapons. Later, Remeta fired the .22 in Hunter’s direction and told Hunter he had killed a man for $40 and had killed 12 other people.
On the group’s continued trip west of Salina, an undersheriff was shot after he stopped their car. Although the officer testified that Hunter was the shooter, the car occupants identified Remeta instead. They also testified that Hunter then tried to shoot Remeta with the .22 but he accidentally shot Dunn.
The issue of a reasonable opportunity to escape was limited to the group’s later stop at a grain elevator in Levant. From there, eventually two of the elevator’s eight occupants — Schroeder and Moore — were kidnapped, placed in Moore’s pickup stolen from the elevator, and driven to a location near Colby. There they were executed by Remeta.
Much of the testimony regarding the elevator escape opportunity came from Hunter and Remeta. State’s witnesses testified Hunter had a weapon and played an active role in the kidnapping and pickup theft. However, Hunter testified that he had no weapon there. Remeta confirmed that he himself had both handguns — the .22 and the .357 Magnum — at all times. Apparently after the eight occupants were rounded up and restrained, Remeta ordered Hunter to go to the other end of the elevator building to see if anyone tried to exit through the back door. Hunter testified that he walked around to the back of the building and stopped there to wait to see what happened, and Remeta then ordered him around to the other side and into the pickup. He testified that he never felt he had a chance to escape. Remeta testified that he asked Hunter to watch Schroeder and Moore at the pickup and that he would have shot Hunter if he had not followed orders.
In holding the trial court erred, the Hunter court held:
“The only opportunity Hunter would have had for escape would have been when he was out of sight of Remeta at the point when he went around the north side of the building at the Levant elevator. Hunter testified that Remeta came around the building and ordered him to return to the pickup. There was testimony that the total time which elapsed at the grain elevator was approximately five minutes. From the record, it is impossible to tell how long Hunter remained out of sight of Remeta. Viewed in the light most favorable to Hunter, however, and particularly in light of the fact that it was undisputed that Remeta had possession of the .357 Magnum at all times, it cannot be said that Hunter had a reasonable opportunity to escape.” 241 Kan. at 645.
As in Hunter, the Myers defendant was convicted, among other things, of felony murder and kidnapping. In contrast to Hunter, however, in Myers, 233 Kan. 611, this court upheld the trial court’s refusal to instruct on compulsion and affirmed the convictions. It held that Myers had numerous opportunities to escape or withdraw from the criminal activity, including a time when he was merely in a separate room of the apartment from the alleged compulsion of his accomplice. 233 Kan. at 615-16.
Myers and his accomplice Axvig unexpectedly appeared in the Manhattan apartment of two young women at 2 a.m. Myers had been there earlier in the evening to pick up 15 pounds of marijuana from one of the women, Cristel Watson. After Cristel awoke in her bed, Myers pointed a handgun at her head, instructing her to call the marijuana-dekvering boyfriend to tell him Myers did not want the drugs. The other woman, Cristel’s sister Elke McGuyton, came out of her bedroom to go to the bathroom and found Axvig standing in the hallway. She then darted into the bathroom.
Myers then brought Cristel out of her bedroom where they saw Axvig. Myers stated that both women would have to leave the apartment. Cristel went into Elke’s bedroom and got some clothing for her sister. While there she saw Axvig pointing a handgun at Elke’s boyfriend, Kevin Kitchens, who was stretched out on Elke’s bed. Cristel took the clothing to Elke, who got dressed. Both women then came out of the bathroom. When Elke went into her bedroom to get her shoes, she saw Axvig still pointing his gun at Kitchens.
Myers then took both women out of the apartment, holding Elke with his left hand and his gun with the other. Axvig remained in the apartment. Once outside, Cristel escaped. After Axvig fatally shot Kitchens in the bedroom, Axvig then came to the car where Myers and Elke were now seated. He got in, and Myers drove away.
In upholding the trial court, the Myers court observed that several of Myers’ numerous opportunities to escape or withdraw from the criminal enterprise occurred after he drove away. However, we may legitimately limit our review to the possible ones mentioned above, because as a matter of law only one reasonable opportunity is needed to bar the giving of the compulsion instruction. In our review, we also agree with the Myers court’s apparent acknowledgment that coercion which is not “present, imminent, . . . impending[, and] continuous” can often overlap with a “reasonable opportunity to escape” or withdraw. 233 Kan. at 616. That.court first summarized the evidence:
“In the case at hand, the evidence with regard to Myers’ opportunity to escape, to withdraw from the criminal activity, or to alert others and seek help, is abundant. Myers was alone with Cristel in her bedroom, and he made no effort to communicate to her, or to others over her telephone, that he was under compulsion from Axvig. To the contrary, he told Cristel in substance that this was a ‘rip off,’ and that he had his family waiting to leave town with the money he would make from the fifteen pounds of marijuana. At a later point, he was alone with Cristel and Elke in the living room of the apartment, near the front door, while Axvig was in the bedroom with Kitchens; Myers made no effort to leave at that time, or to permit the two women to escape. Again, when he took the two women outside, leaving Axvig in the apartment, Myers took Elke to the car, put her in it, and instead of speeding off to make his escape, he drove slowly, stopped, and waited to pick up Axvig.” (Emphasis added.) 233 Kan. at 615.
The Myers court then drew several conclusions from the evidence it had recited:
“Compulsion, to constitute a defense under K.S.A. 21-3209, must be present, imminent, and impending; it must be continuous; there must be no reasonable opportunity to escape the compulsion without committing the crime. Here, under the proffered evidence [that Axvig had unloaded Myers’ handgun before entering the apartment and had threatened Myers’ family with harm if Myers did not cooperate], the compulsion was imminent when Myers entered the apartment; thereafter, when Myers was out of the sight and presence of Axvig, it was not imminent. The compulsion was not continuous; Myers and Axvig went their separate ways and operated independently; the compulsion was interrupted time after time. Finally, Myers had abundant opportunities to make his escape, and failed to do so. Myers could have freed the women before or at the time they left the apartment, and he could have made his escape before the murder was committed.” (Emphasis added.) 233 Kan. at 616.
We believe that the facts in the instant case are sufficiently like those in Myers to support the trial court’s refusal, as in Myers, to instruct on compulsion. We agree with Baker that the evidence must be viewed in the light most favorable to him. But the evidence also must be sufficient to justify a rational factfinder finding in accordance with his theory of compulsion. See Anderson, 287 Kan. at 335-38. Under this standard, we therefore must agree with the State that there is at least one occasion of the many that it argues where the alleged coercion or duress was noncontinuous and non-imminent. As in Myers, that overlaps with Baker’s reasonable opportunity to escape or withdraw from the criminal activity.
The State first points to Baker’s opportunity to escape or withdraw when Hollingsworth dragged Owen from the camp, followed by Sharp, to a spot in the woods 30-40 yards away. Baker, Cornell, and Greene remained in the camp. According to the uncontroverted testimony of Cornell, they could not see Hollingsworth from the camp. There is no evidence that Hollingsworth could see them.
It is also uncontroverted that during Cornell’s delivery of the rope to Hollingsworth, Baker was continuously armed with a machete and was alone in the camp with only the unarmed Greene. By all accounts, the unarmed Cornell returned to the camp and rejoined them. It is further uncontroverted that not until 10 minutes later did Hollingsworth return to the camp with Owen, which meant that Baker had had an even larger window of opportunity in which to leave. Moreover, it is also uncontroverted that Hollingsworth was angry with Owen during this entire time and obviously preoccupied, particularly while he bound and gagged him. By all accounts, the Rescue Mission was close enough that the camp inhabitants could walk there to receive daily meals.
The State next points out that Baker certainly had the opportunity, like Greene, to escape when Hollingsworth had returned to the camp. It highlights the uncontroverted fact that once Greene saw Hollingsworth put down his axe, Greene immediately left. We independently observe that Greene did not slip away unnoticed; he essentially told everyone that he was leaving when he asked them to tell Brown he would be back later. It is uncontroverted that Hollingsworth made no attempt to stop the unarmed Greene from leaving. It is also uncontroverted that Baker, although still armed with the machete that he would carry continuously until after Owen was dead, made no attempt to leave.
Baker tries to dilute both these escape opportunities — when Hollingsworth was away from the camp and later when Greene left — with Cornell’s testimony that it “would have been stupid verging on suicidal” if he had tried to leave the camp. A review of Cornell’s testimony indicates that he failed to leave simultaneously with Greene only because he did not yet know if Hollingsworth and Baker were planning on killing Owen. If they were, trying to leave would have been too dangerous:
“Q. After Charles [Hollingsworth] returned with David [Owen] and with Kim [Sharp] . . . , Ron Greene was still present?
“A. Yes.
“Q. Can you give us an idea of the time frame between when Charles sets down the axe and Ron Greene leaving?
“A. Almost immediately as soon as he seen him set down the axe.
“Q. Were you thinking about leaving at that time?
“A. Yeah, but I wouldn’t have left with Ron even at that moment, I’m not crazy. I mean, that would have been — that would have been stupid verging on suicidal if they were still planning on killing David [Owen] because if they were planning on killing David, Ron wasn’t going to make it out of there. Anybody with any brains wouldn’t let him go.” (Emphasis added.)
But once Cornell saw that Greene was allowed to leave the camp without any problem, he determined that Hollingsworth and Baker were not going to kill Owen. He concluded he too probably could have left then without any problem:
“Q. Now, you testified earlier that you were scared to leave?
“A. At what point?
“Q. Later on, later on after —•
“A. After I found out that they killed him, yeah. I could have — when they first left the camp, after they let Ron Greene go unmolested, I didn't think that they were going to kill David anymore. I probably could have left then.” (Emphasis added.)
Baker’s argument is initially attractive. Because Cornell’s testimony could be construed to suggest that he never felt safe in leaving camp until after Greene left, it would have been unsafe for him to have left even while Hollingsworth was outside the camp with Owen. It can therefore be argued that Baker similarly could have felt unsafe in leaving the camp then also.
The problem with Baker’s argument is contained in Cornell’s testimony set forth above. Specifically, Cornell chose not to leave because he was afraid of “them” — both Hollingsworth and Baker— and of the possibility that they would act in concert. And during this particular time, the unarmed Cornell was always in the presence of one armed man or the other, and often both. For example, Cornell further testified that he did not leave when Hollingsworth was gone with Owen because he simply did not know if Owen was dead: “[I]f I had tried to leave then and David [Owen] was dead and he [Hollingsworth] had an axe and the other dude [Baker] had a machete, would you have left?”
Continuing on that theme, Cornell further testified that he would not have chanced leaving at that point because “[i]f him [Baker] and Charles [Hollingsworth] decided to do something, there would have been no way I could have done nothing.” Similarly, in explaining why he delivered the rope as instructed by Baker, he testified that “to be honest with you, a guy [Baker] with a machete tells you to take a rope to a guy [Hollingsworth] with an axe, it’s probably a good idea to take him the rope.” Accordingly, the coercion or duress — by Hollingsworth, Baker, or both — was present, imminent, impending, and continuous for the unarmed Cornell. See Matson, 260 Kan. at 385.
By contrast, nothing prevented Baker from leaving the camp when he was out of Hollingsworth’s sight for at least 10 minutes while Hollingsworth was preoccupied with Owen. At that time, Baker was alone with Greene, or Greene and Cornell. There is absolutely no evidence in the record, much less any argument made, that the armed Baker was afraid of either one of these unarmed men. Similar to the defendant in Myers, Baker was armed, in the presence of two unarmed people, and temporarily out of the sight and presence of the nearby armed accomplice who was preoccupied with the eventual murder victim. The Myers court upheld the refusal to instruct even under our former, lower standard of “any competent evidence” — construed in the light most favorable to defendant — in support of his compulsion theory. 233 Kan. at 616.
Moreover, uncontroverted evidence establishes that Baker never left the camp because he was enormously concerned about being found by law enforcement, arrested on an earlier outstanding warrant and, in his own words, being immediately put “right back in the penitentiary.” By his own admission, the warrant was the specific reason he had not wanted Owen to call the police from the camp. Also by his own admission, both in the days before and after Owen’s death, he never left the camp even when Hollingsworth and all the others were gone for hours. See Anderson, slip op. at 17, and Myers, 233 Kan. at 615 (evidence of defendant’s conduct after the crime can be considered in the compulsion calculus, including reasonable opportunity to escape). By his own further ad mission, while Hollingsworth, Sharp, and Cornell all ate at the Rescue Mission the day after Owen’s death, Baker not only chose to stay in the camp, but also upon their return he resumed his participation in the crimes. He helped Hollingsworth move Owen’s body to avoid detection and helped partially strip the body of some identifying items and destroy them.
All of this evidence greatly undercuts Baker’s argument that he never had a reasonable opportunity to escape Hollingsworth’s compulsion. We cannot say it is certain that the reason Baker did not leave the camp during his 10-plus minutes while Hollingsworth was preoccupied with Owen is the same reason he never left the camp for days on end. We can say, however, that the evidence is insufficient to justify a rational factfinder finding in accordance with Baker’s theory that he did not escape from Hollingsworth’s compulsion during that period because he had no reasonable opportunity to do so.
We do agree with Baker, however, that Cornell’s testimony that it would have been “stupid verging on suicidal” to have left simultaneously with Greene is sufficient to eliminate that particular time as an opportunity for Baker to escape or withdraw.
Baker argues he could not have escaped because Hollingsworth was younger and larger than he, specifically alleging that the only opportunity to escape would have involved a footrace that he was sure to lose. However, even assuming there was sufficient evidence to support Baker’s argument, his assertion overlooks the fact that one need not physically escape from the criminal activity — one must merely withdraw from it or avoid doing it. See State v. Matson, 260 Kan. 366, 385, 921 P.2d 790 (1996) (opportunity to escape the compulsion or avoid doing the act); State v. Myers, 233 Kan. 611, 615, 664 P.2d 834 (1983) (opportunity to escape or withdraw from the criminal activity). Accordingly, escaping to the safety of the Rescue Mission is not required — -only reaching a point where one could be said to be safely withdrawing from the criminal activity. Here, the crimes occurred in woods late one July afternoon, near an area by the river so overgrown that Hollingsworth and Baker chose it to move Owen’s body to for avoiding detection. The evidence that Baker could not have safely withdrawn is simply insufficient to justify a rational factfinder finding for him.
Baker also points to Cornell’s testimony that Cornell was afraid to leave the camp because he had been a witness and Hollingsworth had told him that “anyone who talked would get it.” Baker emphasizes that he himself told the police that Hollingsworth threatened Baker, Cornell, and Sharp that they “would be next” if they told anyone.
However, it is uncontroverted that Hollingsworth’s statement was made after the felony kidnapping and eventual death of Owen had already occurred at the river and Hollingsworth had returned to the camp. The threat of injury or death referred only to any possible post-kidnapping activity where Baker might inform anyone else. Moreover, the threat of future injury is not sufficient to support a compulsion defense. See Matson, 260 Kan. at 385.
In sum, even when viewed in the light most favorable to Baker, the evidence is insufficient to justify a rational factfinder finding in accordance with his compulsion defense. See Anderson, 287 Kan. at 336-38. Any coercion or duress was not imminent or continuous when Hollingsworth and Owen were outside the camp. Moreover, Baker had reasonable opportunity to escape, or at least withdraw, from the criminal activities, particularly when alone in camp with Greene. See Myers, 233 Kan. at 616 (evidence would not, as a matter of law, have established the defense of compulsion under K.S.A. 21-3209: defendant had reasonable opportunity to escape); cf. State v. Oliver, 280 Kan. 681, 707, 124 P.3d 493 (2005) (murder defendant argued he was entitled to compulsion instruction because he was afraid his life would be in danger if he did not comply with colleague’s directions; court held: “Although there was some minimal evidence that Oliver was under the influence of [his colleague], there was no evidence supporting the degree of compulsion necessary to merit an instruction on that defense.” [Emphasis added.]).
Issue 2: The trial court did not abuse its discretion by admitting three postmortem photographs.
Baker next argues the trial court erred in denying his motion in limine and in overruling his related objection at trial to the admis sion of three postmortem photographs of Owen. He contends that the photographs had no relevance in explaining the manner or cause of death and that photographs of the body in that state of decomposition were unduly prejudicial. The State responds that they were relevant to the cause of death and to corroborating other witness testimony, as well as to an admission by Baker. It also argues the photographs are not unduly prejudicial.
In our review, we first determine whether the photographs are relevant. That determination — here, relevancy’s probative prong because the cause of death is obviously material in a homicide case — is reviewed for abuse of discretion. State v. Reid, 286 Kan. 494, Syl. ¶ 1, 186 P.3d 713 (2008). Relevant evidence is evidence having any tendency in reason to prove any material fact. K.S.A. 60-401(b). All relevant evidence is admissible unless it is otherwise precluded by statute, constitutional provision, or court decision. Reid, 286 Kan. 494, Syl. ¶ 1.
If the evidence is relevant, we next determine whether its admission was nevertheless improper because, as alleged here, its admission was unduly prejudicial. See State v. Sappington, 285 Kan. 176, 195, 169 P.3d 1107 (2007). This particular review also looks for an abuse of discretion. See State v. Torres, 280 Kan. 309, 327, 121 P.3d 429 (2005).
All three photographs were taken near the river. The first shows Owen’s body as it was found. The other two are of his feet. All three photographs disclose that the body was in a state of mild to moderate decomposition and had undergone mummification.
The photographs were first referenced during Detective Barron’s testimony to demonstrate the position in which Owen’s body was found, his bare feet, and the tumed-out pants pocket. The State argues the photographs also corroborate the stray Baker told to Barron.
The photographs were also referenced in the testimony of the coroner, Dr. Donald Pojman. He testified that the condition of the body prevented detection of any injury from blunt force trauma to the head. It also prevented him from identifying any ligature marks on Owen’s neck, i.e., a “dried brown skin furrow.” Because of the level of decomposition and the mummification process, he found that the exact cause of death was not ascertainable but was consistent with asphyxial death.
Accordingly, the State argues that the photographs also helped explain why Dr. Pojman’s examination produced little evidence; helped explain how the decomposition of the body limited the discovery of any trauma that may have occurred prior to death; helped illustrate the difficulty in determining the cause of death; and assisted the jury’s understanding of medical testimony.
We agree with the State that the photographs were relevant to the coroner’s testimony. Generally, “ ‘ “[pjhotographs which are relevant and material in assisting the juiy’s understanding of medical testimony are admissible. Specifically, photographs which aid a pathologist in explaining the cause of death are admissible.” ’ ” State v. Hernandez, 284 Kan. 74, 99, 159 P.3d 950 (2007) (quoting State v. Cavaness, 278 Kan. 469, 477, 101 P.3d 717 [2004]).
While photographs are generally admitted to aid a pathologist in explaining the cause of death, another possible reason for admitting them is to show that the medical examiner has ruled out possible causes of death and the manner in which he or she has done so. In State v. Deal, 271 Kan. 483, 493-94, 23 P.3d 840 (2001), abrogated on other grounds by State v. Anthony, 282 Kan. 201, 214, 145 P.3d 1 (2006), this court held that admitting a graphic photograph was necessary to the medical examiner to help explain the analysis of the cause of death. There, the medical examiner determined that the cause of death was asphyxia, but could not determine the exact manner in which the asphyxia occurred because of a lack of physical evidence.
We also agree that the photographs are relevant for corroboration of other evidence. In State v. Sutton, 256 Kan. 913, 921, 889 P.2d 755 (1995), this court upheld the admission of photographs, stating: “[P]hotographs taken where the body was found were introduced to corroborate the testimony of a law enforcement officer who described the appearance of the body, the clothing, and the surrounding ground.” As in Sutton, the photographs here corroborated the testimony of Detective Barron, who described the body, the clothing, the tumed-out pocket, and the surrounding area. They also corroborated Baker s admission that he and Hollingsworth had removed Owen’s shoes and socks.
Finally, we agree with the State that the trial court did not abuse its discretion in admitting the photographs after weighing their probative value against their prejudice. We have reviewed the photographs in the record on appeal; they are not gruesome and hardly more upsetting than Egyptian mummies displayed in a museum.
Issue 3: The prosecutor did not commit reversible misconduct when explaining the concept of aiding and abetting to the jury.
Baker next argues the prosecutor committed misconduct in his closing argument because his sports team analogy misstated the law of aiding and abetting. Accordingly, Baker asserts that this erroneous portrayal of the law was outside the considerable latitude given a prosecutor and this misconduct violated his right to a fair trial. The State responds that the prosecutor’s analogy, taken in context with his description of the evidence, does not misstate the law and there is no reversible misconduct.
Our standard of review is well known:
“Allegations of prosecutorial misconduct require a two-step analysis. First, the appellate court must determine whether the comments were outside the wide latitude allowed in discussing the evidence. Second, the appellate court must decide whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial, thereby requiring reversal.” State v. White, 284 Kan. 333, Syl. ¶ 1, 161 P.3d 208 (2007).
The part of the prosecutor’s closing argument to which Baker objects is as follows:
“My daughter plays on a ball team. She’s not a starter, she is what we would call a benchwarmer. She may get in for 40 seconds in a game, she may get in for a minute in the game and that may be it, but she’s part and parcel of that team. When that team wins and she only plays 40 seconds, she gets the win too. When that team loses and she only plays 40 seconds, she’s part of the loss. Doesn’t matter that she doesn’t play the whole time of the game. Doesn’t matter that she didn’t make a basket, it doesn’t matter that she didn’t get into the game, she rises and falls as part of the team. And what you have in this case is a team of individuals that for various reasons decided to kidnap David Owen.” (Emphasis added.)
We begin by addressing the elements of the crime, kidnapping, for which Baker was convicted of aiding and abetting, and then the elements of aiding and abetting. Kidnapping is defined in K.S.A. 21-3420(c) as “the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person ... to inflict bodily injury or to terrorize the victim or another.”
Aiding and abetting is defined in K.S.A. 21-3205(1) as follows: “A person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels, or procures the other to commit the crime.” We have held that to establish guilt on the basis of aiding and abetting, the State is required to show that a defendant knowingly associated with the unlawful venture and participated in such a way as to indicate that he was facilitating the success of the venture. See State v. Green, 280 Kan. 758, 761, 127 P.3d 241, cert denied 549 U.S. 913 (2006). However, “[wjithout other incriminating evidence, mere presence in the vicinity of the crime or mere association with the principals that committed the crime is not sufficient to establish guilt as an aider or abettor.” 280 Kan. at 761-62.
We agree that, standing alone, the prosecutor’s argument that “it doesn’t matter that she didn’t get into the game,” could be construed to suggest that “mere presence” or “mere association” is sufficient to convict of aiding and abetting, which is clearly contrary to law. Before concluding there is such a misstatement, however, we must read the prosecutor’s statement in the context of the entire closing argument. Cf. State v. Edgar, 281 Kan. 47, 63-65, 127 P.3d 1016 (2006) (context of closing argument reviewed and determined that misstatement of law not purposeful). Our review reveals that the prosecutor repeatedly emphasized that Baker did more than just sit on a team bench. Rather, he intentionally and knowingly joined and assisted the team. Rather than set forth the entire argument, a few examples will suffice.
The prosecutor emphasized Baker’s decision to retrieve the rope from the tent to give to Hollingsworth and how Baker chose, at that time, to aid the kidnapping:
“Charles calls for a rope. I need some rope. Doesn’t tell anybody you better bring me some rope, he says, I need some rope. Nobody had to bring him that rope, but who got involved in that team, in that joint venture at that point in time? Carl Baker went to his tent and he got a rope out of his tent and he got that bushwhack machete and he put it down by his belt. He takes that rope, he joins the team at the point in time and he gives that rope to John Cornell. John didn’t have to take it, but John did and he took that rope because he also wanted to become a part of that team for whatever reason.”
The prosecutor further highlighted Baker’s conduct in helping remove Owen from the camp as an intentional and knowing act to aid:
“Charles Hollingsworth decides this dude has got to die. He rolls a cigarette, Carl Baker rolls a cigarette. He asks Carl Baker to help him. Carl does what he does. Once again, he joins that team. Wasn’t enough that he provides the rope, he’s joining that team in that effort.”
The prosecutor also stressed that Greene had entered the camp and chosen not to join the team. He contrasted Greene’s mere presence with Baker’s decision to assist in the commission of the crime:
“Ron Greene comes in the camp at that point in time. . . . Ron eventually leaves. He doesn’t join the team. He made a conscious effort, I’m not getting involved in this and I’m leaving and that’s what he did.”
The prosecutor also highlighted what Baker said in both his reenactment video and interview, i.e., that he actually assisted Hollingsworth and that his motive for doing so and then not telling the police was that he did not want to go back to the penitentiaiy. He did not want Owen calling the police for the same reason. As a result, he actively participated as part of the team:
“Carl can’t have him [Owen] call the cops. Carl is wanted. He told — you heard it. He told Detective Hill, I didn’t tell the cops because I didn’t want to go back to the penitentiary and that’s why I helped Charles because I didn’t want to go back to the penitentiary. You know, when you’re part of a team, you get the win, you get the loss. When you’re part of a corporation, the good years you make some monies and the bad years, you take a loss. When you’re part of a joint venture to commit a crime, you’re part and parcel. You are in it for a penny, you’re in it for a pound regardless of the extent of the defendant’s involvement in the actual commission of the crime.
“Aiding and abetting; it may not seem fair to hold this defendant responsible for the kidnapping and murder of David Owen because, after all, all he did you may be thinking is he got the rope and he gave it to John and he helped drag him, out there. . . . The facts of the case are that Carl assisted, he aided, he helped in all these endeavors. . . . Once you are in, once you’re in the group, the actions of Charles are your actions. Doesn’t matter that you didn’t tie David up, you helped drag him. down there to the tree. Whatever Charles did is your responsibility too.” (Emphasis added.)
The prosecutor repeated this refrain and commented on the actual evidence of Baker’s assistance in his rebuttal closing:
“[L]et’s talk about [what] Charles says, this dude has got to die. You know, you don’t have to be an English major to understand what that means. . . . And he [Hollingsworth] asks Carl to help him drag him doum there and Carl does. . . . There are choices, there are actions. Carl joined the crime in this case.
“Carl made a choice. . . . Charles said, this dude has got to die, he [Baker] made a choice to help him in that crime. . . . He didn’t have to become involved. He could have sat there, he could have let John grab a rope, take the rope to Charles. He could have let Charles drag him out or get somebody else to drag him out. He didn’t have to do a thing. Would he have been morally guilty, yes. But he wouldn’t have been criminally responsible. He could have sat there and decided not to do a thing.
“Choices. Carl Baker made a choice in this case.” (Emphasis added.)
There are not only numerous references to Baker’s actions in assisting in the crimes — -as opposed to a mere presence, i.e., sitting on the bench and not getting in tire game — but we also observe that the parties agree that the jury instruction given on aiding and abetting correctly stated the law. See PIK Crim. 3d 54.05, Notes on Use. For these reasons, we conclude that the isolated reference to sitting on the bench did not misstate the law and was not outside of the wide latitude given the State when discussing the evidence.
Our conclusion is buttressed by Wesley v. United States, 547 A.2d 1022, 1029-31 (D.C. 1988), where the court addressed a similar sports analogy in a prosecutor’s closing argument on aiding and abetting. Specifically, the prosecutor analogized the defendant’s participation in the crime to the lack of playing time of a former backup quarterback for the Washington Redskins football team when it won the Super Bowl. Like the instant case, the defendant argued that the analogy misstated the law on aiding and abetting and prejudicially suggested that mere presence was sufficient to convict without any intent to assist or evidence of conduct in furtherance of the crime.
The prosecutor had stated that quarterback “Bob Holley sat on the bench for that entire time. He didn’t play a single solitary down for that game. . . . Just sitting on that bench, being ready was what he was doing that day. . . . Every member of that team, ladies and gentlemen, got their Super Bowl rings, all right. It wasn’t just the people who played.” (Emphasis added.) 547 A.2d at 1029-30.
As we have done, the Wesley court observed that the prosecutor had stressed that the defendant was “assisting” the “team” as a member and emphasized the “combined effort” of the Redskins team. 547 A.2d at 1030. This combined effort was then compared to the effort between the defendant and his colleague. The court held that “the analogy, although not completely parallel, included enough of the elements of aiding and abetting to avoid being misleading.” 547 A.2d at 1030. It further noted, as in the instant case, that the judge correctly instructed the juiy that more than mere presence was required and that “[t]he instructions were clear enough to dispel any notion that a conviction for aiding and abetting could be satisfied by mere presence.” 547 A.2d at 1031.
While the Wesley court did not follow our analytical framework for reviewing possible prosecutorial misconduct as articulated in White, 284 Kan. 333, it appears to have addressed our threshold inquiiy: whether the argument misstated the law and thus was outside the latitude afforded a prosecutor. It expressly held that the argument “avoid[ed] being misleading,” and ultimately concluded that “the prosecutor engaged in no misconduct in her closing argument.” 547 A.2d at 1030-31.
Wesley did not address another argument raised by Baker. He asserts that aiding and abetting is a specific intent crime, citing State v. Johnson, 258 Kan. 475, 485, 905 P.2d 94 (1994). According to him, the defendant must therefore intend for the criminal venture to succeed. Baker contends that the State’s analogy to a sports team negates the importance of specific intent and instead suggests that aiding and abetting is a general intent crime.
As noted, both parties agree that juiy instruction No. 15, which was taken from PIK Crim. 3d 54.05, correctly stated the law on aiding and abetting. We first observe that in State v. Hunter, 241 Kan. 629, 639, 740 P.2d 559 (1987), we held that PIK Crim. 2d 54.05 (same language as its successor) clearly informs the jury that intentional acts by a defendant are necessary to sustain a conviction for aiding and abetting. We further observe that Baker’s jury was told through instruction No. 13 that “[a]s used in these instructions the following words and phrases are defined as indicated: ‘Intentionally’ means conduct that is purposeful and willful and not accidental. Intentional includes the terms ‘knowing,’ ‘purposeful,’ and ‘on purpose’.” (Emphasis added.) In State v. Sterling, 235 Kan. 526, 529, 680 P.2d 301 (1984), after acknowledging that aiding and abetting required specific intent, we held that to prove that crime, “the prosecution had the burden of showing that the defendant willfully and knowingly associated himself with the criminal acts of McDaniel [the codefendant] and willfully participated in them.” (Emphasis added.)
Given these correct statements of the law in the instructions, and our review of the closing argument, we are unable to conclude that the sports team analogy negated the specific intent that aiding and abetting required. The prosecutor repeatedly referenced Baker’s choice to assist the team. Moreover, Baker never denied assisting; rather, he openly admitted supplying the rope with which Owen was bound and admitted helping drag Owen from the camp to his eventual death near the river.
Because we hold that the prosecutor did not mislead, i.e., did not misstate the law of aiding and abetting, we need go no further in our misconduct analysis. See State v. Kraus, 271 Kan. 810, 817-22, 26 P.3d 636 (2001). There was no misconduct, much less any that was reversible.
Issue 4: The trial court did not erroneously impose an enhanced sentence.
For his last claim of error, Baker argues that the trial court erred by using his prior convictions in calculating his criminal histoiy score. More particularly, he argues that the convictions were re quired to have been proven beyond a reasonable doubt before a jury.
This court first addressed this question in 2002 and concluded that the use of criminal history scores is not unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). State v. Ivory, 273 Kan. 44, 46-47, 41 P.3d 781 (2002) (including prior criminal convictions in Kansas Sentencing Guidelines Act criminal history score is constitutional); see State v. Gonzalez, 282 Kan. 13, 113-18, 145 P.3d 18 (.2006). We see no reason to retreat from that position now.
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Per Curiam:
This is an uncontested disciplinary proceeding alleging that the respondent, Kent O. Docking, violated the Kansas Rules of Professional Conduct. Docking was suspended from the practice of law on December 8,2006, and was reinstated on March 12, 2007. The misconduct culminating in the present proceeding occurred while his license was suspended. He accepted a retainer fee to pursue a civil action, took no action on behalf of his client, failed to notify his client that his license was suspended, and did not respond to his client’s efforts to communicate with him. The hearing panel unanimously recommended that he be suspended for 9 months from the practice of law in the state of Kansas.
This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Kent O. Docking, an attorney admitted to the practice of law in Kansas in September 1985. The respondent’s last registration address with the Clerk of the Appellate Courts of Kansas is in Kansas City, Kansas.
The Kansas Board for the Discipline of Attorneys held a hearing on May 1, 2007.
HEARING PANEL FINDINGS
The hearing panel found the following facts by clear and convincing evidence:
“1. Kent O. Docking (hereinafter ‘the Respondent’) is an attorney at law, Kansas Attorney Registration No. 12265. His last registration address with the Clerk of the Appellate Courts of Kansas is . . . Kansas City, Kansas. The Respondent was admitted to the practice of law in the state of Kansas on September 20, 1985.
“2. On September 15, 2006, Teresa Oropeza retained the Respondent to terminate a guardianship/conservatorship case established for the benefit of her mother, Mary L. Hernandez, due to her mother’s death on September 9, 2006. Ms. Oropeza paid the Respondent $1,000.00 for the representation. Additionally, [Ms.] Oropeza provided the Respondent with all of her financial information and paperwork concerning the administration of her mother’s guardianship/conservatorship.
“3. On October 17, 2006, Ms. Oropeza returned to the Respondent’s office and signed a proposed petition for termination of the guardianship/conservatorship. However, the Respondent failed to file the petition with the Court.
“4. On December 8, 2006, the Kansas Supreme Court suspended the Respondent from the practice of law in the State of Kansas for a period of 90 days. ... In re Docking, 282 Kan. 715, 147 P.3d 139 (2006).
“5. Following the Respondent’s suspension, the Respondent did not notify Ms. Oropeza orally or in writing of his suspension. Additionally, the Respondent failed to notify any of his clients, in writing, of his suspension.
“6. In January, 2007, the District Court sent Ms. Oropeza a letter directing her to file financial information with the Court. After receiving the letter from the Court, Ms. Oropeza called the Respondent’s office but was unable to contact the Respondent. Ms. Oropeza then went to the Respondent’s office and left the letter in his office. The Respondent did not contact Ms. Oropeza after she dropped off a copy of the letter in his office.
“7. In early February, 2007, Ms. Oropeza was served with a citation to show cause why she should not be removed as guardian. After she was served with the citation to show cause, Ms. Oropeza called the Respondent’s office on February 5, 2007, February 6, 2007, and February 8, 2007. When Ms. Oropeza called the Respondent’s office, she was told that the Respondent was in court and not available. [FN: In his written response to the complaint, the Respondent acknowledged that his secretary falsely told Ms. Oropeza that he was in Court. The Respondent explained that while he did not know that his secretary was stating that to callers, he did acknowledge the wrongful nature of that conduct. It was incumbent upon the Respondent to train his support staff to properly advise his clients of his suspension.] Ms. Oropeza was not informed that the Respondent’s license to practice law had been suspended. The Respondent did not return Ms. Oropeza’s telephone calls.
“8. On February 9, 2007, Ms. Oropeza sent the Respondent a letter via certified mail. On February 10, 2007, the letter was received in the Respondent’s office and signed by ‘Sec, Chris.’ Although the letter was delivered to the Re spondent’s office, the Respondent states that he did not receive this letter from Ms. Oropeza. As a result, the Respondent did not respond to Ms. Oropeza’s letter.
“9. On February 23, 2007, Ms. Oropeza appeared in court on the order to show cause. While in Court, Ms. Oropeza learned, for the first time, that the Respondent’s license to practice law had been suspended. The Court continued the hearing and instructed Ms. Oropeza to hire a new attorney.
“10. On March 4,2007, Ms. Oropeza wrote a second letter to the Respondent. Ms. Oropeza’s second letter provided:
“On September 15, 2006 I paid you a $1000.00 retainer fee for your services. You have done nothing. You were to petition the court to dissolve the guardian/conservator for my mother Mary L. Hernandez, turn in financial papers to the court, and publish public notice for the creditors.
“I have called your office many times and was told each time that you were in court. I received a letter from the court requesting my financial papers and brought them to your office with a notice to call me. The receptionist took the papers and said she would see to it that you received them. On February 9, 2007,1 wrote a letter and sent it certified telling you that I had to appear in court on February 23, 2007.1 got no response from your office.
“I went to court on the 23rd and the judge told me you were suspended.
I am furious that I wasn’t notified of your suspension. You and your receptionist could at least told me [sic] you weren’t practicing instead of lying by saying you were in court. I want a full refund since you have done nothing but taire my money. The judge gave me a continuance and told me to get a new lawyer.
The Respondent’s secretary signed for Ms. Oropeza’s second letter. Although the Respondent’s secretary signed for the second letter, the Respondent did not receive the letter for some time. Apparently, the Respondent’s secretary picked up the letter and other mail on her way out of the office on the day the letter was delivered. Rather than return the mail to the Respondent’s office, the Respondent’s secretary placed the mail, including Ms. Oropeza’s second letter, in the Respondent’s secretary’s car where it remained for some time.
“11. Ms. Oropeza called Paul Dent, the attorney who had previously initiated the guardianship/conservatorship, to represent her in the probate case. On March 9, 2007, Mr. Dent filed a petition for termination of guardianship and conservatorship.
“12. In late February 2007, the Respondent contacted Stanton A. Hazlett by telephone to discuss his reinstatement. As a result of their discussions, on March 7,2007, Mr. Hazlett prepared an order of reinstatement for the Court to consider. On March 12, 2008, the Court reinstated the Respondent’s license to practice law.
“13. On March 19, 2007, Ms. Oropeza filed a complaint with the Disciplinary Administrator’s office. On March 23, 2007, the Disciplinary Administrator dock eted Ms. Oropeza’s complaint for investigation. The Disciplinary Administrator forwarded a copy of Ms. Oropeza’s complaint to the Respondent.
“14. After receiving a copy of Ms. Oropeza’s complaint, the Respondent refunded Ms. Oropeza’s attorney fee. On April 14, 2007, the Respondent forwarded a response to Ms. Oropeza’s complaint to the investigator.
“15. In the Respondent’s written response to the complaint, the Respondent complained that the Clerk’s office should have notified him of the February 23, 2007, hearing. Specifically, the Respondent stated:
‘The February hearing, that Mrs. Oropeza mentioned, I had not [sic] notice of. I am enclosing a copy of a letter, from another Probate case, that was sent to the Petitioner only; not to me. I asked the head Probate Clerk why a motice [sic] was not sent to me and she replied; we just send them to who the Judge tells us to. I do not know what is going on over there; but I do know it is not right. Attorneys need to get notice.’
The Respondent’s complaint is inappropriate and misplaced. First, the Respondent had neither filed the petition to terminate the guardianship/conservatorship nor had he entered his appearance in behalf of Ms. Oropeza. Second, the Respondent was suspended from the practice of law. Had the Respondent filed the petition to terminate the guardianship/conservatorship or entered his appearance, he would have been required to file a motion to withdraw as he was ineligible to engage in the practice of law. Either way, the Respondent was not entitled to notice from the Court. Finally, the Respondent may have received actual notice of the hearing from Ms. Oropeza. She repeatedly contacted the Respondent’s office seeking assistance with the hearing scheduled for February 23, 2007. Despite Ms. Oropeza’s repeated contacts, the Respondent did not contact Ms. Oropeza and inform her that he had been suspended.”
Based on these findings, the hearing panel reached the following conclusions:
“CONCLUSIONS OF LAW
“1. The Respondent stipulated that he violated KRPC 1.4, KRPC 1.16(d), KRPC 8.1(b), and Kan. Sup. Ct. R. 211(b).
“2. After considering the evidence presented in this case, the Hearing Panel concludes that the Respondent additionally violated KRPC 1.3 and Kan. Sup. Ct. R. 218(a) [FN: The Deputy Disciplinary Administrator also alleged that the Respondent violated KRPC 3.2. The Hearing Panel concludes that the Deputy Disciplinary Administrator did not present clear and convincing evidence that the Respondent violated KRPC 3.2.], as detailed below.
“3. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The Respondent failed to timely file and prosecute a petition for termination of the guardianship/conservatorship. The Respondent argued that because it subsequently took several months for Mr. Dent to close the estate, the Respondent did not fail to diligently represent [Ms.] Or opeza by failing to file the petition in October when he was retained. However, the Respondent’s lack of diligence directly resulted in a delay from October, 2006, to March, 2007, in getting the petition on file. Had the Respondent filed the petition when he was retained and had the Respondent properly informed Ms. Oropeza that he could not represent her during the period of suspension, Ms. Oropeza could have sought replacement counsel and concluded the case earlier. Accordingly, the Hearing Panel concludes that the Respondent failed to provide diligent representation to Ms. Oropeza in violation of KRPC 1.3.
“4. KRPC 1.4(a) provides that ‘[a] lawyer shall keep client reasonably informed about the status of a matter and prompdy comply with reasonable requests for information.’ In this case, the Respondent violated KRPC 1.4(a) when he failed to inform Ms. Oropeza that he had failed to file the petition to terminate the guardianship/conservatorship and failed to return Ms. Oropeza’s telephone calls. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a) by failing to properly keep Ms. Oropeza informed about the status of her case.
“5. KRPC 1.16(d) provides:
‘Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and. refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.’
Following the Respondent’s suspension, the Respondent failed to take proper steps to protect Ms. Oropeza’s interests, in that the Respondent faded to inform Ms. Oropeza that he was suspended from the practice of law for a period of 90 days and, thus, unable to represent her. The Hearing Panel concludes that, accordingly, the Respondent violated KRPC 1.16(d).
“6. Although the Respondent stipulated that he violated KRPC 1.4 and KRPC 1.16, he argued that the violations are duplicitous. The Respondent’s argument lacks merit. To establish a violation of KRPC 1.4 requires different evidence than to establish a violation of KRPC 1.16. The Respondent’s failure to properly communicate with Ms. Oropeza regarding the status of the representation serves as the basis for the KRPC 1.4(a) violation. The Respondent’s failure to take proper steps to protect Ms. Oropeza[’s] interests after his suspension serves as the basis for the KRPC 1.16 violation. Because the bases of the two violations are distinct, the Hearing Panel concludes that findings that the Respondent violated KRPC 1.4(a) and KRPC 1.16(d) are not duplicitous.
“7. A lawyer must cooperate in disciplinary proceedings. KRPC 8.1(b) provides: ‘[A] lawyer in connection with a . . . disciplinary matter, shall not: . . . knowingly fail to respond to a lawful demand for information from [a] . . . disciplinary authority, . . .’ KRPC 8.1(b). A lawyer must file an Answer to a Formal Complaint ‘within twenty days after the service of the complaint.’ Kan. Sup. Ct. R. 211(b). In this case, the Respondent violated KRPC 8.1(b) and Kan. Sup. Ct. R. 211(b) by failing to file a timely written Answer to the Formal Complaint.
“8. Kan. Sup. Ct. R. 218 provide[s] specific requirements of an attorney when an attorney is suspended or disbarred from the practice of law. Specifically, all suspended and disbarred attorneys are required to:
‘forthwith notify in writing each client or person represented by him or her in pending matters, of his or her inability to undertake further representation of such client after the effective date of such order, and shall also notify in writing such client to obtain other counsel in each such matter. As to clients involved in pending litigation or administrative proceedings, such attorney shall also notify in writing tire appropriate court or administrative body, along with opposing counsel, of such inability to further proceed, and shall file an appropriate motion to withdraw as counsel of record.’ Kan. Sup. Ct. R. 218(a).
Additionally, ‘proof of compliance with this rule must be furnished to the Clerk of the Appellate Courts as a condition precedent to the filing of any Petition for Reinstatement pursuant to Rule 219.’ Kan. Sup. Ct. R. 218(b).
“9. The Respondent argues that because the Court failed to specifically state its opinion that the Respondent was required to comply with the provisions of Kan. Sup. Ct. R. 218, that he was excused from compliance. The Respondent offers no authority for his interpretation of Kan. Sup. Ct. R. 218. The Respondent’s argument does not make sense. The Court is under no obligation to inform the Respondent, or anyone else, of its rules. Kan. Sup. Ct. R. 218 applies regardless of whether the Court includes mention of the rule in its opinion. Further, the Respondent argues that because the Court did not require that he certify to the Court that the had complied with Kan. Sup. Ct. R. 218 in applying for reinstatement that that amounted to further evidence that he was not required to comply with Kan. Sup. Ct. R. 218. Likewise, this argument lacks merit.
“10. The Hearing Panel concludes that Kan. Sup. Ct. R. 218(a) required the Respondent to have notified Ms. Oropeza and his other clients in writing that he had been suspended from the practice of law. Additionally, the Hearing Panel concludes that Kan. Sup. Ct. R. 218(a) required die Respondent to inform the Courts and opposing counsel in writing of his suspension and formally withdraw from the representation of clients with pending litigation. Accordingly, the Hearing Panel concludes that the Respondent violated [Kan. Sup. Ct. R,] 218(a).
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, die Hearing Panel considered the factors oudined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duties to his client, Ms. Oropeza and to the legal profession.
“Mental State. The Respondent knew or should have known he was violating his duties.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to Ms. Oropeza and the legal profession. Kan. Sup. Ct. R. 218 was designed to prevent the precise injury that Ms. Oropeza experienced in this case.”
In determining its recommendations for discipline, the hearing panel found the following aggravating and mitigating factors applicable:
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Prior Disciplinary Offenses. The Respondent has been previously disciplined on three occasions. First, on December 1, 1993, following a hearing before a Hearing Panel of the Kansas Board for Discipline of Attorneys, the Disciplinary Administrator informally admonished the Respondent for having violated KRPC 3.3 and KRPC 4.1.
“Next, on March 4,1994, the Kansas Supreme Court censured the Respondent for having violated DR 5-105(A) (failing to decline employment where the exercise of his independent professional judgment on behalf of a client would be or was likely to be adversely affected), 5-105(B) (continuing multiple employment when the exercise of his independent professional judgment on behalf of a client would be or was likely to be adversely affected by his representation of another client), and DR 6-101(A)(l) (handling a legal matter which he knew or should have known that he was not competent to handle, without association with a lawyer who was competent to handle it). In re Docking, 254 Kan. 921, 869 P.3d 237 (1994).
“Finally, on December 8, 2006, the Kansas Supreme Court suspended the Respondent for a period of 90 days for having violated KRPC 1.3 (diligence), KRPC 1.4 (communication), KRPC 1.15(a) (safekeeping of property), and KRPC 1.16 (d) (termination of representation). In re Docking, 282 Kan. 715, 147 P.3d 139 (2006).
“Multiple Offenses. The Respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.16, KRPC 8.1, Kan. Sup. Ct. R. 211, and Kan. Sup. Ct. R. 218. As such, the Respondent committed multiple offenses.
“Vulnerability of Victim. Ms. Oropeza was vulnerable to the Respondent’s misconduct.
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1985. At the time the Respondent engaged in misconduct, the Respondent had been ‘practicing’ law for more than 20 years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the ‘practice’ of law at the time he engaged in the misconduct.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstance present:
“Remoteness of Prior Offenses. The discipline imposed in 1993 and 1994 is remote in time and the misconduct that gave rise to the discipline imposed in 1993 is remote in character to the misconduct in this case.”
The hearing panel considered certain Standards promulgated by the American Bar Association:
“In addition to the above-cited factors, the Hearing Panel has thoroughly ex:amined and considered the following Standards:
‘Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; . . . .’ Standard 4.42.
‘Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client.’ Standard 4.43.
‘Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client.’ Standard 6.22. ‘Reprimand is generally appropriate when a lawyer negligently fails to comply with a court order or rule, and causes injury or potential injury to a client.’ Standard 6.23.
‘Suspension is generally appropriate when a lawyer larowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.’ Standard 7.2.
‘Suspension is generally appropriate when a lawyer has been reprimanded for the same or similar misconduct and engages in further acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession.’ Standard 8.2.”
The hearing panel then made a recommendation of 9 months’ suspension from the practice of law:
“RECOMMENDATION
“The Deputy Disciplinary Administrator recommended that the Respondent be suspended from the practice of law for a period of one year. Counsel for the ■ Respondent recommended that the Kansas Supreme Court censure the Respondent and that the censure be published in the Kansas Reports.
“Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be suspended for a period of nine months from the practice of law in the State of Kansas.”
DISCUSSION
In a disciplinary proceeding, we consider the evidence, the findings of the disciplinary panel, and the arguments of the parties to determine whether the respondent violated the KRPC and what discipline should be imposed. Attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. In re Landrith, 280 Kan. 619, 636, 124 P.3d 467 (2005); Supreme Court Rule 211(f) (2007 Kan. Ct, R. Annot. 304) (misconduct to be established by clear and convincing evidence).
The respondent did not file any exceptions to the panel’s final report. A hearing panel’s final report is deemed admitted under Supreme Court Rule 212(c) and (d) (2007 Kan. Ct. R. 317) when a respondent fails to file exceptions. In re Devkota, 280 Kan. 650, 655, 123 P.3d 1289 (2005). We conclude the panel’s findings of fact are supported by clear and convincing evidence and support the panel’s conclusions of law. Further, we adopt the panel’s findings of fact and conclusions of law.
The Deputy Disciplinary Administrator and the hearing panel both agree that suspension is the appropriate sanction; the hearing panel recommending a 9-month suspension and the Disciplinary Administrator a 1-year suspension. We are not constrained by the recommendations of either the panel or the Disciplinaiy Administrator; such recommendations are advisory only. In this instance, the recommendation of suspension is entirely appropriate. Respondent was suspended at the time of the current violations for engaging in conduct that was remarkably similar in nature to the matter before us now. Testimony before the panel and this court demonstrates a failure to fully appreciate the duty he owes to his clients, the profession, and the public.
It Is Therefore Ordered that the respondent, Kent O. Docking, be and he is hereby disciplined by suspension from the practice of law in Kansas for a period of 1 year effective as of the date of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2007 Kan. Ct. R. Annot. 261) for violations of KRPC 1.3 (2007 Kan. Ct. R. Annot. 398); KRPC 1.4 (2007 Kan. Ct. R. Annot. 413); KRPC 1.16 (2007 Kan. Ct. R. Annot. 487); KRPC 8.1(b) (2007 Kan. Ct. R. Annot. 553); Rule 211(b) (2007 Kan. Ct. R. Annot 304); and Rule 218 (2007 Kan. Ct. R. Annot. 337).
It Is Further Ordered that the respondent shall comply with Rule 218 (2008 Kan. Ct. R. Annot. 350) and Rule 219 (2008 Kan. Ct. R. Annot. 365) prior to readmission to the practice of law.
It Is Further Ordered that the cost of this action be assessed to the respondent and that this order be published in the official Kansas Reports. | [
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