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The.opinion of the court was delivered by
Valentine, J.:
The only question involved in these three cases is, whether a certain act of the legislature entitled “An act to divide the county of Howard, and to erect the territoiy thereof into the counties of Chautauqua and Elk, to provide for the due organization of said counties, the filling of vacancies ,in offices, for the proper division .of the property and indebtedness of Howard county, and in regard to the taxes and records thereof,” approved March 5th 1875, (Laws of 1875, p. 148,) is sufficiently valid to accomplish its object; that is, to create the two new counties of Chautauqua and Elk out of the old county of Howard; or whether said act is wholly and absolutely void. Said act was house bill No. 54. Said bill was passed by the house in a legal and proper manner. It was then taken to the senate, where it was amended in several particulars, and as amended was then passed in a legal and proper manner. It was then returned to the house, but the house refused to concur in any of the several amendments. It was then returned to the senate, and the senate, by a vote by yeas and nays properly entered on the journal, receded from all its amendments. The bill was not passed by the legislature in any other manner than as above specified. The bill was then enrolled; but by a mistake of the enrolling clerk and the enrolling committee “Sec. 3” of the original bill was left out, and the numbers of sections 4 to 12 inclusive, of the original bill, were changed, and in the enrolled bill numbered respectively from 3 to 11. The bill as enrolled was properly signed by the chief clerk of the house, the secretary of the senate, the presiding officers of the two houses, and was then presented to the governor, who approved and signed the same, and it was then filed with the secretary of state, where it is now preserved. The published act is an exact copy of the enrolled bill, except that the signatures to the enrolled .bill are omitted in the published copy. After the enrolled bill was presented to the governor,'the committee on enrolled bills reported to the house that the bill was “correctly enrolled,” and that they had presented the same to the governor for his approval. The engrossed bill, as it passed the house, is also on file in the office of the secretary of state, but it is not signed by any person, and there is no record evidence of any kind whatever tending to show that it is in fact such engrossed bill. The only record evidence of any kind whatever showing what said bill No. 54 contained, in any of its stages from the time it was first introduced in the house until it was finally filed as an enrolled bill in the office of the secretary of state, is the enrolled bill itself. The journals of the two houses are entirely silent upon the matter, and the said engrossed bill, as we shall presently see, is not a record, nor a part of any record. An engrossed bill, in this state, is the bill as copied for final passage in either house. It is the bill, as copied before its passage, with the amendments made up to that time, and there may be one or more engrossed bills of each bill introduced; and each of these engrossed bills may be different from any of the others, for each engrossed bill simply represents the bill as the bill is when it is engrossed. The enrolled bill is the bill as copied after its final passage through both houses, and as it has passed both houses, and as presented to the governor for his signature and approval. There can be only one enrolled bill. Our laws with regard to preserving records of the proceedings of the legislature are as follows. The constitution, article 2, provides :
“Sec. 10. Each house shall keep and publish a journal of its proceedings. The yeas and nays shall be taken, and entered immediately on the journal, upon the final passage of every bill or joint resolution.
“Sec. 11. Any member of either house shall have the right to protest against any bill or resolution; and such protest shall, without delay or alteration, be entered on the journal.
“Sec. 14. Every bill and joint resolution passed by the house of representatives and senate, shall, within two days thereafter, be signed by the presiding officers, and presented to the governor; if he approve it, he shall sign it; but if not, he shall return it to the house of representatives, which shall enter the objections at large upon its journal, and proceed to reconsider the same. If after such reconsideration, two-thirds of the members elected shall agree to pass the bill or resolution, it shall be sent, with the objections, to the senate, by which it shall likewise be reconsidered; and if approved by two-thirds of all the members elected, it shall become a law. But in all such cases the vote shall be taken by yeas and nays, and entered upon the journal of each house.”
The statutes provide — Gen. Stat. 975, section 15, subdivision sixth:
“He [the secretary of state] shall be charged with the safekeeping of all enrolled laws and resolutions, and he shall not permit the same, or any of them, to be taken out of his office, or inspected, unless by order of the governor, or by resolution of one or both houses of the legislature, under a penalty of one hundred dollars.”
“Sec. 19. It shall be the duty of the secretary of state to cause the original enrolled laws and joint resolutions passed at each session of the legislature, together with an index containing the titles of the same, to be bound in a volume in a substantial manner, and in the order in which they are approved; and no other or further record of the official acts of the legislature, so far as relates to acts and joint resolutions, shall be required of said secretary; and he shall also cause the title thereof, with the session at which the same shall have been passed, to be written or printed on the back of such volume.”
The statutes require that the secretary of gtate shall publish the laws from these enrolled laws filed in his office. (Gen. Stat. 544, § 2.) The secretary of state is also required to publish the legislative journals. (Gen. Stat. 544, § 5.) It will be noticed, that the legislative journals and the enrolled bills are the only records required by law to be kept for the purpose of showing any of the legislative proceedings. There is no provision for preserving the engrossed bills as a record of the legislative proceedings. And as the legislative jour nals and the enrolled bills are, by law, records, and the only records of legislative proceedings, they must of course import absolute verity, and be conclusive proof as to whether any particular bill has passed the legislature, when it passed, how it passed, and whether it is valid or not. In many of the states, the enrolled bills alone are conclusive evidence upon this subject: Sherman v. Story, 30 Cal. 253; Evans v. Browne, 30 Ind. 514; Pangborn v. Young, 32 N. J. (3 Vrooms) 29; Green v. Weller, 32 Miss. (3 George) 650; Swan v. Buck, 40 Miss. 268; Pacific Rld. Co. v. The Governor, 23 Mo. 352; Eld v. Gorham, 20 Conn. 8; Duncombe v. Prindle, 12 Iowa, 2; Broadnax v. Grown, 64 N. C. 244, 247; Fouke v. Flemming, 13 Md. 392; Mayor v. Harwood, 32 Md. 471. See also in this connection, Miller v. The State, 3 Ohio St. 475, 479; The People v. Supervisors, &c., 8 N. Y. 317; People v. Devlin, 33 N. Y. 269; Supervisors v. People, 25 Ill. 181, 183; People v. Starne, 35 Ill. 121. In nearly every state from which the foregoing decisions are taken, and perhaps in' every one of them, they have constitutional provisions requiring that each branch of the legislature shall keep a journal of its proceedings. This is particularly true in California, Indiana, New Jersey, and Connecticut. And in every one of these states, except Connecticut, Ohio, New York, and Illinois, it is held that the final bill signed by the presiding officers of the two houses, and approved by the governor, usually called the “ enrolled bill,” is conclusive evidence of the proper passage of such bill, and of its validity. In Connecticut, in accordance with certain statutes in force there, the published laws on file in the office of the secretary of state, properly certified, are conclusive evidence of the passage and validity of such laws, notwithstanding that the constitution requires that legislative journals shall be kept arid preserved. Since the decision made in New York, reported in 33 N. Y. 269, 279 to 282, 283, we suppose it will hardly be claimed that the state of New York furnishes any authority for going behind the enrolled bills for the purpose of impeaching the law. In Illinois it is held, that, except for certain constitutional pro visions in that state, “a bill signed by the speaker of the two houses and approved by the governor would be conclusive of its validity, and binding force as a law.” (People v. Starne, 35 Ill. 121, 135.) The principal constitutional provision referred to is as follows:
“On the final passage of all bills, the vote shall be by ayes and nays, and shall be entered on the journal; and no bill shall become a law without the consent of a majority of all the members elect in each house.” Const, of Ill. of 1848, Art. 3, § 21.
But the supreme court of Illinois has never held that the enrolled bills may be impeached by anything except by the legislative journals. And the legislative journals, even where they apparently contradict the enrolled bills, are not always sufficient to invalidate such enrolled bills. In the case of Supervisors v. The People, 25 Ill. 183, the supreme court of that state say: “The constitution does require that every bill shall be read three times in each branch of the general assembly before it shall be passed into a law, but the constitution does not say that these several readings shall be entered on the journals.” And therefore, said court held in that case that an act of the legislature was valid although the senate journal did not show that the bill had been read three times.
Now let us apply the doctrine of the supreme court of Illinois to the case at the bar. And the able and venerable counsel representing the parties claiming that said Howard county division-law is void, relied, in his argument upon the question, almost wholly upon an earlier decision of the supreme court of Illinois, to-wit, Spangler v. Jacoby, 14 Ill. 297. We have no constitutional provision requiring that a bill introduced into either house of the legislature shall in any of its stages be spread upon the journal of either house. We have no constitutional provision requiring that any record of any such bill shall be kept or preserved, except as it is kept and preserved in what we call the “enrolled bill.” The bill in this particular case (and this is true of all other bills,) was not in any .of its stages entered upon the journal of either house of the legislature. The journals in this case do not contradict the enrolled bill. They do not in any manner conflict with any presumption in favor of the validity of the enrolled bill. Nor do they furnish the slightest evidence that the bill was not legally passed by both branches of the legislature, or that it was not properly enrolled, or properly signed, by the presiding officers of the two houses, or that it was not properly approved, and signed by the governor, and properly filed away in the office of the secretary of state. Indeed, the report of the enrolling committee entered in the journal of the house does furnish some evidence that the bill was “ oorredly enrolled.” We do not think that we can resort to evidence outside of the enrolled bill, and outside of the journals of the legislature, for the purpose of impeaching the enrolled bill as a valid law. Of course, we take judicial notice, without proof, of all the laws of our own state. All the courts of the state are required to do this. And in doing this, we take judicial notice of what our books of published laws contain, of what the enrolled bills contain, of what the journals of the legislature contain, and indeed of everything that is allowed to affect the validity of any law, or that is allowed to affect or modify its meaning in any respect whatever. But in doing this, if it be merely for the purpose of taking judicial notice of our laws, we cannot take judicial notice of a fact which is not allowed to affect the validity or meaning of a law in any respect whatever; and such fact cannot even be proved to us for any such purpose. For instance, if the mistake in enrolling said bill No. 54 were allowed in any manner to affect the validity or meaning of the law, as enrolled and filed in the secretary’s office, we would take judicial notice of such mistake; but as such mistake (not being shown by any record) is not allowed to have any such effect upon the validity or meaning of said law, we can neither take judicial notice of the mistake, nor can it be proved' to us. Now as we have before intimated, the enrolled bills, and the legislative journals, being records provided for by the constitution, importing absolute verity, we cannot take judicial notice that they are untrue, nor can we even allow evidence to be introduced for the purpose of proving that they are not true. Therefore, as the enrolled bill of the law dividing Howard county, and the journals of the legislature, would seem to "prove that said bill had been legally passed by the legislature, and had been legally approved by the governor in the form as it now appears enrolled in the secretary’s office, we cannot take judicial notice that said bill was not properly so passed and so approved, and we cannot even allow evidence to be introduced showing that it was not so passed and so approved. We must therefore determine that the bill was legally passed and approved, and that it is now a valid law as it appears in the secretary’s office.
There were several other objections urged against the validity of said law, but, as we think, none of them are tenable, and all of them must therefore be overruled. We think that the provision of the constitution requiring that “The yeas and nays shall be taken, and entered immediately on the journal, upon the final passage of every bill or joint resolution,” (art. 2, § 10,) was sufficiently complied with. It would of course have been more formal if the senate, after receding from its own amendments, had again put the bill upon its final passage, and passed the bill without the amendments, as it had done with the amendments. But the manner in which this bill was passed has always been acted upon; and if we should now hold it insufficient we should probably invalidate a very large proportion of all the laws that have ever been enacted in Kansas. Upon this question see the case of The People v. Chenango, 8 N. Y. 318, 327, et seq.
The “subject” to be contained in a bill under § 16, art. 2, of the constitution, which provides that “No bill shall contain more than one subject, which shall be clearly expressed in its title,” may be as broad and comprehensive as the legislature may choose to make it. It may include innumerable minor subjects, provided all these minor subjects are capable of being so combined as to form only one grand and compre hensive subject; and if the title to the bill, containing this grand and comprehensive subject, is also comprehensive enough to include all these minor subjects as one subject, the bill, and all parts thereof, will be valid. (Bowman v. Cockrill, 6 Kas. 334, 335; Sedgwick Stat. & Const. Law, (2 ed.) 517, et seq.) The title to the bill now under consideration is, as we think, sufficient for the purpose of creating, upon equitable principles as to indebtedness, property and taxation, two fully-organized new counties, to be named Elk and Chautauqua, out of the old county of Howard; and this is really but one subject, which is the substance of the bill. We would also refer to the following authorities upon this question: Blood v. Mercelliott, 53 Penn. St. 391; Duncombe v. Prindle, 12 Iowa, 1; Brandon v. The State, 16 Ind. 197; Humboldt Co. v. Churchill Co. Comm’rs, 6 Nevada, 30. Even if § 10 of the act (Laws of 1875, page 152,) should be void, the rest of the act may be valid.
We think the legislature has thé power to abolish counties, and county organizations, whenever it becomes necessary for them to do so in changing county lines, or in creating new counties. Whether they could do so in any other case, it is not necessary for us now to determine. In the case of Hunt v. Meadows, 1 Kas. 90, it was held that an act of the territorial legislature, (Territorial Laws of 1861, page 17,) passed after the state was admitted into the union, destroying the county of Madison, was valid. In Iowa, in the case of Duncombe v. Prindle, 12 Iowa, 1, it was held that an act destroying the county of Humboldt, was valid. And we think such acts are valid. Of course, when a county is destroyed, the county-seat must go with it. The county-seat of an old county need not be made the county-seat of any new county, or indeed of any county, new or old, into which such county-seat may be placed by a change of county lines, or by the creation of a new county. For if such county-seat must continue to be the county-seat of the county into which it may be placed by a change of county lines, a county might some time by such change of county lines, have two or three county-seats. In this connection see Blood v. Mercettiott, supra; Atty. Gen. v. Fitzpatrick, 2 Wis. 542.
In two of the three cases at bar — that brought by Oberlander, as relator, against Wright and others, and that brought by McBrian, as relator, against Titus and others — judgment will be rendered in favor of the plaintiff, and peremptory writs of mandamus will be issued as prayed for. In the third case, brought by Powell and Barber, as relators, against Light, judgment will be rendered in favor of the defendant, and the peremptory writ of mandamus prayed for will be refused.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Defendant was convicted in the district court of Davis county of the crime of grand larceny, and sentenced to the penitentiary for a term of three years. From this he has appealed to this court. A single matter only requires notice, for in that we find a fatal error. The information charged the larceny of certain cattle belonging to Michael Wandler. The evidence showed that the property belonged to J. M. Wandler, and there is nothing in the evidence, as preserved in the record, to show that Michael and J. M. Wandler are one and the same person. The only thing in the record bearing upon this is the recitation of what took place in the opening of the trial as follows: “The county attorney first, called Michael Wandler, who having answered and taken the stand was duly sworn, * * * testified as follows: My name is J. M. Wandler.” From this counsel argues that as the witness who testified that his name was J. M. Wandler answered when Michael Wandler was called, the jury had sufficient evidence to justify them in finding that J. M. W. and Michael W. were one and the same person. Counsel says that other things equally significant took place during the trial, which do not appear in the record; but of course we must take the record as it is. And there is not enough in it to sustain the verdict. The testimony of the witness was, that his name was J. M. Wandler, and there was no testimony tending to show that he was ever known by any other name. His answering to the call of Michael Wandler, and coming on to the witness stand in obedience thereto", took place before he was sworn; and a jury may not • bridge a variance between the charge and the testimony by inferences from the conduct of an unsworn witness. His conduct before he was sworn, is no more evidence than his statements would have been; and it would not seriously be contended that a jury might rest their verdict upon the statements of a witness prior to his being sworn. It may be that this was an inadvertence in the trial, or an oversight in preparing the record; and it may also be that the owner was not Michael Wandler, but an entirely different person, named J. M. Wandler.
The judgment will be reversed, and the case remanded for a new trial. The appellant will be returned from the penitentiary to the jailor of Davis county, to abide the further order of the district court of that county.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Cain against the administrator and heirs of the estate of Daniel Campbell deceased. The facts of the case seem to be about as follows: During the year 1870, Campbell, with his wife and family, resided upon and occupied said land, although the title thereto was in the United States. Campbell employed Cain to dig a well on the premises, which Cain did, and in consideration therefor Campbell gave to Cain his promissory notes. Afterward Campbell died intestate, and his widow (Anna Campbell) who had been appointed adistratrix of his estate, then procured (by entry) the title to said land from the United States, for said heirs. Afterward, Cain presented his claim against the estate for the amount due on said notes, which claim was allowed by the probate court. Mrs. Campbell then died intestate. No administrator was appointed for her estate, but Thomas Leahy was afterward appointed administrator de bonis non of said Daniel Campbell’s estate. Cain then commenced this action in the district court against said Leahy, as administrator, and against all the heirs — five in number — of said Daniel Campbell and Mrs. Anna Campbell. The object of the action was to recover a money-judgment against • the administrator for the said amount allowed by the probate court, and to have said land sold to satisfy said judgment. Afterward Cain dismissed his action as against three of the heirs, and then took judgment by default against the administrator and the other two heirs, one of whom was the present plaintiff in error, Mrs. Isabel Johnson.
The judgment rendered against Mrs. Johnson was, that her interest in said land should be sold to satisfy said money-judgment rendered against the administrator. The only question for this court to consider is, whether this judgment rendered against Mrs. Johnson is correct or not. No other person is complaining in this court. We hardly, think such judgment is correct. It will be noticed from the record that the estate of' Daniel Campbell had not been settled when this action was commenced. The administrator was still acting, and of course the probate court was still exercising jurisdiction over the estate. There may have been a vast number and amount of other debts against the estate yet unsettled and unpaid. And Mr. Cain had no specific lien upon this particular piece of land in controversy. That the district court has jurisdiction, as against heirs, to hear and determine all the rights of such heirs in and to any specific piece of land, in any suit appertaining to the title to such land, or to some specific lien or incumbrance thereon, although the land may belong to a decedent’s unsettled estate, and although the probate court may still be exercising jurisdiction over such estate, we suppose will not be questioned. And that specific liens may generally be ascertained and foreclosed in the district court, although an administrator and heirs may be necessary parties to the action, we suppose will also be admitted. (Shoemaker v. Brown, 10 Kas. 383.) And we also suppose that it will be admitted, that iñ many cases where an estate has already been settled, and the administrator discharged, courts of equity (such as the district courts are) will exercise jurisdiction over the heirs, and over any matter pertaining to such estate, so as to do justice to any person holding a claim against such estate. (10 Kas. 383.) And generally, courts of equity will exercise jurisdiction over estates, and over heirs, executors, administrators, devisees, legatees, and creditors of such estates, whenever it is equitable and right that they should do so. (Thompson v. Brown, 4 Johns. Ch. 619.) But courts of equity never exercise jurisdiction where it would be inequitable to do so, and in many cases do not exercise jurisdiction where the plaintiff has another plain and adequate remedy by an ordinary legal proceeding, or where an adequate remedy is specifically given to him by statute. Before proceeding further however we would say, that we shall decide this case upon the theory that Daniel Campbell owned said land when he died, (although this might be questioned as a fact,) and that he left it subiect to the payment bf all his debts, or at least to all debts contracted for improvements on the land. And upon this theory or assumption, may this action against Mrs. Johnson be maintained? We think not. It lacks equity in several particulars. Now as we have before stated, there may be a vast number of other claims, equal or even prior in law and equity to the plaintiff’s claims, still outstanding against said estate. And there may or may not be a vast number of other pieces of land belonging to the estate with-which such claims may be'paid. Now would it be' equitable to allow each holder of a claim to select his own piece of land from which to pay his debt? If such were allowed, the rights of many innocent third parties might unnecessarily be disturbed; and there might indeed be numerous, unavoidable, and inextricable conflicts between even the claimholders themselves. But even if everything else were fair and equitable, it would certainly seem to be unfair and inequitable to allow separate actions to be prosecuted, separate orders for the sale of the different pieces of land to be entered, sepai’ate advertisements of sales to be published, and separate sales to be made, when the probate court, which has a list of all claims presented against the estate, might by one order cause a sufficient amount of the lands belonging to the estate to be sold to satisfy all the debts, and when such land might all be advertised and sold at one time, and thereby save all the costs and great inconvenience of separate orders, separate advertisements, separate sales, and separate adjustments of the proceeds of such sales. But suppose that instead of there being several pieces of land belonging to the estate, there were only one: would it be equitable in that case for one claimholder to have that land sold to pay his claim, when many of the other claims might be prior to or of a higher class than his? Suppose the estate were insolvent: must his claim be paid in full, or as far as the property will go, at the expense of all the others? And taking the present case — is it equitable that the interest of two of the heirs in said land should be taken to pay the plaintiff’s claim, when there are three other heirs — five in all? Indeed, what is there equitable about the plaintiff’s claim? The plaintiff originally had a claim against the estate on said notes; but such claim was purely of a legal character. He had it established in the probate court against the administrator, thereby converting it into a judgment. But that did not convert it into an equitable demand against either the heirs, or the administrator. And nothing has since transpired to give it the character of an equitable demand. For the purposes of this case, we shall assume that said land is still a homestead, (though this is not shown by the record,) and therefore that it is not subject to any of the ordinary debts against the estate, but that it is subject to such of the debts only as are specific liens upon the land, .or to such as have been contracted for the purchase-money, or for improvements made on the land, and that the plaintiff’s debt is one of those contracted for improvements made on the land; and therefore, that while this land is exempt under the homestead-exemption laws from being applied in payment of any of' the ordinary debts of the estate, yet that it .is no more exempt from being applied in payment of the plaintiff’s debt than any other lands belonging to the estate. And still we do not think that, all these facts, taken together, but without the aid of other facts, are sufficient to authorize the plaintiff to seek the equitable jurisdiction of the district court for the purpose of collecting his claim. If Mr. Campbell were still living, the plaintiff could sue either in the district or in a justice’s court, and after obtaining judgment, (his claim being for improvements on lands,) could reach Mr. Campbell’s homestead with an execution, without any aid from a court of equity. An execution for that purpose could be issued direct from a judgment in the district court, and could be issued from a transcript of a justice’s judgment filed in the office of the clerk of the district court. In either case the judgment would be a legal judgment, in contradistinction to an equitable judgment. But Mr. Campbell having died, the plaintiff properly obtained a judgment on his claim in the probate court; and having done so, he might then have obtained an order from the probate court authorizing the administrator to sell this land, or any other land belonging to' the estate, for the purpose of paying the plaintiff’s debt. But of course, the plaintiff would have no right to dictate as to which parcel of the lands belonging to the estate should be sold to satisfy his claim, for it would all be equally liable to be sold for that purpose; and it might be more to the interest of the estate to have some other piece of land sold.' And the plaintiff would have no more right to have this land sold than any other creditor of the estate having a claim of equal dignity and rank in law and equity.
The judgment of the district court will be reversed, and cause remanded for further and proper proceedings.
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The opinion of the court was delivered by
Hoch, J.:
This was a common law action to recover damages for personal injuries resulting from an accident. A motion by defend ant for judgment on the pleadings was sustained and the plaintiff appeals.
Appellee, The Mosby Hotel Company, operates the Jayhawlc Hotel in Topeka, Kan. Appellant, Albert J. Bailey, alleging that he was seriously injured as the result of defendant’s negligent operation of an elevator in the hotel, sought recovery in the amount of $39,163.80. It is conceded by appellant that if his injuries were compensable under the Kansas workmen’s compensation law (G. S. 1935, ch. 44, art. 5) such relief is exclusive and the common law action for damages, founded on negligence, will not lie. (G. S. 1935, 44-501; Bell v. Hall Lithographing Co., 154 Kan. 660, 666, 121 P. 2d 281; Employers’ Liability Assurance Corp. v. Matlock, 151 Kan. 293, 298, 98 P. 2d 456.) Accordingly, the principal issue presented is whether the compensation law is applicable.
The pleadings, tested by defendant’s motion for judgment, consisted of an amended petition, an answer and a reply. B'eing tantamount to a demurrer, and treated as such, the motion concedes all facts well pleaded in the petition and reply. Accordingly, we shall examine such facts, together with pertinent averments of the answer not denied in the reply. If any allegations of material fact in the reply are inconsistent with and constitute a departure from the cause of action asserted in the petition they will be disregarded. (G. S. 1935, 60-717; Kolich v. Travelers Ins. Co., 154 Kan. 458, 462, 119 P. 2d 498; Johnson v. Bank, 59 Kan. 250, 252, 52 Pac. 860.)
It is not necessary to set out the pleadings in full, nor any of the formal allegations that are not denied. The pertinent allegations of fact may be summarized as follows:
In the spring of 1944 the hotel management made an oral contract with the Office Supply & Equipment Company of Topeka — hereinafter called the Supply company — to clean and wax the floor of the coffee shop, an eating place operated on the lower floor of the building as part of the hotel business. In order to inconvenience guests as little as possible the Supply company was directed to do the work after 8:00 p. m. and to begin in the east end of the room. On May 5, 1944, the plaintiff, Albert Bailey, a workman employed and paid by the Supply company, arrived at the hotel with his tools, supplies, and working equipment for the purpose of doing the work, in pursuance of the contract. He entered the hotel at the alley entrance and reached the freight elevator which he expected to use to descend to the coffee shop, which is one floor below and to the west. He called down to an employee below to send up the elevator. The employee below attempted to start the elevator and called up that he was unable to start it, and told the plaintiff to pull the starter rope. While reaching over the top of the elevator gate in order to get hold of the rope the elevator was set in motion in some manner. The plaintiff’s arm was caught in the gate and he was carried upward for some distance with resulting serious injuries to his head and other parts of his body. The defendant company had elected to come under the workmen’s compensation act in November, 1929, and was under and subject to the terms of the act at the time of the accident.
The trial court at first overruled defendant’s motion for judgment, but upon reconsideration, after briefs had been submitted by both parties, sustained it and in doing so filed a memorandum opinion from which we take the following excerpts :
“The facts alleged in the pleadings show that if the plaintiff is relegated to a claim under the Workmen’s Compensation Act his claim must be made under Sec. 44-503, G. S. Kansas 1935, which is the subcontracting section. Applying Sec. 44-503 to the. facts in this case as alleged and admitted in the pleadings, the first part of subsection (a) of the section would read as follows: ‘Where the Mosby Hotel Company undertakes the cleaning or waxing of its coffee shop floors, which is a part of its trade or business, and contracts with the Office Supply & Equipment Company for the cleaning and waxing of said floors, the Mosby Hotel Company shall be liable to pay to Bailey, employed in the cleaning and waxing of the floors, any compensation which the Mosby Hotel Company would have been required to pay Bailey if Bailey had been immediately employed by the Mosby Hotel Company . . .’ The facts alleged and admitted in the pleadings in this case indicate to me that Bailey is in no different situation with respect to the accident involved in this case than he would have been had he been a direct employee of the Mosby Hotel Company, and there is no doubt in my mind at all but that if Bailey had been a direct employee of the Hotel Company and ordered to do the job involved in this case he could not have recovered in a common law action but would have been compelled to make his claim under the Workmen’s Compensation Act.”
Summarized, appellant’s contentions are that he had no compensable claim against the appellee under the workmen’s compensation act for the reasons that: First, he was not an employee of appellee and was not subject to its control; second, he had not reached the place of employment or commenced the work he was to do; third, cleaning and waxing floors was no part of the business of operating the hotel; fourth, the accident was not one “arising out of and in the course of employment.”
First, as to the first contention: Section 44-503 of the act provides, in substance that where any person contracts with any other person to do work which is part of the principal’s trade or business he shall be liable to pay compensation to any injured workman employed in pursuance of the contract to the same extent as though such workman had been immediately employed by him. The purpose of the section is to give employees of such a contractor a remedy against the principal. (Purkable v. Greenland Oil Co., 122 Kan. 720, 722, 253 Pac. 219.) Otherwise an employer subject to the workmen’s compensation act could escape liability for injuries received by persons in carrying on his trade or business by the simple expedient of hiring an independent contractor to do the work and letting him employ and direct the workmen. In the Gleenland Oil Co. case, supra, a company engaged in the business of developing mineral leases and producing oil let a contract to one Hedges, a derrick builder, to take a derrick from one lease and build one on another lease. Hedges “furnished his own tools, employed his own workmen, and did the work according to his own plan and method, for a standard price, free from control reserved or exercised” (italics supplied) by the oil company. Purkable, an employee of Hedges, fell from the derrick before its construction was completed and was killed. The oil company was held liable under section 44-503, although the injured workman, employed by the contractor, was in no way under its control.
Although mindful of the decision in the Greenland case the appellant calls attention to Lehman v. Grace Oil Co., 151 Kan. 145, 98 P. 2d 430, and to Bittle v. Shell Petroleum Corp., 147 Kan. 227, 75 P. 2d 829, and urges that they support his contentions here. We do not so interpret those cases. In the Lehman case an oil company desired to place a dwelling house for a pumper upon one of its leases. It had no men skilled in moving houses and no equipment for such work, and hired a house-mover to move a house from a distance. While the house was being moved and before it reached the lease a workman employed by the house-mover was injured and sought compensation from the oil company. His claim was denied on the ground that moving houses to be occupied as homes by workmen was not a necessary incident of the company’s oil operations, and that the workman’s employer was an independent contractor engaged in a specialized work. In the Bittle case an oil company operating a lease from which both gas and oil were being produced em ployed a boiler and welding concern to weld a boiler which was installed on the lease. When an employee of the boiler concern — a welder by trade — arrived to do the work an oil company employee accompanied him in order to show the way to reach the place over a private roadway. While they were on their way their truck broke a gas pipe laid across the roadway, the gas ignited, and the welder was severely burned. The welder brought action against the oil company under the compensation act, invoking the provisions of section 44-503. Compensation was denied. In the opinion the fact was stressed — perhaps unduly — that the oil company had no control over the workman. Standing alone such statements give support to appellant’s contention here, although they are clearly at variance with what was said in the Greenland case, supra. But the decision in the Bittle case is not to be appraised solely by the statements which it contains with reference to control over the workman. On more fundamental grounds it is clearly distinguishable from the Greenland case and others of like import. Welding boilers was no part of the work of the oil company. It was a specialized trade having no more to do with the production of oil than was the original manufacture of the boiler. It was not analogous to the erection of a derrick — as in the Greenland case — which is a usual, a normal part of an oil-producing company’s business. The fact that the injured welder was not under the control of the oil company was only incidental to the primary fact that in having a boiler welded by a company engaged in that specialized business it was not undertaking "to execute any work which is a part of his trade or business.” (G. S. 1935, 44-503.)
Appellant also cites McIlvain v. Oil and Gas Co., 110 Kan. 266, 203 Pac. 701, in which it was held that an oil and gas company was not liable under the compensation act to an injured workman hired by a contractor to haul some casing to a machine shop for repairs. We do not regard the case as persuasive. Nothing in the opinion indicates that section 44-503 was considered, and the matter is disposed of by the simple statement that the injured workman was an employee of an independent contractor and not of the oil company and that the case was controlled by the decision in Farmer v. Purcell, 109 Kan. 612, 201 Pac. 66 — which appellant also cites here. But the Purcell case is no authority whatever as to the construction or effect of section 44-503. Although holding that a sawmill owner was not liable for injuries suffered by a workman employed by a contractor to help remove a pile of sawdust which had accumulated over a long period, the court said:
“We are not called upon to determine whether the defendant might be liable notwithstanding the plaintiff was the employee of an independent contractor, under the portion of the compensation act which reads: [Here follows the section of the statute which is now G. S. 1935, 44-503.] The instruction of the trial court that no recovery could be had if Holter was an independent contractor has not been challenged, but has been accepted as the law of the case. The matter is mentioned only in order that the decision may not be regarded as placing an interpretation upon the statutory provisions just quoted.” (p. 616.)
Appellant also cites Martin v. Craig, 148 Kan. 882, 84 P. 2d 853, and Bell v. Hall Lithographing Co., 154 Kan. 660, 121 P. 2d 281. We do not find these cases helpful on the point. -In the Craig case the respondent, engaged in the manufacturing business in Kansas City, owned several residence properties in Wichita. He called his brother and asked him to get some one to put some shingles on two houses. A workman was injured. The issue turned on the question of whether the respondent was engaged in the business of repairing buildings, in a hazardous trade or business within the provisions of " section 44-505, G. S. 1935. It was held that he was not engaged in the building business and therefore was not under the act. In the Bell case, supra, the claimant sought to recover damages under the factory act. (G. S. 1935, 44-105.) It would unduly extend this opinion to recite the involved facts of the case. Suffice it to say that it was held that the claimant was a special employee of the respondent doing work for it and at its request; that therefore he had a claim under the compensation act; that such relief was exclusive, and that no action would lie under the factory act.
Appellant calls to our attention many cases from other jurisdictions, but we shall not analyze them here. Many divergent statutory provisions are involved. We conclude, upon this point, that under the facts of this case section 44-503 makes the appellee liable to the appellant to the same extent as though he had been “immediately employed” by it.
Appellant next contends that he had not reached the place of employment and that therefore compensation is made unavailable by section 44-508, G. S. 1935, which provides that in the absence of negligence on the part of the employer injuries occurring while the workman “is on his way to assume the duties of his employment or after leaving such duties” are not to be construed as “arising out of and in the course of employment.” We cannot agree. Appellant pleaded that the coffee shop was “a part of the premises in and on which defendant operated the Jayhawk Hotel”; that he had entered the hotel with his tools and other equipment and had reached the elevator and was attempting to use it when the accident occurred. If the appellant were here seeking to recover under the compensation act certainly it would be a strict construction of the act to hold that he had not reached the premises and the place where he was to work. Appellant does not press the point, but cites the cases of Harrison v. Lozier-Broderick & Gordon, 158 Kan. 129, 145 P. 2d 147; Cook v. Dobson Sheet Metal Works, 157 Kan. 576, 142 P. 2d 709. These cases do not support the contention. In the Harrison case the workman’s place of employment “was in the vicinity of time shack No. 11.” The injury was suffered while the claimant was walking down the highway on his way to time shack No. 11 and “had not yet reached his place of employment.” In the Cook case the workman relied solely upon the proposition that the evidence showed that he was on the job when the injury occurred. The Commissioner’s finding of fact to the contrary was adopted by the trial court. We refused to reverse, saying that “there was no showing that the accident occurred on any premises under the control of the respondent,” etc. Our many cases on the subject need not be reviewed. We know of none inconsistent with the conclusion here reached.
The third contention, strongly urged by appellant, is that cleaning and waxing floors was no part of appellee’s regular business as operator of the hotel. It must first be noted that although appellant , argues that the evidence would disclose that the work was to be done “by a special process” the pleadings contain no such allegation. Plaintiff simply alleged in his petition that the contract was to “clean and wax the floor.” In the reply it was alleged that the work was to be done “according to the plaintiff’s and his employer’s own methods.” If the latter be regarded as enlarging the allegations of the petition in a manner to state a new cause of action then it must be disregarded under the rule of law heretofore stated. However, we need not consider it so significant. There is no averment that the employer’s “own method” was specialized, out of the ordinary, or one requiring unusual equipment.
We do not think it necessary to labor the point. If is common knowledge that cleaning and waxing the floor of an eating place is common practice. It could almost be said to be a routine matter in any well-conducted eating place. According to the petition the eating place in question is the coffee shop in a ten-story hotel.
Appellant cites numerous cases from other jurisdictions. Some of them tend to support his position but we do not find many of them persuasive here. We note a few of them:
In Johnson Co. v. Industrial Com., 306 Ill. 197, 137 N. E. 789, it was held that cleaning the smokestack on a building occupied by a company engaged in the cooperage business was not a part of that business. In King v. Palmer, 129 Conn. 636, 30 A. 2d 549, it was held that putting in a steam-pressure system in an engine house by an independent contractor was not part of the business of the railroad company employing him. Many of the other cases are of similar import — involving the installation or repairing of special machinery or equipment by independent contractors engaged in specialized work of that sort. The only case cited which seems reasonably analogous to the one before us is a Colorado case (American Co. v. Franzen, 81 Colo. 161, 254 Pac. 160), where it was held that cleaning the windows of a factory at certain intervals under contract by an independent contractor was not a part of the factory owner’s business of manufacturing and selling heating systems. Other foreign cases need not be reviewed. In any event such cases, if in point, are out of line with our decisions, and particularly our later decisions.
In Schroeder v. American Natl. Bank, 154 Kan. 721, 121 P. 2d 186, we held that the remodeling and building of a bank teller’s cage and certain grill work was incidental to the operation of the banking business. The bank was held liable under the act even though the cabinet maker was injured while building the equipment in his own shop.
In Johnson v. Voss, 152 Kan. 586, 106 P. 2d 648, the respondent was operator of a grain elevator. It was held that the construction of an addition to the elevator was incidental to the operation of respondent’s grain-elevator business. To like effect was the holding in Raynes v. Riss & Co., 152 Kan. 383, 103 P. 2d 818, where a respondent operating a fleet of trucks as a common carrier undertook to remodel a building for use in its business. Injury to a workman was held to be compensable. (See, also, Williams v. Cities Service Gas Co., 139 Kan. 166, 30 P. 2d 97; Purkable v. Greenland Oil Co., supra.)
Among many cases from other jurisdictions cited by appellee is the case of Fox v. Fafnir Bearing Co., 107 Conn. 189, 139 Atl. 778, 58 A. L. R. 861, 864, which dealt with a contract to clean factory-windows and in which a different conclusion was reached from that in American Co. v. Franzen, supra. In that case it was said:
"The plaintiff’s work of window washing was work which had to do with the maintenance of the factory building in good condition for the manufacturing processes there conducted, and which could fairly be said to be essential for that purpose — work similar in character to that of scrubbing the floors, cleaning the offices, and ordinary janitor work. Such work is customarily done by regular employees in the daily routine of their duties in the factory. It is clearly distinguishable from 'work done in connection with the repair or alteration of the factory buildings. It is a part of the work of keeping the employer’s factory in running condition, and therefore a part of its trade or business though not directly connected with any manufacturing process.” (p. 195.)
We pass to appellant’s fourth and last contention that the injury did not “arise out of” and was not “in the course” of his employment. Clearly it was “in the course of” the employment. We have frequently said that those words point to the time, place, and circumstances under which an accident takes place, that they simply mean “while the employment was in progress.” (Floro v. Ticehurst, 147 Kan. 426, 430, 431, 76 P. 2d 773 and cases cited.) Appellant had arrived upon appellee’s premises where he was to do the work and was attempting to use the elevator. Certainly if he had been down in the coffee shop and had been attempting to use the elevator to go up to the floor above to 'get some of his tools no one would say he was not “in the course of the employment.” To hold that a workman employed to do work about the hotel would not be “in the course” of employment during the time he was using the elevator would be a very harsh rule, subversive of the plain intent of the workman’s compensation law.
Did the accident “arise out of” the employment? Here the answer is not quite so obvious. We have said many times that the two phrases “in the course of” and “arise out of” are separate, conjunctive, that both conditions must exist, and that the latter phrase implies a causal connection between the accident and the employment. (Rush v. Empire Oil & Refining Co., 140 Kan. 198, 34 P. 2d 542.) We adhere to those pronouncements. But the word “causal” certainly does not mean that the accident must have resulted directly and immediately from performance of the work for which the workman was employed. None of our cases has so restricted its mean ing. Such a narrowed interpretation would mean that whenever a workman was not directly engaged in the actual work to be done he would be without protection under the law. If he laid down his tools and went across the room for a drink of water he would do so at his own risk. If a workman is “in the course” of his employment and suffers an injury either while actually doing the work or while performing some act which is normally and commonly incident thereto, such injury ordinarily “arises out of” his employment. Any other construction of the term would subvert the act and lead to absurd results. Of course if a workman departs from the normal activities incident to the work; if he suffers an injury from some cause in no way connected with it, the injury cannot be said to “arise out of” his employment. From our many cases illustrating this distinction we cite the following two:
A porter at a country club drove to his home to get some laundry which had been done for the club. He fell in the yard at his home mortally wounded — it was claimed — by the discharge of a pistol which he was carrying in his pocket. Held, the accident did not “arise out of” his employment. Carrying a pistol was not a normal incident of the employment. (Hudson v. Salina Country Club, 148 Kan. 697, 84 P. 2d 854.) At the other extreme of cases on the point is Corpora v. Kansas City Public Service Co., 129 Kan. 690, 284 Pac. 818. A workman arrived for work a few minutes early, checked in, went to a dressing room and sustained a fall — resulting in his death — while putting on his overalls. Held, that the accident was incident to his employment. Certainly the instant case is much stronger, since the elevator was part of the employer’s equipment, used by hotel workmen but not under their control. This can hardly be said concerning a workman’s act in putting on his overalls! (See, also, McDonnell v. Swift & Co., 124 Kan. 327, 259 Pac. 695; Thomas v. Manufacturing Co., 104 Kan. 432, 179 Pac. 372.) In the instant case the appellee was not engaged in some personal act unrelated to his employment; he had not “departed” from the work for which he was employed; he was not injured by the intervention of some act or event with which the employer was not connected. The use of the freight elevator was incidental, naturally and normally, to.the work for which he was employed. Furthermore, appellant pleaded the contract between appellee and his immediate employer, the Supply company, and pleaded that “pursuant to said contract plaintiff met with and sustained the injuries described.” (Italics supplied.) We conclude that the accident arose out of and in the course of his employment.
The rule is firmly established that the Workmen’s Compensation Act is to be liberally construed to effectuate its purposes. (Murphy v. I. C. U. Const. Co., 158 Kan. 541, 548, 148 P. 2d 771; Chamberlain v. Bowersock Mills & Power Co., 150 Kan. 934, 944, 96 P. 2d 684, and cases cited.) If, under the same circumstances upon which he here relies in a common law action the appellant had sought relief for some injury under the workmen’s compensation act, he would have been entitled to and would have received the benefit of such liberal construction. It would be ironical to apply a different rule simply because in this instance he chooses another course. It would also be unfair to other workmen whose interests may well be affected in the future.
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The opinion of the court was delivered by
Wedell, J.:
This was an action by a payee to recover on a promissory note against three makers. Service was obtained on only one of the makers, C. C. Zimmerman. Judgment was against that defendant and -he appeals.
The various specifications of error actually involve only one legal question. It is whether there was a new and independent consideration for an oral agreement alleged by defendant to have been made by the makers and the payee subsequent to the execution and delivery of the note.
The note was originally executed and delivered June 20, 1936. It was due ninety days after date with interest at six percent per annum. The note was not paid at maturity but installment payments were made thereon from time to time, the last payment being June 5, 1943. This action was filed June SO, 1943.
Appellant’s answer, in substance, alleged:
The subsequent oral contract was made by the payee and the three makers of the note; it was agreed thereby that each of the makers would be liable for only one-third of the note and that payments thereon might be made at the rate of $10 per month; appel lant complied therewith by paying $10 each month until this action was filed; he was willing to pay his one-third of the indebtedness.
In the reply appellee denied such agreement was made.
Appellant’s evidence in substance conformed with the averments contained in his answer except for the fact that appellant’s evidence, insofar as the record before us is concerned, does not disclose that appellee agreed the makers were permitted to pay at the rate of $10 per month. We may, however, treat his evidence as though it fully supported the averments of his answer. Appellant’s testimony, touching the oral contract, was stricken out in response to appellee’s motion and appellee’s demurrer to appellant’s testimony was thereafter sustained. The motion and the demurrer in this case raise the same question and are so treated by the parties. We shall treat the ruling as a demurrer to appellant’s evidence.
Was the demurrer properly sustained? According to the tenor of the note the three makers were, of course, jointly and severally liable for the entire face value of the note. Appellee concedes a subsequently executed oral contract, supported by a fresh and independent consideration, is enforceable as between the parties to the note but he argues appellant’s evidence discloses no such consideration. He insists there was no new consideration for the subsequent oral contract, that appellant agreed to pay nothing, and paid nothing he was not already legally bound to pay according to the tenor of the note.
On the other hand, appellant argues there was a new consideration for the subsequent oral contract. He contends appellee knew he could not by judgment and execution collect the entire original amount of the note from the makers and for that reason induced the makers, by the above mentioned agreement, to make monthly payments thereon until the note was reduced to an amount which was collectible. He argues the reduction of the indebtedness by means of the subsequent contract benefited appellee and constituted a sufficient consideration for that contract. In support of his contention he cites Cretcher v. Machine Works Co., 116 Kan. 54, 225 Pac. 1041; Sinclair Refining Co. v. Vaughn, 135 Kan. 82, 9 P. 2d 995; Andregg v. Sparrow, 152 Kan. 744, 107 P. 2d 739.
In the Cretcher case an original building contract was involved. The evidence pertaining to the subsequent oral contract did not have the effect of varying the terms of the previous written contract. The subsequent oral contract pertained only to the furnish ing of additional material to that provided for under the original contract. The Sinclair Refining Company case involved a written contract of employment for the operation of a chain of oil and gas stations. The subsequent oral contract made no change in the terms of the former written contract. The oral contract constituted only a settlement of the differences which had arisen between the parties in connection with operations under the original contract. The Andregg ease involved the question of a consideration for a subsequent oral agreement to extend the maturity of a note and mortgage. It was held there was a consideration for such subsequently executed oral agreement and indeed there was. The consideration for the extension of the maturity date was that the maker agreed if the maturity date were extended he would pay the interest not only to the original maturity date but for one year in advance and he did so.
In the instant case the written contract, the note, required the payment of the entire indebtedness and interest by each maker at maturity. What was the consideration for the alleged new oral contract which made each maker liable for only one-third of the debt and extended the maturity thereof until the debt was paid at the rate of $10 per month? We find none. Under the terms of the note appellant was already obligated to pay all and not merely one-third of the note plus interest at the date of its maturity. The fact he was financially unable to meet that obligation did not change his legal liability. Manifestly appellee did not benefit by reducing that liability to one-third. Nor was there any legal consideration for permitting appellant to string the payments along at the rate of $10 per month when according to the legal tenor of the note he was required to pay the indebtedness in full at maturity.
The rule is that an agreement to do or the doing of that which a person is already bound to do does not constitute a sufficient consideration for a new promise. (Pemberton v. Hoosier, 1 Kan. 108, 115, 116; Schuler v. Myton, 48 Kan. 282, 29 Pac. 163; Miles v. Hamilton, 106 Kan. 804, 806, 189 Pac. 926, 19 A. L. R. 276; Heaton v. Myers, 115 Kan. 75, 222 Pac. 66; Jackson v. Hall, 139 Kan. 832, 834, 32 P. 2d 1055; Western Silo Company v. Johnson, 203 Ky. 704, 262 S. W. 1093; 12 Am. Jur., Contracts, §407, p. 985, 10 C. J. S., Bills and Notes, § 146.)
Here appellant under the new oral contract would be required to do and, if he complied therewith, would do less than the original contract bound him to do. Permission to pay in installments was merely a matter of favor and indulgence on the part of the payee and his forbearance, without a legal consideration, did not make the oral agreement enforceable. (Heaton v. Myers, supra.) In the Heaton case we said:
“An agreement to forbear collection of a matured note and to permit the maker to pay in installments, must be supported by a consideration or it is not enforceable.
“There is no presumption of benefit-to the creditor or of detriment to the debtor if a request for forbearance be granted. Benefit and detriment are facts and must appear in the transaction. The creditor is under no obligation to his debtor to take active measures to enforce payment. He may remain passive and preserve his remedies, and he may tell the debtor he will remain passive without losing his remedies. (The Planters’ Bank of Prince George’s County v. Sellman, 2 Gill and Johnson, [15 Md.] 230, 234.) In this instance we have nothing but uncompensated forbearance by the creditor.” (p. 76.)
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The opinion of the court was delivered by
Wedell, J.;
This was an action by a son to contest the probate of his father’s will. Plaintiff was unsuccessful in the probate and district courts and appeals to this court.
Appellees, proponents of the will, are other heirs at law and the executor of decedent’s estate.
The grounds alleged for opposing the probate of the will were: (1) The instrument was not the last will and testament of George Walker, deceased; (2) the will was obtained by undue influence; and (3) testator lacked testamentary capacity to make the will.
The case was tried by the court without a jury. The court resolved the issues against the opponent of the will and made corresponding findings of fact and conclusions of law.
The principal question on appeal is whether the findings are supported by substantial evidence. This was primarily a fact case and for the purpose of our review it is necessary to state a few often-repeated principles. Appellate courts are concerned only with evidence that supports, or tends to support, the findings made by the' trier of the facts and not with evidence in conflict therewith. If there is substantial evidence to support the findings made this court is precluded from disturbing them. In determining whether the findings are supported by substantial evidence this court does not weigh or compare conflicting evidence. (In re Estate of Boyce, 155 Kan. 549, 127 P. 2d 424; Mann v. Staatz, 156 Kan. 275, 133 P. 2d 103; In re Estate of Pallister, 159 Kan. 7, 152 P. 2d 61.) These principles, of course, apply to each and every alleged ground of contest.
Touching the first alleged ground for contest the evidence abundantly established the execution of the will and the signatures of the subscribing witnesses with all the formality required by law after the will was read to the testator and he had discussed it with the scrivener at considerable length on several occasions. Whether the testator possessed the necessary testamentary capacity to enable him to understand what he was doing so that the instrument in reality constituted his own act will be considered in connection with the third ground of contest. Relative to the second ground of contest the court found there was no evidence of influence, undue or otherwise, exerted on George W. Walker in the making of the will. A review of the record compels an affirmance of that finding. On the subject of what constitutes undue influence see Ginter v. Ginter, 79 Kan. 721, 726, 101 Pac. 634; Klose v. Collins, 137 Kan. 321, 20 P. 2d 494; Anderson v. Anderson, 147 Kan. 273, 76 P. 2d 825.
This brings us to the third ground, appellant's principal contention, that the testator lacked testamentary capacity to make the will. On that issue the trial court reached a definitely contrary conclusion upon highly conflicting evidence. Appellant contends the trial court should have given greater weight to testimony of certain members of the family who had more frequent opportunity to observe the testator’s condition. With respect to that contention' the trial court stated:
“. . . of course the family may have had more opportunity to be with the father. I wouldn’t say that any of the family have testified falsely in this case. I don’t believe they did. But they have given greater weight and credit to a few incidents than the whole picture would warrant.”
Manifestly we cannot say the trial court did not correctly weigh and analyze that evidence. While the trial court believed the testimony of various witnesses who thought the testator possessed testamentary capacity it was particularly impressed with the testimony of the subscribing witnesses to the will. The witnesses to the will were Dr. Clark W. Zugg, the testator’s doctor during his illness in 1938; a banker, Edward Opie, with whom decedent had done a considerable portion of his banking business over a period of years; and with the testimony of Clyde Allphin, decedent’s attorney and scrivener of the will. The court frankly so stated and .later expressly found:
“The great preponderance of the credible evidence, is to the effect that at the time of the making of the will, the said George W. Walker was fully competent and knew generally the nature and value of his property, the persons who would be the natural objects of his bounty and was able to reason and fully knew what property he had and where he wanted it to go.” (Italics ours.)
The finding of course, sustains the will. (Delaney v. City of Salina, 34 Kan. 532, 9 Pac. 271; Klose v. Collins, 137 Kan. 321, 20 P. 2d 494; Bradley v. Hill, 141 Kan. 602, 610, 42 P.2d 580; Mills v. Shepherd, 159 Kan. 668, 673, 157 P. 2d 533.)
It will serve no useful purpose to analyze the testimony of the numerous witnesses. A careful study of the record convinces us the finding of testamentary capacity is abundantly supported by testimony convincing to the trier of the facts. The result is the finding is conclusive.
Appellant complains concerning the admission of some testimony to which he objected and argues the court probably considered it in making its findings. We cannot say the court considered that testimony when it ultimately made its findings. Assuming, without deciding, the testimony was improperly admitted there is no legal presumption it was considered and entered into the final decision. Rule 53 of this court reads:
“In trials before the court, without a jury, where evidence is admitted over proper objections, and not stricken out on timely motion therefor, it shall be presumed that such evidence was considered by the court and entered into its final decision in the case.”
We find no motion by appellant to strike the particular testimony of which he now complains in his brief. In the absence of such a motion to strike, rule 53 has no application. (Dean v. Metcalf, 144 Kan. 174, 178, 58 P. 2d 1073.) It follows there is no presumption the evidence was considered and entered into the final decision of the court. Moreover, the testimony was in nowise essential to the finding of testamentary capacity. In reality it was only cumulative as there was an abundance of other testimony to support the finding.
It is claimed the trial court was prejudiced against one of appellant’s witnesses, a handwriting expert. The record does not support the claim.
Appellant also asserts the decision was the result of the trial court’s prejudice against him. An exhaustive search of the record before us utterly fails to disclose any evidence of such an accusation.
The judgment will have to be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action for damages resulting from a collision of two trucks alleged to have been caused by a defect in the state highway. The trial court sustained a demurrer to plaintiff’s petition and he has appealed.
A north and south state highway, known as K-99, at a point between Eureka and Severy, in Greenwood county, is intersected at right angles by an east-and-west state highway known as K-96. Each of these highways is improved by a roadway 28 feet wide. At a point on K-99 about 500 feet south of the intersection there is a highway circling to the north and west connected with K-96 about 500 feet west of the intersection. There is a similar circular road at each corner of the intersection. The terrain is practically level at the intersection and in the area covered by the connecting highways. Beginning about an eighth of a mile west of the intersection K-96 is on land that is lower from three to nine feet than the area about the intersection. In the triangular area southwest of the intersection, having straight lines on the east and north and the curve on the southwest, there were three piles of chat stored by defendant, or its contractor, for later use. The one nearest the intersection was about 70 feet long and 30 feet wide, the long way being from the northwest to the southeast, the southeastern end of which was about 50 feet west and 90 feet south of the center of the intersection. The northwest end of it was about 90 feet west and 30 feet south of the intersection. At the southeast end of this pile of chat there was a chat hoist, 24 feet long, extending from the pile of chat east to within a few feet of the west line of the traveled portion of the highway. Beginning about 180 feet south and 33 feet west of the center of the intersection there was another pile of chat about 25 feet wide and 100 feet long lying in a northwesterly-southeasterly direction from five to nine feet high. About 190 feet west of the intersection and 36 feet south of the center of the traveled portion of K-96 there was a pile of chat from five to nine feet high, about 100 feet long and 20 to 25 feet wide, extending in a direction slightly to the south from east. The nearest point of the southeastern portion of it to the center of the highway was 60 feet. A short distance east of this pile of chat, and south of the one first described, there was a road grader. This description is taken from the petition and from a plat, drawn to scale, furnished to the court by counsel. On the day in question plaintiff was driving a truck north on K-99, approaching the intersection. At the same time one Tom Beason was driving a truck east on K-96, approaching the intersection. The two trucks collided in the intersection, resulting in the damages for which this action was brought.
Plaintiff does not allege that there was any defect in the 28-foot roadway of either of the highways. His allegations are that the piles of chat, the chat hoist and the road grader so interfered with plaintiff’s view that he could not see the Beason truck as it approached the intersection, and also interfered with the view of Beason; that there were no signs along the highway indicating that he was approaching an intersection, and that this interference with his view, and lack of road signs, amounted to a defect in the state highway, for which the highway is liable under G. S. 1935, 68-419.
Counsel for appellant concedes that he cannot recover unless his injury was caused by a defective condition of the highway within the meaning of G. S. 1935, 68-419, and that he has no authority to, predicate an action for damages upon negligence of the highway department. He cites Bohm v. Racette, 118 Kan. 670, 236 Pac. 811; Phillips v. State Highway Comm., 146 Kan. 112, 68 P. 2d 1087; Moore v. State Highway Comm., 150 Kan. 314, 92 P. 2d 29, and Blessman v. State Highway Comm., 154 Kan. 704, 121 P. 2d 267, as cases denying liability, and analyzes the cases in an effort to distinguish them from the case before us. Naturally, they are distinguishable to some extent on the facts, but we think the legal principles which control those cases are controlling here. Counsel for appellant cites Watson v. Parker Township, 113 Kan. 130, 213 Pac. 1051; Snyder v. Pottawatomie County Comm’rs, 120 Kan. 659, 245 Pac. 162; Collins v. State Highway Comm., 134 Kan. 278, 5 P. 2d 1106; Williams v. State Highway Comm., 134 Kan. 810, 8 P. 2d 946; Collins v. State Highway Comm., 138 Kan. 629, 27 P. 2d 216; Hill v. State Highway Comm., 143 Kan. 129, 53 P. 2d 882; Neiswender v. Topeka Township, 148 Kan. 113, 79 P. 2d 839, and Brock v. State Highway Comm., 157 Kan. 252, 139 P. 2d 811, as tending to show that conditions outside of the traveled portion of the highway may be such as to entitle plaintiff to recover. We have examined all of these cases and we think none of them is sufficiently in point to be of material assistance to appellant here. We take note that in a few of them there appears to be a mingling of statutory liability and liability based on negligence, and to the extent they do so they are subject to criticism.
There is or can be no contention in this case that the piles of chat and road-building machinery mentioned cut off plaintiff’s view to the left all the time he was approaching the intersection from the south after he got to where the circular road went out each way to highway K-96, and there was nothing at all to obstruct his view for the last 75 to 90 feet. If there were obstructions to the view from the side it simply placed upon the plaintiff a greater degree of care in his approach to the intersection.
We do not see that the allegations of the petition that no signs had been put up indicating that a traveler was approaching an intersection add anything to defendant’s liability. Certainly, if plaintiff could not see the roads going off from K-99 to K-96 as much as 500 feet south of the intersection, and could not see the intersection itself as he drove toward it, additional signs would not have been of any advantage. The only authorities he cites in support of his allegation concerning the signs are cases dealing with roads under construction. There is no allegation here that either of these highways was under construction at or near the point of collision.
We feel confident in holding, as a matter of law, that the collision which caused the injury for which plaintiff sued was not caused by any defect in the state highway.
While another question is discussed in the case by the appellee we find no occasion to treat it.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal by respondent and its insurance carrier from an award in a workmen’s compensation case.
The workman was a pumper on appellants’ oil lease. On May 6, 1941, while cranking an Allis Chalmers engine in the course of em ployment, the engine kicked and threw appellee back about three and one-half to four feet against a steel tool box. His back struck the box. The. top of the box was approximately three and one-half to four feet high. Compensation was paid until September 11, 1942. The trial court found appellee continued to be totally disabled from September 11, 1942, until June 30, 1944, the date of the last hearing before the commissioner and made an award covering that period. No testimony with respect to disability beyond June 30, 1944, was introduced and no award for further disability was made.
Appellants contend there is no substantial evidence to support the trial court’s finding of disability after September 11, 1942. With respeot to that contention we find it necessary to say again what we repeatedly have said heretofore, namely, that this court does not determine the credibility of witnesses or the weight of their testimony.' Those are solely functions of the trial court with which we have no concern. It is also elementary that as an appellate court we are concerned only with evidence which supports or tends to support findings of a trial court and not with contrary evidence. Was there substantial evidence to support the finding made?
It is unnecessary to narrate all the testimony which supports or tends to support the finding. Some of that evidence, in substance, was:
Appellee suffered pain immediately after the accident but did not think much about the injury until three days later when he first consulted Dr. R. E. Bula of Lyons; he taped his back; some ten days later he removed the tape and put his back in a support, a belt; Doctor Bula referred appellee to Dr. Charles Rombold of Wichita; appellee quit his work about May 15 or 20,1942, and since that time has performed no manual labor; following the services by Doctor Bula appellee had some light treatments administered to his back and legs by another doctor; later, and in July and August, 1941, he was referred by the insurance carrier to Doctor Rombold; that doctor then told him, “if it’s what I think it is you might have to have an operation”; that statement was reported by appellee to his employer; appellee was treated by Doctor Rombold from June, 1941, until September 11,1942; appellee thereafter sought the counsel and advice of other doctors, including Dr. Frank D. Dickson of Kansas City, Mo., and Dr. L. M. Eaton of the Mayo Clinic; according to appellee none of the doctors advised him personally and definitely what his trouble was; surgery, was recommended by some of the doctors; others recommended exploratory surgery as a means of ascertaining the ailment; appellee was without financial means to obtain medical or surgical treatment; he had paid for diathermy treatments to his back and legs as the insurance company did not assume the expenses.
. The testimony, in substance, further disclosed:
The pain in appellee’s back and legs and the stiffness in his back continued until and including the date of the last hearing on June 30, 1944; his right leg was numb; the pain centered in his back about four or five inches above his hips; previous to the accident he had been strong; it was true that for a period of four or five years prior ' to the accident he would get a lamé back occasionally after having done some especially heavy work, but the pain, prior to the accident, lasted only a few hours; he now suffered pain and a burning in the middle of his back at all times; he also continued to suffer pain in both legs, but the pain was more acute in the right leg; he worked for the State Corporation Commission from July or August, 1941, to about April, 1942, making out sales reports, but his back also continued to bother him during that employment; he tried to obtain other employment but was rejected by reason of his inability to stoop and to do hard work; he had been deferred to a classification of 4-F in the draft by reason of his physical condition.
The doctors had made various examinations, including X rays, in an effort to ascertain the cause of appellee’s disability. All of the doctors agreed he was suffering pain in his back and legs, especially in his back and right leg. The record contains a letter dated June 8,1943, written by Doctor Bula concerning the examination he made on May 6,1941, and a call he made on appellee later. The pertinent portion of that letter reads:
“Examination at this time showed Contusions and Abrasions in the right lumbar region of the back. There was spasm of the muscles in the right lumbar region on motion in all directions. X-ray was negative for fracture and urinanalysis was also negative. [Our emphasis.] The pain persisted, and on Maj' 20, 1941, he was referred to Dr. Charles Rombold, Wichita, Kansas, for further care. On April 16, 1942, I was called to his home. At this time he was complaining of pain in his head, back and both legs. His hisloiy was that he was given an injection in his spine so the X-ray plates could be made, at St. Francis Hospital in Wichita.”
On August 6, 1942, Doctor Dickson of Kansas City, Mo., wrote a letter to the local agent of the appellant insurance carrier, stating his opinion of appellee’s condition. The letter, after recognizing the existence of pain in the sacral region and in the thigh muscles when stooping, stated:
“Taking into consideration that the patient states in his history that he has noticed for the past four or five years, however,'when working in a bending or stooping position that he has pain in the hamstring region, it is my opinion that this man originally had back symptoms the result of his flat foot condition, short heel tendons, and short fascia lata and the fact that he was unable following his injury to use his back normally has resulted in accentuation or aggravation of the preexisting condition and that the condition at the present time is one involving the muscles and fascia of the lower extremities and lower back — not pathology in the spine itself.
“My recommendations in this case are that bilateral division of the fascia lata be done, that the shoes be balanced up to correct the flat foot, and that he be put on physical therapy after the above recommendations have been carried out to restore normal flexibility to the leg and back muscles. At the present time the man is incapacitated and will probably remain so indefinitely unless something definite is done to correct his condition. It is reasonable to expect that following out the program outlined above, he should be restored to activity within six to eight weeks.” (Our emphasis.)
A letter from Doctor Eaton of the Mayo Clinic under date of September 13, 1943, clearly discloses that doctor suspected appellee had a protruded intervertebral disc. In other words that one of the cartilages between the vertebrae had slipped out of place and was pressing on the nerve roots which make up the sciatic nerve. In a later letter by Doctor Eaton, dated April 27, 1944, he advised appellee that if more definite statements of his condition were to be made further examination would be required but that the patient should not return unless he had sufficient trouble to warrant surgical exploration of his back. He stated:
“The surgeon’s final opinion as to the absence or presence of a protruded intervertebral disk is based upon surgical exploration only.” (Our emphasis.)
The record further discloses a certificate of a medical examination of appellee made by Dr. Donald Hickel, captain in the medical corps of the army of the United States. That examination was made at the Army Air Field at Great Bend on May 30, 1944. The pertinent portion thereof reads:
"12. Deformities, atrophies, and other abnormalities, diseases, or defects not included above. Has history of ruptured intervertebral disc — untreated.
“13. Scars of serious injury or disease wears back corset.
“I have found this applicant abnormal under the following headings: History and sign of ruptured intervertebral disc rupture untreated except by belt.
“In my opinion, applicant is capable of performing duties involving None physical exertion.
“Remarks: Reason: not employable untreated ruptured intervertebral disc." (Our emphasis.)
Appellants argue the trial court’s finding of appellee’s disability between September 11, 1942, and June 30, 1944, the date of the last hearing, and its finding as to the cause thereof are based upon pure speculation and that awards founded on such evidence cannot stand, citing Fair v. Golden Rule Refining Co., 134 Kan. 623, 7 P. 2d 70, and other cases to the same effect. It is true awards cannot be made upon purely conjectural and speculative testimony, but we do not agree that it fairly can be said the award in the instant case rests upon such evidence.
In the first place there is no question here concerning the fact that appellee sustained an injury in the course of and growing out of his employment. In the second place, there is positive testimony not only by appellee but by the doctors that appellee suffered pain in the exact region of the back where appellee struck the steel box. There was also positive testimony by Doctor Dickson that appellee was incapacitated for work on August 6, 1942, and would remain so until his condition was corrected by an operation. There was testimony not only by appellee but by appellant, his employer, that prior to the injury appellee was strong and did heavy work. The pain now centered in his back and was continual. The pain in his back- and legs was much more acute following the accident and pre* vented the continuance of the work he'had done prior to the accident. Doctor Hickel’s examination, as reflected by a letter dated May 30, 1944, disclosed not only' history but . . sign of ruptured intervertebral disc. . . .’’ It stated appellee was unemployable by reason of “. . . . untreated ruptured intervertebral disc. . .' .” Moreover, duration of disability is not required, in this state, to be established by expert testimony. (Hardwell v. St. Louis S. & R. Co., 146 Kan. 870, 876, 73 P. 2d 1120; Bull v. Patti Const. Co., 152 Kan. 618, 106 P. 2d 690.)
Appellants also strenuously argue appellee had some back trouble before the injury of May 6, 1941, and.that such trouble had existed for a period of four or five years before the accident in question. Appellants therefore contend inability to work was due to a physical condition which existed prior to the injury. We have already stated the evidence relative to appellee’s previous back condition. The fact remains such previous condition, whatever it may have been, in nowise prevented the performance of hard work prior to the injury of May 6, 1941. Furthermore our compensation law prescribes no standard of health for workmen and it is well established that accidental injuries are compensable when the accident only serves to aggravate or accentuate an existing condition. (Hardwell v. St. Louis S. & R. Co., supra, p. 875; Holler v. Dickey Clay Mfg. Co., 157 Kan. 355, 139 P. 2d 846.)
That the injury of May 6 resulted in aggravating his former condition is established not only by the testimony of appellee but Doctor Dickson stated, “. . . and the fact that he was unable following his injury to use his back normally has resulted in accentuation or aggravation of the preexisting condition. . . .” Doctor Dickson further stated, “At the present time the man is incapacitated and will probably remain so indefinitely unless something definite is done to correct his condition.”
Appellants say appellee did not submit to surgery to correct his condition and therefore should have been denied compensation after September 11,1942. Such a complaint might be asserted with great merit under some circumstances but we shall not rule upon it in this case. Appellants did not ask for a finding or ruling on that subject in their requested findings of fact and conclusions of law or in any other manner disclosed by the record. The trial court did not rule upon the question and, obviously, it is not properly before us for review.
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The opinion of the court was delivered by
Harvey, C. J.:
Bill Vinyard and Ray Herschberger were duly charged jointly with the larceny of two coming-two-year-old white-faced steers branded with the letter “0” on the left shoulder and the letters “R 0” on the left hip, the property of Fred Surratt and Carroll Purvine. The separate jury trial of Vinyard resulted in a verdict of guilty, on which sentence was pronounced. He has appealed and contends that he was not tried by an impartial and unprejudiced jury and that the court erred, (1) in .permitting statements of an attorney to be made in the hearing of the jury panel; (2) in ordering defendant arraigned in the absence of his attorney and refusing to grant a continuance; (3) in failing to instruct on unrelated crimes; (4) in the giving of certain instructions; (5) in refusing to give a requested instruction; (6) in refusing a continuance of the hearing of the motion for a new trial; and (7) in overruling that motion.
The facts shown by the record are not seriously controverted and may be summarized as follows; In Logan county there is a large cattle ranch known as the Bilby Ranch. The foreman, Grady Andrews, resides at the ranch headquarters. About twelve miles away there is a residence on the ranch where a ranch employee, Russell Curtis, and his wife lived. The cattle grazed on that part of the ranch near where Curtis lived were owned, by Surratt and Purvine. The cattle had been bought in Arizona, where they had been branded with an “0” on the left shoulder and an “R 0” on the left hip, and there is evidence tending to show that Surratt and Purvine had procured a certificate from the State Brand Commissioner to use this as their brand in Kansas without having to rebrand the cattle. Apparently there had been quite a little cattle stealing in several counties in that part of the state, so much so that the sheriffs had called upon the Kansas Bureau of Investigation for assistance in apprehending the thieves and recovering the stolen cattle. In response to this Lou P. Richter, director of the KBI, had sent Charles C. Maupin, one of his agents, to western Kansas to assist the local officers. On November 9,1944, Maupin learned that the Surratt and Purvine cattle on the Bilby ranch were to be taken out of the pasture. He asked the foreman, Mr. Andrews, to leave two of them at the Curtis place on the ranch to see what would happen. All of the cattle but two were taken away, and the two were left at the Curtis place. After dark that evening Mr. Richter, Maupin, the sheriff of Logan county, and other peace officers, in three automobiles, patrolled the highway near the Curtis house and stopped at a schoolhouse. They saw a truck driving away from the Curtis place, pulled in behind it and drove along without lights for awhile. They finally turned on their headlights, also the police red lights and sirens, and started to overtake the truck, whereupon the driver of the truck speeded up in an apparent effort to outrun the car that was behind him. A shot fired by one of the officers punctured a tire on the truck and the driver had to stop. Vinyard and Herschberger were in the truck. The officers drove up by the side of the truck, Mr. Maupin got in the truck with a flashlight, found the two steers described in the information, and examined the brands.
Richter talked to Vinyard while he was still in the truck cab and asked him who these cattle belonged to. Vinyard replied: “Just some cattle I was picking up for a fellow I pastured them for.” On being asked who it was, Vinyard said: “Cliff Ware.” He also questioned Herschberger and Herschberger stated they were stolen cattle and that he and Vinyard had taken them from the Bilby ranch, and he expressed regret that he had been implicated in the difficulty. Later that evening, in the presence of Maupin, the sheriff and undersheriff of Plamilton county, the undersheriff of Logan county, Tom O’Brien and the county attorney of Logan county, Richter had a talk with both Vinyard and Herschberger. Herschberger repeated his story of how they got the cattle, and Vinyard said: “Well, if that is what Ray says, that is the way it was. I took the cattle, but I didn’t dispose of them.” This was repeated several times during the conversation. Maupin identified the cattle, and the brands on them as being the brands used by Surratt and Purvine. He was present the next day in the city office at Oakley when Dewey Garrett, the undersheriff of Logan county, read the warrant to Vinyard and Herschberger. He was asked and answered the following questions:
“What, if anything, did Mr. Herschberger say after the warrant had been read? A. He said he was guilty.
“What, if anything, did Mr. Vinyard say? A. He said he was guilty.
“At that time did Mr. Vinyard say anything in regard to letting Herschberger go? A. He stated that he was in fault; that Herschberger didn’t have anything to do with it; that he talked him into it."
On November 10, O. B. Moulden, the sheriff of Logan county, received the truck and the two steers in his official capacity as sheriff. He described the brands on them and said he took the steers to the Bilby ranch, operated by Surratt and Purvine, with Grady Andrews as foreman.
Defendant, testifying in his own behalf, said he was a farmer and lived seven or eight miles from the Bilby ranch; that he took in cattle to pasture, among which were those of Cliff Ware, with an “0 — ” (read 0 bar); that sometime before November 9, 1944, Russell Curtis came to his place and told him they had two steers of Mr. Ware’s; that they were moving the cattle off the Bilby ranch and the witness was liable to lose them unless he came after them; that Curtis said he would put them up so that he could get them and that Mrs. Curtis would tell him where they were; that he went over to the Bilby ranch the next afternoon and Mrs. Curtis told him the cattle were in the barn; that he went and made arrangements with Herschberger to haul them in his truck and got back to the Bilby ranch about seven o’clock; that the cattle were in the barn; that he saw Mrs. Curtis that evening and she said the cattle were still in the barn and he and Herschberger backed up to the barn and loaded them. During his direct examination by Mr. Clark he was asked and answered the following questions:
“Did you ever steal any cattle in your lifetime? A. Not only what I am accused of this time.”
On cross-examination he was asked and answered the following questions:
“Q. You have been in lots of trouble with the law, haven’t you, Mr. Vinyard? A. Not no lots of trouble; no, sir.
“Q. You are on bond now, aren’t you, in another case other than this one? A. Yes, sir.
“Q. That is a case down at Wichita? A. Yes.
“Q. You are charged with making moon-shine; that is right, isn’t it? A. I don’t know as there has been any charge made. I never heard of it no more.
“Mr. Clark: I object to that as not being proper cross-examination.
“The Court: Overruled.
“Q. And you were charged with robbing the bank at Leoti, weren’t you? A. Yes, sir.
“Q. And convicted in this county, too, some years ago, weren’t you? A. No, sir.
“Q. Or plead guilty to bootlegging? A. No, sir.
“Q. What county was that? A. None.”
Upon the trial the facts above stated were brought out more in detail than is stated here. None of the pertinent facts to support the charge was seriously controverted.
Nothing is said in the record about the preliminary examination, since no point is made concerning it, but apparently it was held prior to November 13, the date the information was filed. Defendants were apparently held for trial in the district court and had given bond for their appearance at the next term of the district court to be held at the county seat, Russell Springs, on December 4, 1944. In the meantime defendants, on November 18, went to Scott City and employed R. D. Armstrong to represent them. He is the senior member of the firm of Armstrong & Lang and is an experienced attorney with an extended practice. Mr. Lang was county attorney of Scott county and never accepted employment on behalf of the defense to try criminal cases in nearby counties, regarding such employment as unethical, a principle which is firmly rooted among the county attorneys of this state. About November 26 Mr. Armstrong sustained an injury to a foot and leg which made it necessary for him to go to bed and be treated by a doctor for ten days or two weeks. Defendants saw him on November 30 and he informed them that he would' not be able to be present in court at Russell Springs on December 4, and outlined a plan for the case to be handled. He made some effort to get another attorney to take his place, but was unable to do so. The plan outlined was for Mr. Vinyard to plead guilty; that a motion for a new trial would be filed for him; that the motion would be set for hearing within thirty days, at the court’s convenience, at which time the motion would be overruled and he would be sentenced; that this would give Vin- , yard time to arrange his business affairs; and that Armstrong would ask for a continuance of Herschberger’s case, which he thought should be tried. It was further arranged that Mr. Lang would go to Russell Springs and present the matters in connection with what was to be done there on December 4. Mr. Armstrong wrote a letter to the county attorney of Logan county advising him of these facts. It does not appear that the trial judge was advised of these facts prior to December 4. In fact, the court had a jury called for that date, expecting these cases to be tried or otherwise disposed of. They were the only cases to be tried at that term for which a jury would be needed.
On December 4 Mr. Lang was present in court and presented first an application on behalf of Herschberger for a severance,-which was granted. He then presented an application on behalf of Herschberger for a continuance because of the illness of Mr. Armstrong, which was supported by affidavits and a doctor’s certificate, and this was granted and the case continued to January 22. Herschberger was arraigned and entered a plea of not guilty. The information was read to Vinyard and the court asked him how he would plead — guilty or not guilty? His answer was equivocal and the court entered a plea of not guilty for him. Mr. Lang then advised the 'Court that he had understood Mr. Vinyard was to enter a plea of guilty and that he had come there for the purpose of assisting him in that matter, and suggested that he confer with the defendant. The court granted a recess. Afterwards the court asked him if he desired to change his plea. Vinyard replied:
“I presume that is all there is to do. As I said a minute ago, I do not know. There was part of it we were guilty, of having those cattle.”
The court replied: “Unless you unqualifiedly plead guilty, the Court can’t do anything but enter a plea of not guilty for you.”
Vinyard replied: “I will enter a plea of guilty then. I haven’t no attorney. I talked to Mr. Armstrong. I would like to have showed a few things that I can’t do today.”
The court let defendant’s plea of not guilty stand and asked him if he was able to employ an attorney. He said he thought he was and asked if .there was any other attorney present. He was advised that Mr. Taylor, of Shaton Springs, was present. Vinyard replied that he did not know Mr. Taylor. It further developed that Vinyard had made no effort to get another attorney since he had known Mr. Armstrong could not be present. The court expressed the view that he could have gotten an attorney if he had wanted one. The court told him then he would give him until the next morning to employ an attorney of his own choosing, and if not, the court would appoint an attorney for him. Defendant then orally requested a continuance until December 29 to allow him to take care of his crops. The court declined to grant that request and continued the case over until the next day. Vinyard said he would try to get an attorney, but in any event he would be present the next morning.
The Court stated:
“I might say to the jurors, as the county attorney has requested, that you should be particularly careful not to talk with anyone or permit anyone to talk in your presence about anything connected with either of these cases about which we have been having discussion this morning. The purpose is that your minds may be free and open and that you may not be under suspicion by either the county attorney or either of the defendants, that you have prejudiced the case in any way. Don’t form or express any opinion as to the facts of these cases until they shall have been submitted to you. Ordinarily an admonition of this kind is not given until the jury is selected, but due to the fact that we have jurors here somewhat under a handicap in that you have come from a long ways, a lot of you, and that there may be some discussion in your communities about this case, just do not take part in any such discussions, so that when you come here, you can say you don’t know and haven’t heard what purported to be the facts in this case. . . . We will simply have to wait until the jury is selected and you have heard the case.”
On December 5 the case was called at 9:40 a. m., when defendant appeared without counsel. The court appointed E. M. Beougher, a reputable attorney of Gove county, to represent defendant. Mr. Beougher made an oral request that the'case be continued until December 29 “on the ground that he (defendant) had some family affairs to take care of, some crops to get in and prepare for, in the event the trial does not turn out like he thinks it will.” The court explained in detail the condition of the business of the court in Lo- ' gan and other counties of the judicial district (the district is composed of six counties) and that if the case could not be tried then it would have to go over until late in the spring. The court observed that the state had some rights in the matter and that he did not feel justified in continuing it so long. Mr. Beougher replied: “In view of the Court’s ruling, we are ready to proceed.” The jury was called and empaneled. Both the defendant and the state exercised but one peremptory challenge. The state proceeded to introduce its evidence. Only five witnesses were called and their testimony was not lengthy. At some time before noon Mr. Ray C. Sloan of Hoxie called the court by telephone and advised that he and his partner, W. H. Clark, had just been employed in the case and asked the court to continue the hearing until they could drive to Russell Springs, and stated they could be there by two o’clock. The court replied that the case had been dragging for a day and a half and that he did not feel justified in further continuing it. The new attorneys arrived shortly before two o’clock p. m. The court granted a recess for them to talk to defendant, after which the trial proceeded and was completed the same day. »
Among the instructions the court gave the jury were the following:
“No. 4. You are instructed that the offense of grand larceny as charged in the information in this case consists in the taking and carrying away without the consent of the owner or owners thereof, of two coming two-year-old white face steers, weighing about 700 pounds and branded with the letter ‘O’ on the left shoulder, and the letters ‘RO’ on the left hip, with the intent to deprive the owner or owners of their ownership therein. The essential elements of the offense as charged are as follows:
“(1) There must be a taking and carrying away of one or more of the steers above described in Logan County, Kansas;
“(2) Such steer or steers must have been owned by Fred Surratt and Carroll Purvine;
“(3) The defendant must have taken said steer or steers without' the consent of the owners;
“(4) The defendant must have taken said steer or steers with the intent to permanently deprive the owner thereof;
“(5) The offense must have been committed by the defendant in Logan County, Kansas, at some time within 2 years prior to the filing of the information in this case, to-wit, on November 13, 1944.
“No. 6. If you find from’ the evidence that the defendant through mistake, oversight, or carelessness, took the steer or steers, as charged in the information, without the intent of depriving the owner permanently thereof, then you should find the defendant not guilty, even though said property was taken without the consent of the owner. In other words, before you can find the defendant guilty of the offense of grand larceny, as charged in this action, you must find from the evidence beyond a reasonable doubt that each and all of the elements of said offense, herein described in Instruction No. 4, exist.
“No. 7. The term ‘unlawfully’ as used in these instructions means without lawful justification or excuse.
“The term ‘feloniously’ as used in these instructions means that felonious intent which has been defined as the intent to deprive the owner not only temporarily, but permanently of his property, without color or right or excuse for the act, and to convert it to the taker’s use without the consent of the owner.”
No objection was made to the instructions given. After the instructions were read to the jury counsel for defendant requested the court to give the following instruction:
“In this case the defendant has testified that he took the cattle in question at the direction and under the instruction of one Curtis, an employee of the complaining witnesses.
“You are instructed that if you find that said defendant did so take said steers in compliance with the instruction and direction of an employee of the owner, with a bona fide belief on the part of defendant that said employee was acting under authority of his employment, that the felonious intent on the part of defendant is lacking and you should find defendant not guilty.”
The request was refused and the court made the following notation thereon:
“Submitted after jury instructed. Matters mentioned are covered by instructions given.”
Defendant filed a motion for a new trial, which was set for hearing December 19. On December 16 counsel for defendant had a subpoena issued out of the district court of Logan county for Russell, Curtis and his wife and Tom O’Brien, on which the sheriff made a return that none of them could be found in his county. Upon the hearing of the motion for a new trial there was testimony to the effect that Curtis and his wife had skipped out on November 10, the day after the cattle were stolen, and had not since been located. O’Brien lived at Canadian, Texas. Defendant asked for a continuance of the hearing of the motion for a new trial. This was refused. The motion for a new trial was overruled, and this appeal followed.
We now take up the questions argued here. Appellant first contends that defendant was hot tried by an impartial and unprejudiced jury. The fact that this was not set forth as one of the grounds of the motion for a new trial indicates that it was an afterthought. However, the question was argued at the hearing of the motion for a new trial. The argument is that on the first day of court the proceedings previously set out herein were conducted in the hearing of a number of the members of the jury panel and that the jurors present must have heard defendant’s qualified plea and the colloquy between the court and the defendant and between the court and counsel. This contention rests upon suspicion rather than proof. No member of the jury panel was called to testify by affidavit or otherwise that he had heard any of the proceedings. It seems clear, however, that some of the members of the jury panel were in the courtroom during the proceedings, or a part of them. They were “coming and going.” The record also discloses that the colloquy between counsel and the court was conducted at the court’s bench inside the rail, which would indicate that it was unlikely that jurors out in the room heard any of it. The court reporter took the examination of the jurors on their voir dire. A summary of the examination of four of them is set out in the abstract. Two of these knew the defendant; the other two did not. None of them had heard from anyone what purported to be the facts in the case, and none of them had formed any opinion as to the guilt or innocence of defendant. Each of them stated that he could try the case fairly and impartially from the evidence produced at the trial. Appellant cites State v. Stewart, 85 Kan. 404, 116 Pac. 489, and State v. Van Wormer, 103 Kan. 309, 325, 173 Pac. 1076, 180 Pac. 450, upon the determination of the juror’s mind as pertaining to his qualifications to sit as a juror. There is nothing in this reoord to show'a violation of the rules stated in those authorities. The theoretical matter herein complained of does not appear to have been brought out on the voir dire examination. On this point see State v. Lovell, 140 Kan. 7, 34 P. 2d 578. Counsel place some stress on the fact that the court gave the admonition to the jury hereinbefore mentioned. It is a common practice for trial courts to give such an admonition to the members of the jury panel'present before any of the jury cases to be tried are actually called for trial. The giving of such an admonition cannot be said to be detrimental to a defendant later tried. (See State v. Pearce, 87 Kan. 457, 461, 124 Pac. 814.)
Appellant next contends that the court erred in having defendant arraigned in the absence of his attorney and refusing to grant a continuance. This appears also to have been an afterthought. Answering an inquiry by the court, Mr. Lang stated that Mr. Armstrong represented both defendants. Being unable to be present personally he had outlined with the defendants on November 30 the plan of handling the cases at the session of court on December 4 and that Mr. Lang would be present to look after that procedure for the defendants in lieu of Mr. Armstrong. This plan he had communicated to the county attorney. Defendant made no ob jection to Lang appearing for those purposes in lieu of Mr. Armstrong. Defendant was in fact represented by an attorney and did not contend otherwise. He chose not to follow in full the advice of his attorney, or to carry out the plan his attorney had outlined, and the court properly entered a plea of not guilty for him. This was advantageous rather than detrimental to the defendant.
The only thing in the way of an application for continuance was an oral request of the defendant made on December 4 and an oral request made by his attorney the next day that he have more time in order to take care of his crops and look after some family affairs. This is not a valid reason for continuance. (See G. S. 1935, 62-1414 and 60-2934, and the' cases annotated under them.) If the court were compelled to grant a continuance in a criminal case for reasons of that character few, if any, defendants would ever be tried.
It is next argued that the court erred in failing to give an instruction on unrelated crimes. We have hereinbefore set out in full the questions propounded by the county attorney and the answers given by defendant covering that matter. Present counsel were then in charge of defendant’s trial. No objection was made to any of the questions upon the ground that they were unrelated crimes, hence counsel are not in good position now to complain about it. They made no request for an instruction on the subject. While generally it may be said that in all criminal cases where evidence is brought out pertaining to offenses which may have been committed by defendant and which are unrelated to the one on trial, it is proper for the trial court to giye an instruction pertaining to such evidence; but where, as here, the evidence pertaining to the crime for which defendant was being tried is so clear, and there was no valid objection to the few questions pertaining to unrelated crimes, and no request for an instruction on that subject, we think it clear that the failure of the court to give such instruction cannot be regarded as erroneous.
Counsel for appellant state “the court erred in interlocking instructions No. 6 and No. 4 to the extent that instruction No. 6 is made meaningless and both are confused.” This thought is not elaborated in the brief. Apparently it is the view of appellant’s counsel that the reading of the instructions showed them to be confused and that No. 6 is made meaningless. We are unable to reach that conclusion by a reading of the instructions. No. 4 sets out the various elements of the offense which the state must prove beyond a reasonable doubt, which term is elsewhere defined in the instructions. It is fully as favorable to defendant as he was entitled to receive. Instruction No. 5, not quoted specifically, told the jury that if they were unable to find without reasonable doubt each of the elements set forth in instruction No. 4 they should find the defendant not guilty. No. 6 relieves defendant from liability if he took the steers “through mistake, oversight or carelessness” and is favorable to defendant. We are unable to see any error in instructions Nos. 4 and 6 of which the appellant can complain.
It is next contended that the court erred in refusing to give the instruction requested. This was predicated upon the view that Curtis, an employee of the ranch, had told defendant to come to the ranch and get two steers which belonged to Surratt and Purvine. There is no testimony in the record that would justify such an instruction. Defendant’s testimony was that Curtis told him that two of the steers defendant had been pasturing for Cliff Ware were at the ranch and that defendant had better come and get them or they would be lost. Quite clearly the jury did not believe defendant with respect to that testimony, nor did they believe that he thought he was getting two steers which belonged to Cliff Ware which he had taken in to pasture. Any slight examination of the brands on the steers would have informed defendant that the steers were not those which belonged to Ware and which he was pasturing. The court properly held the instructions given fully covered the matters presented by the evidence.
It is argued the court erred in refusing to cpntinue the hearing of the motion for a new trial. This was set for hearing on December 19. Three days prior thereto, as previously noted herein, defendant caused a subpoena to be issued for Russell Curtis and his wife and Tom O’Brien, which had been returned by the sheriff of Logan county with the report that none of them could be found in his county. In appellant’s brief it is said they did not want O’Brien as a witness, but wanted to get in contact with him, thinking that from him they could learn where Curtis and his wife were. The evidence on the hearing of the motion for a new trial disclosed that Curtis and his wife had left the country immediately after the arrest of defendant and had not been located. So, the getting out of a subpoena for these witnesses was a mere gesture. There is nothing to indicate that appellant or his counsel thought they could be served. There is a suggestion that Curtis was a party to the theft of the steers for which defendant was convicted and that officers had been looking for him, without success. It is not stated what defendant thought he might be able to prove by Curtis or his wife. No affidavit setting forth the evidence they would be expected to give was filed, nor was any statement made of it. There was no showing, nor was there any claim, that they could be located and their testimony presented at any reasonable time in the future. We think it clear there was no error in refusing to continue the motion for a new trial in order that those witnesses might be procured.
It is argued that the court erred in overruling the motion for a new trial. Under this head the matters previously discussed here are argued, but they need no further attention. Also it is argued that there was no evidence that Surratt and Purvine owned the steers that were stolen. That contention is inaccurate. Andrews, the foreman of the ranch, testified positively that the steers belonged to Surratt and Purvine. Maupin gave similar testimony, but his judgment was based upon the brands, and is criticized for that reason. The criticism is without substantial basis. The purpose of branding cattle is to identify their ownership.
We find nothing meritorious in any of the points argued here on behalf of the appellant. On the other hand, we think the record shows that defendant had a fair trial and that he was justly convicted. The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
This is another workmen’s compensation case. The claimant appeals from a judgment denying compensation for the death of her husband.
It is conceded that at the date of the alleged accidental injury and death the relationship of employer and employee existed, that claim for compensation was properly made and that the only question presented to the trial court was whether the claimant’s husband sustained an injury by accident which arose out of and in the course of his employment, from which he died.
The trial court concluded as a matter of law the deceased workman’s death was not the result of an accidental injury arising out of his employment, basing its conclusion and subsequent judgment upon findings of fact, which, insofar as pertinent to the issues herein raised, read as follows;
“On May 3, 1943, Joseph Earl Addington was struck with a piece of 2x4 in the hands of Jim Hought, as a result of which he died on May 6, 1943. At the time of the injury and for sometime prior thereto, Addington was employed by the respondent as a Trouble Shooter and Hought was employed by respondent as a pumper. Both men were working on the Miller leases in Russell County. On Saturday, May 1, 1943, it having been decided to put on a relief pumper, Don Haynes, production superintendent for respondent, instructed Addington to go to the several pumpers on the leases and make arrangements agreeable among them relative to relieving them on certain days of the week. About 9 or 9:30 o’clock, Monday morning, May 3, 1943, Adding-ton reported to Haynes, ‘Doc, I almost got hell whipped out of me this morning.’ On being asked what was the trouble, he said, ‘Jim wouldn’t let me relieve him.’ At that time, Addington did not appear to be excited or angry. Haynes then went to see Jim'Hought and came back and told Addington that he should relieve Hought at 8 in the morning. He then assigned Adding-ton to hauling either a wood settling tank or false deck to a settling tank to the L. Miller six, which required the use of a truck or pick-up. When Adding- ton reported to Haynes, his duty to make arrangements for the relief of Hought was fully performed. At noon, on May 3, 1943, Addington had lunch with his son-in-law, Yewell Caldwell. Some time later, Caldwell was talking with Jim Hought at the warehouse on the E. Miller lease when Addington drove up in a pick-up, got out and came into the warehouse. He passed between Hought and Caldwell, when back 8 or 10 feet in the warehouse, stopped and asked Jim if he had seen Doc (Haynes). Hought replied, ‘You God Damn right.’ Addington then said, ‘I wasn’t lying to you, was I?’ whereupon Hought ‘started to cussing’ and stepped out of the warehouse, put his glasses in his car, came back and a fight ensued in which Addington apparently struck the first blow. Hought pushed the attack, followed Addington into the warehouse, where he had retreated after the fight was started outside, and struck him on the head with a piece of 2x4, inflicting a mortal wound from which he died on May 6, 1943. The court concludes from the record that Hought was the aggressor in this affair. These men had had no trouble prior to this time. The record is silent as to what business, if any, Addington had at the warehouse on the afternoon of May 3. Nothing in the conduct or language of either Addington or Hought in their conversation with Haynes on the morning of May 3, would indicate to the latter that there might be further trouble between the two men. Prior to the employment of Joseph E. Addington as a relief pumper, James Hought was working as a pumper on the Hall lease seven days per week for a total of 56 hours. For the 6th day of each week he received time and one-half for such time and double time for the 7th day. The rate of pay was approximately $.80 per hour. The employment of J. E. Adding-ton as a relief pumper ordinarily eliminated practically all of the time and one-half and double time pay for each of the regular pumpers, amounting to approximately $40.00 or $50.00 per month. The warehouse on the lease was used for the storage for parts, motor oil and miscellaneous supplies. Jim Hought lived in a house on the Miller lease where he was employed as a pumper, Addington lived in the City of Russell, about 8 miles from the lease.”
Before giving consideration to questions raised by appellant and relied on as grounds for reversal of the judgment we pause to note this is not a case where we are called upon to determine whether the judgment is supported by substantial competent evidence. The entire record is not abstracted, the only evidence appearing in the abstract being a short extract from the testimony of one witness with respect to a single factual question presently to be mentioned. Under such circumstances we must assume there was evidence to support all other findings of the trial court and accept them as correct (Buckwalter v. Henrion, 111 Kan. 781, 208 Pac. 645; Amusement Syndicate Co. v. Martling, 118 Kan. 370, 376, 235 Pac. 126; King v. Stephens, 113 Kan. 558, 560, 215 Pac. 311; Mullinville State Bank v. Olson, 134 Kan. 497, 7 P. 2d 37; Wyckoff v. Brown, 135 Kan. 467, 11 P. 2d 720; Farmers State Bank v. Crawford, 140 Kan. 295, 37 P. 2d 14 and Barker v. Chicago R. I. & P. Rly. Co., 158 Kan. 549, 551, 552, 148 P. 2d 493, and cases there cited).
The reason for the rule is well stated in Mercer v. Kirkwood, 147 Kan. 637, 77 P. 2d 929, where it was said:
“. . . This rule is one of logic as much as it is of law. How could this court say that the trial court erred in its finding of fact without a complete record being available to determine the point?” (p. 638.)
Appellant’s first assignment of error is that the trial court erred in refusing to make additional findings. One answer to this contention is to be found in the statement just quoted. Assuming the practice of requesting additional findings of fact in a workmen’s compensation case is proper, there is no evidence before us on which we could possibly base a decision that the refusal to make additional findings was not justified. Besides, this court under almost identical circumstances has refused to review such an assignment. In Buckwalter v. Henrion, supra, we held:
“When the evidence has not been preserved, an assignment of error based upon the trial court’s refusal to make requested findings of fact cannot be reviewed.” (Syl. IT 5.)
See, also, Cornell v. Cities Service Gas Co., 138 Kan. 607, 27 P. 2d 228, which holds:
“In a workman’s compensation case an appeal, on the ground the trial court should have made a different finding, presents no question of law for review where the finding made is supported by substantial competent evidence.” (Syl. ¶ 3.)
It is next urged the trial court erred in refusing to set aside the finding in which the court found there was nothing in the language of either Hought or Addington, the deceased, in their conversation with Haynes, the respondent’s production superintendent, which would indicate to the latter there might be further trouble between the two men. It is claimed the finding is not only contrary to the evidence but not supported by any evidence. With respect to this finding the abstract does contain some of Haynes’ testimony on the subject therein referred to and appellant fortifies it by the statement the record shows no other statement by Haynes to Hought or by Hought to Haynes, regarding what had occurred between Hought and Addington early on the morning of the day of the tragedy. This complies with the requirements of G. S. 1943 Supp. 60-3312, and appellant’s contention requires decision. The testimony which she relies upon as requiring the setting aside of such finding reads:
“Q. You said to Addington you would go down and talk to Jim. By that you meant Hought? A. Yes, sir.
“Q. Did you go down and talk to Hought? A. I did.
“Q. Just tell us what that conversation was? A. He was at Elizabeth Miller, number five tank battery, and I drove up and said, ‘Jim, I would like to talk to you. Get in the car.’ And he said, T would like to talk to you.’ So I told him that I had sent Joe out there to run relief and we were going to run relief. And he said that Joe come over to relieve him after he had started up his wells. If I remember right he had three running and was at his fourth well. And he said, ‘I wouldn’t let him relieve me after I had started to work’ so I said, ‘Well, tomorrow morning,’ which would have been Tuesday, ‘will be your day off. Joe will relieve you at 8:00 in the morning. You don’t need to come out and start your wells. Joe will be here at 8:00 to take over.’ And he said, ‘That’s fine.’
“Q. Did he say anything about being sore at Addington or . . .? A. No, he did not.
"Q. Did he say anything about whipping him or having a fight with him? A. No.
“Q. Was there anything about aiuffhing he said, or any of his actions that made you think that he might start a fight with Addington? A. None whatever.
“Q. Had he ever had any trouble out on the lease before? A. No.”
In considering the sufficiency of evidence to sustain a finding of fact in a compensation case we are mindful of the well-established rule that our function is limited to determining if there was evidence, whether opposed or not, warranting a reasonable inference although a contrary inference might reasonably be drawn, to sustain such finding. (Shay v. Hill, 133 Kan. 157, 299 Pac. 263; Proffitt v. Aldridge, 154 Kan. 468, 472, 119 P. 2d 523; Raynes v. Riss & Co., 152 Kan. 383, 386, 103 P. 2d 818 and Cook v. Dotson Sheet Metal Works, 157 Kan. 576, 579, 142 P. 2d 709.) Obviously the evidence just quoted speaks for itself and requires no comment when the rule is applied. We have no hesitancy in holding the conclusion of the trial court as to its import was warranted and that the finding must be sustained.
With the findings established there remains but one question for decision. In the light of the facts as found, was the trial court’s conclusion of law erroneous? Boiled down, appellant’s argument is that because the deceased and Hought quarreled in the morning at a time when the former was executing the orders of the respondent the injury suffered by him at the warehouse in the afternoon and which resulted in his death arose out of his employment. No Kansas cases upholding this contention under circumstances such as we have before us which sustain this contention are cited. The two decisions which appellant stresses as having that effect are Stark v. Wilson, 114 Kan. 459, 219 Pac. 507 and Cox v. Refining Co., 108 Kan. 320, 195 Pac. 863. They have each been given careful consideration. No necessity exists for detailing the factual situations on which they were decided. It suffices to say they were entirely different from the one instantly involved and that nothing said in the opinion of either can be construed as indicating an opinion that its consequences would be held to have resulted from an injury arising out of a workman’s employment. Many decisions are also cited from other jurisdictions. They, too, have been examined, and while it must be conceded some of them are authority for the proposition that assaults are compensable if an altercation resulting in injury took place during the course of the employment, irrespective of whether it arose out of employment, they are based on other statutes and not in harmony with our decisions.
The arguments advanced by appellant might be entitled to some weight if this court had not heretofore rejected them. The rule in force and effect in this state was announced in Peavy v. Contracting Co., 112 Kan. 637, 211 Pac. 1113, wheré it was held:
“An employee working for an employer operating under the workmen’s compensation act cannot recover under that act for an injury inflicted by the foreman in an assault upon the employee, unless the employer had reason to anticipate that injury would result if the two continued to work together.” (Syl.)
See, also, Covert v. John Morrell & Co., 138 Kan. 592, 595, 27 P. 2d 553, where the rule just quoted was recognized and approved, and it was said:
“. . . It would seem to follow that if a workman cannot recover for injuries intentionally inflicted by a fellow employee over whom the employer presumably has some control, he is not entitled to compensation for malicious injury by a third person in no way connected with the employment and entirely outside the employer’s authority, unless there is some circumstance that, by reason of his employment, makes him peculiarly and especially subject to assault.”(p. 595.)
Appellant apparently concedes the rule in this state is that announced in Peavy v. Contracting Co., supra, but argues the instant case is easily distinguishable in that there it did not clearly appear there had been a prior dispute or altercation between the parties to the affray and there was nothing in the situation to indicate that any trouble might arise or that the employer had any notice of its likeli hood. Quite true so far as facts there involved are concerned. Even so, the trouble with appellant’s argument is that it overlooks the all-important finding of the court heretofore referred to, which we repeat for purposes of emphasis. It reads;
“Nothing in the conduct or language of either Addington or Hought in their conversation with Haynes on the morning of May 3, would indicate to the latter that there might be further trouble between the two men.”
The language just quoted must be given a reasonable construction. So construed it means the respondent had no reason to anticipate that trouble would arise or injury result to either the decedent or Hought if they continued to work on the same location. The finding, therefore, brought appellant’s case squarely within the rule announced in Peavy v. Contracting Co., supra, to which we adhere, and precludes her recovery.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an original action in quo warranto in which the plaintiff seeks to determine the right of the defendant board to proceed in the organization of a rural high school district under the provisions of G. S. 1935, 72-3501 et seq. as amended, and to oust the defendant board from further action under that statute.
It is not necessary that the pleadings, nor what followed, be set forth in any detail. After issues were joined, the plaintiff and defendants asked that a commissioner be appointed to hear testimony on issues of fact. A commissioner was appointed, who heard the evidence and made and returned into court his findings of fact and conclusions of law, including one that the relief prayed for should be denied.
Plaintiff concedes that the findings of fact made are supported by the evidence, and that the only issue remaining in the case is whether a board of county commissioners, having approved the boundaries of a rural high school district, may later withdraw that approval, under the circumstances here existing.
The pertinent facts are as follows:
The city of Barnard lies in the northeast'corner of Lincoln county and about two miles from the south line of Mitchell .county. Persons residing in the Barnard community presented a proposal to establish a rural high school district, the boundaries of which included about seventy-eight sections of land in Lincoln county and about thirty-five sections of land in Mitchell county, to the board of county commissioners of Lincoln county and to the county superintendent of that county, and December 1, 1944, each of them approved the proposed boundaries. Immediately thereafter the proposal was informally presented to the county superintendent of Mitchell county, who refused approval as presented, but as the result of what that county superintendent denominated as “horse trading,” there was an agreement on boundaries including the lands in Lincoln county and eight sections of land in Mitchell county. It may be stated briefly that the board of county commissioners of Mitchell county and the county superintendent of that county on December 13, 1944, approved the boundaries, as last indicated, and thereafter and on December 26, 1944, the board of county commissioners of Lincoln county and the county superintendent of that county approved the same. Without going into any detail apparently some persons in the'eight sections in Mitchell county were dissatisfied, some perhaps because their lands were included, and some perhaps because other lands excluded were not included. Some of them talked to members of the board of county commissioners of Mitchell county, and that board on January 2, 1945, adopted a resolution purporting to rescind its previous action of approval, and on the following day copies of the resolution were filed with the county clerk and the county superintendent of Lincoln county. Shortly after the approval by the Lincoln county officials on December 26, 1944, electors within the proposed district commenced circulation of petitions for an election under the statute and a considerable number of electors had signed prior to January 2, 1945. Of the total number of electors, twenty-four resided in Mitchell county and of these sixteen signed the election petitions. On Feb ruary 6, 1945, the board of county commissioners of Lincoln county, which had the power and duty under the statute, as the greater portion of the territory was in that county, found that the petitions for an election were sufficient, and called an election to be held March 9, 1945, and the election was duly held that day. The instant action was commenced on February 13,1945, and without detailing any motions for interlocutory relief or subsequent pleadings filed, the cause was heard by a commissioner, whose report has been mentioned.
For purposes of clarification we note that at no time has there been any question as to the size of the proposed rural high school district or valuation of lands included therein, nor as to the legal sufficiency of any proposal for organization of the rural* high school district, nor of any action thereon by the officials of Lincoln county, nor of any subsequent action pertaining to the calling of the election to vote on establishment of the district, further than that proceedings after attempted withdrawal of consent by the board of county commissioners of Mitchell county, are a nullity. As has been indicated, the questions of fact originally presented by the pleadings no longer concern us for the reason the state admits the findings of the commissioner are supported by the evidence. We have read the transcript of evidence taken before the commissioner, and without more, approve his findings of fact, pertinent parts of which are stated above. The only question remaining, and the only one discussed in the briefs, is one of law and that is whether under the circumstances the board of county commissioners of Mitchell county had power on January 2, 1945, to rescind its action of December 13, 1944, and withdraw its approval of the boundaries of the proposed rural high school district, the proper officials of Lincoln county having approved those boundaries on December 26, 1944. „
The right of one who is required to consent to or approve some action and who does so, to later revoke his action or withdraw his consent or approval, has been treated in a variety of situations. It has been held that a judge who has approved an appeal bond cannot withdraw his approval (3 C. J. 1177); that after a judge or other official approves a bail bond he cannot withdraw his approval (6 C. J. 1013); that an architect may not, without good cause, withdraw his acceptance of work which must be done to his satisfaction (9 C. J. 767); and that an officer who transmits an unconditional resignation to the authority entitled to receive it cannot later withdraw it (46 C. J. 980); although in each of the above instances, authority to a contrary effect may be found — in some cases due to peculiar facts — in some cases due to statutory provisions — and in some representing a minority view. In connection with public improvements, it has been held that a person who signs a petition for or consent to such works may, and may not, withdraw before the petition or consent has been acted upon by the proper authority (44 C. J. 1194), and in 126 A. L. R. 1031 may be found an extensive annotation on the right of a signer of a petition or remonstrance to withdraw his name.
The state’s position and contention is that until the board of county commissioners of Lincoln county called an election on February 6, 1945, the board in Mitchell county had the power to rescind its action of December 13, 1944, and withdraw the consent then given. It cites but one case on that proposition, City of Ellsworth v. Wilson, 149 Kan. 486, 87 P. 2d 611, in which it was held that the action of a board of county commissioners in adopting a resolution for allocation of certain highway funds, did not prevent the board in a subsequent year from adopting another resolution making a different allocation. We shall not pause to review that case, but refer instead to the opinion there. In effect we held that the allocation made at a particular time was discretionary and not of such finality the board was precluded, under the circumstances there obtaining, from making a later different allocation. The decision in the above case does not determine the question now before us. The state also directs our attention to State, ex rel., v. Dowling, et al., 117 Kan. 493, 232 Pac. 615; to State, ex rel., v. Miley, 120 Kan. 321, 243 Pac. 262; and to State, ex rel., v. Rural High-School District, 128 Kan. 797, 280 Pac. 892; in each of which may be found reference to and construction of the statutes pertaining to the formation of rural high school districts. We find little in these cases that bears on the question before us and nothing that could be said to be decisive.
The defendant’s position and contention is that immediately upon consent of the two boards and of the two county superintendents to the boundaries of the district, those boundaries were fixed and it would require joint action to set aside the action, and that the board of county commissioners of Mitchell county was without power to withdraw its consent; that if the board had any power to withdraw, its action was too late, for immediately after the last approval by the officers of Lincoln county on December 26, 1944, the electors commenced circulation of petitions for an election as required by the rural high school statutes. They direct our attention to State, ex rel., v. Bentley, 96 Kan. 344, 150 Pac. 218, wherein it was held that where the governing body of a city adopts a resolution to bring its public library under the provisions of a certain statute, it could not later rescind its action in so doing, and also to Brown v. Arkansas City, 135 Kan. 453, 11 P. 2d 607, where it was held that the power of a municipal council to repeal ordinances does not apply where the ordinance has been enacted under a narrow, limited grant of authority to do a single designated thing in time and manner fixed by statute, which provided for establishment of a city court. It was there held that an implied power to rescind or repeal a finding, resolution or ordinance cannot exist unless the city had been delegated power to enact them in the first place.
In the very recent case of Russell State Bank v. Steinle, 159 Kan. 293, 153 P. 2d 906, it was held that the board of county commissioners was without power or authority to rescind its previous action in establishing a county court.
In Coleman v. Miller, 146 Kan. 390, 71 P. 2d 518, the question to be decided was the power of the lieutenant-governor, in case of tie vote, to vote on a concurrent resolution for the ratification of an amendment to the United States Constitution. The case is of interest here because of its repeated references to the settled proposition that although a legislative body may reconsider its previous action of rejection, once ratification is voted, it may not be receded from or rescinded and it has no power thereafter to withdraw its ratification.
An examination of the statute under which rural high school districts are “formed” or “established” discloses that insofar as here applicable legal electors residing in requisite territory “shall have authority to form a rural high-school district, whose boundaries shall have been approved by the county superintendent of public instruction and by the board of county commissioners of each county in which any part of such proposed district shall be situated, ...” (G. S. 1943 Supp., 72-3501) and that when a petition signed by two-fifths of the legal electors residing in the proposed district shall be presented to the board of county commis sioners of the county in which the greater portion of the territory lies, reciting the boundaries of the proposed district and the approval thereof and requesting the board to call a special election to vote on establishing a rural high school, it shall be the duty of the board of county commissioners to call a special election to vote on establishing a rural high school-(G. S. 1935, 72-3502). It will be observed that the statute provides two distinct steps, first, a proposal to form a district of designated boundaries which must have the approval of the county superintendent of public instruction and of the board of county commissioners of each county in which the land lies; and second, an election on the question of establishment.
Although an analogy may be drawn between the right of the signer of a petition for an election, or of a remonstrance or resignation from office, to withdraw his signature prior to the time the petition, remonstrance or resignation is acted upon by the authority to whom it is directed, and the case now presented, we think it may not be applied in the manner contended by the plaintiff when the statute is considered. When legal electors proposed a rural high school district of certain boundaries, and submitted that proposal to the several county superintendents of public instruction, and to the several boards of county commissioners, for their approval, upon approval by the last of them that phase was ended. Thereafter what remained to be done was not subject to any further action by any county superintendent of public instruction, nor to any further action by any board of county commissioners as to the boundaries of the proposed rural high school district. Thereafter, upon proper petition, the board of county commissioners of the county in which the greater portion of the territory lies, had the duty only of calling the election, and it, and no other official or board, who had given approval had any power to change the proposed boundaries, for that had previously become a finality. In what has been said, we do not deal with any question of fraud— any allegations either as to actual or legal fraud have been eliminated by the findings of the commissioner adopted by this court.
In the case before us the several officials and boards, after being unable to agree on the first proposal submitted, did agree on the second, and it was approved by the Mitchell county authorities on December 13, 1944, and by the Lincoln county authorities on December 26, 1944. When final approval was had, the legal electors who proposed the rural high school district had fully and finally laid the groundwork for the circulation of election petitions.
We are of opinion that when the proposal vras adopted by the board of county commissioners of Lincoln county on December 26, 1944, none of the officials whose approval was requisite could thereafter withdraw or rescind its action of approval.
It follows the state is not entitled to the relief sought, and that judgment should be rendered in favor of the defendants, and it is so ordered. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an appeal from a ruling sustaining a demurrer to a petition in an action in which plaintiff sought to quiet title to real, estate.
As far as it is necessary to notice, plaintiff alleged that he was the owner and in possession of certain real estate; that on various dates beginning September 18, 1931, and ending February 15, 1937, the defendant Board of County Commissioners caused to be filed in the office of the clerk of the district court.and entered upon the judgment docket as judgments against plaintiff certain personal tax warrants covering taxes assessed against the plaintiff for the years 1930 to 1935, both inclusive, in amounts exceeding $100; that on December 15, 1943, defendants caused to be issued on the tax judgments general executions which were returned without levy about February 12, 1944; that no other or additional execution or other process had been issued on said judgments and the same have ceased to be a lien upon the real estate; that by reason of the tax warrants and judgments the defendants the State and the Board of County Commissioners claimed to have a lien upon plaintiff’s real estate and threatened to have execution issued and levied on plaintiff’s real estate and the defendant clerk of the district court threatened to and would, upon praecipe of the other defendants, issue such execution. The prayer was that title be quieted and that plaintiff have other relief.
Defendants demurred to the petition on the ground that facts sufficient to constitute a cause of action were not stated. . This,demurrer was sustained and plaintiff duly perfected his appeal to this court. ,
The principal question presented in the briefs is whether the lien of a tax warrant filed pursuant to G. S. 1935, 79-2105, ceased after the expiration of five years where no execution or other process was issued thereon. The above statute was repealed in 1943, .but was in effect at all times pertinent to the present case. It provided that on the return by the sheriff to the county treasurer of any unsatisfied tax warrant, the county treasurer, under conditions set forth, should file with the clerk of the district court of his county an abstract of the amount of taxes, penalty and costs, accompanied by the last tax warrant, and “said clerk shall enter the amount on his judgment docket, which said unpaid tax shall become a lien on real estate, in the same manner as a judgment, and a tax warrant may thereupon be issued by said clerk, which shall have the same force as an execution, and such real estate shall be sold without appraisement.”
It may be observed that the last warrant referred to in the petition was filed February 15, 1937, and that no execution' or process was issued until December 15, 1943, or over six years later. Assuming for the moment that issuance of a tax warrant or execution within five years was necessary to keep' the lien alive, that was not done, (G. S. 1935, 60-3405) nor, if the lien ór judgment thereby became dormant, was any effort made to revive it within two years thereafter. (G. S. 1935, 60-3221.)
The contentions of appellant and appellees turn on an interpretation of that portion of the statute quoted above. Generally, appellant contends that the words “in the' same manner as a judgment” were used to define the manner of the lien created rather than the manner in which the lien arose, that under the statute in effect a judgment was created, which is barred for the reason no execution was issued within five years from its date by reason of G. S. 1935, 60-3405, while, in effect, appellees contend the words do not mean a judgment is created, but only that the filing creates a lien in the same manner that a judgment creates a lien. Before entering upon any discussion of the correctness of either view, we summarize the arguments presented in appellees’ brief in support of the trial court’s ruling. Methods of collecting taxes are wholly statutory, and whatever remedies or procedure are available in connection therewith are to be found in the statutes (Sherman County Comm’rs. v. Alden, 158 Kan. 487, syl. ¶ 1, 148 P. 2d 509, and cases cited' therein); that the statute does not state that tax warrants filed in the office of the clerk of the district court are judgments but only that the “unpaid tax shall become a lien on real estate, in the same manner as a judgment, and a tax warrant may thereupon be issued . . . which shall have the same force as an executionthat the statute has since been amended to pi’ovide specifically that such tax warrants are judgments and under rules of statutory construction the older statute must be read in the light of such change (In re Moseley’s Estate, 100 Kan.v 495, syl. ¶ 5, 164 Pac. 1073, L. R. A. 1917 E 1160); that statutes of limitation do not run against the lien in the absence of statute (City of Osawatomie v. Miami County Comm’rs., 153 Kan. 332, syl. ¶ 1, 110 T. 2d 748); that statutory rights and duties of a municipality are not lost through laches, estoppel or statutes of limitation (Douglas County v. City of Lawrence, 102 Kan. 656, syl. ¶ 4, 171 Pac. 610, and In re Moseley’s Estate, supra, syl. ¶¶ 2, 3); and after directing attention to the statutory definition that—
“A judgment is the final determination of the rights of the parties in an action.” (G. S. 1935, 60-3101.)
appellees argue that the tax lien filed as provided by the statute does not rise to the dignity of a judgment so as to bring it within G. S. 1935, 60-3405, which provides that if no execution issue within five years from the date of a judgment in favor of the state, the judgment shall become dormant and cease to be a lien on the real estate of a judgment debtor. In effect, it is claimed the filing of the tax warrant did not create a judgment, which would be barred, but only a lien against which no statute is leveled, that the lien did not lose its force by reason of any inaction or delay on the part of the public officials, that the lien is still effective, and plaintiff was not entitled to relief and the demurrer was properly sustained.
As we are in agreement generally with the propositions that methods of collecting taxes are statutory, that statutes of limitation do not run against the state unless so provided by statute, and that the state’s rights are not lost through laches, estoppel or inaction of public officials, these matters need not be discussed.
We are not in -agreement, however, with the construction placed on the statute -by the trial court and contended for by the appellees. Under the statute the first duty imposed on the clerk of the district court is to “enter the amount (of the tax) on his judgment docket.” Under the code of civil procedure the clerk of the district court is required to keep a judgment docket to be kept in the form of an index in which the name of each person against whom a judgment is rendered shall appear in alphabetical order, and shall contain the names of the parties, the amount and nature of the judgment and costs, and the date of its rendition. (See G. S. 1935, 60-3801, 60-3804.) This information is obtained from the abstract of taxes, penalty and costs and the last tax warrant filed with the clerk by the county treasurer, and calls for no more and no less than any judgment rendered by the district court (see statutes last noted) nor any judgment of a justice of the peace certified to the district court (G. S. 1935, 60-3480). The effect of such entry is that “the unpaid tax shall become a lien on real estate, in the same manner as a judgment.” In the arguments presented these words are the crux. We are unable to separate them from the context immediately preceding and following their use, as the parties have in part done. We are satisfied that the legislature did not intend by their, use to create only a lien and not something having the attributes of a judgment. If only a lien was created, there was no provision for its being reduced to judgment, and it would be unusual to conclude that an execution could issue to satisfy a lien not reduced to judgment. Although to declare the amount of unpaid tax had the elements, characteristics or force of a judgment, does not exactly fit the definition of a judgment as found in the code of civil procedure (G. S. 1935, 60-3101), it.is to be borne in mind that the entire taxing machinery provided, among other things, for a return of personal property for taxation by the taxpayer (G. S. 1935, 79-301), for equalization by the county board of equalization (G. S. 1935, 79-1601), for the levy of tax, completion of tax rolls and delivery thereof to the county treasurer (G. S. 1935, 79-1801 et seq.), for the correction of irregularities (G. S. 1935, 79-1701 et seq.), and ultimately the amount of the tax became determined and beyond review, and that situation existed when the abstract of the amount of taxes and last tax warrant were filed by the county treasurer with the clerk of the district court. We think the legislature intended to do more than create a lien on the real estate of the delinquent taxpayer, and did provide for an entry having the characteristics and attributes of a judgment. .-This conclusion is fortified by the further language that the clerk may issue a tax warrant which shall have the same force as an execution. Executions are process issued by the clerk and directed to the sheriff and, with exceptions not here pertinent, are against the property or person of the judgment debtor. Issuance of an execution presupposes rendition of a judgment. (See G. S. 1935, ch. 60, art. 34.) For a tax warrant issued by the clerk of the district court to have the same force as an execution issued by him, it would seem to follow that the entry on which the tax warrant issued had the same force as a judgment.
We notice the argument that the statutory provision in question is to be interpreted in the light of later legislative enactments. This opinion would be extended to undue length to make a complete review of the legislative history. The section in question (G. S. 1935, 79-2105) was enacted in 1876 (Laws 1876, ch. 34, sec. 96.) Under that statute the county treasurer sent out notices to delinquent personal property taxpayers, and if default were then made, issued warrants to the sheriff, who made return to the county treasurer in sixty days. On the return of any unsatisfied tax warrant, if the county treasurer believed the taxpayer had property which could not be reached by the tax warrant it was his duty to file the abstract and last tax warrant with the clerk of the district court. (See R. S. 1923, ch. 79, art. 21.) Prior to 1931 changes were made expanding application of the law for collection of delinquent personal property tax, and the machinery, but the particular section now under inquiry was not changed. (See G. S. 1935, ch. 79, art. 21.) In 1943 a more substantial change was made. Original G. S. 1935, 79-2105 was repealed, and section 79-2101 was amended by Laws 1943, chapter 301, section 3. Under the new act, if the taxpayer makes thirty-day default after notice from the county treasurer, the county treasurer issues his warrant in duplicate. The original is delivered to the sheriff for service, and the copy is delivered to the clerk of the district court, with an abstract of the amount of taxes, interest and costs, and the clerk enters the amount on his judgment docket, “which said unpaid tax shall become a judgment in the same manner and to the same extent as any other judgment under the code of civil procedure and shall become a lien on real estate from the time of filing thereof.” And more extended provision was made for execution, garnishment or other proceedings in aid of execution, as well as provisions concerning exemptions and the homestead, and other provisions not necessary to notice now. (See G. S. 1943 Supp. 79-2101.) We note, but do not comment thereon, that further changes were made in the last-noted section by Laws 1945, chapter 360, section 2. The substance of the language last above quoted remains in the last act. In 2 Sutherland on Statutory Construction (3d ed.) § 5110, p. 526, it is said:
“Where a former statute is amended, or a doubtful meaning of a former statute rendered certain by subsequent legislation, a number of courts have held that such amendment or recent legislation is strong evidence of what the legislature intended by the first statute.”
We think the purpose of the legislature in amending from time to time the statutes pertaining to delinquent personal property tax, was to provide a more definite procedure to be followed by the county treasurer and the sheriff so as to insure collection of the tax, and when the section of the statute presently involved was re pealed and not amended and its substance included in the new act, it did not intend to create a judgment where one did not exist under the previous statute, but only to clarify the language and make certain the meaning of the repealed provision.
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The opinion of the court was delivered by
Hoch, J.:
This was a proceeding in habeas corpus in Sedgwick county instituted by a mother to obtain custody of her two minor children. The defendant, father of the children, prevailed and she appeals.
In an action in California brought by the husband Brita E. White and Christie W. White were divorced on March 26, 1937. They had two daughters, one about four years old and the other two and a half. Custody of the children was awarded to the father “with right of reasonable visitation given to the mother.” In September, 1937, about six months after the divorce was granted, the mother sought, in the California court, to have the order modified to give her specific week-ends to visit the children and to have them with her. She alleged that the father had refused her the right of reasonable visitation and made other allegations which need not be noted here. Order was issued to the father to show cause why the provisions as to custody should not be modified and he was directed in the order not to take the children out of Los Angeles county. On June 11, 1938, the mother sought further modification as to custody, and an order was made fixing certain hours and days when she should have the children. On June 21, 1939, she again filed an application for further modification. A court assistant was directed to make an investigation and recommendation. She did so, and made a recommendation that the custody provisions be modified and the mother permitted to visit the children at all reasonable times, and that she have them every other week-end from Saturday morning until Sunday evening and also have them for half of the Christmas and Easter vacations and one month during the summer vacation. The recommendation was approved by the court and an appropriate order entered. The order also provided that “these children shall not be taken out of southern California.” About two years later, in August, 1941, the mother again sought modification of custody, alleging among other things:
“Plaintiff has since remarried and is now separated and divorced from his second wife. That children have been moved from home to home by the plaintiff and that plaintiff has not the proper home or environment for said children. That plaintiff has given the custody of the children to the defendant and informed the defendant that he desired that defendant rent a large enough home for children and that defendant has done so. Defendant believes that she can give the children a proper home environment, care and education.”
Again the case was placed in the hands of the court’s official investigator. After investigation she filed a written report, shown in the record here, in which she recommended that the custody of the children be changed from the father to the mother. At the hearing upon this report the father appeared by his attorney and certain additional testimony was received. The court approved the recommendation, entered an order changing custody to the mother, and again directed that the children should not be taken out of southern California. The father was ordered to return the children by five o’clock that evening, September 2, 1941. He did not return the children as ordered. It subsequently developed that he had left with the children the day. before, leaving no information as to where he was going.
The record discloses that for three years the mother sought to learn the whereabouts of the children or the father. At the hearing in the instant action she testified that for those three years she had “followed every clue and turned it over to every agency in California, even the F. B. I.” Finally, she learned that the children were in Wichita, Kan. She came to Wichita early in September, 1944, and immediately instituted habeas corpus proceedings.
In view of the nature of the case and of our conclusion, presently to be stated, it is well to set out rather fully what transpired at the hearing in the district court with considerable recital of the testimony.
At the opening of the hearing counsel sought to put into the record allegations contained in the petition in the divorce action in California in 1937. The court properly held that it could not go into the merits of the divorce case. However, appellant was asked concerning the alleged improper conduct involved in that action and she answered that that was in 1936, that the man involved had married, that he has a boy six years old, and that she had not seen him for at least four or five years. No attempt was made to show any other improper conduct or to establish any other grounds for a finding that she was not a fit and proper person to have the custody of the children. All the evidence received was to the contrary. Appellant testified that she was thirty-four years old, that she was living with her parents in California, that her father is an executive for Safeway Stores receiving a salary of around $275 a month. She further testified:
“The house they live in is a six-room stucco house, a very modern home; they own this home. I work for the Richfield Oil Corporation; my base salary is $140 per month and I receive time and a half for overtime. My average check at the present time is approximately $80 semimonthly. This is the net amount and does not include deductions made for taxes, social security, etc., nor deduction for savings bond each month. I receive net a little over $160 per month. My parents are members of the St. Michael’s Episcopal Mission in Los Angeles. My father is senior warden and on the Bishop’s Committee. ... I was reared in the Episcopal Church. I attend the Espiscopal Church and haven’t missed a Sunday since the girls left. . . . My plans relative to caring for these children are that I have rented a house. It is being painted and papered. It is a six-room house and I have all the hopes in the world of giving the girls everything that is in my power to give them — music lessons and everything. In addition to that I could stay with my folks, that is, if it is a necessity, but it is not. I think it is better that I have a house of my own. On the salary that I am earning I feel that I am in a position to care for them. It is my plan that I have some lady to live with me to help in supervising and caring for the house and helping care for the children. I get off work at four-thirty so I will have all evening with them. I could cook their meals and take care of them myself and I am off a half day on Saturday. The lady that I had in mind is about forty-five years old. She is a widow and she is a friend of my mother’s. She goes to my mother’s church. She has reared children and has married children. If for any reason these arrangements should be interrupted I could live with my mother and she could always come over and care for them in the few hours I wasn’t there. There is no one living in my mother’s and father’s home other than they. They are both sixty-one years old and are in good health.
"This house is close to the school, two and a half blocks from the elementary school. I have leased it for a year. I signed the lease on August 19, I believe it was, and I leased it for the purpose of a home for the girls.
"Q. But I thought you stated you didn’t know whether you could even find them. A. There has always been a hope in my heart that I would find them, sir.
“I have furnished the house, but I have not been living in it. I have lived for the past six months at 102 North Alexandria, Los Angeles. I live with a Miss Gladys Porter. She works for Grubb and Tweedy, accountants in Compton. I am staying with my parents temporarily while the house is being redecorated. They sold the house on Alexandria street so I had to move.”
Appellee testified that on August 25 or 26, 1941, he decided to change his domicile to Wichita; that he knew that the hearing was set for September 2; that on September 1 he started for Kansas with the children and that he didn’t tell their mother where he was going, and that in the years that followed he never notified her where he was. He testified as to the care he had given the children; that he had tried to give them every advantage; that they appeared to be happy and had never asked to see their mother; that their mother used to have a quick temper, but he didn’t know whether she had overcome that; that as far as he knew she always got along all right with the children; that at one time he had turned the children over to their mother for a number of weeks. This was after his remarriage and subsequent separatiSn from his second wife, when he had no suitable way to care for them.
Several witnesses testified as to appellee’s good reputation in Wichita. Mrs. Hansen, in whose care appellee had placed the children, testified concerning them and the care they received, and as to appellee’s apparent affection for them. No question is raised as to the good care the children had been receiving. Mrs. Hansen also testified that appellee had provided everything needed for them.
On cross-examination Mrs. Hansen testified that she had the children for a year, and that then her husband had a heart attack and another place had to be found for them temporarily, and that the father put them in the Wichita Children’s. Home.
At the close of the hearing, in announcing its decision, the trial court commented at some length upon the unfortunate situation and the difficulty of deciding such an issue between a father and a mother, both of whom seemed devoted to their children. Referring to the grounds upon which the divorce had been granted to the husband in 1937, the court observed that early waywardness may be abandoned and that nothing had been shown against the mother’s character during the years that had passed. Other comment by the trial court also has a bearing upon the issue presented here. Following are extracts from the trial court’s statement announcing a decision to award custody of the children to the mother:
“I find nothing in the testimony against this father. Indeed, it is fine. I find nothing against this woman since the father has come to Kansas — since those orders of the judge were made. Except this one thing — the father’s attorneys, of course, knew what was going on, or should have known, and his picking the children up and coming away before the court could act on those motions, on the face of it looks bad, although he may have had no guilty purpose in mind. I am not accusing him of that. . . .
“Now, so far as the evidence before this court is concerned, they are both good people. Then what shall I do with these children? Here is the prospect the father has of a second marriage and that is honorable. There is nothing wrong about it whatever, but, of course, the children would be under a stepmother. A stepmother’s interest in children, no matter how good she may he, is not as good as the real mother, ordinarily. . . So strong is mother’s love that we often speak of it as being the strongest bond there is on earth. T have used many expressions in this court. I have said that father love is greater than mother love. Now, here, this father illustrates that point. He has risen above all his personal feelings and devoted his time and his money to the taking care of the children but, after all, that doesn’t reach the tenderness of a real mother’s love. And there is the thing right there. I am just inclined to think — I have watched these children closely in court to see what their facial expressions would be as you have proceeded with your testimony and with your arguments. I have come to the conclusion, however, that the best interests of the children is with the mother and that is the sole thing that I am to pass on. So it is the order of the court that the writ be allowed and the children turned to their mother.
“Mr. Sowers: Would the Court care to speak to the children to find out what their wishes might be?
“The Court: I think I know their wishes without talking to them. If you had been looking at the children after I made that remark, you would have gotten a reply to the question.”
After the decision had been announced counsel for appellee asked for a continuance in order to make further investigation in California as to whether the mother was a fit and proper person to have custody of the children. The court stated that that would be contrary to the rules, as the case had been finished, both sides having rested. However, after considerable colloquy continuance was granted over appellant’s objection. Prior to the granting of continuance Mrs. Hansen was again put upon the stand and testified that if given the custody of the children during the continuance she would not allow anyone to take the children from her sight; that she did not believe the father would take the children, and that she would not aid him in any way. She further testified:
“Q. But you feel, don’t you, Mrs. Hansen, that these children should be with this mother? A. Well, I hate to see them go back to Los Angeles where this affair has all been. If she was living here—
“Q. You have these children at heart — of course, one of the reasons is you have learned to like the children, like I would or anybody else would? A. That is true.
“Q. But you still feel that these children, after seeing them for several years, that the children should be with this mother? A. I think they should be under a mother’s care. I really do. I don’t know Mrs. White. I don’t know if she is the proper mother. That is why I have them.
“Q. I was going to say that undoubtedly you have been favorably impressed but you haven’t been impressed unfavorably during the short time she has been here? A. No. I haven’t.”
During the continuance appellee made a trip to California. When the hearing was resumed on October 12 there was some conflicting testimony as to whether the house which the appellant had rented in California was in good condition or was in a desirable neighborhood, but no testimony was offered reflecting in any way upon the character of the mother as a fit and proper person to have custody of her two daughters. Mrs. Hansen’s daughter was put upon the stand and testified that she and Mr. White expected to be married in June; that she had lived in Los Angeles and was familiar with the house and the neighborhood where the children would be .taken if given to the mother and that they were undesirable. With no purpose of discrediting her or of questioning her purpose to give good care to the children, we quote parts of her testimony which help to give a picture of the whole situation. She testified:
"Q. If I understand you correctly in your diagnosis of the trouble with the children, it is due to the — that their trouble is largely due to the frequent change. Am I correct in that? A. Yes. Interruption in their home life.
“Q. Now you have further given quite a lengthy testimony of the care that your mother has given these children, which I firmly believe. Isn’t that true? A. Yes.
“Q. Now, in June of this year, you propose if these children are awarded' to Mr. White, to create another interruption, don’t you? A. This woman knew where these children were in June. She could have come out here before school started.
"Q. That will be another interruption? That will be another change, will it not? A. No. It will not.
“Q. Why not? A. To a certain extent, these children are used to me. These children mind me just as if I was their mother, you might say.
“Q. But you intend to establish another home, do you not? A. Why, of course. They are looking forward to it.
“Q. Separate and apart from your Mother? A. Yes.
"Q. Your mother will not have any longer the care of them? Is that right? They will be in your custody and care? A. They will be my children.
“Q. Now, isn’t it true that your mother takes care of someone else other than children? A. She has. Yes.
“Q. Isn’t it true that she is now? A. Yes.
“Q. And has been for some period of time? A. My mother has had somebody in her home taking care of them. She had my girl friend. She has always had somebody to take care of outside of someone in her own family.
“Q. Isn’t it true that I have observed here — maybe I am wrong; — that in order for you to hear distinctly, a person almost has to be right in front of you? A. No. As long as you are on this side of me, left. If you happen to be on my deaf side, I don’t hear you.
“Q. What was the cause of your defect in your hearing? A. An auditory nerve upset; that is, trouble in the inner ear.
“Q. Now is there something wrong with your vision also? A. Yes.
“Q. How long has that been in existence? A. Well, if you' turn your back to me I can’t- hear you in a big room like this.
» “Q. How long has that been in existence? A. I have been blind in one eye since I was three years old.
“Q. Have you been married before? A. Yes.
“Q. How long ago was that? Were you divorced? A. Yes.
“Q. How long ago was that granted? A. 1934.”
Following this testimony counsel asked that the court talk to the children. Thereupon the court and the two girls withdrew into the court’s chambers where the children were interviewed by the court, neither the parties nor counsel being present. When they returned to the courtroom the following transpired:
“The Court: Perhaps it is the best way on earth where parents of children can not get along together, to leave their disposition with the Court, acting seriously and honestly. Of course, I understand. I have reared children of my own and both were girls, my children. It will stab this father and this mother to death for me to tear the children away from either one of them, but, you see — but, you see, if a man out here in an accident gets his leg broken, they take him to the hospital. The poor doctor up there is just what I am here. He can’t help the broken leg. I can’t help the broken home. The doctor can only go ahead and treat the patient as best he can and that is all I can do with you but my paramount interest is what appears to me to be the best situation and condition for these children, the possibility in the future. According to your suggestions, I have talked to the two children and when I get through with this matter, I don’t want either of you to ask the children anything. There is no use in spoiling their happiness, no use in chastising them because they expressed their honest opinion to me, where they would rather be.
“Of course, I understand too, the children are young and often they will choose the wrong thing so far as their expression and desire is concerned, but I am taking in consideration the fact that Mr. White is a good money-maker and has the future before him with the children. These two ladies sitting back there — the mother and daughter — seem to be estimable women and so far as the mother of these children is concerned, perhaps, since her day of repentance, she has lived a good life, Let us hope so, anyway', and will continue to live a good life, but, after all, the prospect is not as bright for her to rear these children as it is for their father.
“And, after talking with the children, I am now firmly of the opinion that I must leave the children with their father under the present arrangements and the future arrangements which he has in prospect. That seems to be the best disposition, as I look at it, for the welfare of the children, and so I give the children to the father.
“Now, Mother, you may see these children at vacation times if you want to come here to see them. I wouldn’t want the children running back and forth this great distance and make more trouble for the Court. You see how hard it has been for you to get a hearing before me. I am a busy man. Although this present election may remove me and put a new man on here, I can’t even think of that. I must proceed as if in the future you will come back here to me.
“These children will not be unhappy with their father and this young lady back there, his intended wife. From their own expression, this situation looks better to them than the one out there does and I must be largely guided by that, with my best judgment in the matter. I wish you both well. Both of you do in the future the best you can to live honorable, upright lives. The father may take the children.
“Mr. Osborne: ... If there is going to be testimony upon which the decision is based, I believe that should be in the record.
“The Court: I will put the substance of it in the record. The older little girl, take the witness stand. But, now, here, in the future, I don’t want the father to say anything to the children. Don’t question the children. And I don’t want the mother to question the children at all what they told me in here. (Indicating the Court’s chambers.)
“The Court: Very well, little girl. I won’t swear her. I will just take her statement.
“Diana White takes the witness stand.
“Mr. Sowers: As I understand, your decision in this matter is not based upon what the children said.
“The Court: O, no. I just learned their desire, but if he wants a record, let him have one. Now, my little girl, in my private room, to me, at the request of counsel, I asked you where you would rather live, here or in California. What was your answer, please? A. I said that I would rather live in both places.
“The Court: And I told you you couldn’t live both places. Answer it out loud. A. Yes.
“The Court: Then what did you say? (No answer.)
“The Court: And then what did you say? A. Wichita.
“The Court: Very well. Now, you heard the other little girl make a decision. What did she say? A. The same.
“The Court: Wichita? (No further answer.)”
“Examination of Diana White by Mr. Osborne.
“Q. What did you say your name is? A. Diana White.
“Q. Where do you go to school? A. Martinson School.
“Q. How long have you been going to school there? A. Two years.
“Q. You used to live in California? A. Yes.
“Q. Do you remember when your mama came out here? A. Where?
“Q. Out here to Wichita? A. Yes.
“Q. You like your mama, don’t you? A. Yes.
“Q. And as a matter of fact, you would like to be with your mama, wouldn’t you? A. Yes.
“Q. And when you came to Wichita where did you stay first? Do you remember? A. My Uncle Roy’s.
“Q. How long did you stay there? A. I don’t know exactly.
“Q. Did you stay any other places, too? A. Yes. A lady across the street from my Uncle Roy’s.
“Q. And you stayed there some period of time? A. Yes.
“The Court: I don’t think that is material now. We are just killing time. I have my appointments I have to keep.
“Mr. Osborne: Of course, whatever is the will of your Honor. I would like to see whether there is anything as far as — to found the decision on. It doesn’t appear to me to be.
“The Court: No. They just merely expressed a desire. That’s all.
“Q. You think your mother would take nice treatment of you, don’t you?
“The Court: I wouldn’t want her to go on record here. She spoke very well of her mother. Both of them did — spoke veiy well of their father and of their mother. That is the end.”
Motion for a new trial was made. In the meantime the mother had gone back to her work in California. At the hearing upon the motion a number of affidavits and letters were received, which had been properly noticed to appellee and which were received without objection. It would unduly extend this opinion to quote these documents in full. It appears that upon her arrival in California the mother had written at some length concerning her trip. The letter is full of expressions of mother love. It is not denied that the letter was returned by the appellee without having been shown to the girls. In returning the letter the appellee wrote to appellant as follows:
“Wichita, Ks., Oct. 21, 1944
“Bri
“You will find in closed your letter written to the girls, I am returning it to you, and advising you not to write to them any more, as they are not to receive any mail of any kind from you, or presents of any kind.
“You know that they are getting the best of care and they are going to continue to get it.
“Please do not interrupt them anymore. Diana received the poorest grades the first six weeks of school this year, that she has had for the past three terms, just due to the interruption that was caused here the first six weeks, by your court appearance.
Chris.”
It further appears from the affidavits, received without objection and with no denial made as to their content, that before she left Wichita the appellant had bought and given to each of the girls a coupon book good for purchase of ten dollars in merchandise in a department store in Wichita. Soon after she got back to California appellee’s fiancee returned the coupon books to appellant’s mother, Mrs. Gilbert, with the following letter:
“October 14, 44.
“Dear Mrs. Gilbert:
“Please see that your daughter ‘B’ receives these two gift certificates. Had I known that she gave them to Mother I would have given them back at the time. I am quite sincere when I tell you that Wanda and Diana will receive no gifts of any kind from her. They are looking forward to a happy home life, which they cannot have with reminders of the past. Don’t mistake me — they’ll never forget her and with her annual visits back here I am sure that we can all live happily ever after. Do help your daughter to understand.”
In approaching the issues presented by this appeal we must first note the fact that when the instant action was brought legal custody of the children was in the mother. The validity of the order of the California court in September, 1941, awarding custody to her is not questioned. In violation of the order of the California court the father had brought the children to Kansas. The fitness of the mother, at the time of the decree, had been established and the burden was upon the father to show that legal custody should be taken from her and given to him. (Martin v. Martin, (Tex. Civ. App.) 132 S. W. 2d 426; Wood v. Wood, 220 Iowa 441, 262 N. W. 733; Elsman v. Elsman, 54 Nev. 20, 2 P. 2d 139, In Re Wood, 103 Cal. App. 790, 285 Pac. 323; Vickers v. Faubion, (Tex. Civ. App.) 224 S. W. 803; 27 C. J. S. 1183; 17 Am. Jur. 519-521.)
What force and effect should be given to the California order awarding custody to the mother? The rule is well established that an order awarding custody of minors is not res judicata in the sense generally applicable to judgments. (Janney v. Janney, 159 Kan. 230, 154 P. 2d 131, and cases cited page 232.) This is true whether the prior order awarding custody was entered in the state where a subsequent action to secure custody is brought or was entered in another state. The fact that custody has been awarded in an action in another state does not prevent inquiry into the question in a proper action by a court subsequently acquiring jurisdiction of the parties. The full faith and credit clause of the federal constitution does not prevent such inquiry. (In re Bort, 25 Kan. 308; 72 A. L. R. 441 et seq.; 116 A. L. R. 1299 et seq.; Yarborough v. Yarborough, 290 U. S. 202, 54 S. Ct. 181, 189, note 19.) But this is not to say that a prior and valid order as to custody of minors is not in full force and effect until lawfully modified or superseded in a subsequent action.
This question as to the effect to be given to a prior adjudication as to custody of minors was considered and discussed at some length by this court in the case of Wear v. Wear, 130 Kan. 205, 285 Pac. 606. Cases from many jurisdictions were reviewed, illustrating some conflict of authority on the question. In the Wear case custody had been awarded to the mother by an Oklahoma court in a divorce action in which the father had appeared and defended. Leaving his wife and child in Oklahoma the father had taken his belongings and come to Kansas for the purpose of establishing a domicile here. After he had come to Kansas the wife sent the child to visit relatives with whom the father was staying. The child was still in Kansas when.the divorce action was tried in Oklahoma and when custody was awarded to the mother. Delivery of the child being refused, the mother came to Kansas and instituted habeas corpus proceedings to secure its custody. The husband, relying principally upon a contention as to jurisdiction, offered no evidence that the mother was not a proper person to have the child or that there had been any change of conditions subsequent to the time of the decree in Oklahoma.
With supporting quotations from numerous authorities which need not be repeated here this court said, among other things:
“The trial court correctly held that the contest as presented to the court was one between the father and the mother, and that as between them the matters adjudicated by the Oklahoma court in the'divorce case were res judicata as to matters determined by the decree in that case, and as of the time it was rendered. The trial court specifically offered to hear evidence as to changed conditions which would authorize or justify a different order with respect to the custody of the child, but, as shown by the entry in the journal, counsel for respondents stated in open court' they had no evidence of that character to offer. From this it follows that the court made the only disposition of the child justified under the record, and the judgment of the court below is affirmed.” (p. 225.)
Earlier in the opinion it was stated that while the former adjudication as to custody might be binding “as between the parents themselves” it was “evidentiary only and not controlling” as against the state, in its relation of parens patriae, in considering the welfare of the child. The comment that the former adjudication was evidentiary only is not out of harmony with the statement from the opinion above quoted. A former adjudication is evidentiary as to the facts and situation then found to exist but it is not necessarily controlling in determining custody at some later time.
Wear v. Wear, supra, was followed in Kruse v. Kruse, 150 Kan. 946, 96 P. 2d 849, with further citation of authorities. In the opinion the rule as stated in 2 Beale, Conflict of Laws, § 147.1, was quoted as follows:
“When the custody of a child has been, awarded to one parent by a court having jurisdiction so to do, the right of this parent will be recognized by other states.
“The facts upon which the award was based have become res judicata, and cannot be reexamined in the second state. But this estoppel extends only to conditions which existed at the time of the original decree; the second court may examine any facts which have occurred since the original decree which throw light upon the fitness of the parents to have custody of the child.”
In Restatement, Conflict of Laws, § 148, it is said with reference to change of custody by a foreign state:
“In any state into which the child comes, upon proof that the custodian of the child is unfit to have control of the child, the child may be taken from him and given while in the state to another person.”
To hold that a prior adjudication awarding custody of a minor child may be treated as a nullity, and be given no consideration whatever would produce intolerable situations. This would be true regardless of whether the prior adjudication was by a court of the same state or by a court of a foreign state. To permit a parent, defeated in a contest for custody of a child, to avoid entirely the effect of the decision against him simply by spiriting the child away into another jurisdiction would make a mockery of judicial decrees.
Having examined this record with greatest care, having in mind the principles heretofore stated, we are impelled to the conclusion that the trial court was not justified in taking legal custody of these two young girls away from the mother and giving it to the father.
Let us summarize the salient features of the situation presented to the trial court, under the evidence. After investigation by an officer of the court, the California court awarded the custody to the mother. Implicit in that order was a finding that she was a fit and proper person to have such custody. The court was familiar with the old charges made in the divorce action a number of years prior thereto. In successive orders in the intervening years, and after official investigations, the mother’s rights of visitation had been extended and the periods when she might have the children with her had been lengthened. Even apart from adjudication of the question by the court the father was in no position to contend that she was not a proper person to have their custody when the California court awarded it to her in 1941. Following ■ his remarriage after the divorce from appellant in 1937, and his subsequent divorce from his second wife, he had voluntarily placed the children in appellant’s custody for many weeks. In violation of the order of the California court appellee surreptitiously took the children away and came to Kansas with them. He left no information as to where they had gone and for three years he managed to keep their whereabouts unknown to the mother. For three years she conducted a persistent search for them, even engaging the services of the F. B. I. for that purpose. When she finally located them she came to Wichita- and instituted this action in habeas corpus. Aside from an attempt to inject the charges made in the old divorce action in the California court which later awarded the custody to her, no evidence of any sort was offered to show that she was not a fit and proper person to have custody of her daughters. After hearing the evidence the court said: “I find nothing against.this woman since the father has come to Kansas — since these orders of the judge were made.” Again, the court said: “Now, so far as the evidence before this court is concerned, they are both good people.” And after further comment, pertinent portions of which are hereinbefore quoted, he announced that the writ would be allowed and custody awarded to the mother. Upon inquiry by counsel for the father as to whether the court would care to talk to the children to find out their wishes, the. court said: “I think I know their wishes without talking to them. If you had been looking at the children after I made that remark you would have gotten a reply to the question.”
Then followed a quite unusual proceeding. Counsel for the father suggested that a continuance be granted “to give us an opportunity to conduct our own investigation and produce our testimony as to whether or not she is a fit and proper person before you just take the children right out of the jurisdiction of the court where we are forever barred.” (Italics supplied)
The continuance was granted and the father made a trip to California. After he returned the case was reopened but not one word of testimony or other evidence was produced reflecting in any way upon the character of the mother. Such evidence as was received was in her favor. Mrs. Hansen, who had been taking care of the children and who was a witness for the father, said that while she didn’t know the appellant her impression of her during the time she had been in Wichita had not been unfavorable.
When all testimony was in, upon the reopened hearing, counsel for appellee again renewed the suggestion that the court talk to the children. What then happened has been shown by the recital earlier in this opinion. It will be noted that the question asked of the older girl when she was put upon the stand was whether she would rather live in Wichita or California, to which she replied “in both places.” The difficult situation in which the child was placed is obvious and touches the sympathies. What conversation took place in the Judge’s chambers we do not know. At any rate the court, when reversing its former decision, stated that its new decision to award the custody to the father was not based upon what the children had said. The only considerations which the court mentioned were that “Mr. White is a good money-maker and has his future before him with these children” and that appellee’s fiancee and her mother appeared to be estimable women, and that he had in view the existing arrangements and the “future arrangements”— referring evidently to appellee’s approaching marriage. In the first place, we find no evidence whatever as to appellee’s financial condition or as to the salary or wages he was receiving. The only testimony was that he had been a dependable employee of the Santa Fe Trails Company for something over a year. In the second place the general rule is that financial status is not alone sufficient to justify award of custody of minors. (27 C. J. S. 1176 and cases cited.) Furthermore, the undisputed testimony was that appellant had employment with a substantial company in California and was receiving something over $160 a month after deductions for taxes, social security, etc. Other pertinent testimony as to her situation need not be reviewed. It indicated beyond question her ability to take care of the children.
To what has been recited must be added brief reference to evidence submitted upon the motion for a new trial, set forth in tire prior recital herein, and before the trial court when the final decision was made. It was shown that upon her return to her job in California, pending final disposition of the case, appellant had written a letter to her daughters. We will not lengthen this opinion by quoting the letter in full. It was a good letter. There was in it no word of reflection upon appellee or upon anyone else. It was simply what might be expected from any devoted mother to her young daughters. And yet without showing it to the children appellee returned it to appellant with the curt comment:
“I am returning it to you, and advising you not to write them any more, as they are not to receive any mail of any kind from you, or presents of any kind.”
This was not all. The ten-dollar merchandise coupon books which appellant had left to be given to her daughters were not delivered to them but were returned bjr appellee’s fiancee to appellant’s mother with this declaration: “I am quite sincere when I tell you that Wanda and Diana will receive no gifts of any kind from her. . . . Also, any of their old toys, etc., sent here will be sent on to war relief.” Comment is unnecessary.
As the trial court truly stated, a case of this sort always presents a most distressing problem. The tragedy of broken homes ever lays its hand most heavily upon the innocent children. The trial court found nothing against either the father or the mother. There is nothing in this record to gainsay the father’s affection for his daughters or his purpose to give them every care a father can give. Nor do we question the purpose of appellee’s fiancee to care for them properly in case the marriage with appellee be consummated. But the fact remains that appellant, and not she, is the mother of these young girls. There is no substitute for a mother’s love. Nor for young girls is there any substitute for a mother’s care.
We intend no reflection upon the intentions of the trial court. And we, too, are distressed by the necessity of deciding an issue so laden with intangible but deep, human, personal values. But while the decision is not pleasant to make, we have no hesitancy, upon the record before us. Custody had been lawfully awarded to the mother. We find nothing in this record by way of changed conditions or otherwise to justify taking that custody away from her.
The judgment is reversed with directions to allow the writ, and it is the further order of the court that the mandate go down at once. | [
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The opinion of the court was delivered by
Smith, J.:
This is an action for the partition of real estate. Judgment was entered for plaintiff. One of the defendants has appealed.
The facts are not involved. The petition alleged that the plaintiff and defendants were the owners of undivided interests in certain described real estate in Rice county, and that the defendant who has appealed from the judgment was the owner of an undivided one-half interest in it. Allegations were made about mineral conveyances and a mortgage upon the land, with which we are not now concerned. The prayer was that a partition of the land be made according to the respective interests of the parties, or if partition could not be made without manifest injury that the land be appraised and sold and the proceeds divided according to the respective rights of the parties.
Paul G. Burns answered admitting he was the owner of a half interest in the real estate, but that he did not know the exact ownership of the remaining undivided one-half interest. He also alleged by way of cross petition that he was the owner of certain described farm lands lying immediately adjacent to and west of a described tract of the land the action was brought to partition; that there was little, if any, difference in the value of the various lots and tracts of real estate, and that he was able to farm the land adjacent to that which he owned to a better advantage than other real estate and to refinance the indebtedness against the land in order to relieve it from the lien of the mortgage to the end that he might own one-half of the real estate involved in the partition suit. Burns then alleged that in the exercise of its equitable jurisdiction the court should instruct its commissioners in partition to make appraisement of the real estate in separate tracts and then set off to him, if it could be done without manifest injury to the other parties, one-half in area of the real estate; that if in'the judgment of the commissioners there was no difference in value of the various tracts of land adjacent to the land owned by him, then one-half of the land in area adjacent to the land now owned by the defendant should be set off as the property of Burns; that if in the judgment of the court after due hearing it should be determined that one-half in area of the real estate adjacent to the land owned by defendant was more valuable than the remaining one-half, then the defendant asked that he be given a reasonable opportunity to elect whether or not to pay into court such difference in value to the end that he might own one-half of the real estate adjacent to lands already owned by him; but if the commissioners should determine that one-half of the area of the real estate might be set off to him and the same wag of lesser value than the remaining half that Burns be reimbursed for the difference.
The other defendants and plaintiff answered this cross petition by way of a general denial. After hearing, the court found that Paul G. Burns, Betty Bill Stockman and Harry Romigh were the owners in fee simple and tenants in common of the real estate and it was subject to partition; and that the interests were as follows: Defendant Paul G. Burns owned an undivided one-half interest thereof; plaintiff Helen Chatten Johnson an undivided one-fourth; defendant Betty Bill Stockman an undivided three-sixteenths and defendant Harry Romigh an undivided one-sixteenth. Commissioners were appointed to make partition among the parties if it could be done without manifest injury, and if a partition be made in kind that the mortgage lien of The Pulliam Investment Company attach to and be a first lien upon the portion of the real estate apportioned to Paul G. Bums so that the remainder of the real estate should be free from this lien; but if in the judgment of the commissioners partition could not be made without manifest injury, then the said commissioners should make an appraisement of the property and value lot one and the southeast quarter of the northwest quarter and the north half of the northwest quarter (being all of the northwest quarter) separately from the balance of the real estate. The commissioners reported that they had viewed the real estate in question. Included in their report was the following—
“After careful examination of the premises and due consideration, we concluded that the said real estate could not be partitioned among the interested parties without manifest injury for the following reasons:
“That the interests of the various parties are not equal and for the further reason that setting a portion of the real estate as much as a He interest apart for one of the interested parties as well as the other fractional interest could not be done without manifest injury.”
The tract that defendant Burns desired to have set off to himself was described as lot one and the southeast quarter of the northwest quarter and the north half of the northwest quarter, being all of the northwest quarter of section thirty-five, township twenty south, range ten west of the sixth P. M. in Rice county, Kansas, and was valued at $10,325. The other tract; being lots two and three, the east half of the southwest quarter and the west half of the southeast quarter, all in section thirty-five, township twenty south, range ten west of the sixth P. M., in Rice county, Kansas, was valued at $11,495.
When this report was filed Burns filed a motion in which he set out this report and also alleged that the real estate which he described as lot one and the southeast quarter of the northwest quarter and north half of the northwest quarter might be allotted to him without injury to the other parties and an allowance be made to him by way of owelty or adjustment of the difference in value of the two tracts. He prayed in this motion that the tract in question be set aside to him and that upon final disposition of the case proper adjustment by way of owelty be made to him and that the mortgage lien heretofore existing upon the undivided interest of the defendant be adjudged to be a lien upon that real estate.
This motion was overruled. The court in its final judgment set the 12th of March, 1945, as the date on or before which election could be filed by parties owning an interest, and ordered that if any of the parties elected to take either of the tracts, or both, at the appraised value then the same should be set off to them, but. that if none of the parties having an interest should file an election then the land upon which no election had been filed should be advertised and sold.
Defendant Burns appealed from the judgment overruling his motion to set aside the tracts in question to him and also from the judgment denying to him the relief asked in his answer.
The only evidence that was taken at the hearing was that of Paul G. Burns, wherein he testified that his wife owned the northeast quarter of section thirty-four; that he and his wife were living on it, and farming it, and it was their homestead; that he wanted the northwest quarter of section thirty-five, adjoining his homestead, set off to him; that it was in fact somewhat less than one hundred sixty acres; that there was not a hundred dollars difference in the value of the two quarters along the river. The land of which partition is sought comprises three hundred eighty-six acres approximately.
Pursuant to this testimony and the prayer of defendant Burns in his answer, wherein he asked to have the real estate valued in separate tracts, the court appointed commissioners and ordered them to value lot one and the southeast quarter of the northwest quarter and the north half of the northwest quarter separately from the balance of the real estate. That was the tract which Burns testified he desired to have the trial court set off to him. It will be noted here that such is not quite one-half of the entire tract and that Burns had asked in his answer that one-half in area of the entire tract be set off to him.
Appellant states in his brief that the order appointing commissioners was not in accordance with section 60-2105 of G. S. 1935. That section reads as follows:
“After the interests of all the parties shall have been ascertained the court shall make an order specifying the interests of the respective parties, and directing partition to be made accordingly. Upon making such order the court shall appoint three commissioners to make partition into the requisite number of shares. For good and sufficient reasons appearing to the court, the commissioners may be directed to allot particular portions to any one of the parties.”
It is a little difficult to understand why the above order did not conform to that section. In it the commissioners were appointed and they were directed to make partition, and also in accordance with .the wishes of Burns, as expressed in his oral testimony, if partition in kind could not be made without manifest injury they were directed to value the tract which he desired set off to himself separately from the rest. It seems that as the court looked toward the final judgment this was done in order to enable it to make an equitable disposition of the entire matter.
Pursuant to this judgment the commissioners went upon the land and made the report which has heretofore been set out in this opinion.
While an action in partition is governed by the code (G. S. 1935, 60-2101 to 60-2114) the court has substantially the same powers as were exercised by courts of chancery under the former equity practice.
As to the steps to be taken in making the partition, however, we should be governed where possible by the code. To this end we note that G. S. 1935, 60-2107 provides that the commissioners shall make partition. When this partition cannot be made without manifest injury they shall make a valuation and value each tract separately and shall make a report of the proceedings to the court. It is a report pursuant to that section to which reference has already been made in this opinion in which the commissioners made the valuation which has been noted and valued the tract in question separately in accordance with the wishes of appellant Burns, and found that partition could not be had without manifest injury.
The next section, being G. S. 1935, 60-2108, provides as follows:
“Any party may file exceptions to the report of the commissioners, and the court may for good cause set aside such report and appoint other commissioners or refer the matter back to the same commissioners.”
It will be noted the above section provides for exceptions to be filed to the report and where good cause therefor is shown the court may set it aside and do two things, either appoint other commissioners or refer the matter back to the same commissioners.
Appellant Burns did not ask that either one of these be done. He set out the report as to the valuations; then made an allegation to the effect that he occupied land adjacent to one of the quarters; stated that the land which he desired set off was subject to a mortgage of $2,000; then alleged the quarter in question might be allotted to him without injury to the other parties and an allotment be made to him by way of owelty or adjustment of the difference in value between the two tracts. He asked in his motion that such be done. This does not constitute such an exception to the report of the commissioners as is contemplated by the statute.
We do not place the disposition of this case upon the failure of the defendant Burns to take such exception to the report as is contemplated by the statute. G. S. 1935, 60-2114, provides as follows:
“The court shall have full power to make any order not inconsistent with the provisions of this article that may be necessary to make a just and equitable partition between the parties, and to secure their respective interests.”
It appears that Burns was endeavoring to take advantage of that section. The effect of the section is to give to trial courts full authority to make an equitable partition between all the parties such as is stated by the many decisions announcing the broad powers of courts of equity in such cases. Burns states the question to be decided in this case as follows:
“Whether or not in an action in partition, where the court has ordered the land separated into two tracts, one of which is adjacent to land which is oc cupied by and farmed by a defendant owning an undivided half interest in the whole and the other tract of land is of greater value and not operated by any of the parties to the action (except the appellant Burns as tenant) — is the owner of the undivided one-half interest entitled to have awarded to him land adjacent to his own land; or land in which he has an interest.”
In answering that question appellant argues that the rule in all cases is that such part of the land as may be advantageous to one of the parties will be allotted to him if'it can be done without injury to others. He argues that there is no dispute in this case and that the court was bound to set off to him the land in question and order the other three tenants in common to pay him the difference in appraised values. To maintain this position, he relies upon what this court said in Sawin v. Osborn, 87 Kan. 828, 126 Pac. 1074. That case is hardly an authority for the contention made by Burns. In it the trial court did set off to a widow a certain portion of a tract of land in which she owned an undivided interest and ordered other parties to the action to whom another tract was set off to pay to the widow the difference in value. It was the converse of this case. If the trial court in this case had seen fit to grant Burns the relief sought the Sawin case would be persuasive as an authority for the court’s power to do it. However, it is hardly authority for a holding that the court was bound to do that. In fact the court in that opinion uses language which is very persuasive for the other view, where it said:,
“The court is vested with the discretion and power to determine whether it is equitable and practicable to give each his share, and it may, for good and sufficient reasons, allot particular portions of the property to any one of the parties.” (p. 832.)
Appellant also relies upon what this court said in Fry v. Dewees, 151 Kan. 488, 99 P. 2d 844. The language upon which appellant relies is as follows:
“It has been held that while an action in partition is a statutory action, the court has substantially the same powers in administering it as were exercised by chancery courts under equity practice and that the last quoted section of the statute gives the court full power to settle all questions involved on just and equitable principles.” (p. 494.)
That is undoubtedly the law, but we question whether this court would say under given circumstances that we would interpose our judgment of what is fair and equitable for that of the trial court.
Appellant insists that there is no place here for the trial court to exercise its judgment of what is fair and equitable. We cannot agree with that contention. There is a situation here where three other parties are involved in the remaining land. One had a fourth interest and one a three-sixteenths and one a one-sixteenth interest. We do not care to say from the record that the court should have set aside this quarter section for Burns and ordered these other three parties to pay the difference out of whatever the other land should sell for. Ordinarily where there is as wide a discretion reposed in a trial court as is reposed in it in partition actions we are reluctant to interpose our judgment for that of the trial court. (See State v. Foren, 78 Kan. 654, 97 Pac. 791, also Deeds v. Deeds, 108 Kan. 770, 196 Pac. 1101.)
The appeal in this case first reached this court some months ago. On motion of Burns we ordered the judgment stayed. On account of that, the time which the trial court set for the parties to make an election as to whether any party desired to take either one or both of the tracts at the appraised value has passed.
The judgment of the trial court is affirmed. It is further ordered that the mandate shall be sent to the district court immediately upon filing of this opinion and the parties shall have fifteen days thereafter to make the election as set out in the journal entry of judgment. Otherwise the judgment of the district court will be carried out. | [
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The opinion of the court was delivered by
Thiele, J.;
This was an action to quiet title to certain mineral interests in and under the northwest quarter of section 23, township 31, range 38, in Stevens county, hereafter referred to as the real estate. The principal matter in controversy was the force and effect of a judgment, sale and sheriff’s deed in a previous tax foreclosure action covering the real estate. The cause was submitted to the trial court upon the pleadings, an agreed statement of facts and briefs of the parties, and it rendered judgment in favor of plaintiff. The defendant appeals.
The record discloses the following: The plaintiff, hereinafter re ferred to as the company, is a Texas corporation, authorized to do business in Kansas. Under date of October 31,1927, the then owner of the real estate executed and delivered to the company a mineral deed conveying an undivided one-half interest in the minerals in and under the real estate with a perpetual and irrevocable right and easement of ingress and egress in the real estate for the purposes of exploration and development, to conduct operations, to erect structures necessary, to have right of way for and to lay and operate pipe lines, telegraph and telephone lines, free use of water, and to have and enjoy all other rights, easements and privileges necessary, incident or convenient in the operation of the real estate for the production of minerals, provided that grantor upon paying one-half of all expenses and costs of production, should be entitled to receive one-half of the net profits arising from the sale and disposition of said minerals in their natural state and as produced and sold from the real estate, all as more specifically set forth in the mineral deed. Without specifying the exact terms, the company also received the right to lease the real estate for mineral rights as fully as if it were the absolute owner of the entire title, provision being made for division of income, royalties, rentals and bonuses in any lease. The above deed was duly recorded January 2, 1928. Since that date Stevens county duly assessed and levied taxes against the company’s mineral interest and the company promptly paid the taxes assessed for each year to and including 1943, and no tax on the mineral interest ever became delinquent.
On October 31, 1937, Mildred M. Robinson and R. B. Robinson, her husband, then the owners of the real estate, executed and delivered to the company an oil and gas lease of common form. The primary term of this lease was ten years. Provision was made for exploration or for delay rentals. There has been no default under this lease but the real estate has not been explored for oil or gas.
On April 8, 1942, the board of county commissioners of Stevens county instituted a tax foreclosure action, among the parties defendant being Mildred M. Robinson and R. B. Robinson, her husband, and Magnolia Petroleum Company, a corporation. In the petition it was alleged that the defendants named in the caption were owners, supposed owners, mortgagees and lien holders, or have or claim to have some interest in the real estate described in Exhibit “A” attached to and made a part of the petition; that the several tracts of real estate had been sold at tax sale and had not been re deemed; that the county had a lien because of unpaid taxes; and other appropriate allegations. In the exhibit attached the above described real estate was listed as being sold for taxes of 1933 on September 4,1934, and that the amount of taxes, interest and penalties to June 1, 1942, was $268.08 and that the name of the owners, supposed owners and parties having or claiming to have some interest therein or thereto were: “Mildred M. Robinson and R. B. Robinson, her husband; Magnolia Petroleum Company, a corporation.” Thereafter personal service of summons was made on the Robinsons and service by publication was had on the company. These defendants made default and judgment was entered for the sale of the real estate, and that by the sale of each tract involved, all right, title and interest of the defendants be barred. Notice of sale was given and at the sheriff’s sale held on September 23, 1942, the real estate was sold for $950 to John W. Moyle, who is hereafter referred to as Moyle. This sale was confirmed and under date of October 8, 1942, a sheriff’s deed was executed and delivered to Moyle which was recorded October 15, 1942.
On March 21, 1944, the action out of which this appeal arises was commenced by the company’s filing a petition in which Moyle was the only defendant, alleging it was a Texas corporation, authorized to do business in Kansas, and that it was the owner of an undivided one-half interest in and to all the oil, gas and other minerals in and under the real estate described and that Moyle claimed some right therein, with other allegations pertinent to a quiet-title action. The prayer was that Moyle be required to set up his claim; that the company be decreed the owner in fee simple and that Moyle be barred; and that the company’s title be quieted. Moyle filed an answer and cross petition, but we need notice only his answer in which he alleges he is owner of the real estate, free and clear of any claims of the plaintiff; that he is in possession of the real estate and his ownership is based on the above mentioned sheriff’s deed and the proceedings leading up to its execution and delivery and that the company’s right in the real estate was adjudicated in that action, and the judgment is final. Other allegations need not be noted. Moyle prayed that his title be quieted as against the company. The company’s reply need not be noted, further than it admitted Moyle was the grantee in the sheriff’s deed issued pursuant to the proceedings in the tax foreclosure action.
The trial court found that the company was the owner of an undivided one-half interest in all the oil, gas and other minerals in and that may be produced from the real estate, and all other rights, titles and property vested in it by reason of the mineral deed to it dated (recorded) January 2, 1928, and that its title should be quieted against Moyle, and it rendered judgment accordingly. From this judgment Moyle duly perfected his appeal to this court. His specifications of error cover the matters herein discussed.
In this court Moyle contends that any rights and claims the company had in the real estate were settled and determined in the tax foreclosure action; that the matter of such right and claim is res judicata; and that the company, in the present action, may not collaterally attack the judgment in the first mentioned action. The gist of the company’s argument, in support of the trial court’s judgment, is that in order for the state or county to foreclose a tax lien, there must have been such a lien; that there was none in the tax foreclosure suit; that Moyle, who purchased at the sale, was a purchaser caveat emptor and therefore not in good faith; that he was bound to take notice of the tax records and therefore the judgment in the quiet-title proceedings was not erroneous. In support of its contentions the company relies principally on Montgomery County v. Wilmot, 114 Kan. 819, 221 Pac. 276, to which reference is later made.
The first question for consideration is the binding force of the judgment in the tax foreclosure action. The statutes in force when it was commenced and completed are found in G. S. 1943 Supp., sections of which are hereafter noted. For present purposes we note that under 79-2801 it is provided that in all cases in which real estate has been sold and bid in by the county at any delinquent tax sale and shall remain unredeemed for a period of three years after such sale, the board of county commissioners shall order the county attorney to institute an action in its name “against the owners or supposed owners of such real estate and all persons having or claiming to have any interest therein or thereto,” and that the petition shall state the amount of taxes, charges, interest and penalty against each tract of real estate “and the name of the owner, supposed owner, and party having or claiming to have any interest therein or thereto,” and that when the petition is filed summons shall issue and be personally served or publication made as provided in other cases under the code of civil procedure. Under 79-2802 provision is made for joinder of parties defendant. Under 79-2803 issues may be joined as in other civil actions, and after issues are joined the action shall stand for trial. This section provides in detail for the type of judgment to be rendered and for redemption of any tract. Section 79-2804 provides that after ten days from the date of the judgment, an execution or order of sale shall issue, and for a sale by the sheriff, and upon confirmation of the sale for the issuance of a sheriff’s deed to the purchaser and that when the deed is filed for record it shall vest in the purchaser or grantee named as against all persons, including corporations, a fee simple title to the real estate, and said deed shall be prima facie evidence of the regularity of all proceedings prior to the date of filing the same for record. Section 79-2804b recites as follows:
“Legal or equitable actions or proceedings may be brought to open, vacate, modify or set aside any judgment rendered for taxes, interest and costs or any order of sale made under the provisions of section 19 [79-2803] hereof, or any sale made under the provisions of section 20 [79-2804] hereof but every such action or proceeding, including those brought on the grounds and in the manner prescribed by the code of civil procedure, must be commenced within six months after the date of the sale of the real estate, which was affected by such judgment, order of sale or sale, was confirmed by the court. The provisions of this section shall apply to all judgments, orders of sale, and sales whether the purchaser at the foreclosure sale be the county or an individual.”
Reviewing the facts in the light of the above statute, it clearly appears that each procedural step was followed in the tax foreclosure suit. The company refers to the fact that it had an agent in Kansas upon whom service could have been made, but it does not argue it was not properly served by publication, and it could not well do so, for not only does the statute above mentioned (79-2801) provide for service by publication, but it makes reference to the code of civil procedure, under which, in actions of this type, such service may be had. (G. S. 1935, 60-2525.) By its own pleading it appears the appellee is a foreign corporation. Statutes providing for service against foreign corporations by serving some designated person within the state, have been held to be cumulative and supplementary to other methods of service, and not exclusive. See Betterment Co. v. Reeves, 73 Kan. 107, syl. ¶ 3, 84 Pac. 560; and Jones v. Insurance Co., 83 Kan. 44, syl. ¶ 1, 109 Pac. 1077. See also Nowak v. Insurance Co., 103 Kan. 778, 176 Pac. 654. The company was properly served with summons in the tax foreclosure action. Without restatement of allegations in the petition in that case, it appears that taxes on the real estate were unpaid and the real estate unredeemed and that the company was properly charged as an “owner, supposed owner and one having or claiming to have any interest” in the real estate; that the company made default; that a proper judgment was rendered; a sheriff’s sale duly had; a deed issued to Moyle and duly filed for record by him on October 15, 1942. For a period of six months after the date of the sale of the real estate on September 23, 1942, the company had its opportunity to have opened, vacated, modified or set aside, the judgment ■rendered against it, under G. S. 1943 Supp., 79-2804b, quoted above,, but that it did not do, and the judgment became final, unless it was a void judgment.
The company does not clearly contend the judgment against it in the tax foreclosure action was void, although perhaps that is the general effect of its argument. We pause here to note the company had other interests in the real estate other than an ownership of an undivided one-half of the minerals, on which it is conceded it paid its taxes. Under the deed granting the mineral interest to it, the company had not only rights of ingress and egress, which may be termed easements, but it also had conveyed to it the' right to use the surface of the real estate to construct pipe lines and communication lines, as well as the right to lease the lands for mineral development as though it were the absolute owner of the entire title, as more fully appears from the statement of facts heretofore made. In addition, it had the rights given it under the subsequently executed oil and gas lease. To say that the company had no interest in the real estate, as distinct from its interest in an undivided one-half of the minerals, is to ignore the plain facts disclosed by the record. The company’s contention is that having paid taxes assessed against its mineral interest, that interest was not subject to sale in a tax foreclosure action. It directs our attention to a statement in Montgomery County v. Wilmot, 114 Kan. 819, 221 Pac. 276, where it was said, in part:
“Perhaps it is not stating it too broadly to say that one of the fundamental prerequisites to a valid sale of real property for taxes is that there is a tax due and unpaid at the time of the sale. Not only is this prerequisite essential to fair dealing between a sovereign and its citizens, but it is either specifically or necessarily by implication embodied in every provision for the sale of real property for taxes.” (p. 824.)
A review of the above case discloses that a tax foreclosure action was commenced in April, 1921, and that service by publication was had against one Arra Ballard, who owned real estate on which tax had not been paid. On June 14,1921, a judgment was rendered and subsequently the real estate was sold at sheriff’s sale, and that sale was confirmed, a deed executed and recorded. After judgment but before the sale, the mother of Arra Ballard paid for her to the county treasurer,-a certain amount and received a redemption certificate. The opinion treats of the sufficiency of the redemption, but we need not notice that phase. On September, 20, 1922, Arra Ballard, a minor, by her next friend, filed her application under the civil code to open the judgment, her application setting out facts entitling her to relief. (It may here be observed that under the tax foreclosure act then in force, the six months provision for opening judgments was not in effect.) The trial court opened the judgment and upon trial granted Arra Ballard relief, including setting aside the sheriff’s deed to the purchaser, who appealed to this court. In disposing of that appeal this court held:
“In a suit by a county to foreclose a tax lien upon real property owned by a minor, where an offer to redeem was made to the clerk of the district court and at his direction the payment was made to the county treasurer and the property, redeemed from the tax sale, before the sale of the property by the sheriff in the foreclosure suit, held, that the sale by the sheriff and the sheriff’s deed issued thereon are voidable and should be set aside upon timely application.” (Syl.)
Notwithstanding the use of some language in which the company finds comfort, it is clear that in the above case a timely application was made to set aside the judgment, and that at most this court held the proceedings leading up to the issuance of the sheriff’s deed were voidable and not void.
■ In the instant case, the company had an interest and claim upon the real estate over and beyond its interest in the undivided one-half of the minerals, it was not only a proper but a necessary party, it was duly served with summons, and it did not defend the action. Later, and without making any application under the statute which, if timely invoked, would have given it relief if it was entitled thereto, the company brought its action to quiet title in which it sought collaterally to attack the judgment in the tax foreclosure action. It appears the trial court, in the tax foreclosure action had jurisdiction of the action, of the subject matter of the action and of the parties to the action. The petition in that action stated a cause of action, and upon trial the court had power and jurisdiction to render a judgment. Such is the established law of this state. Having power to decide the action, it is now of no consequence that its judgment may have been erroneous. If it were, the remedy was by appeal or by invoking in time the provisions of G. S. 1943 Supp., 79-2804b, neither of which was done. As bearing on the above see, e. g., Hoover v. Roberts, 144 Kan. 58, 62, 58 P. 2d 83; Union Central Life Ins. Co. v. Fletcher, 144 Kan. 359, 58 P. 2d 1158; Smith v. Power, 155 Kan. 612, 127 P. 2d 452, and cases cited. The company was not entitled to a-judgment quieting title.
In view of our conclusion other matters referred to in the brief do not need attention.
The judgment of the trial court is reversed, and the cause is remanded to the trial court with instructions to render judgment in favor of Moyle, quieting his title as against the company. | [
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The opinion of the court was delivered by
Smith, J.:
These two actions were for damages alleged to have been sustained in an explosion of natural gas. They were consolidated in the trial court and on appeal were consolidated here. The judgment in each one was for the plaintiffs. The defendant has appealed.
The actions are to recover damages alleged to have been sustained when an explosion occurred in the home of plaintiffs, destroying the house and damaging the contents. One action is by the husband and wife to recover damages for the contents. The other is by the wife to recover damages for the destruction of the residence. It was brought by her because the property was in her name. For the sake of clarity and to avoid repetition the pleadings in the action brought by the husband and wife will be referred to herein.
This petition, after alleging the marital relationship of plaintiffs and that the defendant was a corporation and that plaintiffs were the owners of the household goods and personal effects contained in the dwelling house which they occupied as a residence (a list of the household goods and personal effects was attached to the petition) alleged that the defendant was in the business of furnishing natural gas to the residents of Cottonwood Falls; that it owned and operated a system of gas mains through the streets and alleys of the city; that part of this system consisted of gas mains along a certain alley adj acent to the lots on which plaintiffs’ home was located; that the service pipe extended from the gas main in the alley to the residence of plaintiffs, and that it was the belief of plaintiffs that the defendant owned the lateral connecting with defendant’s gas main in the alley. The petition then alleged that for the purpose of delivering gas to the residence of plaintiffs the company had established a gas meter attached to plaintiffs’ residence and that the pipes and laterals leading thereto had rusted and deteriorated; that on or about July 15, 1943, plaintiffs notified the gas company that gas was escaping into their residence. Thereupon the employees of the defendant examined the pipes to determine the source and cause; that again in August and again in September plaintiffs advised defendant of escaping gas; that plaintiffs did not know which of the connections and pipes were affected; that on September 7, 1943, about the hour of four-thirty an explosion occurred in the dwelling house of plaintiffs, which caused a fire from which plaintiffs’ household goods were totally destroyed; that the explosion was caused by the carelessness and negligence of defendant in certain particulars, as follows: In permitting said gas to escape from the pipes and fittings above described and to accumulate in plaintiffs’ dwelling; in undertaking tov deliver its gas to plaintiffs’ residence through laterals and service, pipes of inadequate size; in transporting and delivering its gas through said laterals and service pipes to plaintiffs’ residence after the same had become deteriorated and unsafe for the transportation of said gas; in furnishing said gas to plaintiffs when the gas meter, fittings and appliances installed in plaintiffs’ residence were in a defective and unsafe condition and in allowing the gas to accumulate in plaintiffs’ residence through such defective pipes, fittings and appliances after the defendant, its servants, agents and employees had notice of such defects and that such gas w,as leaking and escaping into plaintiffs’ residence, and in failing to repair such pipes, fittings and appliances after notice of such defects, and in failing to prevent the gas from leaking, escaping and accumulating in the residence after such notice. That the explosion and damage to plaintiffs’ household goods and personal effects were directly and proximately caused by the carelessness and negligence of defendant as above specified. The petition alleged that the household goods of plaintiffs were destroyed and were of the reasonable value of $2,957.70. Judgment was asked for that amount.
The defendant filed a general denial. It admitted it was a corporation and plaintiffs were residents of Chase county and defendant gas company had been engaged in the distribution of natural gas and that a portion of this system contained a gas main, pipes and connecting lines in the public alley in the rear of plaintiffs’ property.
The answer denied that the company owned any mains, pipes or connections in or upon the property occupied by plaintiffs but admitted that it owned the gas meter. It also denied that for the purpose of delivering gas to the residence located upon the lots owned by plaintiffs it established and placed the gas meter at the residence of plaintiffs and denied that any explosion caused by natural gas occurred and also denied that plaintiffs suffered or sustained any damage occasioned or resulting from the explosion of natural gas. The answer then alleged that if any damage did occur it was caused by the negligence and carelessness of the plaintiffs in continuing to receive natural gas for use upon these premises and within the residence and continuing to keep the pilot light on the hot water tank lighted after they had knowledge and notice of the smell of gas and the accumulation of gas in and around the premises and failing to take precautions 'after knowledge of danger and in exposing the premises and property to obvious danger.
The petition in the other case was substantially the same except for the amount of damages.
To each of the answers the plaintiffs filed a reply denying all the allegations, especially contributory negligence. At the close of the plaintiffs’ evidence the defendant demurred on the ground that it did not prove or tend to prove any cause in favor of plaintiffs against the defendant. This demurrer was overruled.
When the cases were submitted to the jury, the jury found for the plaintiffs in each case and answered special questions as follows:
“1. Was the property of the plaintiff damaged by reason of an explosion of gas? A. Yes.
“2. By whom was the gas supplied to the residence of the plaintiff? A. The Cottonwood Falls Gas Co., Inc.
“3. At any time prior to said explosion, did the defendant (a) have knowledge of or (b) notice of the escape of gas onto or around the premises of the plaintiff? A, (a) Yes. (b) Yes.
“4. If you answer the foregoing question in the affirmative, then state (a) when the defendant had such knowledge or notice and (b) how such knowledge or notice was acquired. A. (a) July, 1943, and August, 1943. (b) Verbally and by telephone.
“5. If you answer question No. 3 in the affirmative, then state whether the defendant did anything to prevent the escape of the gas onto or around the premises of the plaintiff and if so, state what action was taken by defendant. A. No evidence to that effect.
“6. Was the defendant negligent in permitting gas to escape onto the premises of the plaintiff? A. Yes.
“7. If you answer the foregoing question in the affirmative, then state in what respect it was negligent. A. By failure to properly make inspection.
“8. Was such negligence the proximate cause of the damage suffered by the plaintiff? A. Yes.
“9. If you find that the plaintiff is entitled to recover, then state (a) what amount you allow for damage to the building and (b) what amount you allow for damage to the contents of the building. A. (a) $1430.00. (b) $1950.00.
“10. At the time of the explosion and for some time prior thereto, who do you find owned and controlled the gas pipes, laterals, and appliances for the use of gas both within the residence and outside thereof but located in or upon Lots 3 and 4, Block 23, North Cottonwood Falls, Kansas, with the exception of meter owned by defendant? A. Plaintiff or plaintiffs.
“11. Did the plaintiff or plaintiffs hire any one or cause any one to check or inspect the premises in question for escaping gas and to make repairs that might be required or necessary? A. Yes.
“12. If you answer question No. 11 in the affirmative, state who were so employed, or caused to check or inspect the premises in question for escaping gas and to make repairs that might be required or necessary? A. The Cottonwood Falls Gas Co., Inc., employee.
“13. Do you find that a person or persons at the instance of plaintiff or plaintiffs went upon said premises and proceeded to make such inspection, prior to the explosion? A. Yes.
“14. Did the plaintiffs or either of them have knowledge or notice of escaping gas prior to the explosion? A. Yes.
“15. If you answer question No. 14 in the affirmative, state approximately for how long a period before the explosion, they or either of them had that knowledge? A. Six or seven weeks.
“16. Do you find that the plaintiffs had an automatic hot water heater with pilot light flame alight in operation in said residence at the time of the explosion and for considerable period prior thereto? A. Yes.
“17. What if anything did the plaintiffs fail to do that they should have done after knowledge of escaping gas or indication thereof were brought to their attention? A. None.
“18. Where do you find that the explosion occurred with reference to said residence? A. In residence.”
At the conclusion of the trial the defendant first filed a motion that it should have judgment on the answers to special questions notwithstanding the verdict. Also a motion for a new trial and a motion to set aside the answers to certain special questions. These motions were all overruled and judgment rendered in accordance with the verdict.
Defendant first argues that the court erred in overruling its de murrer to the evidence. The argument of defendant on this phase of the case first turns upon the failure of plaintiffs to prove the allegations of paragraph 6. That paragraph alleges—
“For the purpose of transporting and delivering gas to the residence of plaintiffs, the defendant company had established and placed a gas meter at, and attached to, plaintiffs’ residence and had constructed laterals and service pipes connection with defendant’s gas main in the alley adjacent to plaintiffs’ lots above described, and from thence running into plaintiffs’ residence, said pipes and laterals so constructed, operated and used by defendant to transport gas to plaintiffs’ residence were placed underground, and through long usage had rusted and deteriorated, although the exact time of the deterioration is unknown to these plaintiffs.”
The portion of this allegation which is important is that which states that the defendant company had established and placed a gas meter at the plaintiffs’ residence. This was admitted in the answer. Moreover, Mrs. Jelf testified that after the explosion the gas company came and got their meter; that they took some of the pipe that was attached to the meter and that this pipe was rusted. She also testified that the company owned the meter. For the purposes of a demurrer to the evidence this was sufficient evidence to go to the jury on the allegations of the above paragraph. It should be noted that none, of the parties disputed that the plaintiffs owned the pipe from the alley to the meter.
Defendant next argues there is no evidence to sustain the allegations of paragraph 7. That is the paragraph which alleges the notice to the defendant that the gas was leaking. To prove that allegation Mrs. Jelf testified that about the first of August she telephoned the girl at the gas office telling her “We smelled gas in the house and supposed there was a leak.” Mr. Jelf testified that he first noticed gas escaping in July; that he called Mr. Meriowsky and told him about it; that Mr. Mariowsky worked for the gas company as a field man; that Mr. Meriowsky said he would look into it and investigate it. He also testified that he told a Mr. White, who worked for the gas company, that they smelled escaping gas. For the purpose of the demurrer to the evidence the above was sufficient to sustain an allegation of notice to the gas company.
Defendant next argues that there was no evidence to sustain the allegations of paragraph 8. This is the paragraph that alleged the total destruction of the house and household goods. There was conflicting evidence on this and while there was some evidence that there was salvage left in the household goods the whole question was submitted to the jury on proper instruction. This is not a proper matter to raise on a demurrer to the evidence.
Defendant next argues that there was no evidence to sustain the allegations of paragraph 9 of the petition. This is the paragraph which alleged the negligence of the defendant. There was evidence that the riser from the pipe to the meter was pitted and deteriorated. There was ample evidence that gas was escaping. It is not necessary that the plaintiff in order to recover for the explosion of natural gas in the house show the exact nature of the defect. In Sternbock v. Consolidated Gas Utilities Corp., 151 Kan. 81, 98 P. 2d 162, we held:
“Natural gas is a highly dangerous agency, and persons engaged in transporting it are held to a high degree of care in laying, inspecting and maintaining their transportation facilities, to the end that they may reasonably protect not only the life and property of their customers, but also the life and property of others in close proximity thereto.
“Direct proof of negligence is not essential to recovery, as negligence may be established by circumstantial evidence alone. Where circumstances proved fairly justify the inference of negligence on the part of a transporter of natural gas in laying, inspecting or maintaining its service pipes, the evidence is sufficient to take the case to the jury.
“Circumstantial evidence in a civil case, in order' to be sufficient to sustain a verdict, need not rise to that degree of certainty which will exclude every reasonable conclusion other than that reached by the jury.” (Syl. 1151 1, 2, 3.)
In Miller v. Wichita Gas Co., 139 Kan. 729, 33 P. 2d 130, we considered the duty owed by the gas company to customers, and said:
“(P A gas company is guilty of negligence, with certain exceptions, if a leak in its own pipes and appliances causes injury to persons or property, whether or not it had actual notice of such leak or leaks, because a gas company is bound to keep its own pipes and appliances in good condition and to have a proper system of inspection to discover leaks.
“(2) A gas company is guilty of negligence if a leak in a customer’s pipes and appliances causes injury to persons or property, provided the company has sufficient notice of such leak or leaks, and having such notice (a) negligently inspects or negligently repairs; (b) agrees and assumes to inspect and repair, and then fails to do so; (c) refuses to inspect and repair, knowing a dangerous condition exists, and with such knowledge fails to shut off its gas until the owner can have his pipes and appliances properly repaired.” (p. 732.)
When it was notified that the gas was leaking in the residence of plaintiffs it was the duty of the gas company to immediately inspect the premises, including the plaintiffs’ pipes, fittings and appliances-to the end that the cause of the leaking gas might be discovered by it and if the leaks be in the pipe, fittings and appliances owned by plaintiffs, to shut off the gas until proper repairs be made.
Defendant next argues that its demurrer to the evidence should have been sustained because the undisputed evidence of the plaintiffs showed that the plaintiffs were guilty of contributory negligence as a matter of law.
Defendant pointed out that Mrs. Jelf testified that when she was going to work she noticed the smell of gas and left the windows open; that the gas was so strong that she did not want to stay in the house and she opened the windows to try to get it out. The testimony of Mr. Jelf was to about the same general effect. They also both testified that the pilot light on the hot water tank was kept burning all the time. There was also evidence on the part of the plaintiffs that a Mr. and Mrs. Waddell were in the house the evening before the explosion and that they smelled, gas and thought it was too strong to stay in there and breathe. In this connection defendant calls to our attention the rule laid down as follows:
“If a person knows that gas is escaping into his house from the main of a gas company, it is his duty to take suitable precautions for his safety, and if he does not do so, and damage results, he will be guilty of contributory negligence and cannot recover.” (28 C. J. 598.)
Defendant also calls to our attention the case of Newland v. City of Winfield, 131 Kan. 191, 289 Pac. 402. That is a case where a plaintiff just moved into a house and turned the gas on himself without notice to the city or calling a plumber and was injured in the explosion which occurred sometime thereafter. Furthermore, we held that the question of whether the plaintiff in that case was guilty of contributory negligence was one for the determination of the jury under all the' surrounding facts and circumstances.
In considering a demurrer to the evidence we will take all the evidence in favor of plaintiffs as true and will draw all reasonable inferences therefrom that are favorable to the plaintiffs’ case.
Plaintiffs also testified that at the time they smelled the gas in their residence they thought the gas was leaking into their house so they inspected all the pipes and joints above the floor with a lighted match to see whether or not they could discover the leak and no leak was discovered and no explosion occurred. It is a well-known fact that natural gas must be confined in order to explode so as to destroy a building. Surely when plaintiffs looked for the leak with a lighted match and there was no explosion it cannot be held that it was contributory negligence as a matter of law, for them to live in the house and keep the pilot light burning on their hot water heater. It seems a reasonable inference to be drawn from all the testimony in this case that the plaintiffs did not think the gas leak was so dangerous as to cause an explosion and thus make it dangerous for them to remain in the house and keep their pilot light burning.
In this state of the record we hold that the question of whether or not the plaintiffs were guilty of contributory negligence was a question of fact which was properly submitted to the jury.
Defendant next argues that the court erred in not giving certain instructions which were requested by defendant, that is, as to requested instructions. The questions covered by them were dealt with in the instructions given. In requested instruction 3 defendant asked the trial court to instruct the jury as follows:
“You are further instructed that it is the duty of one applying for and receiving gas to keep in good order and a state of good repair all instrumentalities through which said gas is to be used which are under his control, such as appliances and pipes in the house, and service line, and is required to inspect, maintain and keep in good repair all pipes, connections, fittings and appliances located upon his premises and within his residence, which he owned or controls, unless you find from the evidence presented that the defendant assumed the responsibility therefor, and if you find from the evidence that the plaintiffs herein failed or neglected to inspect, maintain, or repair such appliances, pipes, connections, and fittings, your verdict should be for the defendant.”
This instruction was properly refused. The action was tried on the theory that having been notified by pláintiffs that gas was leaking into their residence it was the duty of defendant to make such an inspection as would disclose the cause of the leak and enable whoever was responsible for maintaining the appliance or pipe to repair it. The defendant owed plaintiffs that duty. See 38 C. J. S. 738; Miller v. Wichita Gas Co., supra; also 12 R. C. L. 909. The requested instruction was not proper under the facts in this case. The same statement may be made as to requested instructions 4, 5 and 6. The instructions given on the whole fairly cover the law of this case.
The same answer may be made to the next specification of error wherein the defendant argues that the court erred in giving instruction 6. This instruction was as follows:
“There has been no evidence offered in this case as to how the gas was ignited that caused the damages complained of by plaintiff. But I instruct you that if gas accumulated in the building of the plaintiff through the negligence of the defendant company and was ignited without any negligence on the part of the plaintiff then I instruct you that the manner in which it became ignited would not be of any importance in these cases.”
, This instruction correctly stated the law. See Miller v. Wichita Gas Co., supra, and Sternbock v. Consolidated Gas Utilities Corp., supra.
In the next specification of error, defendant argues that the trial court erred in refusing to submit to the jury a special question. This question was as follows:
“State whether or not the plaintiffs continued to use natural gas in said residence after knowledge of the danger from escaping gas.”
This question is covered by other questions that were submitted to the jury.
Defendant next argues that the court should not have permitted questions 3, 4 and 5 to have been submitted to the jury. These questions were as follows:
“3. At any time prior to said explosion, did the defendant (a) have knowledge of or (b) notice of the escape of gas onto or around- the premises of the plaintiff? A. (a) Yes. (b) Yes.
“4. If you^ answer the foregoing question in the affirmative, then state (a) when the defendant had such knowledge or notice and (b) how such knowledge or notice was acquired? A. (a) July, 1943, and August, 1943. (b) Verbally and by telephone.
“5. If you answer question No. 3 in the affirmative, then state whether the defendant did anything to prevent the escape of the gas onto or around the premises of the plaintiff and if so, state what action was taken by defendant. A. No evidence to that effect.”
It is hard to understand just why the appellant would argue that these questions should not have been submitted. The jury’s answers to them constitute an important element of the liability of the defendant. Defendant argues that they should not have been submitted because there was no evidence to support the answers made. This argument could more properly be made on a motion to set aside the answers. There was sufficient evidence on the point though to warrant the trial court in submitting them.
Among the specifications of error presented by defendant is one that the court erred in denying its motion in each case to set aside the jury’s answers to certain special questions. No argument is offered, however, on this specification in its brief. We have examined the questions and answers and find there is no error in the failure of the court to strike out these answers that would require a reversal. Moreover in view of the final disposition to be made of this appeal we do not deem it necessary to deal with this specification. There is to be a new trial of the action. These same questions may not be asked and if they are asked the answers may not be the same. We will not give further consideration to the action of the trial court in denying the motion of the defendant to strike them out.
Defendant next argues that it should have had judgment in its favor upon the answers to the special questions notwithstanding the general verdict. In this connection defendant first calls our attention to questions 10, 11 and 12. Those questions and answers were as follows:
“10. At the time of the explosion and for some time prior thereto, who do you find owned and controlled the gas pipes, laterals, and appliances for the use of gas both within the residence and outside thereof but located in or upon Lots 3 and 4, Block 23, North Cottonwood Falls, Kansas, with the exception of meter owned by defendant? A. Plaintiff or plaintiffs.
“11.. Did the plaintiff or plaintiffs hire any one or cause any one to check or inspect the premises in question for escaping gas and to make repairs that might be required or necessary? A. Yes.
“12. If you answer question No. 11 in the affirmative, state who were so employed, or caused to check or inspect the premises in question for escaping gas and to make repairs that might be required or necessary? A. The Cottonwood Falls Gas Co., Inc., employee.”
As to question 10, the facts found in that answer are among those admitted by all the parties at all times. The liability of the defendant in this action 'is not based on the ownership of appliances or equipment being in either party. It was the duty of the defendant after being notified the gas was leaking to inspect for leaks whether in its property or that of the plaintiffs and if the leaks be discovered in the property of the customer to shut off the gas until repairs could be made. See Atkinson v. Wichita Gas Co., 136 Kan. 854, 18 P. 2d 127. Certainly there was nothing about this answer to require judgment for the defendant.
As to the answers to questions 11 and 12, in these answers the jury found that the plaintiffs either had or caused an employee of the defendant to inspect the premises in question and to make repairs that might be necessary. It is a little difficult to see how the jury made these two answers. We find no evidence to support them. As a matter of fact what plaintiffs did was to endeavor to cause some employee of the defendant to make an inspection. We see nothing in these two answers, however, which would require judgment for defendant. The fact that plaintiffs caused someone to inspect the premises would have no effect on defendant’s liability.
Defendant also argues that its motion for judgment on the answers to special questions should have been sustained on account of the answers of the jury to questions 13, 14, 15, 16 and 18. Those questions are as follows:
“13. Do you find that a person or persons at the instance of plaintiff or plaintiffs went upon said premises and proceeded to make such inspection, prior to the explosion? A. Yes.
“14. Did the plaintiffs, or either of them have knowledge or notice of escaping gas prior to the explosion? A. Yes.
“15. If you answer question No. 14 in the affirmative, state approximately for how long a period before the explosion, they or either of them had that knowledge? A. Six or seven weeks.
“16. Do you find that the plaintiffs had an automatic hot water heater with pilot light flame alight in operation in said residence at the time of the explosion and for considerable period prior thereto? A. Yes.
“18. Where do you find that the explosion occurred with reference to said residence? A. In residence.”
In its answer to question 13, the jury found that someone, at the instance of plaintiff, had gone upon the premises to make an inspection prior to the explosion. There is a statement by Mr. Jelf in the record that two persons were at the house at that time. The fact, however, that some person at the instance of plaintiffs or plaintiffs themselves was on the place at the time of the explosion would not require a judgment for the defendant.
The answer to questions 14,15,16 and 18 deal with the question of contributory negligence, which we have already considered in this opinion. The fact that the plaintiffs had knowledge of escaping gas for six or seven weeks and kept their pilot light burning did not as a matter of law constitute a finding that the plaintiffs were guilty of contributory negligence.
The defendant next argues that this motion for judgment on the answers to special questions notwithstanding the general verdict should have been sustained on account of the jury’s answer to question 17. That question and answer are as follows:
“17. What if anything did the plaintiffs fail to do that they should have done after knowledge of escaping gas or indication thereof were brought to their attention? A. None.”
It is difficult to see why this answer required judgment to be entered for the defendant. The argument made with reference to this by defendant would seem properly directed to a motion to strike out the answer. Such a motion as that would not have been sustained, however, because there is ample evidence that the plaintiffs did everything they were bound to do after they smelled the gas, that is, they searched for the leak themselves and notified the gas company.
Defendant argues it was plaintiffs’ duty to shut off the gas at the outside of the house. That, however, is not the law.
The next question argued by defendant is that its motion for a new trial should have been sustained. There are many grounds stated in this motion. The one with which we are concerned, however, has to do with the court’s ruling in refusing the admission of certain evidence. One of the points in controversy was the value of the property that was destroyed. Mr. Jelf testified to this value. When it came time for the defendant to put in its evidence it called Mr. Jelf who testified first he was county clerk and by virtue of that position was also county assessor. Counsel asked him to refer to the assessment rolls of the personal property of himself and Mrs. Jelf for 1943. When he had done this the defendant asked him to tell the jury the assessed valuation of their household effects for that year. The objection to this question was sustained. After some colloquy Mr. Jelf was permitted to state that the property was more valuable at the time of the explosion than it was at the time he gave its value to the .assessor. When asked how much more valuable he said one dollar. When counsel repeated his inquiry as to how much the value was the court sustained an objection to it.
At the hearing of a motion for a new trial Mr. Jelf was again called to the witness stand and testified that the property was carried on the assessment rolls for 1943 at the value of $650 with the constitutional exemption of $200 leaving the value as $450. In view of the plaintiffs’ testimony at the time of the trial that the property was worth a dollar more at the time of the explosion than it was at the time he gave it in for taxes, we think this evidence should have been admitted on the question of value. The jury found the value of the contents of the house to be $1,950. The refusal to admit this evidence was error on the part of the trial court.
Mr. Jelf testified as to the value of the personal property. He also testified that he reached his conclusion from the standpoint of replacement cost of the property rather than its actual value. The admission of this evidence was error.
Ordinarily these errors would only require that the case be reversed and a new trial ordered on the question of damages. However, after an examination of the entire record we are of the opinion that the rights of all parties could be more fairly adjudicated by a new trial generally.
The judgment is reversed with directions to grant defendant a new trial of all issues. | [
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The opinion of the court was delivered by
Thiele, J.:
This appeal arises from an order of the district court of Wyandotte county dismissing an appeal from the city court of Kansas City.
From a judgment rendered against them in the city court, the defendants filed notice of appeal to the district court and an appeal bond. In the district court the plaintiff-filed his motion that the attempted appeal be dismissed for the reason that no appeal bond was ever filed as provided by law. That motion was sustained by the district court, and the defendants have appealed to this court.
Appellee has filed a motion to dismiss the appeal to this court for the reason appellants were late in filing their abstract as well as their brief. We have considered the motion, appellants’ explanation for the delay, and the fact that appellee had ample time to prepare his brief before the matter was set for hearing, and conclude the appeal should not be dismissed.
It may be noted there is no question concerning the notice of appeal from the city court to the district court. The sole question is the sufficiency of the appeal bond, under G. S. 1935, 61-1002, which recites:
“The party appealing shall file a good and sufficient bond in the court from which the appeal is taken to secure the costs of the appeal . . .” (Italics supplied.)
Without copying it in full, it may be said that the bond in the instant case .contained three principal paragraphs. Under the first, the appellants and their surety were bound to the plaintiff in the penal sum of fifty dollars; under the second they stated that they had appealed from the judgment of the city court against them; and under the third they bound themselves to secure the costs of the appeal and to pay the costs of the appeal.
.The gist of appellant’s argument is that the court should ignore the first two paragraphs of the bond and should consider only the third paragraph which, they contend, is an absolute .obligation to secure the costs of the appeal without any limitation and therefore sufficient under the statute. No authorities in support of such a method of interpretation are cited. • If that method be adopted, the liability of the surety is unlimited, and if the costs amount to one hundred dollars he is liable therefor. No reason appears why the bond, in all its parts, is not to be considered, and we think it should be. The general rule is that a surety on an appeal bond is not liable beyond the penalty named in it. See 4 C. J. 1290; 5 C. J. S. 1605; 3 Am. Jur. 777; Shockman v. Davis, 6 Kan. App. 503, 50 Pac. 947; Burchfield v. Haffey, 34 Kan. 42, 7 Pac. 548. If appellants’ contention were sustained, this rule would be cast aside. On the assumption that their contention as to how the bond should be construed is proper, appellants direct our attention to two decisions as supporting their argument the bond is sufficient. The first is In re Estate of Johnson, 147 Kan. 12, 75 P. 2d 813. That case arose in the probate court. This court held the sufficiency of a bond on appeal to the district court was to be determined by the provisions of the act pertaining to decedents’ estates and not of the code of civil procedure before justices. The second case is Glover v. State Highway Comm., 147 Kan. 279, 77 P. 2d 189. It was there held that sufficiency of a bond on appeal from an award by condemnation commissioners was to be determined by the statutes for appeals in condemnation proceedings, and not by the provisions of the civil code before justices. In our opinion neither of the above decisions supports appellants’ contention, even assuming it is otherwise free from objection.
Insofar as the city court of Kansas City is concerned, it is provided by statute that the laws of this state relating to pleadings, practice and proceedings in justice courts, not in conflict with the act creating the court, shall apply to the court. (G. S. 1935, 20-2102.) Therefore our decisions dealing with bonds on appeal from justice courts to the district court are controlling. We need notice but two of them.
Jensen v. City of Chanute, 146 Kan. 162, 68 P. 2d 1080, involved an appeal from an award of damages for change of grade. The applicable statute provided for an appeal in the same manner as from judgments of a justice of the peace. A bond was filed with the city clerk in which the signatories bound themselves in the sum of $250 to secure the costs of the appeal. Later a second bond with the same penal sum to prosecute the appeal without unnecessary delay was filed with the city clerk. Still later two other bonds with like penal sums were filed with the clerk of the district court. This court stated the question was whether such bonds, singly or collectively, were void, and incidentally, whether the court should have permitted amendment by striking out the limitation of $250. A review of our statutes was made and the court concluded the bond was insufficient, saying it was not insufficiency of sureties which was lacking, that—
“It was the bond itself — the contract obligation. The men who signed this appeal bond may be as rich as Croesus, but they did not bind themselves unreservedly to secure the costs of the appeal.” (1c. 166.)
In re Fredelake, 148 Kan. 432, 82 P. 2d 1090, involved an appeal from an award by county commissioners in a proceeding to relocate a county road. The statute provided for appeals in the same manner as in appeals from judgments of justices of the peace in civil cases. A landowner attempted to appeal and-gave a bond with a penal sum of $100. On motion the appeal was dismissed and the landowner appealed to this court, which held:
“In an attempted appeal from an award of damages of a board of county commissioners in a proceeding to relocate a county road, the bond given: was in a specified amount. Held, that such bond did not comply with the provisions of G. S. 1935, 61-1002, and the appeal was properly dismissed.” (Syl.)
Under the two decisions last mentioned the'bond on appeal was not sufficient, and the district court properly dismissed the appeal.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
This action was commenced to establish liability on six promissory notes and to foreclose a real estate mortgage. The plaintiff was unsuccessful and appeals from the judgment which denied him relief on the ground the notes were barred by the statute of limitations.
On August 22, 1925, Nick and Susie Wagoner, who were husband and wife, and were residents of Sheridan county, Kansas, borrowed $6,000 from Mrs. Wagoner’s father, Philip Schwebach, who was living in Houston county, Minnesota. To evidence the indebtedness the borrowers executed six separate promissory notes for $1,000 each, bearing interest at the rate of five percent per annum. One of such notes matured August 22,1926, and one each succeeding August 22, the date of maturity of the last note being August 22, 1931. Such notes were secured by a mortgage on a half section of real estate located in Sheridan county, Kansas, which the Wagoners had recently purchased from Mr. Schwebach.
No necessity exists for a detailed recital of allegations to be found in the pleadings or of the evidence relating to transactions had between the interested parties from the date of the execution of the notes and mortgage sued on up to the 14th day of May, 1940, the date on which this action was commenced. It is conceded the, plaintiff is the representative of Mr. Schwebach, who died in December, 1927, and has legal capacity to maintain the action. It is admitted the notes in controversy were barred by the statute of limitations (G. S. 1935, 60-306) unless the defendant, Susie Wagoner, actually made payments thereon in the early part of 1935 or that endorsements placed on such instruments on the 15th day of June, 1935, and showing such payments were made as of June 15, were authorized by her at that time. The case was submitted to the trial court on that issue. After an extended hearing it decided and held that no payments had been made by Mrs. Wagoner, as alleged by plaintiff, that the credit endorsements appearing thereon had not been authorized by her and thát therefore the notes were barred by the statute.
Appellant’s principal contention is that the judgment is contrary to law and not supported by the evidence. We turn to the record for the purpose of ascertaining whether there is sound basis for his position. When carefully examined it discloses testimony from which the trial court could have found payment as well as ratification of the credit endorsements. The difficulty is that it discloses other testimony to the contrary just as convincing. Mrs. Wagoner testified positively that she had made no payments on the note, also that on the date payments wrere endorsed she had given no authorization to anyone to place the endorsements thereon and that they were placed there without her knowledge and consent. It is apparent the trial court believed her testimony and placed little, if any, weight on that of witnesses for the appellant. This it had a right to do and its conclusion is binding on appellate review. It has been repeatedly held that questions pertaining to the credibility of witnesses and the weight to be given their testimony are for the trial court to determine and that so long as there is some substantial evidence to support its judgment, its decision is conclusive on appeal irrespective of whether "there was other evidence which would have required it to reach a contrary conclusion had it seen fit to believe such evidence. (Killough v. Swift & Co. Fertilizer Works, 154 Kan. 113, 114 P. 2d 831; Gale v. Fruehauf Trailer Co., 158 Kan. 30, 33, 145 P. 2d 125, and cases there cited.)
We know of no decision, and appellant cites none, holding that endorsement of a credit upon a note without authorization of the debtor revives the instrument or tolls the running of the statute. Decisions like Gorrill v. Goff, 148 Kan. 765, 84 P. 2d 953, on which appellant states he bases his right to recover and which are authority for the proposition that a' credit endorsement made without the original knowledge or consent of the maker of a note may be ratified by him and when ratified are as binding as though he had originally made the payment under circumstances amounting to an acknowledgment of the debt, are not decisive or applicable. Here the trial court not only found there had been no payments as claimed by the appellant but in addition expressly held that the evidence did not disclose Mrs. Wagoner had authorized the credit endorsements appearing upon the notes. Without payments, or authorization for the endorsements, the action on such notes was barred by the statute. Once the trial court reached that conclusion from the evidence it was required to deny recovery and render judgment against the appellant. It necessarily follows since the notes were outlawed that no action could be maintained upon the mortgage given to secure their payment (Kulp v. Kulp, 51 Kan. 341, 32 Pac. 1118, and Troxell v. Cleveland Oil Co., 145 Kan. 658, 66 P. 2d 545).
Appellant’s other specifications of error are without substantial merit and can be disposed of summarily: One is that the judgment of the trial court was rendered under the influence of prejudice. We find nothing in the record to justify such a conclusion.
Another specification of error is that some Of the testimony of D. C. Merlo, a banker, who placed the endorsements on the notes sued on was improperly rejected. The testimony of this witness was taken in the form of a deposition under a stipulation that objections to questions propounded at the time of the taking of the deposition could be made at the trial. Much of the testimony excluded was based upon questions which were leading and called for the conclusion of the witness. Other testimony excluded had to do with the banker’s version as to why he had made the endorsements. When it appeared from his testimony he had no recollection of the conversation had between Mrs. Wagoner and her mother with respect to his action and that he could not say that the former had directed him to make the endorsements the court excluded his statement in the form of a conclusion to the effect he had made such endorsements as a result of a conversation had between the two women. We have examined the record and find no error in the court’s ruling with respect to any of the excluded testimony.
Still another specification of error is that the court erred in permitting an extended cross-examination of the appellant’s witness, Merlo. It is true this witness was cross-examined upon many matters not touched upon in his direct examination. However, the trial court in overruling the-'appellant’s objections to some of his cross-examination stated that it did so for the reason the questions objected to went to his competency as a witness and had to do with matters which would enable it to determine the credit and weight to be given to his testimony. Under our decisions the trial court had a wide discretion in allowing cross-examination of this witness for the purpose of enabling it to pass upon his credibility and unless apparent abuse of its judicial discretion appears this court cannot disturb its ruling (Atkinson v. Wiard, 153 Kan. 96, 109 P. 2d 160; Gant v. Gas Service Co., 156 Kan. 685, 687, 135 P. 2d 533; Lutz v. Peoples State Bank, 135 Kan. 115, 120, 9 P. 2d 997; Harmon v. Theater Co., 111 Kan. 252, 206 Pac. 875). From our examination of the testimony of this witness we believe the reasons given by the trial court for permitting latitude in his cross-examination were justified. Certainly it cannot be said that under all the circumstances the extent of cross-examination permitted amounted to an abuse of discretion.
Other errors assigned as ground for reversal have been examined and are found without substantial merit.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
This was an action by a wife against her husband for divorce, division of property, and custody of a minor child. The husband appeals from all orders, judgments and decisions of the trial court under which the property of the parties was divided, the wife was granted a divorce and given custody of the child and the costs including attorneys’ fees were taxed against him.
The petition in this case was filed March 17, 1943. Defendant answered in due time and on June -4, 1943, all parties being personally present and represented by counsel, the cause proceeded to trial and was completed. The only record made on such date of the judgment rendered appears in the trial docket. There the following notation is found, “June 4, 1943, both parties present and presented their evidence, court takes case under advisement.”
No further proceedings worthy of note were had in the cause until November 12, 1943. On that date the defendant through an attorney other than the one who represented him at the trial filed a motion alleging in substance that at the original hearing the court had not rendered a final decree divorcing the parties and awarding the custody of the child to the wife, but had merely continued the cause until some later date at which time all matters therein involved were to be finally determined. The prayer of such motion was that the court reopen the case, permit the defendant to introduce additional evidence, grant him an absolute divorce with care and custody of the minor child, and award him all property owned by the parties at the time the action was instituted. This motion was overruled on November 15, 1943.
While the record does not so state we assume from what transpired subsequently that the trial court on November 15, 1943, or some later date, required the parties to appear on March 9, 1944, for the purpose of holding a hearing on the question of how the property belonging to the parties was to be divided. At any rate, all parties appeared that day and were informed by the court that was the subject to be considered and determined. However, before the hearing proceeded there ensued a long colloquy between counsel for defendant and the trial judge. Counsel sought to again present his motion to reopen the case and renewed his contention that at the hearing on June 4, 1943, no final judgment as to divorce and custody had been rendered and that such matters as well as questions pertaining to division of property were still open for further consideration. No useful purpose would be served by relating in detail the extended argument appearing of record. It suffices to say that the trial judge in plain and unequivocal language advised counsel that, irrespective of whether a journal entry had been prepared or filed and notwithstanding what might or might not appear of record, he had on June 4, 1943, at a time when all parties were present and represented by counsel, rendered judgment granting plaintiff a divorce and awarding her the custody of the. child and had continued only that phase of the case having to do with disposition of the property. He then announced the matter was before him only on the issue of division of property, refused to permit defendant to adduce evidence on any other subject, and proceeded with the hearing on that basis. On its conclusion he took the subject under advisement and on November 22, 1944, rendered judgment, setting over to the plaintiff certain property valued at $2,955.02, and to the defendant other property valued at a like amount, and directing that defendant pay the costs of the action including attorneys’ fees. The same day defendant’s motion for new trial was filed, presented, and overruled. A journal entry of this judgment was signed by the court and filed on November 23, 1944.
Subsequently, the journal entry of the judgment rendered on the 4th day of June, 1943, was signed by the trial judge and on November 30, 1944, it was filed in the office of the clerk of the district court. Recitals therein to be found with respect to action taken by the trial court and the judgment rendered by it on such date read as follows:
“It Is Therefore by the Court Ordered, Adjudged, and Decreed that the plaintiff be, and she hereby is divorced from the defendant herein and all marital relations heretofore existing between the parties hereto are hereby canceled, set aside, and held for naught. It is further ordered that the plaintiff have the care, custody and control of the minor child, David Wayne, subject to the defendant’s right to visit with said minor child at any and all reasonable times and to take him- into his custody for visits from time to time. It is further ordered that defendant pay to plaintiff the sum of $15.00 per week beginning with the date hereof and continuing weekly during the minority of said child or until further order of this Court. It is further ordered that the settlement of property rights as between the parties hereto be made at a future date and jurisdiction: therefore is retained by the Court.”
December 1, 1944, defendant filed a second motion for new trial, described by his counsel as a formal motion for new trial. It does not appear this motion was ever presented or passed upon by the trial court.
Notice of appeal was served on counsel for plaintiff on December 1, 1944. We are not advised by the parties as to when it was filed with the clerk of the district court and have been obliged to search the case file in order to obtain the information. It discloses such notice was not filed with that official until December 4, 1944.
Appellant’s specifications of error are quite numerous but their nature is such they need not be detailed. Most of them hinge around the proposition of whether a judgment was actually rendered by the trial court on June 4, 1943. If that question is answered in the affirmative other contentions become of little or no consequence. We direct our attention, therefore, to its decision.
It is first urged there was no judgment because of the notation on the trial docket to the effect the court had taken the case under advisement. Conceding as we must, such was the entry, that fact in. itself is not decisive. Long ago this court held that the minutes made by the judge of the court upon'his trial docket constitute no part of the record of the case. (Pennock v. Monroe, 5 Kan. 578.) In commenting upon that decision this court in Gilmore v. Salt Co., 92 Kan. 18, 139 Pac. 1168, said:
“The entry made upon the trial docket by the judge was a mere memorandum, not a formal record. (Pennock v. Monroe, 5 Karr. 578.) It served to indicate the general scope of the decision, but did not preclude a subsequent amplification and formulation of details. The statement of the judge as to what was actually decided is necessarily conclusive. . . .” (p. 20.)
Still later in Van Valkenburg v. Mackey, 122 Kan. 204, 251, Pac. 407, it was stated:
“The petitioner relies upon the circumstance that the memorandum made by the judge on the trial docket did not mention the hour at which the stay of execution was to expire, but this omission could not in any degree impair the force of the official record of the action of the court. . . .” (p. 205.)
In Hart v. Hart, 98 Kan. 745, 161 Pac. 585, we held:
“On a motion to correct the entry of a judgment so that it should speak the truth, where it was found upon disputed evidence that the judgment as originally entered did not correspond with the judgment. actually rendered, the finding, which was based in part on the knowledge and recollection of the judge as to the true judgment rendered, must be upheld on appeal.” (Syl.)
And on page 746 of the opinion said:
“It is conclusively settled that the court may at any time correct a judgment entry so that it will conform j;o the judgment that was actually rendered. (State v. Linderholm, 90 Kan. 489, 135 Pac. 564, and cases cited.) The amendment may be made upon any satisfactory evidence, parol as well as written. Although there are decisions in other courts to the contrary, it has been determined here that a correction of the judgment may be based on the knowledge and recollection of the judge as to the facts which occurred at the trial, and of the findings and orders that were then made. (Christisen v. Bartlett, 73 Kan. 401, 84 Pac. 530.) Here the district judge has determined that the entry originally made did not express the judgment that was actually rendered by him, but that the modified entry does correctly recite what took place at the trial according to his knowledge and recollection, and other testimony was produced which supported - his determination. What transpired when the judgment was announced is a disputed question of fact, and upon the record before us it must be held that the evidence justified the amendment of the record.”
To the same effect is the later case of Morton v. Morton, 149 Kan. 77, 86 P. 2d 486, holding:
“All courts have the right and are under a duty to make their records speak the truth and the whole truth, whether the parties to the action or any other person wishes them to do so or not, and a court may therefore direct a nunc pro tunc entry on its own motion.” (Syl. If 1.)
See, also, Elliott v. Elliott, 154 Kan. 145, 114 P. 2d 823.
The same rule applies with respect to correction of journal entries. In Christisen v. Bartlett, 73 Kan. 401, 84 Pac. 530, wherein the question of whether or not a-journal entry which had been filed -correctly recited the judgment, we held:
“A district court has the power to correct the entry of a judgment so as to cause it to speak the truth after the expiration of the term at which it was rendered, and upon the personal knowledge of the judge of what took place in court at the time of its rendition.” (Syl. If 1.)
And in the same case at page 403 of the opinion, with respect to the finality of the decision of the district judge on such a question, said:
“The personal knowledge of the judge as to what had taken place in his presence was equivalent to evidence on the subject, and a decision of fact made upon that basis cannot be reviewed here.”
Note, also, the statement in Perkins v. Ashmore, 144 Kan. 540, 541, 61 P. 2d 888:
“Rendition of judgment is one thing, and a judgment may not be modified, on simple motion to modify, after lapse of the term. Journal entries are something else, and may be correct or incorrect. Correction of a journal entry purporting to recite what the court did, to make the journal entry show what the court actually did, may be made after lapse of the term at which judgment was rendered.” (p. 541.)
Likewise in Tincknell v. Tincknell, 141 Kan. 873, 44 P. 2d 212, where the following statement appears:
“When the question of correctness of the record is raised, the court must determine the matter as any other question of fact, except that the court’s own knowledge of what the judgment was may be utilized and may be conclusive. In this instance this court cannot say the district court did not know what the judgment was, and the authority of the district court .to make the record speak the truth by nunc pro tunc entry has been declared in so many cases that it is needless to cite them.” (p. 877.)
See, also, Bush v. Bush, 158 Kan. 760, 762, 150 P. 2d 168; Overlander v. Overlander, 126 Kan. 429, 268 Pac. 828 and State, ex rel., v. City of Stafford, 99 Kan. 265, 269, 161 Pac. 57.
In the case last cited it should be noted that this court held there was no question about the power of the lower court to correct the journal entry so as to make it speak the truth and set out the judgment that wafe rendered, even though the judgment as first recorded had theretofore been before the Supreme Court for review.
It is true, of course, there was no journal entry of judgment on file in the case at bar when the question arose as to what judgment had been rendered, but what has been said with respect to the correction of journal entries in cases where it is claimed the record does not speak the truth is equally applicable to a situation where the trial court of its own accord announces its trial docket does not reflect the judgment actually rendered by it. It is for that reason the foregoing cases with respect to principles applicable in proceedings to correct errors in journal entries have been cited.
Our attention is next directed to G. S. 1935, 60-3122, which reads:
“All judgments and orders must be entered on the journal of the court, and specify clearly the relief granted or order made in the action.”
It is argued that because the judgment as rendered was not entered on the journal of the court by the clerk that the judgment itself must fall. Not so. This court has decided to the contrary. See Kinkel v. Chase, 102 Kan. 275, 169 Pac. 1134, where it was held:
“The omission of the clerk to perform the ministerial duty of recording a judgment does not destroy the judgment, nor does its validity or effect remain in abeyance until it is formally entered on the journal.” (Syl. HI.)
And in State v. Linderholm, 90 Kan. 489, 135 Pac. 546, where it is said:
“It never was contemplated that the entry of a solemn judgment of a court of record could be made to depend upon the whim or caprice of an attorney upon one side or the other of a cause or upon the failure of the attorneys on opposing sides to agree to the form of the judgment. The duty of the clerk is to make a true record of the order or judgment of the court. If for any reason the record fail to speak the truth, the court at any time may make an order correcting the same. This has been often decided (and cases cited).” (p. 492.)
To the same effect is Continental Oil Co. v. Mulich, 70 F. 2d 521, which holds:
“Judgment was duly 'rendered’ when ordered or pronounced by state court, regardless of entry in journal, since such entry is not the ‘judgment’ but formal evidence thereof.” (Headnote, H 9.)
Upon the same subject, Mr. Black in his work on Judgments, Yol. 1, §§ 106, 110, uses the following language:
“The rendition of a judgment is the judicial act of the court in pronouncing the sentence of the law upon the facts in controversy as ascertained by the pleadings and the verdict. The entry of a judgment is a ministerial act, which consists in spreading upon the record a statement of the final conclusion reached by the court in the matter, thus furnishing external and incontestable evidence of the sentence given, and designed to stand as a perpetual memorial of its action. It is the former, therefore, that is the effective result of the litigation. In the nature of things, a judgment must be rendered before it can be entered. And not only that, but though the judgment be not entered at all, still it is none the less a judgment. The omission to enter it does not destroy it, nor does its vitality remain in abeyance until it is put upon the record. The entry may be supplied, perhaps after the lapse of years, by an order nunc pro tunc. But it must not be supposed that this proceeding is required to give existence and force, by retrospection, to that which before had none. As is said by the supreme court of California: ‘The enforcement of a judgment does not depend upon its entry or docketing. These are merely ministerial acts, the first of which is required to be done for putting in motion the right of appeal from the judgment itself, or of limiting the time within which the right may be exercised, or in which the judgment may be enforced; and the other, for the purpose of creating a lien by the judgment upon the real property of the debtor. But neither is necessary for the issuance of an execution upon a judgment which has been duly rendered. Without docketing or entry, execution may be issued on the judgment and land levied upon and sold, and the deed executed by the sheriff, in fulfillment of the sale, not only proves the sale, but also estops the de fendant from controverting the title acquired by it.’ And it follows, a jortiori, that if the entiy, though attempted to be made in due form, does not correctly record the sentence of the court, or is defective or ambiguous or otherwise exceptionable, still this will not weaken the force of the judgment as a judgment.” (§ 106.)
“The object of this entry is to furnish an enduring memorial and incontestable evidence of the judgment, and to fix its date for purposes of appeal or creating a lien. But, as was stated in the beginning of this chapter, this proceeding is ministerial only, and is not essential to the validity of the judgment itself. It is none the less the judgment of the court because not entered by the clerk. And, except for certain special purposes, it does not remain inchoate or unfinished until so entered. Hence the neglect or failure of the clerk to make a proper entry of record of the judgment, or his defective or inaccurate entry of it, will not, as between the parties, operate to invalidate the judgment. ‘The fact that the clerk did not perform his entire duty in making up the record cannot deprive parties of their rights.’ ” (§ 110.)
While none of the authorities to which we have heretofore referred deals with the exact situation confronting us at the moment the principles involved are similar in character, and it must follow that if the trial docket, the journal entry of judgment and the court journal may be corrected by a court to speak the truth, it may, where the question of whether or not it has actually rendered a judgment is raised by motion, to reopen the case and permit additional testimony, determine that matter oil personal recollection of what its decision was at the time the case was before it. To hold otherwise would only result in confusion and intolerable consequences. We therefore hold that judgment for divorce and custody of the minor child was rendered on June 4, 1943, as found by the trial court and that its decision on that factual question was conclusive and is not open for review on appeal.
The fact the journal entry of judgment was not filed until November 30,1944, does not abrogate the judgment nor does its vitality remain in abeyance until such journal entry is filed or put upon the record. A judgment is rendered and becomes effective when it is ordered or pronounced by the court. Long ago this court in Iliff v. Arnott, 31 Kan. 672, 3 Pac. 525, held:
“If a judgment be ordered and its terms prescribed by the court during a term, it is a judgment rendered in term-time, although the entry thereof be not in fact prepared and transcribed on the journal until after the close of the term. [State v. Montgomery, 8 Kan. 351.]” (Syl. ¶1.)
To the same effect is Miller v. Phillips, 92 Kan. 662, 141 Pac. 297:
“A journal entry speaks as of the date the judgment was rendered, and its validity is not impaired by the expiration of the term in the meantime.” (Syl. H 3.)
See, also, Kinkel v. Chase, supra, and Continental Oil Co. v. Mulich, supra.
Notwithstanding the decisions heretofore cited appellant directs attention to Rule 49 of this court prescribing the procedure to be followed by parties in the preparation and approval of journal entries, also to Rule 50 providing that when approved the journal entry shall be signed by the judge, filed with the clerk, and recorded at length on the journal. He states that even if the trial court rendered judgment on June 4, 1943, these rules were not complied with and insists that .failure to conform therewith vitiates the judgment. This contention is without merit. We find nothing in the rules mentioned or in our decisions which even tends to sustain it. Failure to comply with the rules may, and quite often does, subject offending parties to penalties for their violation but such inaction does not nullify a valid judgment once it has become effective.
With effective date and its force and effect determined, resort to the statute makes it apparent there is nothing here for review on errors assigned with respect to the judgment awarding custody of the minor child and granting the divorce. No appeal was attempted to be perfected for more than seventeen months after its rendition. This was too late under either G. S. 1935, 60-1512 or G. S. 1943 Supp. 60-3309. In such a situation this court has no jurisdiction to review assignments of error relied on as a basis for reversal of the judgment (Farrow v. Farrow, 160 Kan. 30, 159 P. 2d 400; Zagranis v. Zagranis, 159 Kan. 456, 156 P. 2d 847, and Palmer v. Helmer, 159 Kan. 647, 157 P. 2d 531).
Of no consequence is the fact appellant filed a formal motion for new trial on December 1, 1944, which, as has been stated, does not appear to have been passed upon by the trial court. Just why this motion was filed or what place it has in this appeal is not revealed by the record or arguments of counsel. We assume appellant’s theory was that the judgment of June 4, 1943, did not become effective until the1 date the journal entry of judgment was filed. If so, his action did not accomplish its intended purpose, for as has been indicated the journal entry speaks as of the date the judgment was actually rendered. (Iliff v. Arnott, supra, and Miller v. Phillips, supra.) In any event under any other theory the motion was filed too late, is a nullity and of no avail to appellant. Nor does the fact it was not passed upon by the trial court have any legal significance whatsoever (Oliver Farm Equipment Co. v. Foster, 134 Kan. 654, 8 P. 2d 364; Balandran v. Compton, 141 Kan. 321, 41 P. 2d 720, and City of Leavenworth v. Pennington, 146 Kan. 459, 72 P. 2d 78).
There remains for review specifications of error having to do with the judgment rendered on November 22, 1944.
It is argued the court had no power to retain jurisdiction and make division of the property of the parties subsequent to June 4, 1943, but was required to dispose of all matters and things involved in the action on that date. We do not agree. This court definitely answered that contention in Morton v. Morton, 149 Kan. 77, 86 P. 2d 486, where it was held:
“Upon entering a decree for divorce by default, the court ordered the defendant to pay the plaintiff $150 per month as alimony, and in its judgment expressly retained jurisdiction of the case for the purpose of making any order necessary for the support and maintenance of the plaintiff. As the order for alimony was void, and no division of the property had been made as provided by law, held, the order of the court in retaining jurisdiction was valid and that a decree at the following term of court fixing alimony at a sum in gross and directing a division of the property, at which time the parties were present in person and were represented by counsel was valid and binding.” (Syl. H 3.)
To the same effect is Hoffman v. Hoffman, 156 Kan. 647, 135 P. 2d 887, where the general rule is stated thus:
“A judgment rendered at a subsequent term, where the district court had retained jurisdiction for the purpose of disposing of issues not determined by a former judgment, is not invalid.” (Syl. If 8.)
Next it is urged the trial-court erred in awarding appellee a division of property which was inequitable and unjust. We are not disposed to labor the question. A well-settled rule of this court is that a property division made-by the trial court in a divorce proceeding will not be set aside or disturbed unless it is clearly shown there was abuse of discretion. (Leiter v. Leiter, 152 Kan. 287, 103 P. 2d. 809; Wittig v. Wittig, 151 Kan. 440, 99 P. 2d 750; Falk v. Falk, 139 Kan. 51, 30 P. 2d 124 and Miller v. Miller, 97 Kan. 704, 156 Pac. 695). We have carefully examined the record. It discloses the property was valued by the trial court and then equally divided between the parties. We find nothing to indicate abuse of discretion, and of a certainty, it cannot be said appellant makes a clear showing it existed.
Finally our attention is called to allowance of attorney’s fees. The journal entry reveals the court rendered judgment against appellant for the balance of a fee due from him to the attorney who represented him at the original hearing but who, we are told by his present counsel, was subsequently discharged. We find nothing in the statute which justifies or permits such action. The portion of the decree allowing this fee is a nullity and the judgment is modified in that particular.
The judgment as modified is affirmed. | [
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The opinion of the court was delivered by
Burch, J.;
This is a mortgage foreclosure action. The appeal is from an order of the district court overruling a motion on the part of the original mortgagors to require the appellee to release and discharge a personal judgment or in the alternative for the court td enter or cause to be entered by the clerk an entry showing full satisfaction of the judgment and enjoin the appellee from asserting any rights under such judgment. In addition the appeal involves a question pertaining to the relationship of principal and surety.
The Federal Land Bank brought an action to foreclose a mortgage executed by the appellants, naming the appellants, their successors in interest, F. F. Cloud and Mary E. Cloud, and the Federal Farm Mortgage Corporation, appellee, as co-defendants. The Federal Farm Mortgage Corporation, which will hereinafter be referred to as the mortgage corporation, held a second mortgage on the involved property. It filed an answer and cross petition in which it asked for a personal judgment against the appellants and the parties to whom appellants had sold the farm, the above-named F. F. Cloud and Mary E. Cloud. The answer and cross petition alleged that the Clouds had assumed personal liability for the note and mortgage held by the mortgage corporation and also had agreed to pay all sums payable under the terms of the note and mortgage held by the Federal Land Bank. The appellants did not file an answer and neither did the Clouds. Judgment was rendered in favor of the Federal Land Bank on its note for $7,226.86, with interest, and for a foreclosure of its mortgage. The mortgage corporation was given a personal judgment on its note for $3,072.74, with interest, against the appellants and the Clouds. The mortgage corporation had not prayed for foreclosure of its second mortgage. Regardless of such fact, however, the mortgage corporation regarded.itself as a junior lienholder, having a right of redemption, and between the twelve and fifteen months’ period of redemption provided by the applicable statute, the mortgage corporation redeemed from the Federal Land Bank by paying the sum of $7,993.15, which represented the amount of the judgment of the Federal Land Bank, plus interest, taxes .and costs. No objection was made to such redemption on the part of the mortgage corporation by the appellants and any irregularity or error in connection therewith is not before us for review. (See Federal Land Bank v. Shoemaker, 155 Kan. 501, 126 P. 2d 205.) Instead of objecting to redemption being made by the mortgage corporation, the appellants entered into negotiations with it seeking to develop an agreement relative td the satisfaction and settlement of the personal judgment. Most of the negotiations were had by cor respondence which was introduced in its entirety in support of the appellants’ motion. While the negotiations were pending the mortgage corporation as a junior lienholder filed an affidavit within the ten days provided therefor in compliance with the provisions of G. S. 1935, 60-3450, setting forth that as a junior lienholder in the foreclosure action it was the owner and holder of a judgment in the amount of $3,283.56 as of February 2, 1944, with interest at the rate of five percent per annum from said date and that said corporation was unwilling to hold the property and credit the defendant-owner with the full amount of its lien but that it was willing to credit on its claim the sum of $1,000.
The dispute in this case arises over whether the appellee had agreed in the correspondence to allow the credit of $1,000 to apply upon the judgment regardless of whether the appellants redeemed the property, or whether the credit would be allowed only in case appellee became the ultimate owner thereof by reason of the execution of a sheriff’s deed to the appellee. Appellants acquired by assignment from the Clouds their right of redemption.
The correspondence which was exchanged between the parties extends over sixteen pages in the printed briefs and in the opinion of the court the reprinting of it in this opinion is not necessary and would not aid either courts or counsel in similar cases. Careful examination of the same fails to disclose a definite agreement on the part of the appellee to allow a credit of $1,000 to apply upon the judgment in the event the appellants became the owners of the property by reason of redemption. This court is convinced from examination of the letters that it was the intent of the appellee only to allow the credit of the $1,000 upon the personal judgment in the event the appellee became the ultimate owner of the property and thus acquired for its benefit whatever the value of the equity may have been, and that there was never a meeting of the minds of the respective parties to the contrary. Even though we have reached such a conclusion it should be said in fairness to the appellants that some of the letters written in behalf of the appellee were confusing and may have led the appellants to believe that the $1,000 credit would be allowed upon the personal judgment regardless of what party or parties ultimately acquired title to the land. It is difficult to set forth herein excerpts from the correspondence with apparent impartiality to the parties without setting forth the correspondence almost in its entirety. However, on April 20, 1944, the appellee wrote the appellants a letter which closed as follows:
“I have reviewed the correspondence and talked to the Vice-President of the Federal Farm Mortgage Corporation and am satisfied that you have misunderstood his reference to the $1,000 credit. . . We understand that your client wishes not only to redeem but to satisfy the Corporation’s judgment. After redeeming for $9,033.74 plus interest, he will owe the Corporation $2,072.74 plus interest upon the Corporation’s judgment.”
The $1,000 credit in dispute had been included in compiling the figure of $9,033.74. Consequently, it was apparent that appellee was anticipating that in the event the appellants redeemed they would pay not only the $1,000 but in addition thereto $2,072.74.
After receipt of the above letter and without replying thereto, the appellants on April 29 paid into court the amount necessary to redeem and satisfy the personal judgment less the credit of the $1,000 and less also certain miscellaneous items aggregating $117.98 as of date of November 15, 1944, which made a total deficit in the amount necessary to pay off the mortgage and the personal judgment of $1,117.98 as of said date. At the time the appellants paid the money into court they knew, or should have known, from the letter dated April 20, that the 'appellee was expecting payment in full of its personal judgment in the event the appellants redeemed and acquired title to the property. Consequently, the appellants cannot consistently complain that they were misled by the appellee into parting with their money.
The memorandum opinion of the district court set forth that in its opinion appellants’ motion should be denied because the mortgage corporation had complied strictly with the redemption laws of this state, and for that reason it overruled the motion. We are not in accord with such a conclusion but for the reasons herein given the judgment of the district court is affirmed insofar as it relates to the payment of the personal judgment.
This opinion should not be construed as holding that parties cannot agree upon satisfaction of a personal judgment for less than the original amount thereof because of any statutory prohibition. We do not consider, however, that G. S. 1935, 60-3450, should be construed as requiring a redeeming creditor to allow a credit on a personal judgment for the amount named in the affidavit in the event the judgment debtor redeems the property in the absence of a specific agreement to such effect. From the recent case of Federal Land Bank v. Hart, 157 Kan. 664, 143 P. 2d 649, the following is quoted:
. . the defendant owner could have redeemed by paying the amount for which the mortgage corporation had redeemed from the plaintiff plus 81,500. They still would have had, however, a judgment for the difference between the original judgment and $1,500 outstanding against them.” (p. 667.)
Counsel for appellants also contend that the district court erred in not entering an order to the effect that the appellants became sureties by reason of the fact that the Clouds assumed and agreed to pay the mortgages and made payments upon the same, which were accepted by the respective mortgage holders. It is contended that the Clouds thereby became the principal debtors and that the appellants became sureties with the result that the courts should have compelled the judgment holder to exhaust its remedies against the Clouds in satisfaction of the judgment before attempting to execute on any property owned by the appellants. Such a question was not presented to the trial court in connection with the foreclosure action but it was raised for the first time by appellants in their motion resisting the collection of the balance of the personal judgment. The effect of the delay need not be given consideration.
In support of their contention the appellants rely upon the recent case of Federal Land Bank v. Butz, 156 Kan. 662, 135 P. 2d 883. There is a controlling difference between the facts appearing in the cited case and those developed in the present one. In the cited case the original note and mortgage were signed by a party named Butz and an intermediate purchaser by the name of Buser assumed and agreed to pay the mortgage indebtedness. Later a third party named Koch purchased the property from Buser and also assumed and agreed to pay the mortgage indebtedness. This court held that in the circumstances developed in that case Buser became a surety but it did not hold that Butz, the original maker of the note, also became only a surety. In the present case the appellants were the original makers of the note and consequently when it was executed they became and remained at all times parties primarily liable for the payment of the same under the provisions of the uniform negotiable instruments act. (See Bank v. Bowdon, 98 Kan. 140, 157 Pac. 429; Bank v. Watson, 99 Kan. 686, 163 Pac. 637; and Swan Savings Bank v. Snyder, 124 Kan. 827, 262 Pac. 547.)
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Hoch, J.:
This is a workmen’s compensation case. The contentions of appellant, the respondent, are that the workman’s injury did not “arise out of” his employment and that there was no substantial evidence to support the finding of total disability.
Walter Brandon, a man seventy years of age, was employed as a millwright by Lozier-Broderick & Gordon, a contractor doing extensive construction work at the Sunflower Ordnance plant at De Soto, Kan. He suffered an injury to his back when he fell while attempting to climb on the rear end of a truck. At the hearing before the compensation commissioner it was' stipulated that the relationship of employer and employee existed; that the parties were under the workmen’s compensation law; that the claimant’s average weekly wage was $100; that the respondent had notice of the accident; that no issue as to written claim for compensation was involved, and that the claimant had suffered an accidental injury and that no compensation had been paid. The commissioner found that as a result of the accident the claimant had become totally disabled for performance of manual labor as a millwright and carpenter and would continue to be so disabled for an indefinite period in the future; that the accident arose out of and in the course of the employment, and made an award in his favor for a period not to exceed four hundred fifteen weeks payable at the rate of eighteen dollars per week subject to review and modification as provided by law, and also awarded him $500 to cover medical and hospital services. Upon appeal to the district court the same award was made. This appeal followed. The primary question, which we will first consider, is whether the accident arose out of the employment.
It is firmly established in our law that the jurisdiction of this court in workmen’s compensation cases is limited by statute (G. S. 1935, 44-556) to questions of law. Appellee asserts that “what does or does not arise out of and in the course of an employment is, in each case, a question of fact.” Strictly construed that is an incorrect statement. Otherwise, the many cases in which we have reviewed the trial court’s finding on such questions should have been dismissed for lack of jurisdiction. It is for the trial court to find the facts upon which it bases its conclusion as to whether the accident arose out of the employment. But whether upon the conceded facts or upon the facts as validly found by the trial court the acci dent arose out of the employment is a conclusion of law. And while it is not our function to weigh conflicting evidence it has been said many times in our decisions that the question of whether a finding of fact was supported by competent, substantial evidence is a question of law, as distinguished from a question of fact. (Holler v. Dickey Clay Mfg. Co., 157 Kan. 355, 364, 139 P. 2d 846.)
Claimant had been working for the respondent for four or five weeks prior to the accident on August 10, 1944. He lived in Kansas City and drove back and forth between his home and the plant in his own car. He also carried other passengers, regularly, for hire, and for that reason had been given a “C” gasoline ration card. On August 10 he had his riders with him. He checked in at a little before seven o’clock in the mprning, received .his ‘Trass” and time card and then drove to the rationing office — a distance of about a mile and a half from the place where he had checked in — to see about getting a new tire for his car. This rationing office was maintained within the grounds of the Sunflower Ordnance proj ect for the benefit of employees generally. There was no evidence that the respondent had any connection with the location or maintenance of the rationing office. When he reached the rationing office he found that the office did not open until eight o’clock and since his tires had to be inspected he left his car there and left his car keys and inspection slip with someone there, and then went to a bus depot which was close to the ration office and asked a guard about a way to get to where he worked. The guard told him to go to the administration office but he testified he did not go there for the reason that it was farther than to the place where he worked. Instead, he walked a quarter of a mile to the “guard shack” where all vehicles were required to stop for inspection. A truck came along with several men on it. It happened that this particular truck belonged to the respondent but it was not a truck provided for the purpose of carrying passengers. The guard asked where the truck was going and whether they — claimant and another workman — could ride. It is not contended that this guard was an employee of the respondent. Apparently — by fair inference — someone told claimant he could ride. In any event as he attempted to get on the truck at the rear end and stepped on a roller of some sort which was hanging down about eight inches from the ground, he lost his hold, fell to the ground, striking hip and elbow, and sustained the injuries upon which the compensation claim is based. In view, of the conclusion presently to be stated it is unnecessary to narrate the testimony as to the nature of his injuries or the conflicting contentions of the parties with reference to the matter.
Our workmen’s compensation act covers only personal injuries “by accident arising out of and in the course of employment.” (G. S. 1935, 44-501.) We are presently concerned only with the question of whether the accident was one “arising out of” the employment. We have repeatedly said that the phrases “arising out of” and “in the course of” are separate and conjunctive and that both conditions must exist in order to make the injury compensable, and that the phrase “arising out of” implies some causal connection between the accidental injury and the employment. (Rush v. Empire Oil & Refining Co., 140 Kan. 198, 200, 34 P. 2d 542.) If the injury did not result directly from performance of the work for which the workman was employed it must at least have been suffered'while performing some act which was normally and commonly incident to such work.
On the basis of the facts above stated it would be perfectly clear that at the time of the accident the claimant was on his way back to work from a personal errand and that there was no causal connection between the accident and the work for which he was employed. The car for which he was applying for a new tire was his own. ,He used it not only for his own means of reaching the place of work but.for carrying other workmen to the Sunflower plant. There was no evidence that these other passengers were employees of the respondent. The evidence does not disclose whether their payments covered expenses only or provided a profit to the claimant. There was no evidence that the claimant used his own car at the request of the respondent or that the respondent paid in whole or in part for the gas or the tires or other car expense. There was no evidence and there is no contention that the guard at the “guard shack” was respondent’s employee, nor that the truck was provided by respondent for carrying passengers, nor that any agent of respondent suggested its use for that purpose, nor that any of the riders on the truck when claimant attempted to get on were respondent’s employees.
Appellee contends there are additional facts which must be considered in determining whether the accident arose out of the employment. Summarizing appellee’s contention, it is that to the above recital must be added: (a) That claimant went to the ration ing office upon instructions from a foreman for the respondent; (b) he went on company time, without reduction in pay; (c) going on such errands on company time was a common practice; (d) various other material facts to be supplied under the doctrine of judicial notice. We will examine the contentions in the order stated.
As to the first point, appellee relies entirely upon one statement made by claimant upon first direct examination. He testified that after filling out his time card he "started up to the rationing board, pursuant'to instructions of Perry Shelton.” We pass over the fact that there is no direct statement in the record as to who Perry Shelton was. It is a fair inference from all the testimony that he was a foreman or superintendent for the respondent. Upon further inquiry appellee made it very clear that what he meant was that the foreman had given permission for him to go to the rationing office, in line with a common practice. This was his testimony on the point:
“Q. And now on this particular day you said something about some instructions from somebody. What instructions were you talking about? — you knew where to go to get a ration— A. I never left the job without consulting the superintendent—
“Q. I am not asking you — is that what you mean to say, that you went and got permission to go to the ration board? A. I always asked before I left the job.
“Q. Is that what you mean when you say you got permission to go? A. Yes, sir.
“Q. You got permission to go during working hours, that is what you did, wasn’t it? A. I told him I wanted to go.
“Q. And they said all right you can go? A. Yes, sir.”
As to the respondent’s permission to appellee to go on the errand on company time we cannot give to that fact the force for which appellee contends. The fact that an employer permits an employee to go on a personal errand during working time without deduction in pay certainly does not in itself make such an errand a part of the work for which he is employed. To hold that it does would be to lay down a rule the practical effect of which would be to force employers to decline such consideration to employees no matter how much they might wish to extend it. Neither employers nor insurance carriers would be willing to assume such risks. And the fact that the employer may make a practice of showing such consideration to employees should not subject him to a penalty for doing so.
This brings us to what is really the heart of the issue before us. Appellee asks us to supply by judicial notice many material facts essential to establishing the proposition that he was not merely on a personal errand but that appellant was directly interested in having him use his own car and in having him get the tire, and that the accident happened while performing an act that should be regarded as a normal incident of the work for which he was employed.
Broadly stated it is appellee’s contention that while under ordinary conditions the appellant would have no interest in the method or means used by appellee in going to and coming from his place of work, we should take judicial notice that the whole situation was changed by the unusual conditions which existed — conditions attendant upon the war emergency; that housing facilities near the plant were inadequate to take care of all employees; that public conveyances were inadequate; that appellant was interested in having appellee use his own car and in getting a new tire and in going to the rationing board for that purpose; and that by virtue of this whole situation appellee’s errand was incident to his employment and that therefore the accident arose out of the employment.
There is no necessity here for extended discussion of the doctrine of judicial notice. Simply stated the rule is that what well-informed persons generally know the courts are presumed to know and that of such matters they may take cognizance without proof. The following are typical statements of the doctrine:
“The court will bring to its aid and consider, without proof of the facts, its knowledge of those matters of public concern which are known by all well-informed persons. . . . Generally speaking (it) is limited to facts evidenced by public records and facts of general notoriety. '. . . Courts will take notice of whatever is, or ought to be, generally known within the limits of their jurisdiction.” (31 C. J. S. 509-511.)
The doctrine does not extend to particular facts not of common ’ notoriety and of which the court has no' constructive knowledge. Judicial notice is not to be taken of facts that may be disputed by competent evidence. (31 C. J. S.' 513, and cases cited, footnote 88.)
Certainly we can take judicial notice of the war emergency, of the fact that at many war plants housing and public transportation facilities have been inadequate to meet conveniently the needs of all employees. Perhaps we might take judicial notice that such conditions have existed at the particular plant in question. But in order to make such a record as appellee requires we would have to go very much further than that.
It is conceded that some employees lived near the plant and some at a distance. Appellee would have us say that his own situation was such that it was impracticable for him to live in the immediate vicinity. It is conceded that many employees used public conveyances and many used private cars. We could possibly take judicial notice of the fact that busses ran regularly from Topeka, Lawrence, and other points for the purpose of carrying large numbers of workmen to the Sunflower plant. We certainly do not assume to say that appellee could conveniently have used one of these busses. We have no knowledge of his situation. But as far as the record discloses there may have been a bus which ran, at convenient hours, directly past his home and to the plant. On the record we cannot say whether the situation reasonably required him to use his- own cal- or whether he used his car not merely for his own convenience but also for the laudable purpose of a profitable enterprise. On all these points no evidence was submitted.
On the question of housing appellee stresses the finding by the compensation commissioner that “certainly housing facilities in the immediate area of the plant being constructed by these respondents would not be adequate for all the employees engaged in the defense activity.” There was no testimony concerning housing conditions. But assuming that the commissioner’s observation as to general conditions was properly made it did not supply essential facts as to appellee’s situation.
As to the payment for transportation by other regular passengers it is said in appellee’s brief that “the car owners did not, as a rule, receive enough to break even, to say nothing of making this transportation for hire a matter of paying business.” But there was no evidence upon the matter. Are we to take judicial notice that appellee was not one of those who was an exception to the rule? Certainly it could not well be contended that if there were workmen who chose to use their own cars and operate them for hire for the added income the enterprise would bring, any accident occurring while servicing their cars should be considered as incident to the work for which they were employed.
If we were to adopt appellee’s theory of judicial notice and assume, without proof, various additional facts sufficient to show that appellant was directly interested in having appellee use his own car, we would still be faced with the question of whether the accident which happened under the circumstances as related arose out of the employment. But we do not reach that question. And being unable to make such an assumption it is unnecessary to extend this opinion by analysis of the cases cited by the parties, all of which, along with others, have been examined. Without assuming the existence of the many facts indicated we must conclude that the accident did not arise out of the employment.
The suggested expansion of the doctrine of judicial notice would involve far more than the interests of the parties to this action. To expand the record so robustly, as urged, for the benefit of the appellee — for whose injury anyone must have a genuine regret — would be to start upon a journey far beyond the liberal interpretation of the Workmen’s Compensation Act which the law enjoins and to which we are firmly committed.
In view of the conclusion above stated it is unnecessary to discuss other issues raised.
The judgment is reversed, with directions to enter judgment for the respondent. | [
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The opinion of the court was delivered by
Smith, J.:
This is an application for redistribution of money paid to the county treasurer by the executor of a will pursuant to an order of the probate court. A judgment creditor of one of the heirs and legatees intervened and objected to the redistribution. Judgment was entered ordering a redistribution. The appeal of the creditor to the district court was dismissed. It has appealed.
The matter arises out of the estate of Mariam B. Hall. When she died some notes given by her daughter, Jennie M. Long, were found among her effects. These notes were treated as assets of the estate and when final distribution was made the distributive share of Jennie M. Long was found to be $639.66.
This final settlement was made on October 25, 1937. Jennie M. Long refused to accept this amount. On December 9, 1937, the probate court on application of the executor found that Jennie M. Long had refused to accept her distributive share and that it should be paid to the county treasurer for the benefit of the common schools of that county. On the same day it was so paid.
On March 31, 1939, the executor of the estate of Mariam B. Hall applied to the probate court for an order that this money be distributed to the other heirs, next of kin and legatees of Mariam B. Hall. In this application the executor showed that he had been ordered to pay this amount to Jennie M. Long; that he had tendered it to her and she had refused it; that he had paid it to the county treasurer of Butler county on December 9, 1937, and that it had been held by the county treasurer since that time.
On June 1, 1943, Stephens College, the appellant in this case, asked the probate court for permission to intervene in the matter. In support of this application it pleaded that on March 10, 1943, it had filed its petition for intervention; that on the 26th of April, 1943, an execution against Jennie M. Long had been issued by the district court on a judgment obtained in a case in which it was plaintiff and Jennie M. Long was defendant and that on the same day it had filed an affidavit in garnishment, and garnishment summons had been issued and served on the county treasurer of the county and the county treasurer as an individual and upon the executor of the estate of Mariam B. Hall and other interested parties; that by the garnishment action certain funds were impounded in the hands of the garnishee defendants, for which they would have to account; that the final order of distribution was made on the 22d of October, 1937, and on December 9, 1937, the executor had paid to the county treasurer $639.66, being the distributive share of Jennie M. Long in the estate of Mariam B. Hall; that under G. S. 1935, 22-932, it was provided that money unclaimed by distributees should be held by the probate court for a space of one year after it was ordered distributed ; that this fund had not remained in the hands of the executor for a year but only from October 22, 1937, until December 9, 1937, less than sixty days; that these funds were in the eyes of the law in the hands of Corwin G. Hall and therefore not in the hands of the county treasurer and the probate court was without jurisdiction of the subject matter of the action and was powerless to make an order distributing these funds or releasing a garnishment of the district court and that equity should not allow Corwin G. Hall to profit by the results of his misdeeds and that had he allowed the funds of Mrs. Long to remain in his hands for a period of one year the intervening petitioner would have caused a garnishment to be served upon him as executor.
On April 29, 1943, the court heard this matter; found that legal notice had been given; that the statements contained in the appli cation for redistribution were true and that the application should be allowed. The court then ordered the distribution of $639.66 among the legatees in the will of Mariam B. Hall and found further that Stephens College, the intervenor, had no interest in the money and took nothing under its pleadings and the costs should be taxed against it. From this order the intervenor appealed. On appeal the district court found substantially as the probate court and entered judgment in favor of the parties who had asked for redistribution and ordered that the appeal of the intervenor, Stephens College, should be dismissed.
From that judgment the appeal is taken.
It will be noted that the probate court ordered this money paid to the county treasurer on December 9, 1937. At that time G. S. 1935, 22-932, was the law in effect on this subject. That section provides, in part, as follows:
“If any sum of money directed by an order of the court to be distributed to heirs, next of kin, or legatees, shall remain for the space of one year unclaimed, the executor or administrator shall pay over the same to the treasurer of the county for the benefit of the common schools of the county: Provided, If any person to whom the court ordered a sum of money to be distributed refuses to accept the same when it is offered or tendered to him by the administrator or executor and no appeal has been taken from the order of distribution, the court, upon application made before the sum of money is paid to the county treasurer, or within ten years thereafter, and upon a showing that the sum was offered or tendered' to the distributee and that he refused to accept it, shall order and direct that the sum of money be paid or distributed to other heirs, next of kin, or legatees, in the share or portion they would have been entitled to receive it had the refusing distributee not been entitled to a share or portion of the state (estate)
The probate code was enacted in 1939. G. S. 1943 Supp., 59-1508, being a section of that code, provides as follows:
“If any part of the money on hand has not been paid over because the person entitled thereto cannot be found or refuses to accept the same, or for any other good and sufficient reason, the court may order the executor or administrator to deposit the same with the county treasurer for the benefit of the common schools of the county: Provided, If the person to whom said sum is ordered to be paid refuses to accept the same when it is tendered him by the executor or administrator, the court may, either before or after the sum has been deposited, order the same to be paid and distributed to those who would be entitled thereto had the refusing legatee or distributee not been entitled to it. ”
Each of these sections provides that where a distributee refuses to accept his distributive share and it has been paid to the county treasurer the court may, upon proper showing, order that share to be distributed to the heirs or legatees or other persons who would be entitled to it. The proceedings of the appellees in this case were taken pursuant to those sections.
The effect of the petition of the intervening creditor had it been allowed would have been to stay the action of the probate court from proceeding under this section to redistribute this money until the intervening creditor had been able to pursue his remedy by garnishment. The intervening creditor, appellant here, had no other interest in the matter. The application to redistribute in this case was filed March 31, 1939. The intervening creditor on November 29, 1938, had in the action in which it secured the judgment caused a summons and garnishment to be issued out of the district court directed to the county treasurer, and the county treasurer had answered admitting that he had these funds on hand and was holding them subject to the rights of the owner. In that action the executor of the estate, the same party who asked for the order of redistribution, filed a motion to dismiss the garnishment. On January 7, 1942, the garnishment was dismissed. This judgment was appealed to this court.
In Stephens College v. Long, 156 Kan. 449, 134 P. 2d 625, we stated:
“Appellant seeks to raise the questions of whether Mrs. Long in fact renounced her legacy, whether under the circumstances shown she could renounce or disclaim it as against the interest of her judgment creditor.” (p. 450.)
These questions were not decided by us, however, because it was necessary to dismiss the appeal due to the fact that the appellant had not made the county treasurer, the garnishee in the action, a party to the appeal. Notwithstanding the fact that we dismissed the appeal we did say—
“There is still another reason — not suggested by the trial court nor urged by appellees — which would appear to support the order discharging the garnishments. It is provided in the garnishment statute (G. S. 1935, 60-955): ‘No judgment shall be rendered upon a liability of the garnishee arising either . . . Third, By reason of any money in his hands as a public officer, and for which he is accountable to the defendant merely as such officer’.” (p. 451.)
It thus appears that no effective appeal was taken from the order of the district court discharging the garnishee. On that account the judgment became final. No reason appears in this record why the intervening creditor would be any more successful in reaching this money by garnishment now than it was in reaching the fund in the proceedings reported in the former opinion.
The appellant has no interest whatever in this application for redistribution except its desire to keep the order to redistribute the fund from being made so that the fund may be held intact and subject to garnishment. Since we have held that the fund cannot be reached by garnishment and the order has become final it appears the appellant has no interest and the district court was correct in dismissing its appeal from the probate court.
The order for redistribution upon which the appeal here is based was not entered by the probate court until April 29, 1943. The order discharging the garnishee was entered January 7, 1942. Our opinion dismissing the appeal in that case was filed March 6, 1943. It is clear that even though the application for redistribution was pending the probate court took no action on it until after it was definitely established that the order of the probate court discharging the garnishee had become final.
The appellant argues here that the money due Mrs. Long was not deposited in the general fund of the county treasurer, but instead was deposited to the credit of the “personal credit deposit fund for the credit of Jennie Long distributive share of Mariam Hall estate,” that is, appellant argues that G. S. 1935, 60-955, does not apply to this case because the money was held as a trust fund by the county treasurer. No matter how the county treasurer entered the money on his books he held it pursuant to the statute.
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The opinion of the court was delivered by
Wedell, J.:
This case involves the construction of a will which creates an income trust for three beneficiaries.
Upon the death of the second named beneficiary of the trust her personal representative filed a claim in the probate court against the estate of the testator who created the trust claiming title to certain income on the date of her death. The claim was allowed. The executor and trustee appealed to the district court, where he prevailed. The petitioner has appealed to this court.
It was agreed in the district court that the question of law involved should be determined as though it arose on a motion for judgment on the pleadings. The essential facts are, therefore, admitted.
To the petition for the allowance of the claim was attached a copy of the will and codicil which will be noted presently. The defendant was Clark A. Wallace, executor of the estate of S. F. Kinert, deceased, and trustee of the income trust created by Kinert’s will. S. F. Kinert died approximately twenty-six years ago and left surviving his widow, a son and a daughter; one grandchild by the son and three grandchildren by the daughter. The beneficiaries of the trust were his widow, daughter and son. The first of the beneficiaries to die was the widow. She died more than one year prior to the filing of the instant claim. The last distribution of income was made to the daughter and son in the latter part of 1943. During the entire period of the trusteeship reports to the court and distribution to the beneficiaries were made annually and shortly following the close of each calendar year. Nellie Pulliam died testate July 13, 1944. Chas. C. Calkin, administrator of the Nellie Pulliam estate, filed the following claim against the Kinert estate:
“(a) Income accrued in the hands of the executor and trustee from money loaned, cash rent and grain harvested and sold prior to July 13, 1944, a total of $654.39, one-half thereof claimed by Calkin, Administrator of the Nellie Pulliam Estate in the sum of $327.20.
“(b) Income that accrued throughout the year 1944, received by the executor and trustee by the end of the year 1944, prorated on the basis of the time Nellie Pulliam lived as against the period of time said crops were growing and rents accruing and claimed by Calkin, Administrator, in the sum of $93.20.”
The petition admitted there were certain taxes and expenses to be deducted from the income and that claimant’s estate was required to bear its proportionate share thereof.
The claim was based on the theory the title to the income specified had vested in Nellie Pulliam during her lifetime and therefore constituted an asset of her estate. The claim was resisted on the theory the will disclosed it was the testator’s intention that the daughter’s portion of the trust income upon her death should pass to the surviving beneficiary of the trust. These contentions present the principal issue in the case and require an examination of pertinent provisions of the will.
By means of a codicil the testator revoked certain paragraphs of a former will and substituted other provisions for the revoked portions. We are, of course, conc'erned with the will in its final form and with such light, if any, as the changes made in the former will may throw upon the question presented.
In view of the codicil we believe it may aid the reader if the various paragraphs of the original will and codicil are not all set forth in their numerical order. In the sixth paragraph of the will the testator bequeathed to his wife certain designated personal property. In the fifth paragraph he bequeathed to his wife one-half of the proceeds of all his other personal property which by paragraph three he had ordered sold as speedily as possible without material sacrifice. Paragraphs seven, eight and nine provide:
“Seventh: All the rest, residue and remainder of my estate, both real and personal or mixed, of whatsoever kind and nature and wheresoever situated, I hereby will, devise and bequeath unto my Executor, hereinafter named, or unto his lawfully authorized successors in office, in trust nevertheless, for the sole use and benefit of my beloved wife, Anna M. Kinert, my daughter, Nellie Pulliam, and my son, John X. Kinert, for and during their natural lives, and until the death of the last survivor, as hereinafter directed.
“Eighth: For and during the full term of her natural life I hereby will, devise and bequeath unto my beloved wife, Anna M. Kinert, one-half (Y2) of the net income derived from the trust fund in the preceding section created, exclusive, however, of the income from the personal property in said trust fund. It being my intention that in as much as my said wife has been given absolutely one-half of all personal property she should not share with my son and daughter in the income derived from the other one-half, but shall be entitled to one-half the net income derived from my said real estate. Upon the death of my said wife her-portion of the said trust fund shall be paid to the survivor or survivors of my beneficiaries named in said paragraph numbered ‘Seventh’. [Codicil.]
“Ninth: For and during the full term of her natural life I hereby will, devise and bequeath unto my beloved daughter, Nellie Pulliam, one-half (%) of the net income derived from the personal property in said trust fund, and one-fourth U/i) of the net income derived from the real estate in said trust fund. Upon the death of my said daughter her portion of the said trust fund shall be paid to the survivor or survivors of my beneficiaries named in said paragraph numbered ‘Seventh’. [Codicil.]”
Paragraphs nine and ten of the codicil are in all respects identi-, cal except that the latter contains the name of the testator’s son instead of the name of his daughter.
Provisions pertaining to the executor’s duties and powers read:
“Eleventh: I hereby direct my Executor, hereinafter named, or his lawfully authorized successor or successors in office, to pay out the amounts directed in the next three preceding sections either annually or semi-annually, as the needs of the parties and the best interests of the estate would require.
“Fourteenth: I hereby will and direct that my Executor, hereinafter named, or his successor or successors in office, shall invest all moneys held under Section Seven of this will in well secured mortgages, real estate being preferred, having constantly in mind the best interest of the estate, the income thereof being deemed to be a part of the income mentioned in said Section Seven.”
The third paragraph of the codicil provides:
“Third: I direct that my Executor, or his successor or successors in office shall pay all taxes and lawful charges assessed against my said estate and keep my said real estate and the improvements thereon in good repair and in general to so handle my estate that all my beneficiaries shall derive the greatest benefit therefrom.”
Paragraph thirteen which creates the trust reads:
“Thirteenth: At the expiration of the trust estate, created, by Section Seven of this will, that is, at the death of the last survivor mentioned in said Section Seven, I hereby will, devise and bequeath unto my beloved grandchildren, children of my daughter, Nellie Pulliam, all the rest, residue and remainder of my estate, both real and personal or mixed, unto them, their heirs and assigns, in fee simple, forever. It being my intention that said grand-children, children of my daughter Nellie Pulliam, shall have all real estate of which I shall die possessed, subject to the above imposed trusts. Should any of said grand-children precede me in death leaving issue of their body I hereby will, devise and bequeath unto such issue their respective parent’s share.”
Paragraph four reads:
“Fourth: Upon the death of the last survivor of my beneficiaries, named in the paragraph numbered ‘Seventh’ of my will, I will and . direct that my Executor, hereinafter named, or his successor or successors in office, pay to my granddaughter, Evalyn B. Kinert, or the issue of her body, if she be dead, the sum of One Thousand ($1000.00) Dollars, it being my will and desire that said sum shall not be paid to anyone except the said Evalyn B. Kinert, or the living issue of her body if she be dead, and then only after the death of the last survivor of the three mentioned [in] said paragraph numbered ‘Seventh’ of said will. [Codicil.]”
Another paragraph of the codicil reads:
“Upon the final settlement of my said estate I will, devise and bequeath unto Flora Kinert, wife of my son John X. Kinert, the sum of One ($1.00) Dollar and no more.”
Did the testator intend that upon the death of trust beneficiaries between payment intervals their respective estates should share in the undistributed income of the trust or did he intend that the portions of deceased beneficiaries, not used for their own benefit during their lives, should be paid to the surviving beneficiary or beneficiaries? That is the question presented.
The foundation of this trust is paragraph seven. It creates the trust. It specifies the property to be held in trust. It names the beneficiaries. It designates the precise use and purpose of the trust income and fixes the duration of the trust. For whose benefit was it created? It says “. . . for the sole use and benefit” of the ■ beneficiaries named. During what time were the beneficiaries to have the use and benefit thereof? It says “. . . for and during their natural lives.” How long was the trust to continue? It says “. . . until the death of the last survivor, as hereinafter directed.”
If the testator intended any portion of the income from the trust property should be paid to the estate of a deceased beneficiary he did not say so. If he so intended it is difficult to understand why he provided it should be “for the sole use and benefit” of the beneficiaries “for and during their natural lives, and until the death of the last survivor, as hereinafter directed.” But let us pursue the question further. The succeeding paragraphs eight, nine and ten of the original will made no provision for the distribution of a deceased beneficiary’s portion, whether accrued or unaccrued. But in the same numbered paragraphs of the codicil the testator expressly pro vided that upon the death of any beneficiary his or her “portion of the said trust fund” should be paid “to the survivor or survivors of my beneficiaries named. . . .”
We cannot well ignore the apparent intent disclosed by these provisions of the codicil. It will be observed the testator in no manner curtailed, limited or restricted the “portion of the said trust fund” which was to be paid to the survivor or survivors of the beneficiaries named. The words “her-portion of the said trust fund” in .the absence of any restriction, exception or indication to the contrary, mean the daughter’s entire portion, and no less, whether that portion constitutes accrued or unaccrued income. To construe the will otherwise requires us to read into it a meaning contrary to that expressed. That we are not permitted to do. (Sipes v. Pessemier, 144 Kan. 300, 58 P. 2d 1085.) It therefore appears the testator intended that any portion of the daughter’s trust income not used for her sole benefit during her natural life should be paid to the survivor or survivors of the beneficiaries named and not to her estate. In other words, the testator was not endeavoring to build up the estates of deceased beneficiaries at the expense of the trust fund.
In order to ascertain the testator’s intent we need not rely solely on the provisions of the will previously considered. Our construction of those provisions is aided by other portions of the will. They make it crystal clear that this testator gave and withheld precisely according to his likes and dislikes. That, of course, was his privilege so long as such disposition was not contrary to law or public policy.
It appears the testator was of the opinion his estate would not be finally settled until the trust had been fully administered. He appointed his executor to administer the trust. He also made it very clear that after the execution of the trust and upon final settlement of his estate others should have exactly what he directed and nothing else. (See generous provisions made for his beloved grandchildren, children of his daughter, Nellie, paragraph thirteen; provision for only $1,000 to his granddaughter, daughter of his son, John, codicil, paragraph four; and last quoted paragraph of codicil which provided for “One [$1.00] Dollar and no more” to his-son’s wife, Flora.)
His son John is the last surviving beneficiary of the trust. Whatever undistributed trust income may remain upon John’s death, according to appellant’s theory, will have accrued and vested in John and will pass to his estate. Whether John dies testate or intestate his widow, Flora, under our law will be entitled to one-half of his property. If John dies intestate his daughter will be entitled to the other half. The undistributed income may be substantial. Yet this testator endeavored to make it certain that John’s daughter should obtain only $1,000 out of his estate and that John’s wife should receive exactly one dollar and no more. Appellant’s construction of the first considered provisions of the will would defeat the last mentioned provisions. The construction urged by appellee, which we believe is sound, upholds and harmonizes the various provisions of the will.
We need not labor the point. It seems to us the denial of the claim, especially in view of the admitted facts in this particular case, is also in harmony with other provisions of the will.
The subject under consideration has been treated extensively by courts and text writers. An annotation in 141 A. L. R., p. 1466, contains two statements which, by reason of breadth and accuracy, merit quotation. They are:
“Although no general rule is, in terms, laid down in the cases, it may be said, considering the cases as a whole, that in the absence of a contrary expression of intent in the trust instrument, it will be assumed that the creator of the trust intended that income which at the time of the death of a life beneficiary was available for distribution in the hands of the trustee, but had not actually been paid over to the life beneficiary, was to go to his estate.
“No uniform answer can be given upon the question whether the estate of a life beneficiary is entitled to income of trust property which at the time of his death was available for distribution in the hands of the trustee but had not been paid over to the life beneficiary. The cases agree that the question depends upon the intention of the creator of the trust as manifested, in the trust instrument, whether the trust is created by a will . . . or by an instrument inter vivos.” (Our italics.)
. To the same general effect are 2 Scott on Trusts, § 238, p. 1329; 4 Bogert on Trusts and Trustees, § 816, p. 2379; 4 Page on Wills, Lifetime ed., § 1593; 2 Schouler on Wills, Executors and Administrators, 6th ed., §1296; Thompson on Wills, 2d ed., §§428, 429; 33 Am. Jur., Life Estates, Remainders, etc., § 294; Restatement, Trusts, § 235.
It is axiomatic that in the construction of wills the testator’s intent is the all-important consideration and that his intention must prevail if not contrary to settled rules of law or in violation of public policy. (Zabel v. Stewart, 153 Kan. 272, 109 P. 2d 177; Jones v. Petrie, 156 Kan. 241, 132 P. 2d 396; Shannep v. Strong, 160 Kan. 206, 214, 160 P. 2d 683.) An equally well-established principle of construction is that in order to ascertain the testator’s actual intent the instrument should be considered as a whole. (Zabel v. Stewart, supra; Selzer v. Selzer, 146 Kan. 273, 69 P. 2d 708.)
Applying the above principles to the instant will we think appellant’s claim was properly denied. In thus concluding we have not overlooked Cooper v. Cyr, 141 Kan. 236, 40 P. 2d 375; In re Estate of Aye, 155 Kan. 272, 124 P. 2d 482, nor other citations relied upon by appellant.
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The opinion of the court was delivered by
.Harvey, C. J.:
This was an action for a declaratory judgment to determine the merchantability of title to certain real property in which it was necessary for the court to construe a certain contract and will made in pursuance thereof and later instruments attempting to rescind the contract and revoke the will. The trial court held the original contract and will were not rescinded and revoked by the subsequent instruments. The appeal is from the judgment based on those findings.
The facts are not controverted and may be stated as follows: George W. Hagerman, a resident of Grant county and the owner of 1,840 acres of land in that county, died intestate on some date late in 1933, leaving as his sole heirs at law his widow, Sallie Hagerman, and his son, George J. Hagerman. The son was married and he and his wife, Wauneta (spelled Juanita in the deed hereinafter mentioned), were the parents of three sons, Fredrick J., Rollin P., and James D. Hagerman, the oldest then about six years of age. Prior to his death George W. Hagerman had frequently expressed the wish that upon his death his widow should have the life use of his property, that thereafter the son should have the use of the property for life, and that the property should pass on the death of the son to the persons who were then his heirs at law; but he had made no provision with respect thereto. Soon after the death of George W. Hagerman the widow, son, and his wife went to the office of a capable, reputable attorney, and Sallie Hagerman advised him the purpose of their visit was that they desired to carry out the wishes of her deceased husband. The result was they had prepared and executed three instruments: (1) A written agreement between George J. Hagerman and Sallie Hagerman; (2) the will of Sallie Hagerman, and (3) a deed. The contract named George J. Hagerman as first party and Sallie Hagerman as second party, recited the facts above stated as to the death of George W. Hagerman, and continued:
“Whereas, it was the wish of the said George W. Hagerman. in his lifetime that upon his death his widow, aforesaid, should have the use and benefit, rents, income and profits, of all of his real estate for and during the term of his [her] natural life; and that upon her death his son, George J. Hagerman aforesaid, should have the use and benefit, and the rents, issues and profits, of such real property for and during the terms of his natural life; and that upon his death the legal title and equitable estate in and to all such real property should vest, in fee simple, in such persons as might at that time be the lawful heirs at law and next of kin of the said George J. Hagerman; and
“Whereas, the parties hereto recognize such disposition of said real property as being beneficial to each of them, and desire to so dispose of the real property of which the said George W. Hagerman died seized as to meet with his wishes as aforesaid:
“Now therefore, in consideration of the premises, and of the mutual covenants and agreements of each other, and of the sum of One Dollar and other good and valuable considerations paid by each of the parties hereto to the other, the receipt and sufficiency of which considerations are hereby acknowledged, it is hereby agreed by and between George J. Hagerman, of Grant County, Kansas, aforesaid party of the first part, and Sallie Hagerman, of Grant County, Kansas, aforesaid, party of the second part; that the said party of the first part shall, concurrently with the execution and delivery of these articles of agreement, convey unto the party of the second part by good and sufficient deed of general warranty, subject to the lawful claims of such persons as may be creditors of the estate of said George W. Hagerman, deceased, an undivided one-half interest in and to all of the real property of which the said George W. Hagerman died seized, as hereinbefore described; and shall at the same time execute and deliver unto the party of the second part a good and sufficient Bill of Sale for all of his interest in and to all of the personal property of which the said George W. Hagerman died seized.
“It is further agreed by and between the parties hereto, for the consideration hereinbefore expressed, that the party of the second part shall, concurrently with the execution and delivery of the warranty deed hereinbefore mentioned, and of these articles of agreement, make, execute, publish and declare a Last Will and Testament, and shall thereby constitute the party of the first part her sole and only legatee and devisee of all of the personal property of which she shall die seized; and shall thereby bequeath and devise unto the said party of the first part the use and benefit, rents, issues and profits, of all of the real property hereinbefore described, and of such other real property as she may die seized and possessed, for and during the term of his natural life; and at his death shall devise and bequeath all such real property, ia fee simple to those persons who shall at the time constitute his lawful heirs at law and next of kin.
“It is further agreed by and between the parties hereto, for the considerations hereinbefore expressed, that during her life time the party of the second part shall not encumber said real property to an extent exceeding the present indebtedness of the estate of said George W. Hagerman, deceased; nor, if the present indebtedness of said estate be decreased', shall said party of the second part thereafter increase the amount of encumbrances against said real property; nor shall she otherwise dispose of any portion thereof; and that the Will of said party of the second part, hereinbefore provided for, shall contain similar provisions restricting the encumbering or disposal of said real property or any.part thereof, by the party of the first part, in excess of the encumbrances existing thereon at the time of the death of the party of the second part.
“It is further agreed by and between the parties hereto, for the considerations hereinbefore expressed, that the Will aforesaid shall not be subject to revocation; and that should the party of the second part remarry she will enter into such ante-nuptial agreement with her intended husband, as will insure the validity of such Will.
“In Testimony Whereof, The Parties hereto have hereunto set their hands on this the third day of January, a. d. 1934.
“George J. Hagerman,
Sailie Hagerman.”
This was duly recorded in the office of the register of deeds of Grant county, Miscellaneous Book 8, at page 81.
On the same day of the execution of the contract, January 3,1934, Sallie Hagerman executed her will, which provided, first, for the payment of her just debts and expenses of last illness and burial; second, she gave to her son all the personal property of which she might die siezed, if he survived her; if not to the persons who would be the heirs at law of her son. The third and fourth paragraphs read as follows:
“Third: I do hereby give, devise and bequeath unto my said son, George J. Hagerman, for and during the term of his natural life, the rents, issues, income, profits, use and benefits, of all of the real property of which I may die siezed and possessed; Provided, However, that said real property, during the life of my said son, shall not be encumbered to a greater amount than the encumbrances existing at the time of my death; nor shall it be encumbered to any extent except the necessary renewal of any mortgages existing at the time of my death; nor shall my said son have the right to otherwise dispose of any portion thereof.
“Fourth: Subject to the provisions of paragraph numbered ‘Third’ herein, I do hereby give, devise and bequeath unto such persons as may under the laws of the State of Kansas constitute the heirs at law and next of kin of my said son George J. Hagerman at the time of his death (including unborn children then in being), all of the real property of which I may die siezed and possessed, to have and to hold the same unto them, their heirs and assigns, in fee simple, forever, and without restriction; but if my said son shall not be living at the time of my death I do hereby give, devise and bequeath all of the real property of which I may die siezed and possessed unto such persons then living (including unborn children then in being) as may at the time, under the laws of the State of Kansqs, constitute his heirs at law and next of kin; it being my intention to dispose of all my real property in such manner that the fee simple title thereto shall pass to those persons who would inherit it under the laws of descents and distributions of the State of Kansas, should my said son out live me and die, intestate, seized and possessed of said real property in fee simple.”
The fifth paragraph appointed her son as executor, to serve without bond. The instrument was properly dated, executed and attested by two witnesses and had endorsed thereon the following:
“The foregoing Will is hereby approved by me as complying with the provisions between said S'allie Hagerman and me, dated January 3rd, 1934, concerning the disposition of the property of my father, George W. Hagerman. Dated January 3rd, 1934. /s/ George J. Hagerman.”
On the same date, January 3, 1934, George J. Hagerman and his wife, Juanita Hagerman, executed to S'allie Hagerman a general warranty deed for a one-half interest in the real property owned by George W. Hagerman at the time of his death, subject to encumbrances of record and provable claims against the estate of George W. Hagerman. This deed was duly recorded January 3, 1934, in the office of the register of deeds of Grant county in Deed Record 26, page 570.
The attorney who prepared the instruments executed on January 3, 1934, testified that Wauneta Hagerman was present during all the negotiations respecting the settlement of the estate of George W. Hagerman, deceased, and the execution of the contract, will and deed, and took part in the discussion, and stated in substance that Mr. Hagerman, George’s father, had little confidence in his business ability and had repeatedly expressed the wish that this property be preserved for such children as he might have at the time of his death, and that she, personally, thought that was a pretty good idea.
Promptly following the execution of these instruments on January 3, 1934, George J. Hagerman turned over to his mother all his interest in the personal property of which his father had died seized. While it is not specifically so stated in the record, we think it reasonably inferable therefrom that from the date of the execution of these instruments on January 3, 1934, Sallie Hagerman had the use, income and control of all of the real and personal property of which her husband died seized, up until August 22,1944, when transactions were had which will be later set out.
Sometime in 1942 George J. Hagerman brought an action for divorce against his wife, Wauneta Hagerman, and respecting his property he alleged in his petition:
“. . . that the parties have no real estate except that the plaintiff will be entitled to the income, use and benefit of certain real estate after the death of plaintiff’s mother, the fee title to which real property will eventually vest in the plaintiff’s children; that all such real estate was owned by plaintiff’s father at the time of his death and that none of it represents the result of the plaintiff and defendant or either of them. Plaintiff further shows the court that plaintiff has but little personal property; that the same consists of certain farm machinery of little value to anyone except the plaintiff, 7 cattle, 16 hogs and a Model 1935 Chevrolet Automobile; . . .”
And in that action Wauneta Hagerman, in her answer, or perhaps cross petition, alleged:
“. . . that the defendant and plaintiff have accumulated by their joint efforts all the property that plaintiff now has, which property includes household goods, pick-up, farm machinery and other property unknown'to this defendant, for which the said plaintiff should account to the said defendant.”
The action was heard and perhaps most of the evidence taken on August 12, 1942, but it was continued along for reasons not here important until December 7, 1942, at which time the court granted a decree of divorce, required plaintiff to pay into court for the benefit of the defendant the sum of $400 and gave to the defendant “all of the property of the parties”; gave plaintiff the custody of the three sons, Fredrick, Rollin and James Hagerman, and gave to defendant the custody of the daughter, Zerita Hagerman.
On August 22, 1944, Sallie Hagerman and George J. Hagerman entered into a contract with Dale L. Morris, W. E. Kirkwood, B. E. Myers, Burt Comer and the Sunflower Petroleum Company, Inc., to sell to them an undivided one-half interest in and to all the oil, gas and other minerals in and under the real property described in the contract and deed of January 3, 1934, except one quarter section thereof.
On the same day, August 22, 1944, George J. Hagerman, as party of the first part and Sallie Hagerman as party of the second part, executed a written agreement which referred to the instruments executed January 3, 1934, recited that Sallie Hagerman desired to revoke her will, that George J. Hagerman was willing to grant to Sallie Hagerman the right to revoke the same in the event the contract of that date was mutually rescinded by the parties, and continued:
“Therefore, for and in consideration of the premises, and the mutual covenants herein to be performed, and the benefits accruing to each of the parties hereto, the parties agree as follows:
“First: It is agreed by and between the parties hereto that the above mentioned contract dated the 3rd day of January, A. D. 1934, between George J. Hagerman and Sallie Hagerman be, and the same is hereby rescinded, annulled and cancelled, and the parties restored to the same position they were prior to the execution and delivery of said contract.
“Second : For the purpose of carrying out the rescinding of said agreement, the said Sallie Hagerman does hereby agree to reconvey to George J. Hagerman the undivided one-half (Vs) interest in and to the above described real property which he owned prior to the time of the execution of said agreement and which was conveyed to the said Sallie Hagerman pursuant to the above mentioned contract.
“Third: It is likewise agreed that the parties hereto shall be restored to the same position that they were prior to the execution and delivery of the above mentioned contract.
“Fourth: Sallie Hagerman, by the execution of this agreement, does hereby revoke the above mentioned Last Will and Testament, and the said George J. Hagerman does hereby consent to said revocation.
“Fifth : It is further understood and agreed' that this revocation of the above mentioned contract and Last Will and Testament and the agreements herein contained shall extend to and be binding upon the parties hereto, their respective heirs, successors and assigns.”
On September 2, 1944, Sallie Hagerman executed an instrument which recited:
“I, ... do hereby revoke the Last Will and Testament . . made by me and dated the 3rd day of January, a. d., 1934, . . .”
This was duly executed by her and attested and subscribed by two witnesses. On the same date, September 2, 1944, Sallie Hagerman executed to George J. Hagerman a general warranty deed for an undivided one-half interest in and to all of the real property described in the original contract and deed of January 3, 1934, which deed was duly recorded in the office of the register of deeds of Grant county on September 5, 1944, in Book 30 of Deeds at page 191.
Sallie Hagerman brought this action against the defendants named in the caption of this opinion. It will be noted that Wauneta Hagerman is not named as a party defendant. The petition set up the matter of the contract and will of January 3, 1934, and pertinent matters which preceded it, the agreement between Sallie Hagerman and George J. Hagerman of August 22, 1944, and the instrument executed by Sallie Hagerman on September 2, 1944, revoking her former will, and stated that on August 22, 1944, Sallie Hagerman and George J. Hagerman had entered into a contract for the sale of mineral interests to the parties previously named; that their attorney, in passing upon the title to the property prior to the closing of that contract, raised a question as to whether the parties could make a- valid renunciation of the contract of January 3, 1934, and whether the plaintiff could legally revoke the will made on that date; alleged there was an actual controversy between the parties; asked the court to construe the instruments and to hold that the contract of August 22,1944, effectively revoked the agreement of January 3,1934, and that the will of Sallie Hagerman had been revoked by that instrument and by the instrument which she executed on September 2, 1944. George J. Hagerman filed an answer which in substance adopted the allegations of plaintiff’s petition. The defendants who contracted to purchase the mineral interests filed an answer asking the court to construe the several instruments, alleged they were ready, able and willing to carry out the contract for the purchase of the mineral interests if the title thereto was marketable, and joined with the plaintiff and George J. Hagerman for the construction of the instruments.
The trial court appointed a guardian ad litem for the minor defendants. He filed an answer, which included a general denial, and alleged the facts with respect to the execution of the instruments of January 3, 1934; that Wauneta Hagerman was present during all the negotiations respecting those instruments, took part in the negotiations and consented to the contract of that date, and joined in the deed of that date to the plaintiff by which she conveyed her inchoate interests as the wife and heir apparent of George J. Hagerman to plaintiff; that the consummation of the contract and performance of its terms were impossible without her consent and participation therein; that she did participate in the negotiations leading up to the execution of the contract, although she did not actually subscribe her name to that document; that in fact the instruments executed as of that date constituted but a single transaction; that Wauneta Hagerman was one of the contracting parties; that her position was changed by reason of the execution thereof; that she surrendered valuable rights by her participation therein, and that she had not consented to the rescission of the contract nor to the revocation of the will; that at the time of the negotiations and execution of the instruments of January 3, 1934, the defendants, Fredrick J., Rollin P., and James D. Hagerman were present, but were at that time children of tender years and perhaps did not comprehend the nature and effect of the instruments; that Zerita J. Hagerman had not then been born; that none of the defendant children had acted upon said contract, deed or will, or changed their position by reason thereof, but that the nature of the' transaction was and is such that no action could have been taken by them, or their position changed at any time prior to the bringing of this action, and that they were at all times mentioned, and are, minors and incapable of legal action; alleged the matters about the divorce hereinbefore mentioned, and that Wauneta Hagerman is still living and that it is impossible to restore her to the position she occupied immediately prior to the execution of the deed of January 3, 1934, and specifically denied that the contract of August 22, 1944, and the purported revocation of the will of Sallie Hagerman has the effect of cancelling the contract of January 3, 1934, and revoking her will of that date, insofar as the answering defendants are concerned.
At the trial both Sallie Hagerman and George J. Hagerman testified that at the time of the contract between them of August 22, 1944, they made no attempt to consult Wauneta Hagerman or any of the minor defendants, or to inform them of what was done.
The trial court made findings of fact and included all matters with reference to the execution of the instruments above mentioned, and further found:
“That in the negotiations leading up to the drawing and execution of such instruments [of January 3, 1934] said Wauneta Hagerman took an active part. If any of the children of defendant George J. Hagerman was present such child or children were too young to understand the nature of the proceedings.”
Also found that:
“An actual controversy has arisen among the parties hereto as to whether or not the transactions hereinbefore set out are such that the contract and Will may be abrogated by mutual consent of Sallie Hagerman and George J. Hagerman. ...
“The transactions culminating in the deed and Will of January 3, 1934, were in the nature of a family settlement, and Wauneta Hagerman was a party thereto, and as such party has not consented to the revocation of said contract and Will nor to a reconveyance of any of the property involved.
“Defendants Frederick J. Hagerman, Rollin P. Hagerman, James D. Hagerman and Zerita J. Hageiman, nor any of them, has indicated unwillingness to accept under the terms of the Last Will and Testament of plaintiff Sallie Hagerman dated January 3, 1934.”
And made the following conclusions of law:
“The consent of Wauneta Hagerman not having been procured, the Will, Contract and Deed dated January 3, 1934, are not subject to revocation as attempted by plaintiff, Sallie Hagerman and defendant, George J. Hagerman.
“The Will of Sallie Hagerman dated January 3, 1934, being wholly beneficial to the heirs at law of George J. Hagerman, acceptance thereof by them is presumed, and therefore is not subject to revocation as attempted.”
The plaintiff and all the defendants except the minors filed a motion for a new trial and also filed a motion for judgment upon the findings of fact. These motions were presented to and considered by the court and denied, and judgment was entered in harmony with the court’s findings of fact and conclusions of law.
The appellants here are the parties who contracted to purchase the mineral deed. Counsel for plaintiff and the defendant, George J. Hagerman, advised the court that they did not care to have a brief filed in this court on their behalf. Whereupon this court appointed H. W. Stubbs, Esq., of Ulysses, Kansas, as guardian ad litem for the minors, with instructions to present a brief on their behalf in this court. This has been done.
We now take up the points argued here. On behalf of appellants it is contended that the contract of January 3, 1934, was solely between Sallie Hagerman and her son, George J. Hagerman. It is pointed out that Wauneta Hagerman did not sign the contract, that all she signed was the deed with her husband to Sallie Hagerman. It is argued that all she lost by doing so was the rights given her by G. S. 1935, 22-108, then in force, or by G. S'. 1943 Supp. 59-505, now in force, to a half interest in the land upon the death of her husband, if she had not joined with him in the deed. We cannot sustain these contentions. The trial court found that what took place at the time those instruments were executed was in the nature of a family-settlement. We approve that view. Such settlements are encouraged and sustained, when it is reasonable to do so. (See Riffe v. Walton, 105 Kan. 227, 182 Pac. 640, and cases there cited.) The doctrine has been approved repeatedly. Aside from that view, however, the evidence disclosed that all three of the parties participated in the discussion with their counsel about what should be done, and all of them agreed upon it. The testimony is uncontradicted that Wauneta Plagerman not only took part in the discussion but that she stated the reason why the decedent wanted a plan of that kind carried out, and that she “thought that was a pretty good idea,” hence she agreed to it. The three instruments should be considered as constituting the agreement of the parties. That is not only apparent from the general situation, but the contract specifically provided that the deed described therein should be executed “concurrently with the execution and delivery of these articles of agreement,” and further provided that the will mentioned in the contract should be executed “concurrently with the execution and delivery of the warranty deed hereinbefore mentioned.” So, the contract itself tied all three instruments together. While the contract might have been drawn for Wauneta to sign it, as well as for her husband and his mother, the fact that it was not so drawn and that she did not sign it does not detract from the fact that it was but one of the instruments embodying the agreement of the parties. (See Roseman v. Neinaber, 100 Kan. 174, 166 Pac. 491.) Neither does it destroy the provisions of the contract itself, which in fact made it necessary for her to join with her husband in the deed. (See Skinner v. Skinner, 126 Kan. 601, 605, 270 Pac. 594.)
Wauneta Hagerman had a greater interest in the real property of her husband than counsel for appellants contend. At the time of the conference which led to the execution of these instruments she had what has been spoken of as an inchoate interest in her husband’s property, an interest not easily defined, but something more than the ultimate right to a share of it and its title upon his death. She had the right to expect that the use and income of it would assist in supporting herself and her children. She had authority to maintain an action to defeat its fraudulent conveyance by her husband. (Busenbark v. Busenbark, 33 Kan. 572, 7 Pac. 245; Flanigan v. Waters, 57 Kan. 18, 45 Pac. 56; McKelvey v. McKelvey, 75 Kan. 325, 89 Pac. 663.) All this was given up by joining in the agreement and in the execution of the deed. It is clear, also, that she was doing it for the benefit of her children, believing, under the circumstances, it would be best for them. Since plaintiffs chose not to make her a party to this action we cannot, and do not intend, to decide her ultimate rights. We consider her connection with this contract only as it applies to the right of her husband and his mother to rescind it without her consent. We think the court correctly held that could not be done.
Appellants contend that whatever the rights of Wauneta Hagerman might have been prior thereto that they were effectively cut off by the divorce decree of December 7, 1942. We think the most the divorce decree did in that respect was to cut off her right to be considered as one of the heirs of George J. Hagerman at the time of his death. Plaintiff had adopted the agreement, deed and will of January, 1934, as showing his only interest in real property. No attempt ha.d been made at that time to rescind the contract of January 3, 1934, nor to revoke the will of that date. Defendant adopted plaintiff’s statement as to his interest in real property. There was no occasion to do more. The decree did not set aside or in any way abrogate the fact that in January, 1934, she had made a contract for the benefit of her children and had given up substantial rights in order to do so. Those rights included, in addition to those previously mentioned, the right to have taken into account in a division of property or alimony allowance in the divorce action the property which she joined with her husband in giving to his mother in order that she might ultimately have greater rights go to her children.
Appellants cite the general rule that when two parties make a contract for the benefit of a third party, who knows nothing about it and never acted upon .it, the contracting parties may rescind their contract, or make a new one which destroyed it, without the knowledge or consent of the third party. We think that rule not applicable here, for as to Wauneta Hagerman there were three contracting parties in January, 1934, and since she had given up valuable rights in the making of the contract she was entitled to be consulted or heard before an attempt was made to defeat the primary purpose which she had in mind in participating in it. The rule contended for is not applicable to the minor children for the reason that they were too young to understand the nature of the contract. There had been no occasion for them to do anything, nor was there anything for them to do, in order to indicate an acceptance of it prior to the matters which occurred on August 22, 1944, and the beginning of this suit; at which time they acted promptly to have the contract of January, 1934, adhered to. The court specifically found that no one of them has indicated an unwillingness to accept under the terms of the contract and will of January, 1934. We concur in the trial court’s conclusion that the contract and other papers executed on January 3, 1934, were made, in substantial part at least, for the benefit of the minor defendants in this action, who might be the heirs at law of their father at the time of his death. Under the facts and the law applicable thereto acceptance of its benefits was by them presumed, and that their father and his mother had no legal authority to rescind the contract and defeat their rights.
There is some discussion in the briefs as to the nature of the rights of these minors. In appellants’ behalf it is contended their rights are contingent ones. We think it is properly so classified, or as vested rights subject to be divested by future circumstances. It is not necessary to decide that distinction here.
Appellants make an argument which leads to the view that the minor defendants really have no interest now. Plaintiff named them as parties defendant and also as representing the class of people who will be the heirs at law of their father at the time of his death. While it is true that no one can foretell the future, or determine with certainty how many of a family will die before another, yet for the present at least we are confident that they have such an interest in this matter that it is proper to make them parties defendant. We need not stop at this time to speculate as to what extent they might bind other persons who prove at some later time to be the heirs at law of their father.
The rule with reference to a third party beneficiary knowing or acting upon the contract made for his benefit is well considered in Restatement of the Law — Contracts, Chapter 6. Section 133 classifies such beneficiaries as “donee beneficiary,” “creditor beneficiary,” and “incidental beneficiary,” and defines each class. Section 135 pertains to the duties created by gift promise. It reads:
“(a) a gift promise in a contract creates a duty of the promisor to the donee beneficiary to perform the promise; and the duty can be enforced by the donee beneficiary for his own benefit; (b) a gift promise also creates a duty of the promisor to the promisee to render the promised performance to the donee beneficiary.”
In the comment (a) it is said:
“No assent by a donee beneficiary to the contract or knowledge on his part of its existence is necessary to give him a right of action on it.”
And in section 139 the rule is thus stated:
“It is not essential to the creation of a right in a donee beneficiary . . . that he be identified when a contract containing the promise is made.”
Other sections of the chapter deal with the duty of the promisor to a creditor beneficiary, and also discuss the rights of incidental beneficiaries. The rules above stated make it clear that in the contract made by Sallie Hagerman and her son of January 3, 1934, the minor defendants in this action were donee beneficiaries, and it was not necessary to the validity of such a contract that they have any knowledge of its existence. Neither is it necessary that the ultimate beneficiaries be identified. In this connection see, also, Waterman et al. v. Morgan et al., 114 Ind. 237, 16 N. E. 590.
We agree with the trial court’s conclusions of law and hold that the contract between George J. Hagerman and his mother, Sallie Hagerman, of August 22, 1944, by which they attempted to rescind their contract of January 3, 1934, is invalid. The same holding applies to the deed executed by Sallie Hagerman to George J. Hagerman dated September 2, 1944. We also hold that the instrument executed by Sallie Hagerman on September 2, 1944, in which she .attempted to revoke her will, was in violation of the contract of January 3, 1934, and ineffective to abrogate the contract.
Counsel for appellants call our attention to the rule that it is one of the 'characteristics of a will that it is ambulatory in its nature and is subject to revocation later by the testator. That rule has been recognized in Menke v. Duwe, 117 Kan. 207, at page 216, 230 Pac. 1065. In Nelson v. Schoonover, 89 Kan. 388, 131 Pac. 147, where a will was made in pursuance of a contract and the testator later made another will revoking the first, it was held the first will could not be probated as a will for the reason that it had been revoked, but the contract, in accordance with which it was made, could be enforced, and that the later will was of no validity except as to an item not included within the contract.
See, also, Braden v. Neal, 132 Kan. 387, 295 Pac. 678, where a childless husband and wife, each of whom had substantial property, made an oral agreement that neither would make a will while both lived, but that the survivor would make a will leaving all the property to certain relatives of the husband and certain relatives of the wife. After his death she made a will or otherwise disposed of all the property to her relatives. The will was admitted to probate and an executor was appointed. The relatives of the husband, who would have been benefited by the will had it been made in accordance with the original agreement, brought an action in the district court to establish their contract and to have the property divided in harmony with it. Considering a demurrer to the petition, this court held that the action could be maintained.
Perhaps beginning with Anderson v. Anderson, 75 Kan. 117, 88 Pac. 743, there are a number of decisions in our reports which enforce contracts to make wills.
This is an action under our declaratory judgments statute (G. S. 1935, 60-3127) for a binding adjudication of rights, and upon the record before us we do no more.
In the trial court the guardian ad litem appointed for the minors, in addition to filing the answer previously referred to herein, filed a cross petition setting up all the facts and praying that the contract of August 22, 1944, of George J. Hagerman and his mother, purporting to cancel their contract of January 3, 1934, be set aside; also, that the instrument executed by Sallie Hagerman on September 2, 1944, attempting to revoke her will be set aside, and that the instruments executed January 3, 1934, be adjudged binding. An answer, consisting of a general denial, was filed to that cross petition, but no further attention was given to it in the trial court. We understand that branch of the case has not been disposed of and is still pending in the trial court. Perhaps, in view of our decision, the parties will take such action as to make the further consideration of this branch of the case unnecessary; if not, it should be tried out.
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover damages, both actual and punitive, alleged to have been sustained when a stream and the underground water supply of a farm of which plaintiff was tenant were polluted by the discharge of waste products from a creamery operated by defendant. Judgment was for plaintiff. Defendant appeals.
The amended petition (referred to hereinafter as the petition) purported to state three causes of action. After the formal allegations the first cause of action alleged that the plaintiff was a tenant living on and farming a described half section of land just south and east of the city of Hillsboro; that this city operated a sewage disposal plant just north of plaintiff’s farm; that this city disposal plant drained into a small creek which flowed through a part of plaintiff’s farm about three hundred feet from the house. The petition then alleged that plaintiff had rented this farm on a year-to-year basis, but that on March 1, 1942, he was in doubt about whether to rent the place again on account of stream pollution that had occurred in 1941, but that the city of Hillsboro enlarged its sewage plant and started its operation about February 2, 1942, and the state board of health advised plaintiff that final inspection indicated it would operate so that no nuisance" would be created, whereupon plaintiff entered into a five-year lease for the land in question for a period from March 1, 1942, to March 1, 1947. The petition then alleged that defendant operated a creamery plant in the city of Hillsboro and emptied its waste products into the sewer system of the city; that in the spring of 1941 the defendant without treating its waste products dumped about 15,000 gallons of creamery waste a day into the sewer system, which overloaded the sewage plant, causing increased biochemical oxygen demand content of the effluent of the plant far beyond the average domestic sewage; that the average domestic sewage runs around twenty parts per million while this effluent was about one hundred parts per million. The petition then alleged that beginning about June 1, 1941, the pollution from the sewage plant reached plaintiff’s farm, which was about a mile from the plant, at which time the water in the creek became murky and developed a pigpen odor and a black sludge appeared on the water and the banks of the stream; that during the summer of 1941 the defendant continued to dump its waste into the sewer polluting the stream which ran through plaintiff’s farm even though it had advised the state board of health it would cease overloading the plant; that as a matter of fact defendant enlarged its plant so that its washings rose to an average of 34,000 gallons a day while its milk receipts increased from an average of 3,000 pounds in May, 1941, to 18,000 pounds in June, 1942, while its cheese production rose from an average of 2,000 pounds in May, 1941, to 15,000 pounds in June, 1942. The petition next alleged that as a result of this pollution of the stream the underground water supply on the farm became polluted, the exact date of which plaintiff did not know; that the underground water supply became so polluted in the summer of 1942 that plaintiff’s hogs and chickens began to die from drinking well water. The petition then alleged various amounts of damage to hogs and chickens, amounting to $481.25, all of which was the result of the pollution of plaintiff’s water supply; that defendant had overloaded the sewage plant and caused scum and sludge which in 1941 caused the itemized loss of chickens in the amount of $422.50, loss of egg production of $360, required the purchase of poultry medicine in the amount of $25, retarded the growth of lambs, causing a loss of $135, caused a reduction in the increase of older sheep resulting in the loss of $36, required extra feeding in the amount of $92, caused a decrease in milk production in the amount of $128, all of which amounted in the aggregate to $1,198.50. The petition then alleged that to stop his hogs and chickens from dying plaintiff was compelled to haul water for thirty-six weeks, at a cost of five dollars per week, or a total of $180. In this cause of action plaintiff prayed for damages in the amount of $1,759.75.
In the second cause of action plaintiff made the allegations of the first cause of action a part thereof and then alleged that the excessive pollution caused the development of an obnoxious odor, stench and pig smell; that plaintiff and his family were subjected to this foul odor from about June 1, 1941, to the date of the filing of the petition; that it was worse in summer than in winter. Plaintiff prayed for $2,000 damages in this cause of action.
In the third cause of action plaintiff after reference to the allegations of the first and second causes of action alleged that the defendant through its agent, with full knowledge that the wastes from its plant were causing the pollution of the stream on plaintiff’s land, negligently refused to take any action to stop the pollution, but continued to empty creamery wastes into the sewer in violation of a city ordinance and contrary to the instruction and advice of the state board of health. In this cause of action plaintiff asked for punitive damages in the amount of $5,000.
To this petition defendant filed a general denial. The answer then alleged that in 1930 the defendant constructed and began operating the creamery plant in question; that by agreement with the city it had continuously discharged certain waste products from this plant into the sewer system of the city, but that it never emptied any of these waste products into the sewer system without treating them, and the answer denied that defendant had ever emptied excess amounts into the sewer system or that plaintiff had ever suffered any loss on account of negligent conduct of defendant, and that if plaintiff had suffered any loss the action was barred by the statute of limitations. The answer then alleged that the causes of action stated in plaintiff’s petition were the identical causes of action alleged in another action in which plaintiff in this case was plaintiff and the city of Hillsboro was defendant and in which plaintiff recovered damages in the amount of $750, which judgment had been satisfied and paid. “The answer then alleged that on account of the foregoing judgment the causes of action alleged in plaintiff’s petition were barred by the doctrine of res judicata. The answer then alleged that at the timé plaintiff entered into the lease for the farm in question plaintiff knew that defendant was discharging certain of its washings into the sewer system in question, and that the remaining refuse was being discharged into the creek in question and that if plaintiff suffered any loss thereby he voluntarily assumed such risk.
For a reply plaintiff first denied all new matter, then alleged that the action against the city, reference to which was made in the answer, was for pollution of the stream for a period of about June, July and August, 1941, and not for any itemized damage; that about February 1, 1942, the reconstructed sewage plant was completed by the city and inspected by the state board of health who informed plaintiff it would be adequate to care for sewage then entering the plant, including the sewage of the defendant, and plaintiff did not learn until after he had signed the lease that defendant was again overloading the sewage plant.
When the case came on to be tried, before any evidence was introduced, defendant filed a motion for judgment on the pleadings upon the grounds that plaintiff’s causes of action were barred by the statute of limitations and that the causes of action were res judicata. The petition in the case of Klassen v. City of Hillsboro was made a part of this motion. As far as necessary for our purposes this last-mentioned petition stated about the same facts as those pleaded in the petition in the present action except that the cause of action against the city was made to depend on the negligence of the city in operating an inadequate sewage plant and the time of the damage was alleged to,be from June 12 to September 12, 1941, and there was no reference to pollution of the underground water supply. The damages alleged to have been sustained were itemized as loss of chickens $422.50, loss of egg production $360, purchase of poultry medicine $25, growth of lambs retarded $135, reduction in the increase of older sheep $36, extra feeding $22, decrease in milk production $128, or a total of $1,128.50. The second cause of action spoke of the foul odors from June 1, 1941, to September 12, 1941, and asked for $1,000 damages; the third cause of action alleged that the city continued to permit the company to overload the sewage plant knowing all the time that it was polluting the stream, to plaintiff’s damage. Plaintiff asked $1,000 punitive damages in this cause of action.
This motion for judgment on the pleadings was sustained by the trial court on the ground that the plaintiff’s causes of action were each of them res judicata on account of the judgment in the former action, to which reference has been made. Plaintiff was given twenty days to file a second amended petition.
Plaintiff filed an amended petition (second amended petition) which alleged in the first cause of action that the underground water supply of plaintiff became polluted and that the first damage to plaintiff from this pollution occurred in the summer of 1942. This damage was itemized as loss of hogs $192, loss of hens $93.75, loss of pullets $57.50, loss in egg production $108, veterinary services $30, hauling water thirty-six weeks at five dollars a week $180, hauling water in 1943, thirty weeks, a total of $150. The total plaintiff claimed for damages to livestock was $811.25. In the original petition he had asked for $1,759.75 for such damage. In the second cause of action in the amended petition plaintiff alleged that he and his family were subjected to obnoxious odors during the summer months of 1942 and 1943. In the original petition and in the petition against the city he had claimed damages for injuries occurring during 1941. The allegations in the third cause of action of the amended petition were substantially the same as in the original. To this amended petition defendant filed a general demurrer on the ground that it did not state a cause of action against the defendant and that each' cause of action was res judicata.
In its memorandum opinion overruling this demurrer the trial court pointed out that after the trouble of 1941 the sewer system was enlarged by the city and approved by the state board of health as being of sufficient capacity to treat and t^lce care of the ■ sewage from the city, but that after its enlargement the defendant enlarged the capacity of the plant and deposited so much more waste matter that the stream and water supply of plaintiff became polluted. The trial court pointed out that the defendant urged as grounds for its demurrer that plaintiff had actual knowledge of conditions at the time he leased the premises and assumed the risk; that defendant had no control over the sewage after it left its plant; that the causes of action stated were res judicata; and that since no specific damages were stated in the second cause of action it must fail. The trial court then held that in view of the allegations that the city had enlarged its plant, and the state board of health had approved it before the plaintiff signed his lease, and that the damage claimed was alleged to have been caused by the enlargement of the creamery plant, plaintiff could not be held to have assumed the risk, and that since the petition alleged that the cause of the damage was from refuse which defendant created upon its own premises the fact that the waste matter reached the plaintiff’s premises through the city’s sewer was no de fense. The trial court then pointed out that the amended petition asked for damages for injury to different property and on different dates than were claimed in the action against the city, and that the causes of action stated therein .were not res judicata. The trial court further held since in the second 'cause of action plaintiff sought damages on account of offensive smells, to which he and his family were subjected, plaintiff might recover even though no pecuniary loss was alleged or proven.
The demurrer of defendant to the petition was overruled.
The answer of defendant to the amended petition pleaded substantially the same defenses that were pleaded in its answer to the first petition. The reply of plaintiff was substantially the same.
When the action came on for trial defendant filed a motion for judgment on the pleadings, argued that there was no material change between this petition and the first petition. This motion was overruled.
At the close of the evidence defendant requested the following instruction:
“You are instructed that, if the Plaintiff suffered injury, and that said Plaintiff submitted voluntarily to known dangers from the pollution of the stream on Wall Creek, described in Plaintiff’s Second Amended Petition, with the realization of the risks, assented and voluntarily placed himself or his property, knowing of the peril or danger complained of, the said Plaintiff can not recover damages, and it will be your duty to find for the Defendant.”
This instruction was refused. Only two forms of verdict were submitted to the jury, one for the foreman to sign if the jury-found for the defendant and one for him to sign if it found for the plaintiff. The jury returned a verdict in favor of plaintiff in the amount of $830. Defendant’s motion for a new trial was overruled and judgment entered for plaintiff in the amount of the verdict. Hence this appeal.
Defendant first argues that the trial court erred in granting plaintiff leave to file an amended petition and that its demurrer to the amended petition should have been sustained. The basis of this argument is that the causes of action stated in the amended petition were adjudicated in the former action wherein the plaintiff in this action obtained judgment against the city. In connection with this argument defendant cites and relies on authorities where we have held that an entire claim arising from a single wrong cannot be divided and made the subject of several suits no matter how numerous the items of damage. We find no fault with those aü thorities. The difficulty is in applying them to the facts in this case. The action against the city was for damages sustained in 1941. This action is for damages sustained in 1942 and 1943. The action is for damage to specific personal property, not permanent damage to real estate. To hold as argued by defendant would mean that a defendant could maintain a nuisance to the damage of his neighbor and should he be compelled to pay damages on one occasion he could then with impunity maintain the same nuisance to the end of time. Such is not the law. In McDaniel v. City of Cherryvale, 91 Kan. 40, 136 Pac. 899, a landowner had sued for permanent damages to his real estate on account of stream pollution. On the question with which we are now concerned it was said:
“He could have elected to have sued for temporary damages sustained within the statutory period preceding the bringing of the action, and for any subsequent injury or loss an additional action might have been brought. He chose, however, to treat the injury as permanent in character and brought a single action to recover for all present and prospective damages to his land.” (p. 43.)
See, also, Jeakins v. City of El Dorado, 143 Kan. 206, 53 P. 2d 798. Laying aside the fact that one action was brought by plaintiff against the city, while the other one was brought by the same plaintiff against the creamery company, thus preventing the two actions from involving identical parties, they were not identical causes of action. The underlying theory of the doctrine of res judicata is that no man is entitled to have the same questions tried more than once. In this case the issues of fact and law were altogether different.
Defendant next argues that its demurrer to the amended petition should have been sustained because under the allegations of the petition plaintiff knew the condition of the stream flowing through his farm at the time he entered into his lease and he knowingly assumed the risk of incurring such damage. Plaintiff stated that at the time he signed the lease in 1942 he had been informed by the city and the state board of health that the city had enlarged its sewer system so as to take care of the waste products from the creamery. This cause of action really depends on the allegations that after this enlargemeilt of the sewer system the company increased its capacity so that as far as pollution was concerned the parties at the beginning of the summer of 1942 were right back where they were in 1941. Plaintiff did not assume the risk from a situation about which he had no warning. Furthermore, the rule is as stated in 46 C. J. 738, as follows:
“The early common law, which regarded a nuisance only as an injury to some interest in land, gave this remedy only to persons having interests in lands; and in the common-law action, by writ of nuisance, the declaration had to show that plaintiff had a freehold estate in the premises affected by the nuisance. The tendency of the American courts is to break away from the early common-law rule, and it is now generally held that a lawful possession, although unaccompanied by any title, is sufficient to support an action for damages for interference with the lawful enjoyment of the premises by the person in possession, but not for an injury to the fee, or for injuries which occurred prior to the time he acquired possession or was entitled to possession.
“A lessee is entitled to recover damages sustained by him during his tenancy from the maintenance of a nuisance which affects his enjoyment and use of the premises, although he leased the property or renewed his lease thereof after the creation of the nuisance, and with knowledge of its existence, for a tenant who ‘comes to a nuisance’ should be accorded the same degree of protection as one who purchases property near an existing nuisance. But as a corollary to the rule that the landlord is the proper person to sue for a diminution in rental value where, by reason of the nuisance, he has been compelled to make a reduction in the rent, the tenant in such a case cannot recover for such diminution in the value of the property to him, unless there is an express agreement between him and the landlord giving him the right to sue therefor, or unless the nuisance is increased during his tenancy.”
See, also, Bly v. Edison Electric Illum. Co., 172 N. Y. 1, 64 N. E. 745, 58 L. R. A. 500; Hoffman v. Edison Electric Illuminating Co., 84 N. Y. S. 437, 87 App. Div. 371; Darr v. Cohen, 158 N. Y. S. 324, 94 Misc. Rep. 471; and Ruben v. Brighton Place Dairy Co., 13 N. Y. S. 2d 833, 257 App. Div. 1034.
Defendant next argues that its demurrer to the plaintiff’s petition should have been sustained because under its allegations it emptied its waste products into the sewer system of the city and since it had no control over its waste products after they entered this sewer system it cannot be held liable if this sewer system was operated negligently and was not adequate to properly take care of this waste.
This court considered an argument similar to this in Berry v. Shell Petroleum Co., 140 Kan. 94, 33 P. 2d 953. There an oil company had emptied its salt water into the sewer of a city. While flowing through part of this sewer system some of this salt water seeped into the soil and finally damaged the plaintiff’s water supply. In an action for damages we pointed out a statute that forbade oil companies permitting their salt water to escape from their premises, but held that the company would have been liable even had there been no statute, under the doctrine of Fletcher v. Rylands, L. R. 1 Exch. 265, (1866). There are allegations that the creamery plant brought into being waste products that were dangerous and likely to cause damage if permitted to escape. Under such circumstances it was the duty of the company to take care that these products did not escape or that they were so treated that when they left its property they had lost their capacity to do damage. The fact that before reaching the farm of plaintiff these harmful waste products flowed through the sewer system of the city does not excuse the defendant, which created them, and permitted them to escape. See, also, State Highway Comm. v. Empire Oil and Ref. Co., 141 Kan. 161, 40 P. 2d 355.
Defendant next argues that the trial court erred in overruling its demurrer to plaintiff’s evidence. It first argues that there was no evidence to prove that the underground water supply was polluted. We must examine the record in connection with this argument. In doing so we shall not weigh evidence and we will indulge all presumptions and draw all inferences favorable to the plaintiff. If there was substantial evidence to establish this allegation of the petition then the trial court was correct in overruling the defendant’s demurrer to plaintiff’s evidence. On this particular point the plaintiff testified that in 1942 he used water from a well about two hundred feet from the stream to water his livestock; that in June, 1942, he began to lose hogs; that he used water from a well about two hundred and fifty feet from the stream for his chickens and in 1942 the chickens began to die; that when he began to haul water for his hogs and chickens from his neighbor’s well he did not lose any more hogs or chickens. Hogs and chickens do not die from drinking water unless there is something the matter with it. It is not necessary that there be a chemical analysis as to whether the water was polluted to make a case to go to the jury. There was ample evidence that the water in the stream was polluted. There was also evidence that the well water had the same general appearance as the water in the stream. On a demurrer to the evidence this was sufficient to warrant the trial court in overruling it.
Under this head defendant next argues that even if the water was polluted there was no evidence that such condition was the result of any negligent or improper conduct on the part of defendant. Liability of the defendant does not depend on negligence in this action. Berry v. Shell Petroleum Co., supra. It is sufficient if defendant brought products into being that were able to damage people and that it permitted them to escape from its premises to injure plaintiff. Here there was testimony of representatives of the state board of health that the substance found in the water on plaintiff’s farm was creamery waste. As we have already pointed out there was substantial evidence on the other points raised.
Defendant next argues that its demurrer to the evidence should have been sustained because there was no evidence that plaintiff’s hogs and chickens died from drinking well water or that any of the alleged items of damage, as set forth in the first cause of action, were the result of pollution of the underground water supply. What better proof could there be than the fact that the stock had not died before the pollution came even though they drank water from these wells', that they died after the pollution came, and that after the rest of the stock began to use water from a different source the losses stopped?
Defendant next argues that there was no allegation or proof that the plaintiff suffered any loss or damage on account of the odor emanating from the stream — hence its demurrer to the petition as to the second cause of action should have been sustained on that ground and further that its demurrer to the evidence as to this cause of action should have been sustained. It will be remembered that this was the cause of action in which plaintiff asked $2,000 damages because the pollution created an obnoxious odor, stench and pigpen smell in plaintiff’s pasture and the plaintiff and his family were subjected to this foul odor during the warm months of 1942 and 1943 and plaintiff and his family had to close up the house on sultry nights to keep out the offensive smell. Defendant argues that there is no allegation of damages here for which plaintiff could be compensated and further that there can be no award of damages except in compensation for loss or injury sustained.
It is noted there were no motions directed at this cause of action to make it more definite and certain. Hence it must be liberally construed.
This cause of action stated the maintenance of a nuisance. See McMullen v. Jennings, 141 Kan. 420, 41 P. 2d 753, where we said:
“In the operation of such an elevator it is a nuisance to unreasonably pollute the air with dust having a foul odor or with other offensive substances, to the annoyance, damage or harm of the owners or occupiers of adjacent lands in the use and enjoyment of the properties, and in determining whether it is unreasonable, the annoyance is measured by what would unreasonably disturb the ordinary and usual comforts of persons of normal tastes and sensibilities.
“Permitting large quantities of dust having noisome qualities to escape and settle upon adjacent properties may constitute a nuisancce.” (Syl. ¶¶12, 3.)
See, also, Jeakins v. City of El Dorado, 143 Kan. 206, 53 P. 2d 798. It is not necessary to enable one to recover damages for the maintenance of a nuisance such as this that he be compelled to call a doctor or expend money for medicine. Members of the public have a right to be free from such an annoyance and whoever invades this right may be compelled to respond in damages.
Defendant next argues that the trial court erred in failing to instruct the jury that it could not return a verdict for exemplary damages unless it found plaintiff entitled to actual damages.
We have examined the instruction given by the court on this point. It might very well have been more specific. The record does not disclose that defendant objected to this instruction when it was given, nor did it offer or request an instruction on the subject. Furthermore, the plaintiff proved that he had sustained actual damage.
Defendant next argues that the trial court erred in not submitting to the jury separate forms of verdict with respect to each of the causes of action.
The record does not disclose that counsel for defendant requested that additional forms of verdict be submitted nor did they request that the form of verdict or instructions be submitted to them. G. S. 1935, 60-2909, subsection 5, provides, in part, as follows:
“Before reading the instructions to the' jury, the court shall, when requested, submit the same to counsel on either side and give counsel a reasonable time to suggest modifications thereof.”
That statute contemplates that if either party to an action being tried thinks that the instructions are not full and complete, he should request modification of them, and that if he does not request such a modification, he cannot complain of them.
Furthermore, the defendant did not request that any special questions be submitted to the jury, as it had a right to do. The plaintiff. prayed judgment for compensatory damages in the amount of $811.25. If the jury believed his witnesses there was ample evidence to sustain a verdict for this amount. The verdict was for $830, not quite $20 more than plaintiff proved his actual damages to be. Under the circumstances, it was not reversible error for the court to fail to submit a different form of verdict for each cause of action.
The points raised in the argument of defendant that the trial court erred in overruling its motion for a new trial have already received consideration in this opinion.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to 'reform a deed and to quiet title to real estate. Judgment was for defendants. Plaintiffs appeal.
The tract in question was a town lot about thirty-five feet wide and about one hundred feet long. The petition alleged that defendants through their duly authorized agent entered into a contract with plaintiffs for the sale of the lot for $2,550; that the agent for defendants drew the contract and at the time it was executed by the agent for defendants and plaintiffs they paid him' $200 in accordance with its terms. The petition further alleged that defendants delivered to plaintiffs a deed which purported to comply with the contract and that the lot in question was described in the deed, as follows:
“A fraction of Block Seven (7), of the original townsite of Belleville, Republic County, Kansas, described by metes and bounds, as follows: Commencing at a point four feet west of the southwest corner of lot six (6) of said block, thence running north one hundred and eight (108) feet, thence west thirty-five feet, thence south one hundred eight (108) feet, thence east to the point of the beginning.”
The petition further alleged that plaintiffs believed the deed contained the correct description of the lands intended to be conveyed and accepted it; that the deed did not contain a correct description; that such incorrect description was used through the mutual mistake of the parties or by mistake of the plaintiffs induced by the fraud and concealment of the defendants and their agent; that plaintiffs relied solely upon defendants to furnish a deed containing a correct description, which should have been as follows:
“A fraction of block seven (7), of the Original Townsite of Belleville, Republic County, Kansas, described by metes and bounds as follows: Commencing at a point ninety-nine and seven tenths feet (99.7) west of the Southeast corner of lot six (6) of block seven (7), thence north one hundred eight (108) feet, thence west thirty-nine and three tenths feet (39.3), thence south one hundred eight feet (108), thence east to the point of beginning.”
The petition also alleged that plaintiffs paid $200 to the agent upon the signing of the contract and $1,100 upon the delivery of the deed and delivered their note secured by a mortgage on the lot for $1,250 due three years from date; that upon delivery of the deed and the payment of the above sums the plaintiffs were given possession by the defendants and entered upon the premises. The petition further alleged that in order to make the deed conform to the actual intentions of the parties it should be reformed so as to contain the description set forth in the contract; that they have requested defendants to execute such a deed but they refused to do so. The petition further alleged that the plaintiffs were the owners and in actual possession of the land described; that the defendants claimed some right of ownership therein and whatever claim they had was inferior and subject to the title of plaintiffs. The prayer was that the deed be reformed and the plaintiffs’ title be quieted against any claim of defendants. The contract in question was attached to the petition. It provided that the first parties agreed to sell the land in question to the second parties for $2,550 and stated that the exact description could not be given at that time but' that the tract was approximately as follows:
“Beginning at a point about 104 feet west of the southeast comer of -lot 6 of block 7 of the original townsite of the city of Belleville, Republic County, Kansas, .thence north past the west end of the hospital building on a line one feet west of the west foundation of the same after the porch on the west end is removed, and thence north to a point 2 feet south of the garage, thence west to a point 2 feet west of the garage thence north to the north side of the property owned by the first parties, thence west to the Ira Hinks property thence south to the southeast corner of the last named property and thence east to the place of beginning. It being understood that the frontage of said tract being sold is at least 35 feet.”
The contract then set out the terms of the sale and also provided that the exact description of the tract would be thereafter ascertained by agreement between parties and if it was necessary a surveyor would be procured to ascertain the proper location at the expense of the parties of the first part. The deed was also attached, which contained the usual warranties and the description which has heretofore been set out in this opinion.
The defendants answered first that the action was in personam and not one concerning real estate; then a general, denial; and a further denial that the agent in question was the duly authorized agent of the defendants; that they did not execute or authorize the execution of the contract which was attached to the petition; that defendant Emma R. Munford was the owner of the tract described in the deed and also the tract immediately east of it, described as follows:
“Beginning at the southeast corner of said block 7 of the city of Belleville, Republic County, Kansas, thence west 104 feet, thence north 108 feet, thence east 104 feet thence south to the place of beginning.”
The defendants answered also that the above-described tract was contiguous to the land bought by plaintiffs and owned by Emma R. Munford for at least ten years prior to the making of the deed and the two tracts had been continuously occupied by defendants as their homestead and after the execution and delivery of the deed, exhibit “B,” the defendants continued to hold their homestead rights in the balance of the premises not conveyed by the deed; that an abstract was furnished plaintiffs which covered the real estate described in the deed and this abstract and deed were approved and accepted by the plaintiffs shortly thereafter; that the plaintiffs before and after receiving and recording the deed made independent investigations concerning the description set forth in the deed and accepted it and moved onto the property, and by their conduct and acts had ratified and approved the description set forth and if there was any error, which defendants denied, the plaintiffs by their acts were estopped from questioning it; that in November, 1944, Emma R. Munford agreed to sell to one C. C. Thomas the tract of land lying immediately east of the tract described in exhibit “B”; that this contract was made prior to the time that these plaintiffs made any claim as to any erroneous description; that Thomas became the bona fide purchaser of the premises; had made a substantial payment on the purchase price and that defendants had executed a deed to him for this land, part of which was being claimed by the plaintiffs. The answer also alleged that defendants were willing to take back the real estate conveyed and to return to plaintiffs the money that had been paid on the contract by plaintiffs.
The plaintiffs replied admitting that the real estate described in the answer was owned by the defendants prior to the execution of the contract and deed set out in plaintiffs’ amended petition and alleged that the contract and deed were each a part of a single transaction and that defendants gave their joint consent to this deed and contract; that the defendants had accepted the benefits of the contract marked exhibit “A” and recognized it as binding and had never questioned its validity or the authority of their agent until after the commencement of this action; that defendants were es-topped to deny the authority of their agent or to question the validity of the contract.
The trial court made findings of fact and conclusions of law in favor of defendants. Plaintiffs moved for judgment on the findings and admitted facts. This motion was overruled and judgment was rendered for defendants. Plaintiffs’ motion for a new trial was overruled. Hence this appeal.
The defendants had owned a tract of land one hundred thirty-nine feet long and about one hundred feet wide. It is generally spoken of in this record as a part of the south half of block 7 in the original townsite of Belleville. On this tract near the southwest corner is located what is spoken of as a small dwelling house. To the east of this small house with its west wall 13.3 feet distant from the east wall of the dwelling house is a house which is spoken of in the record as a hospital. It is also used as a dwelling house. The defendants sold to plaintiffs the small dwelling house to the west. The dispute in the case is as to how much land was sold with it or, stated another way, the dispute is as to the location of the east line of the tract that was sold. As long as defendants had owned the land in question it had never been divided. It was just a tract one hundred thirty-nine feet east and west and about one hundred feet north and south. The first description chronologically with which we are concerned is the one which appears in the contract exhibit “A.” It will be noted that this description begins at a point one hundred and four feet west of the southeast corner of the tract. As far as that much of the description is concerned one to understand it would naturally hunt up the southeast corner and measure west. After locating the place of beginning, however, the description stated that the line which would be the east line of the tract being sold to plaintiffs would run north on a line one foot west of the west line of the hospital. One reading this description could not very well help concluding that the east line of the property being sold was to be just a foot west of the hospital. It is true there was a jog in this line toward the north because a garage was located on the line. This, however, was adjusted to the satisfaction of all parties before the deed was given. The description after reaching the north line provided that it should extend west to the Ira Hinks property, thence south to the southeast corner of the Ira Hinks property, thence east to the place of beginning. It is clear that this described all the land owned by defendants from a line one foot west of the west line of the hospital on west to the Hinks land. Further weight is given this by the fact found by the trial court that at the time the contract was executed the agent at the request of one of plaintiffs changed the figure “2” to a “1”, in speaking of the distance the east line of the property being sold was to be from the west wall of the hospital. Another change was also made at that time as to the distance the line was to be from the garage. This contract was drawn by the agent for defendants. It was duly executed by plaintiffs in their own behalf and by an attorney in Belleville, who had drawn the contract, as agent in behalf of the defendants, who were living in California at the time. The trial court found that no written authority was given the lawyer to contract in their name for the sale of their real estate. As told in the findings of the trial court the lawyer sent a copy of the contract to defendants and advised them it had been executed; that defendants read the contract and decided to make the sale; that the east line of the tract should be further west than provided in it and that Mrs. Munford should come to Belleville, fix this line by measurement and complete the sale; the court found that they understood they were not bound unless the boundary line could be fixed to their satisfaction. Mrs. Munford came to Belleville and had a number of conversations with plaintiffs with reference to giving possession and with reference to moving the garage so that the east line of the tract would be a straight line. Soon after her arrival in Belleville Mrs. Munford caused a surveyor to locate the southeast corner of the block and to fix a point one hundred and four feet west of it. This turned out to be 5.3 feet west of the west line of the hospital. She determined that this should be the dividing line or the east line of the tract being sold to plaintiffs; none of the facts were communicated to plaintiffs but they were advised that defendants would convey to them in performance of the contract and the agent of defendants would leave the deed and other papers at the bank for settlement. Plaintiffs went into possession of the tract about June 1, 1944. On June 14, 1944, an official of the bank handed them a deed for it, which Mr. Hough read. At -that time he paid the bank $1,100 and they both executed a note and mortgage for $1,250. Plaintiffs had previously caused the abstract and title to be examined by their attorney and also the contract, exhibit “A.”
The description of the land, which was contained in this deed, now becomes important. It has been heretofore set out in this opinion. It should be noted in passing that it commences at a point four feet west of the southwest corner of lot 6. This is a different starting point than was used in the description in the contract. The description then provided that the line should run from the point of the beginning one hundred and eight feet north. It will be. remembered that the description in the contract said that this land would be on a line a foot west of the west boundary of the hospital. The description in the deed avoided any such reference as to how far distant from the hospital the line would be. Actually the east line as provided in the deed was 5.3 feet west of the hospital. It ran from the point one hundred and eight feet north of the place of the beginning west thirty-five feet, then south one hundred and eight feet, then east to the place of the beginning. One not skilled in discerning differences in descriptions of real estate would not understand that this east boundary line .was changed from what the contract provided. The court found that no one made any statement to. either of the plaintiffs as to this description or as to the location of the east boundary line except that when the deed was offered to be recorded there was some discussion as to its certainty. The court found that plaintiffs inspected the premises before taking possession and had been in possession about two weeks before they accepted the deed and that reasonable inspection by them would have disclosed that the east boundary line as stated in the deed would be considerably more than a foot west of the boundary of the hospital building. Plaintiffs continued to occupy the premises and pay taxes and pay interest. The only means of access to the premises is from the south adj acent to the public street. There was no. evidence offered as to room for a driveway from the north but the court found from its common knowledge that there would not be room for a driveway on plaintiffs’ land under the description in the deed. The porch on the west side of the hospital was removed according to agreement.
The court further found that on November 13, 1944, which would be about five months after the deed was given to plaintiffs, Mrs. Munford contracted to sell the east one hundred and four feet of her premises to one C. C. Thomas for $5,750 and that he paid her $3,000 at that time; that shortly after'this Thomas employed the county engineer to fix the corner and the engineer found that the west boundary line of this tract would be 5.3 feet west of the west side of the hospital. While this survey was being made Mrs. Hough learned from the engineer that part of the ground which he thus found to be in the tract that was being sold to Thomas was land which she and her husband understood they had bought. After some correspondence this action was brought. The plaintiffs asked to have their deed reformed so as to convey 39.3 feet in width in place of thirty-five feet so that the division line between the two pieces of property would be at a point one foot west of the foundation of the hospital rather than 5.3 feet. The defendants asked that the Thomases be made parties defendant. This motion was allowed.
The Thomases answered asking that their title to the whole of one hundred and four feet be quieted. The plaintiffs asked that this pleading be stricken so far as being a defense to their action on the ground that they were not innocent purchasers because they had received notice of the claim of the plaintiffs both before and by the commencement of this action. This answer was stricken by the trial court so far as it purported to set up a defense to the action of plaintiffs against the Munfords. At the trial plaintiffs called Thomas to the stand and proved his contract by him and that it did cover the whole of the one hundred and four feet.
Defendants in their answer and by proof offered to restore .to plaintiffs the full amount of the purchase price paid by them and all moneys expended for taxes and interest should they elect to rescind and reconvey, but plaintiffs declined to so act. The court made conclusions of law, as follows:
“a. The defendants Munford were and are not bound under the contract in question, except to the extent they jointly acted, and which is reflected and shown by the deed delivered to the plaintiffs.
“b. Said defendants Munford were not prohibited under the contract or otherwise from determining upon and tendering the deed which fixed the east boundary line of the premises conveyed at a point substantially farther west than 1 foot from the foundation of the building on the unsold portion of the Munford premises.
"c. The facts as found show no estoppel against the Munfords arising from their acts and conduct or silence which prevented them from asserting in this action they were not bound to convey more than the premises described in the deed delivered to plaintiffs.
"d. Because all of the premises involved herein constituted the homestead of the Munfords, and because of the terms of the contract and the indefiniteness of the property described therein, and the provision in the contract for subsequent determination of the description and extent of the property to be conveyed, and further because of the want of authority in writing on the part of N. J. Ward to bind the Munfords, as well as the other circumstances shown by the evidence, his acts as their agent were only binding upon them to the extent they jointly acted in ratifying and performing the contract signed by him. This was and is to the extent only of their joint conveyance and alienation of the portion of their premises described in the deed in question.
“e. No legal duty rested upon the defendants Munford or N. J. Ward under the circumstances to advise plaintiffs in respect to the premises conveyed by the deed tendered to and accepted by them, and they were not legally misled by any acts’ or statements by, or silence on the part of, any of said parties with respect thereto.
"/• No reformation of the deed in question can be either legally or equitably ordered by the court in this question.”
Judgment was entered in accordance with the above conclusions.
Defendants in this court argue first that there was no valid contract by which the reformation sought might be made, that is, they argue there is no valid contract by which defendants agreed to convey any land other than was conveyed by them in the deed. The basis of that argument is that the lawyer who drew the contract and caused the plaintiffs to sign it and make the $200 down payment, which was provided therein, had no authority in writing to sign a contract for the conveyance of land. The trouble with that argument is that the defendants upon being advised of the execution of the contract by the lawyer accepted its benefits and carried it out, the only difference being their mental reservation that they would use a different description in the deed by which they sought to carry out the contract than was used in the contract itself. Under such circumstances they cannot take advantage of the statute of frauds. See James v. Manning, 79 Kan. 830, 101 Pac. 628, also Newkirk v. Marshall, 35 Kan. 77, 10 Pac. 571; Harris v. Harper, 48 Kan. 418, 29 Pac. 697; also Gilmore v. Asbury, 64 Kan. 383, 67 Pac. 864.
Defendants next point out the provisions of G. S. 1935, 33-106 and 60-3503. These sections provide that the husband and wife are not bound by any contract for the sale of real estate unless it is in writing jointly executed by themselves or by their agent jointly authorized in writing. They point out that the court found they did not authorize their agent to make a contract of sale and hence plaintiffs in effect seek by their action to compel defendants to perform an act which they did not agree to perform.
It is a little difficult to see the application of these statutes to this case in view of the fact that the plaintiffs seek to reform a deed which defendants admit they joined in making. Neither is there any contention by defendants but that their acts with reference to the contract were as much the acts of one spouse as the other. They both saw the description in the contract and they both concluded to convey a different tract of land from that described therein.
Defendants next point out that the court found that from the time about the first of June, when plaintiffs moved onto the premises, to the 15th of June, when the deed was given, the plaintiffs had ample opportunity to ascertain for themselves the approximate location of the east boundary line of the land that they were going to buy. The trouble about that is there was nothing there at that time to mark the boundary line and they had no reason to believe that the description would be other than was contained in the contract, Had they looked at their contract they would have assumed that the line was a foot west- of the hospital.
Defendants next point out the finding of the court to the effect that there were no representations or statements to the plaintiffs concerning the description by the Munfords or by their agent. They argue that this is not a ease of intentional or mistaken description but one where the contract provided that the line was to be ascertained at a later time. The fact is, however, that as disclosed in the findings and the undisputed evidence the plaintiffs were justified' in assuming that when Mrs. Munford came to Belleville from California and had a number of conferences with plaintiffs had she intended that the description in the deed should be other than was contained in the contract she would have so adyised them.
All parties concede that from the time the Munfords first saw the contract in California until they handed the banker the deed to be given to the Houghs they never had any intention of abiding by the description that was contained in the contract. Equity and fair dealing require that they should have so advised plaintiffs.
In Zuspann v. Roy, 102 Kan. 188, 170 Pac. 387, this court held, as follows:
“A mutual mistake in a deed conveying real property may be shown, although the parties thereto did not, before it was signed, carefully examine it to ascertain whether it expressed their agreement.”
See, also, Stephenson v. Elliott, 53 Kan. 550, 36 Pac. 980, and Claypoole v. Houston, .12 Kan. 324.
Where it is clear that the description in a deed is other than that intended by the parties the deed may be reformed to express the intention.
In Russell v. Ely, 133 Kan. 318, 299 Pac. 619, we had a situation somewhat similar to this. There we held:
“An instrument, prepared by one party, not in accord with a prior written agreement of the parties, as to its terms, when executed by the other party without observing the mistake in the instrument, may be reformed where it is clearly shown that there was a mistake on the part of one party and inequitable conduct of the other.”
See, also, Cox v. Beard, 75 Kan. 369, 89 Pac. 671.
Attention is called to the fact that in Bussell v. Ely, supra, we said that a mistake on the part of one party and inequitable conduct on the part of the other would warrant a reformation of an instrument to express the real intention of the parties. There can be no doubt but that the plaintiffs here were mistaken when they accepted the deed. They thought the description would be what was contained in the contract. Neither can there be any doubt bur that the findings of the trial court make out a case of inequitable conduct on the part of the defendant. They saw the contract and noted the description it contained. They concluded that instead of following that description they would use one which would result in plaintiffs getting several feet of ground less than they had a right to expect they were getting. It was inequitable conduct on their part to have several conferences with plaintiffs about moving the garage and other details of the line and to fail to disclose to plaintiffs that it was not their intention to comply with the contract. It follows that the motion of the plaintiffs for judgment on the findings of the trial court notwithstanding the conclusions of law should have been sustained.
Defendants argue that this appeal should be dismissed because the Thomases were not made parties to it. The answer of the Thomases was dismissed as far as the plaintiffs were concerned. If the defendants sought to raise any question with reference to that answer they should have cross-appealed. As far as plaintiffs, who are the appellants here, are concerned the Thomases are out of the case.
The judgment of the trial court is reversed with directions to enter judgment for the plaintiffs. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action to enforce a trust relating to land. Defendants’ demurrers to plaintiffs’ evidence were sustained and plaintiffs appeal.
The appellants are five heirs at law of the decedent, Carl Staab. Appellees are two heirs at law, sons of decedent, and the wife of one of them. This case was previously before us on a demurrer to the petition which the trial court overruled. We affirmed that ruling. (Staab v. Staab, 158 Kan. 77, 145 P. 2d 452.) At the same time we also affirmed an order overruling a demurrer to a petition in a related case between the same plaintiffs and the decedent’s sons, John and Alex Staab, involving other lands owned by the decedent which he deeded to the above-named sons. (Staab v. Staab, 158 Kan. 69, 145 P. 2d 447.)
The petition in the instant case was framed in two counts. The first count was predicated on the theory of a constructive trust which grew out of an alleged oral contract made in 1929 between the father and the defendants, John and Alex Staab, in which the father was alleged to have furnished the purchase price for the one-half section of land involved with the understanding the father was to have the income therefrom during his lifetime, that John and Alex were to hold the title to the land in trust for him and at his death they were to divide the land among his seven children, share and share alike. It was also alleged, however, that the deed was made to A lex and Christina Staab, the wife of John Staab, instead of to Alex and John for the reason that there was a judgment outstanding against John which they did not want enforced against the land in question. It was further alleged:
“Christina Staab claimed no title to the land, has no interest therein, and has exercised no control over it, but held if for John C. Staab under the agreement which John C. Staab and Alex V. Staab had made with their father, Carl Staab.”
Our statutes relating to the enforcement of trusts arising by implication of law were treated in the former opinions in the Staab cases, supra, and what was said upon .that- subject need not be repeated at length here.
The second count of the petition was based on actual fraud, it being in substance alleged the defendant sons at the very time of obtaining the deed in 1929 had no intention of carrying out the trust agreement made with their father but fraudulently acquired the title to the land themselves.. The trial court sustained the demurrers to the evidence with respect to actual fraud and appellants do not claim error in that respect.
The grounds of the three separate demurrers were: (1) The evidence failed to establish any cause of action; and (2) if plaintiffs ever had a cause of action it was barred by the statute of limitations.
The alleged contract was, of course, the foundation of the action. It was alleged the deed was procured on October 22, 1929, pursuant to the alleged trust agreement made at that time by the aged father and the two named sons. We shall therefore first consider the case in its relation to the principal defendants, John and Alex Staab, and treat the case against Christina Staab later. In order to establish a constructive trust, based upon the allegations of the petition in this case, it was necessary to prove (1) the existence of a confidential relation between the aged and uneducated father and the defendant sons; (2) a transaction induced by that relation; and (3) a breach by the sons of the confidence reposed. (Staab v. Staab, supra, p. 80; Staab v. Staab, supra, p. 73.)
Did the evidence sufficiently establish the elements of a constructive trust to withstand the demurrers of John and Alex? Before we analyze appellants’ testimony it seems well to emphasize certain well-established principles governing a ruling on a general demurrer to evidence. Such a demurrer tests only the legal sufficiency of the evidence. In passing on the demurrer courts cannot weigh evidence; they must disregard all unfavorable evidence and consider only evidence favorable to the parties adducing it; they must give full credence to the evidence adduced and construe all inferences which reasonably may be drawn therefrom in the light most favorable to the parties adducing it. If the evidence, considered in harmony with these principles, fairly tends to establish a cause of action or defense, the demurrer should be overruled. (Zumbrun v. City of Osawatomie, 130 Kan. 719, 721, 288 Pac. 584; Robinson v. Short, 148 Kan. 134, 79 P. 2d 903; Myers v. Shell Petroleum Corp., 153 Kan. 287, 110 P. 2d 810; In re Estate of Bond, 158 Kan. 776, 781-782, 150 P. 2d 343.)
It is true we consistently have held the evidence of an oral contract of this character pertaining to land must be such as to raise a “convincing implication” that the contract was actually made and that it must satisfy the court of its terms. Simply stated, we have said such a contract must be established by clear and satisfactory proof whether the evidence be direct or circumstantial. (Bichel v. Oliver, 77 Kan. 696, 95 Pac. 396; Woltz v. First Trust Co., 135 Kan. 253, 9 P. 2d 665; In re Estate of Bond, 158 Kan. 776, 150 P. 2d 343.) That character and extent of proof is properly required by a trial court after the case is submitted for final decision upon its merits. The evidence, however, need not reach that high degree of definite ness and certainty when tested by demurrer. When so tested the general principles applicable to a ruling on a demurrer, previously stated herein, control. Of course, where evidence on some essential element of the cause of action is wholly lacking a demurrer is properly sustained. {In re Estate of Bond, supra, 780-782.)
Applying these principles to appellants’ evidence, should the demurrers have been sustained? Their evidence properly considered on demurrer, in substance, disclosed:
The father, Carl Staab, died testate in 1937 at the age of eighty-one ; his wife had died in 1916; they had seven children, three sons and four daughters; most of the children early went their separate ways, but the defendant sons, John and Alex, remained on the home place with the father and helped him with the farm operations on the home place and on other lands he had acquired; the daughter Katherine remained with the father and sons until 1923; thereafter the children who were away visited at the home place only occasionally; the father was a German and could neither read nor write English; he could not sign his own name; he, John and Alex got along well together; while the father probably was as close to one of these sons as he was to the other he had John aid him in his business affairs and especially with respect to such matters as required the execution of written instruments; on October 22, 1929, the father concluded to buy some additional land in Ellis county, the half section involved in this case; title thereto was acquired from Charles W. Johnson, receiver of The Citizens State Bank of Hays, by quitclaim deed; the deed was recorded October 25, 1929; the land was subject to a mortgage which the grantees assumed and agreed to pay; the purchase price was paid by a check drawn on the bank account of the father in another bank; the mortgage was paid by a check drawn on the same bank account on October 30, 1929; that the purchase price of the land involved was paid by the father was admitted by John according to appellants’ evidence.
The abstract of the testimony of Roy Dwyer, husband of Marie Staab Dwyer, concerning a conversation he had with John is as follows:
“In his conversation with John in December, 1937, John said that the half section of land was bought by his father, with the understanding that upon the father’s death the land was to be divided; that the father was to have this income and upon his death it was to be divided among his children.” (Our emphasis.)
After oil production activity had started in the vicinity of the father’s land and a well was partly drilled on the home place in May of 1937, Elizabeth Staab Berens, in substance, testified:
She overheard a conversation on Easter Sunday of 1937 between her father, John and her own husband, in which John admitted he, Alex and their father had an agreement that the children were all to share alike in the father’s property (that conversation pertained to the sale of oil royalties); she had a conversation with John on May 2, 1937, in which John admitted the same agreement with the father to divide the land, share and share alike.
Julia Staab, in substance, testified: John had told her on May 9,1937, the agreement with Alex and their father was that the father should have a life interest in all of the property he had and that thereafter the land and oil was to be divided share and share alike among the children.
Much similar testimony was adduced by various witnesses relative to the alleged trust agreement. Other testimony, in effect was:
John on various occasions after the father’s death persuaded appellants it was not a good time to divide the property; he gave his reasons therefor; he stated at various times the property would be divided at a later date; appellants trusted Alex and John and had implicit confidence they would make the division as promised; appellants waited until July 11, 1941, and on that date all of the appellants, except Alois W. Staab, met at Hays, Kan., and decided it was time to have a division of the property; on that date a demand was made on John and Alex for a settlement; the demand was refused; John stated to Roy Dwyer, “They have waited too long; I don’t have to do nothing.”
The contract is the foundation of plaintiffs’ right to recovery. (Woltz v. First Trust Co., 135 Kan. 253, 259, 9 P. 2d 665.) For the purpose of the demurrer it is admitted the purchase price for the . land was furnished by the father. At the time of the purchase in October, 1929, it was understood the father was to have the income from the land during his lifetime and that upon his death the land was to be divided among all the children share and share alike. There is evidence which tends to show the agreement was interpreted by the contracting parties to include the oil produced from the land.
The deed did not contain the above-mentioned terms but contained only the ordinary provisions of a quitclaim deed for the con veyance of title to land. The evidence, however, fairly tended to disclose not only that the above-described oral agreement was made at the time the deed was executed in 1929 but also that the agreement was recognized by John and Alex until July 11, 1941. We think this evidence, when tested by demurrer, was sufficient to prove the alleged agreement.
Was the evidence sufficient to show a confidential relationship existed between the father and his sons, John and Alex, to withstand a demurrer? They had been conducting farming operations for many years. They got along well together. The aged and uneducated father, unable to read or write English or to sign his own name, depended upon John in all matters pertaining to written instruments. It stands to reason he looked to John to see that the instrument in question reflected their agreement or that he trusted John and Alex to carry out the oral agreement. In either event he placed his trust and confidence in them. He believed they would do what he wanted done and what they had agreed to do. In Lindholm v. Nelson, 125 Kan. 223, 264 Pac. 50, the third paragraph of the syllabus reads:
“A fiduciary relation does not depend upon some technical relation created by, or defined in, law. It may exist under a variety of circumstances, and - does exist in cases where there has been a special confidence reposed in one who, in equity and good conscience, is bound to act in good faith and with due regard to the interests of the one reposing the confidence.” (Syl. ¶ 3.)
And in the opinion we stated:
“The courts have consistently refused to give an exact definition to, or to fix definite boundaries of, that class of human relations which, by principles of common honesty, require fair dealing between the parties, and which is commonly known as fiduciary relations.” (p. 232.) (See supporting authorities cited.)
To the same effect is Miller v. Henderson, 140 Kan. 46, 33 P. 2d 1098; and see, also, Kinzbach Tool Co. v. Corbett-Wallace Corp., 138 Texas 565, 160 S. W. 2d 509; 15 C. J. S. Confidential, pp. 821-823; 36 C. J. S. Fiduciary, pp. 742, 743. Tested by these principles we think the evidence was sufficient, when challenged by demurrer, to show the existence of a confidential relationship between the father and these two sons and that the deed was induced by that relationship.
Under familiar precedents, when a confidential relationship between certain members of the family involved has been established, the burden is cast on a grantee to show the conveyance was made in good faith and for a valuable consideration. (Overstreet v. Beadles, 151 Kan. 842, 101 P. 2d 874, and cases therein cited.) In this connection it also may be observed there was no evidence the aged father had independent advice concerning the legality of the oral contract or the terms and provisions of the deed. Under rather similar facts in Overstreet v. Beadles, supra, we said:
“While the statute requiring the need of independent advice in the making of a will where a fiduciary relationship exists between the testatrix and the principal beneficiary (G. S. 1935, 22-214, now superseded by Laws 1939, ch. 180, § 41) does not extend to the making of deeds or gifts, yet equity applies the same principles under similar circumstances to test the bona fides of the latter transactions. (Barger v. French, 122 Kan. 607, 612, 253 Pac. 230; Madden v. Glathart, supra, 473-475, and syl. ¶ 3.)
“See, also, ‘Anno. — Fraud—Confidential Relations — Advice,’ in 123 A. L. R. 1505 et seq." (p. 847.)
The second ground of the demurrer was that if plaintiffs ever had a cause of action it was barred by the statute of limitations. Appellees specify no particular statute but we assume they have in mind the two-year statute of limitations (G. S. 1935, 60-306, Third.) upon which they relied in the former appeal in the same case. The argument is the father died in 1937 and this action was not filed until September 11, 1941. Appellees also direct our attention to certain testimony of Katherine Staab which indicates she knew or suspected in 1937 that John would not make a division of the property pursuant to the alleged trust agreement. If this were all of the evidence in point we might have difficulty with the contention. There was considerable testimony, however, that John and Alex recognized the trust agreement all along; that they promised to execute it and appellants believed they would do so until the agreement was finally repudiated on July 11, 1941. The statute of limitations did not begin to run until the breach of the contract, the repudiation of the trust, and the action was in 'time. (Staab v. Staab, supra, p. 77; Staab v. Staab, supra, pp. 69, 75.)
What about the separate demurrer of the grantee, Christina Staab, wife of John Staab? There was evidence which fairly tended to show Christina had knowledge of the alleged trust agreement between her husband, Alex and their father. There was likewise evidence which tended to show Christina knew she was named as one of the grantees merely to prevent collection of an outstand ing judgment against her husband and that under the trust agreement she would obtain nothing. Under the circumstances Christina was not a real party in interest. Having knowledge of the circumstances she acquired no better title than her husband would have acquired had the title been taken in his name. She was merely a nominal titleholder for the protection of her husband’s claimed interest. Her husband, the real party in interest for whom she held the title, recognized the trust until July 11, 1941, and thereby tolled the statute of limitations. The result is the evidence was sufficient to withstand Christina’s general demurrer as well as her contention the action was barred.
Touching the general demurrer we may further observe the property involved was trust property. Christina had knowledge of its character. She paid nothing for it and appellants were entitled to pursue it. (Clingman v. Hill, 113 Kan. 632, 634, 215 Pac. 1013.)
Having stated earlier herein that Carl Staab died testate it may be well to also say that his last will dated July 24,' 1931, made no devise of any specific real estate, but contained only a residuary clause under which all of his property not needed for the payment of debts and funeral expenses and not disposed of by specific money bequests was devised to John and Alex in equal parts. None of the parties claims the land in question is a part of decedent’s estate. Appellees claim title to the land under the deed of October 22,1929, and appellants’ claim to an interest therein is based on the trust agreement of the same date.
Upon the trial of the case on its merits the district court will, of course, have not only the right but it will be obliged to consider and weigh all of plaintiffs’ evidence as well as that of the defendants and to render such judgment as the evidence warrants. All we are now saying is that the favorable portion of appellants’ evidence together with all favorable inferences which reasonably may be drawn therefrom, when accepted as true as it must be on demurrer, was sufficient to withstand the demurrers. We are not now passing on the question whether all of appellants’ evidence, when scrutinized and weighed as it must be in a trial on the merits, would justify the relief sought.
From what has been said it follows the order sustaining the demurrers must be reversed. It is so ordered. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action for divorce, for alimony and for division of property. A trial was had and judgment was rendered on April 4, 1944. On April 7, 1944, plaintiff filed a motion for a new trial, and on June 10, 1944, she filed a motion to modify the judgment with respect to alimony awarded her. On July 6, 1944, the trial court denied both motions. On November 4, 1944, plaintiff served her notice of appeal. There is no showing that at any time within ten days from the judgment granting the divorce plaintiff filed a notice in the office of the clerk of the district court of her intention to appeal..
Our code of civil procedure makes provision for divorce actions and for appeals, it being provided, in substance, that a party desiring- to appeal must, within ten days after a judgment granting a divorce, file a written notice of intention to appeal in the office of the clerk of the district court, and if such notice be filed the party filing the same may commence proceedings on appeal at any time within four months from the date of the decree appealed from. It has been held in a number of cases that the filing of the notice of intention to appeal is a condition precedent to the right of appeal. See, e. g., Kremer v. Kremer, 76 Kan. 134, 90 Pac. 998; Metcalf v. Metcalf, 132 Kan. 535, 296 Pac. 353; Leiter v. Leiter, 152 Kan. 287, 103 P. 2d 809.
A review of these above cases discloses that we have recognized that the judgment for divorce and the judgment for alimony or for division of property, hereafter referred to as for alimony, are so far separate and independent, that notwithstanding the party attempting to appeal may be precluded from having a review of the divorce features because of his failure to give timely notice of intention to appeal, yet he may have a review of the alimony features under the general provisions of the code of civil procedure. When Kremer v. Kremer, supra, was decided, the time for appeals generally was within one year from the judgment (G. S. 1901, 5042), when Metcalf v. Metcalf, supra, was decided, the time was six months (G. S. 1935, 60-3309), and when Leiter v. Leiter, supra, was decided, the time was two months (G. S. 1939 Supp. 60-3309). In the case last mentioned, it is not disclosed by the'opinion, but the judgment was rendered November 7, 1939, a motion for new trial was filed November 10, 1939, and was denied December 11, 1939, and notice of appeal was filed on December 11, 1939. In each of the cases mentioned this court refused to consider the divorce features of the judgment because of failure of the party desiring to appeal to give timely notice of intention to appeal, but, under general provisions of the code, did review the alimony features of the judgment.
Applying the principles of the above cases to the present case, it appears there was no timely filing of an intention to appeal, and we are therefore without jurisdiction to consider the divorce features of the judgment, which might be involved in any consider ation of the trial court’s ruling on the motion for a new trial. Had there been a timely notice of intention, there was no commencement of an appeal within four months from the date of the decree. Insofar as alimony features are concerned, and it is of these that complaint is urged in the briefs, it has been noted the last ruling of the trial court was on July 6, 1944. No notice of appeal was filed until November 4, 1944, or over two months. That was too late (G. S. 1943 Supp. 60-3309), and this court is without jurisdiction in the premises.
The attempted appeal is dismissed. | [
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The opinion of the court was delivered by
Parker, J.:
This is a workmen’s compensation case. In the proceeding before the compensation commissioner the claimant was denied an award. He appealed to the district court and there prevailed. The employer and the insurance company appeal.
The issues can be simplified by immediate relation of uncontroverted facts disclosed by the record.
By stipulation at the hearing before the commissioner it was agreed that the relationship of employer and employee existed at the date of the alleged accidental injury; that the parties were governed by the Workmen’s Compensation Act of Kansas; that the average weekly wage of the claimant was $31.68; that respondent had actual notice; that written claim for compensation was made; that claimant met with an accidental injury which arose out of and in the course of claimant’s employment; that medical service was furnished by the respondent; that no compensation had been paid; that the issues therein were: (1) Nature and extent of claimant’s disability, if any, (2) amount of compensation due, if any.
As to the circumstances and conditions under which the claimant James E. Stanley was injured all parties agree that on January 15, 1944, while employed by respondent, United Iron Works Company, and at work on the inside of a steel tank, 7 feet in width and 6% feet high, placing steel bands together on the inside thereof, the claimant was struck on the forehead and the left side of his face and left jaw by a metal chain which was being used to lower the steel bands into the tank. As an immediate consequence of the blow he was rendered unconscious for a period of between 15 and 20 minutes and when he recovered consciousness began to vomit.
Likewise conceded is the fact the claimant on June 26, 1926, long prior to his employment by the respondent had suffered an accident which caused complete loss of vision in his right eye.
■ With respect to the nature and extent of the injury suffered by claimant as a result of the accident the parties are in hopeless disagreement. They can best be revealed by reference to the testimony, which, of course, will be limited to portions of the evidence tending to support the award made by the district court under the well-established rule that we are concerned only with evidence which upholds an award, and are not permitted to speculate on whether there was other testimony which might have warranted a contrary decision (see Proffitt v. Aldridge, 154 Kan. 468, 472, 119 P. 2d 523; Holler v. Dickey Clay Mfg. Co., 157 Kan. 355, 362, 139 P. 2d 846, and cases there cited).
On the subject to which we have just referred the claimant’s testimony was in substance as follows: As far as I could tell I had no impairment in the vision of my left eye or in my hearing in either ear prior to January 15, 1944; after the accident my eyes began to blur, I couldn’t see, and every time I would stoop over I would have dizzy spells; my head was hurting, my left ear was hurting and a little later on my right ear went to hurting; my head continued to hurt and I had pains across my forehead; around my left eye, down around my ear and down around the back of my neck on the left side; those pains are still present; my left eye began to fog up on Sunday after I was hurt on Saturday; it began to turn blue and got bloodshot on Sunday, the eyeball itself was sore and it remained sore for about six weeks; there is pain at the back part of my eye which feels like it comes straight out into the ball; the pain extends back from that eye over iny head and neck; the pain in my ear and eye is still there; I noticed I couldn’t hear as well as I could and there seems to be more impairment in my left ear than in my right ear; the hearing in my ear became stationery about three months ago; prior to the time I got hurt I did not have any trouble at all with my hearing; I do not see as good out of my left eye since my injury and the loss of vision in it seemed to reach its maximum about three months after I was hurt and it has remained about the same since that time; I have continued to vomit from one to three times a day since the accident.
Dr. Herman E. Yazel, an eye, ear, nose and throat specialist of Kansas City, Mo., was a witness for claimant. In his deposition which was given on September 16,1944, he made the following statements in narrative form:
“At Mr. Bruner’s request I examined the eyes, ears, nose and throat of James E. Stanley on June 17, 1944. I took the man’s personal family history and a statement as to his present ailments and complaints and examined his eyes, ears, nose and throat and the bones of his skull. I took an X ray and laboratory report, the X ray having been taken at Dr. Clyde Donaldson’s office with his equipment and he and I examined the X ray and passed on! it and interpreted it. Claimant’s Exhibit A is the X ray that Dr. Donaldson and I interpreted. It was all negative, with the exception of the external superior rim of the orbit of the left eye. There is a fracture that runs upward and outward and then inward in the malar bone, just above the anastomosis of the malar and the frontal bone. It' is in the frontal bone proper and runs outward and upward.
“The right eye is blind and has been for several years and is due to an accident so the patient states. The whole fundus of the left eye has a degenerated appearance and the disk is not distinct. Vision is down 70.5 percent. His visual field is contracted 20 percent. The Eustachian tube and tympanum are normal in both ears, still he has a loss of hearing of his 15 percent in the right ear and 60 percent in the left ear. This is all indicative of an injury to this man’s brain. There is evidence of an intracranial pressure that has pretty well run its course at this time except for the pathology that it has left behind. This could all be caused from the injury that he stated that he sustained in his history.
“I examined his eyes, ears, nose and throat again this morning and there was no change in the findings of any of them.”
The following specific questions and answers also appear in the deposition as a part of his testimony:
“Q. Now, Doctor, coming to the left eye, you state about a degenerative appearance of the whole fundus, the whole fundus being of a yellow color. Did that condition disclose anything to you, as a physician and surgeon specializing in the eyes, and the margin of the optic nerve not being distinct? A. Yes.
“Q. What does that show? A. That he had some swelling of the disk due to intercranial pressure.
“Q. That is what you would call a choked disk, evidence of a choked disk of the eye? A. Yes, the swelling of the disk.
“Q. Have you an opinion whether or not that could reasonably be brought about by the tjrpe of accident or injury this claimant gave you a history of? A. Yes.
"Q. What is that opinion? A. That it could.
“Q. For near he reads Jaeger’s No. 12 without glasses at 14 inches. What is normal vision, Doctor? A. Jaeger’s No. 1 at 14 inches.
“Q. His vision is 20/100. What is normal vision? A. 20/20.
“Q. The vision you arrived at in the left eye of 20/100 and reading Jaeger’s No. 12 at 14 inches, did you take these into account in any way in arriving at your opinion as to the percentage of impairment of vision? A. Yes, I followed the Kansas Compensation Commission bulletin on it, taking once the vision for distance and twice the vision for near and adding them together and dividing it by three. The measure was 70.5 percent.”
In response to a hypothetical question relating to history of the claimant’s case, his alleged injury and its consequences, Doctor Yazel answered that in his opinion the loss of vision in claimant’s left eye and the loss of hearing in his right and left ears could reasonably be ascribed to the injury received by him. To a question similar in its nature he replied that in his opinion the loss of vision in the eye and the impairment of hearing in both ears was permanent in character. Replying to another question of like form he "stated it was his belief the fracture (more fully described hereafter) was probably caused from the accident and injury.
Other questions and their answers read:
“Q. Is that claimant’s Exhibit A the X ray that you and Doctor Donaldson interpreted of this claimant? A. Yes, sir.
“Q. Did you, in that X ray, make any findings or interpretation or the interpretation of anything other than normal in that picture? A. Yes. It was all negative, with the exception of the external superior rim of the orbit of the left eye. There is a fracture that runs upward and outward and then inward in the malar bone, just above anastomosis of the malar and the frontal bone. It is the frontal bone proper and runs outward and upward.
“Q. On which side of the face? A. On the left side of the face, the upper orbital rim.
“Q. The left eye? A. Yes.
“Q. That is what the left eye is held in, is it Doctor? A. Yes, sir.”
On the question of consequences resulting from the injury the cross-examination of this witness is as enlightening and informative if not more so than his direct examination. For that reason we quote questions asked and answers made at length. They are:
"Q. Doctor, is it your opinion based upon your examination and knowledge of this case, taking into account any history you may have obtained from this claimant, that his entire disability is due to being struck by this chain on the left side of his head or face on January 15, 1944?
“Mr. Bruner: Do you mean except the right eye?
“Mr. Hudson: Yes. with the exception.of the right eye.
“A. Including the deflected septum, which is quite possible, and confining it to the eye, ear, nose and throat, I think it positively comes from the injury. I can find no other cause for it.
“Q. Did you say ‘positively’ or ‘possibly’? A. I think it positively comes from that. I see no reason to doubt it.
“Q. Did you say ‘positively’ or ‘possibly’? A. Positively. I see no reason to doubt it.
“Q. And the condition you have found and described here, resulting in the disability to which you have testified, with the exception of the right eye, is in your opinion a direct result of trauma on January 15, 1944? A. Yes, sir. I could find no other thing to ascribe it to.
“Q. Doctor, could the left eye disability, the loss of hearing and the man’s headaches all be due to the same brain lesion in your opinion? A. Yes, sir.
“Q. Can you tell from what area or in what area that lesion exists? A. This appears to have been a homogeneous affair, the edema of the brain itself, however we don’t have any picture of the whole skull, but the fact that this optic nerve and fundus has been degenerated as a result of pressure, it looks like the whole brain had some congestion or concussion of it.
“Q. From your examination by X-ray or physical examination, can you determine how long this degenerative process in the left eye nerve has existed? A. No. I cannot. It is apparent that it is clearing up however and it has been of several months, a few months at least.
"Q. I understood you to say there was no change in your findings based upon your examination of today and of June 17, 1944? A. That is right. I am speaking of the first time I examined him and it appeared it was not of too old standing, just back a few months. I wouldn’t want to say how long.
“Q. The degenerative process? A. Yes. This comes on immediately after an injury. When there is a trauma to the head causing a concussion it comes on immediately and the patient complains óf severe headaches, nausea and vomiting and then they begin to have some trouble with their ears and with their vision and in stooping over they fall forward and complain that their' head fills up quickly and this slight congestion is the result of the change in posture, and the optic disks ordinarily begin to swell and many times they have noises in the ear, and sometimes they don’t, and the hearing gradually goes down, and that comes up to an extreme along in ten days to three weeks and starts down, and most authors in writing it up say the patient should be kept in bed about six months, meaning they think the swelling will go out of the brain in that length of time or gives them time to take care of themselves. There is very little we can do outside to remove the pressure and a patient should be hospitalized and some authorities think they should have a spinal puncture and draw off some blood and some use cathartics. There are two schools on what they think best to do about it. I would say from a few months to six months they ordinarily get in this'condition and after that we expect them to stay about there.
“Q. If this man’s condition is due to the blow to the head you wouldn’t anticipate any greater recovery than he has already sustained? A. I think he is about stationary.
“Q. With reference to the left eye and ears, do you recommend any treatment? A. No. I think it is too late. I think the man should have been hospitalized at the time and some effort made to do a decompression to stop the pressure on the man’s nerves in both the auditory and optic nerve.”
Dr. Clyde 0. Donaldson, an X-ray specialist, of Kansas City, Mo., also appeared as a witness for the claimant. Without detailing his testimony it will suffice to say its substance was that the claimant had a fracture of the rim of the left orbit which in his opinion could very easily have been caused from a blow such as he had received at the time he was injured.
While it is not expressly so stated it appears from- the record that after all parties had adduced their evidence and rested the commissioner did not immediately announce his decision but took the case under advisement. Be that as it may, before he entered an award the claimant filed a motion to reopen the case and submit additional testimony. So far as the record discloses, the only objection made to the granting of the motion was that if the case was to be reopened it should be generally reopened with permission to the respondent and the insurance company to also offer additional evidence. We confess the record is not as complete on that subject as might be desired. At any rate, permission was granted and all the parties participated in the proceedings without further complaint as to the propriety of that procedure although it should be noted that as the new hearing progressed opposing parties repeatedly objected to the introduction of evidence tending to establish general disability on the ground the claim was originally filed and tried upon the theory the injury suffered by plaintiff was a scheduled one and in no sense based upon general disability which incapacitated him from performing the work he had been doing prior to- its occurrence.
At this.point in the interest of clarity it should be stated that at the first hearing no attempt was made to show the injury had caused claimant to be unable to perform the work, he had been doing prior to its happening. On the contrary, his own testimony was that he had continued in his employer’s service and performed all duties required by the position he was occupying.
The purpose in having the case reopened is clearly indicated in statements made by claimant’s counsel to the examiner who sought to ascertain whether claimant was changing his position and basing his right to compensation on general disability instead of a scheduled injury. In response to a question, if that was the situation, counsel replied:
“Well, at that time, your Honor, if this man- was working it would be a specific injury at that time; but if the conditions change then the compensation law in relation to his injury would change; that is my position.”
Later he was asked, “But you are changing your position now from a schedule injury to a general disability,” to which inquiry he made the following answer:
“I am taking the position, your Honor, that there is both in this case; and what I would like to do is to make my proof and then Your Honor can decide it under the law on the facts as presented.”
Still later, and after all evidence had been adduced he made this statement:
“I would like to state to your Honor for the purpose of the record here, some confusion might arise in the record, that if at any previous hearing the claimant is apparently or is limiting himself or appears to be limiting himself to scheduled injuries, that claimant is in error and claimant wishes to state that he is now claiming compensation for general disability in addition to any scheduled injuries that may exist in the record and in the evidence.”
Under the facts and circumstances disclosed by the record we regard questions pertaining to the right to reopen the case and evidence properly admissible, when once it was reopened, of more importance than the evidence itself. However, in order to properly dispose of the issues raised by the parties it must be referred to. Briefly summarized, although controverted, it was to the effect that after the first hearing claimant had been discharged by his employer because of his condition, that as a consequence of his discharge he was unable to secure similar employment, and that because of his then physical condition he was unable to procure or do work except at a materially decreased rate of compensation.
With the evidence in the state heretofore related the commissioner denied an award on the ground claimant’s condition was not brought about by his accidental injury. On the same record the district court set aside that action and awarded compensation. The portion of its judgment with which we are concerned on appellate review reads:
“That as a direct result of said accidental injury suffered by Claimant on January 15, 1944, he received a severe injury to his head and brain which brought about the impairment of claimant’s vision and hearing and which injury will probably become progressively worse as further time elapses. That as a direct result of said accidental injury suffered by the claimant on January 15, 1944, the Claimant, has now sustained a 70.5 percent permanent partial loss of sight of his left eye, for which he is entitled to 77.55 weeks compensation, and also sustained a 15 percent permanent partial loss of hearing of the right ear, and a 60 percent permanent' partial loss hearing of the left ear, for which he is entitled compensation for 37.5 weeks, making a total of 115.05 weeks compensation to which claimant is now entitled. . . .”
So far as the findings of the trial court with respect to the facts are concerned it is not our function to pass upon them. Our only duty is to examine.the record to ascertain if they are supported by substantial competent evidence (Hall v. Kornfeld-Harper Well Servicing Co., 159 Kan. 70, 73, 151 P. 2d 688; Holler v. Dickey Clay Mfg. Co., supra, and McMillan v. Kansas Power and Light Co., 157 Kan. 385, 389, 139 P. 2d 854). That evidence when examined precludes any conclusion other than the one reached by the trial court, namely, that as a direct result of claimant’s accidental injury his sight in one eye and his hearing in both ears were impaired to the extent found by the trial court on the date the case was submitted to the commissioner. We might add, although immaterial from our standpoint since there is no cross-appeal, we conclude by the same process claimant failed to establish that on such date the condition resulting from his injury was of such character as to entitle him to relief under G. S. 1943 Supp. 44-510 (3a) (3b), providing for compensation where disability is total and permanent, temporary total or temporary partial, in character or under 44-510(22) providing for unscheduled temporary or permanent partial disability.
From what has been said resort to the statute makes it apparent that if the award is to be sustained it must be upheld on the basis G. S. 1943 Supp. 44-510 (3c), providing for compensation for scheduled injuries, permits recovery. Obvious also is the fact that under the findings of the trial court determination of whether the consequences directly resulting from claimant’s injury are scheduled injuries, like the question of whether the award is supported by substantial competent evidence, is a question of law which, it may be added, is actually the crux of this appeal.
Aside from a general contention the claimant’s impairments did not result from the accident, appellants’ principal assignment of error is that the evidence did not justify an award for scheduled injuries. In support of their position they contend that permanent partial'loss of the use of a member or organ is not a scheduled injury. Were this a case of first impression an examination of the present statute G. S. 1943 Supp. 44-510 (3c) when compared with R. S. 1923, 44-510 (3c), which it supplants, would lead us to a conclusion contrary to the contention made. But it is not so. This court has repeatedly passed on the question and reference to the decisions at once reveals there can no longer be any' doubt as to its Construction of the statute.
One of our leading cases on the subject is Gallagher v. Menges & Mange Const. Co., 146 Kan. 506, 72 P. 2d 79. There the claimant had suffered the permanent loss of the use of a finger. In the opinion we said:
“Is such temporary total loss of use followed by permanent partial loss of use, compensable as a schedule injury? Respondent says it is not, but concedes this court has held otherwise, (Hering v. San Ore Construction Co., 130 Kan. 70, 285 Pac. 592; Orendoc v. Kaw Steel Construction Co., 131 Kan. 366, 291 Pac. 952; Paul v. Skelly Oil Co., 134 Kan. 636, 7 P. 2d 73.) Respondent respectfully contends this court was wrong in so holding, and that the compensation should have been determined as provided by section 10, 3c(22), or section 10,3b. Our attention is directed to decisions from other jurisdictions where it is said a similar compensation law obtains. We have noted the decisions and concede the question is not entirely free from difficulty, but upon reconsider-’ ation we have arrived at the same conclusion reached in previous pronouncements on the subject. On the basis of the foregoing decisions the injury was not only compensable as a scheduled injury, but the amount of compensation was correctly compúted. (Sec. 10, 3-c [2,19].) . . .” (p. 509.)
In Neuhaus v. Hope Engineering Co., 132 Kan. 72, 294 Pac. 655, we held:
“A workman’s little finger of his right hand was injured, resulting in permanent partial loss of use of the finger. The hand was not injured, but its use is permanently partially impaired. Under Laws 1927, ch. 232 (R. S. Supp. ch. 44, art: 5), the injury to the little finger was a specific schedule injury. . . .” (Syl.)
To the same effect is Bull v. Patti Const. Co., 152 Kan. 618, 626, 106 P. 2d 690, where it was said:
“We shall first consider the finding claimant suffered a total temporary disability of twenty weeks’ duration. He did not lose the great toe, but that he lost some of its use immediately following the accident must be, and is, conceded. He continued to have ten to fifteen percent permanent disability approximately eleven months after the accident. This was a scheduled injury. The mere fact he did some work did not deprive him of scheduled compensation for the loss of the use of his toe. (Sauvain v. Battelle, 100 Kan. 468, 164 Pac. 1086; Raffaghelle v. Russell, 103 Kan. 849, 176 Pac. 640; Gallagher v. Menges & Mange Const. Co., 146 Kan. 506, 508, 72 P. 2d 79) . . .”
Other decisions recognizing the principle are, Chamberlain v. Bowersock Mills & Power Co., 150 Kan. 934, 96 P. 2d 684; Cornell v. Cities Service Gas Co., 138 Kan. 607, 27 P. 2d 228; Gallivan v. Swift & Co., 136 Kan. 234, 14 P. 2d 665 and Resnar v. Wilbert & Schreeb Coal Co., 132 Kan. 806, 297 Pac. 429. More could be cited, but we deem those referred to.ample to definitely establish the proposition, that permanent partial loss of the use of members or organs listed in our workmen’s compensation act are compensable as scheduled injuries, is no longer a debatable question in this state.
We do not ignore our opinion in Consolidated Cement Co. v. Baker, 129 Kan. 845, 284 Pac. 415, which, in passing we note, is the only one of our decisions cited by appellants as supporting their position on the specific question just reviewed. They direct our attention to an isolated statement appearing in that opinion wherein it was said that the loss of the use of a leg is not á scheduled injury. The court in that case was not dealing directly with the question here involved and we are not prepared to say whether the statement was inadvertently made or was simply wrong. Be that as it may, the language used is not in harmony with'the rule announced in our other decisions and should no longer be regarded as authority for contentions similar to the one advanced by appellants in this action.
Appellants further contend that unless an accident results in an injury directly to the affected member or organ there can be no recovery for scheduled injuries. Baldly stated, their argument is that if an employee is struck on the head and is injured to the extent such injury results in partial loss of the use of a scheduled member, or if he suffers an injury to his spine which causes a permanent partial paralysis of some such member or organ, the only compensable scheduled injury is that place on the body, which comes in direct contact with the blow. We confess that to us, under findings such as we have in this case, the contention is a new and startling one. So new that we know of no case in this state where it has been urged. The fact that the learned counsel for appellants cite no decision to support it while the equally learned counsel for appellee fail to direct our attention to one refuting it indicates' to us that there are none. So startling in its significance and far reaching in effect that, in view of the language of the applicable statute, we are inclined to wonder if this is the first time anyone has had the temerity to suggest it. Is it possible the workmen’s compensation act is so limited in its scope? We do not think so. '
G. S. 1943 Supp. 44-510(3c), reads:
“Where disability, partial in character but permanent in quality, results from the injury, the injured workman shall be entitled to the compensation provided'in paragraph 1 of this section, but shall not be entitled to any other or further compensation for or during the first week following the injury. Thereafter compensation shall be paid as provided in the following schedule, the average weekly wages to be computed as provided in section 44-511 of the General Statutes of 1935, and the compensation in no case to be more ihan eighteen dollars per week: . . .” (Emphasis supplied.) ■
Under all our decisions provisions of the compensation act must be liberally construed with the view of effecting its purpose (Rupp v. Jacobs, 149 Kan. 712, 718, 88 P. 2d 1102; Chamberlain v. Bowersock Mills & Power Co., 150 Kan. 934, 944, 96 P. 2d 684; Murphy v. I. C. U. Const. Co., 158 Kan. 541, 548, 148 P. 2d 771 and Bailey v. Mosby Hotel Co., post, p. 258, 160 P. 2d 701, this day decided).
Note the emphasized portion of the statute just quoted. It does not restrict compensation to disability which occurs at the point of impact but includes disability which results from the injury. Neither does it limit it to a single consequence or condition which results from such injury. That this last statement is true is indicated by G. S. 1943 Supp. 44-510(3c-25), which reads:
“The total amount of compensation that may be allowed or awarded an injured workman for all injuries received in any one accident shall in no event exceed the compensation provided for in this act for total permanent disability.”
Here the court found that as a direct result of an accidental injury to claimant’s head and brain he sustained permanent partial loss of sight in one eye and hearing in both ears. The disability having resulted from the injury and to scheduled members the claimant was entitled to compensation for each under G. S. 1943 Supp., 44-510 (3c-19). To hold otherwise would not only violate the rule the statute must be liberally construed but would do violence to the spirit and intent of the compensation act itself.
Another assignment of error is that the court erred in considering evidence offered by the claimant after the case had been submitted and the hearing concluded. The strict rules of the civil code are not applicable to compensation proceedings, the act is complete in itself and designed to defray the expense of additional litigation (Souden v. Rine Drilling Co., 150 Kan. 239, 92 P. 2d 74). G. S. 1935, 44-523, expressly so provides and requires that the commissioner give the parties reasonable opportunity to be heard and present evidence. It contemplates that all available facts shall be brought to the attention of the commissioner before his award is made. We find nothing in the act which prohibits him from reopening a case after it has been concluded and before he makes his award. To deprive him of that right might in many cases result in additional litigation. It might even result in injustice to one of the parties. 'Moreover, in this case the appellants did not object to that procedure, nor do they make a showing the court considered the evidence adduced at such subsequent hearing. Even if it was considered no contention is made that its consideration prejudiced the appellants or would have changed the result. The decision, Walz v. Missouri Pac. Rl;d. Co., 142 Kan. 164, 45 P. 2d 861, cited by appellants is not in point. In that case the claimant sought a rehearing after, not before, the rendition of the award. We conclude that under the provisions of the act the question of whether a compensation case may be reopened before rendition of an award for the purpose of receiving additional evidence as to the factual situation on which a decision is to be based rests in the sound discretion of the commissioner and that in the absence of any showing as to abuse of discretion action of such character cannot be relied on as a basis for reversal of the award.
It is next urged that the award of the district court was erroneous because it found general disability and awarded compensation for scheduled injuries. The major portion of the argument on this contention is predicated upon appellants’ theory that loss of the use of a member is not a scheduled injury, which, as we have seen, is not well founded. Our attention is, however, directed to the heretofore quoted portion of the findings of the trial court and in particular the language “which injury will probably become progressively worse as further time elapses.” It is suggested this phrase earmarks the findings as an award for general disability. Not so. We regard such language as mere surplusage and of little, if any, force and effect. Certainly it does not warrant the construction which appellants place upon it.
Appellants' final contention is that even.if claimant is entitled to compensation for scheduled injuries the trial court erred in computing the amount thereof. Their claim is restricted to compensation for partial loss of hearing in both of claimant’s ears. That compensation for loss of sight’was properly computed is conceded. It is argued the commissioner, under G. S. 1935, 44-601 and related statutes, has power to make rules and regulations and establish procedure in connection with the exercise of the authority conferred upon him in compensation matters. Quite true so long as the exercise of such powers does not conflict with provisions of the statute. It is pointed out the commissioner has provided by rule and regulation that in measuring loss of hearing the procedure recommended by the American Medical Association is to be used whenever possible. Also true, and we add quite proper for the law does not make requirement as to the manner in which partial loss of hearing is to be measured. It is further urged the commissioner by the same rules and regulations has set up a method for computation of compensation due for such injuries. Perhaps so. Reference to the rules and regulations promulgated by him would so indicate. We shall not labor the intricacies of that method of computation. It will suffice to say that if appellants’ compute it correctly compensation for 15 percent loss of hearing in one ear and 60 percent in the other would entitle the claimant to compensation for practically the same number of weeks he would have been entitled to had he suffered an 80 percent loss of hearing in one ear and the hearing in the other had been unimpaired. .
G. S. 1943 Supp. 44-510 (3c-19), so far as pertinent reads
. . for the permanent partial loss of the use of a finger, ... or the sight of an eye or the hearing of an ear, compensation shall be paid . . ., not in excess of eighteen dollars per week, during that portion of the number of weeks in the foregoing schedule provided for the loss of such finger. ... or the sight of an eye or the hearing of an ear, which the partial loss thereof bears to the total loss of a finger, . . ., or the sight of an eye or the hearing of an ear . . .”
This court has construed the section of the statute just quoted and determined that its terms provide the method for computation of compensation for permanent partial loss of hearing in both ears as scheduled injuries. That being true no method which does not com ply with its requirements can be substituted, either by rule and regulation or otherwise.
In Beal v. El Dorado Refining Co., 132 Kan. 666, 669, 296 Pac. 723, it was held:
“The result of the court’s computation of compensation for loss of hearing of both ears is approved.” (Syl. ff 2.)
And said:
“It was stipulated that hearing of the right ear was impaired 30 por cent, and hearing of the left ear was impaired 20 per cent. The insurance carrier contends impairment of hearing should be computed on the basis of 25 weeks, as provided in paragraphs 18 and 19. This is not, however, a case of impairment of hearing of one ear, and then, disregarding that ear, impairment of hearing of the other ear. It is a case of permanent partial loss of hearing of both ears, and compensation should be computed on the basis of 100 weeks, under paragraphs 17 and 19. (Horn v. Elliott, ante, p. 454, 295 Pac. 719, superseding Orendoc v. Kaw Steel Construction Co., 131 Kan. 366, 291 Pac. 952).
“Apparently the court took for the percentage of loss of hearing of both ears the average of the loss to each ear (30 per cent and 20 per cent), which equals 25 per cent; computed compensation on the basis of 25 per cent of 100 weeks, which equals 25 weeks; and then distributed the compensation, 15 weeks for the right ear and 10 weeks for the left ear. As indicated, the percentages of loss of hearing were agreed to. Since hearing of one ear was impaired 30 per cent, and hearing of the other ear was impaired 20 per cent it cannot be said that total loss of hearing was less than 25 per cent. The basis of 100 weeks was properly employed, and the distribution was not prejudicial to the insurance carrier.” (p. 669.)
In our opinion the method of computation approved in the decision just quoted is the one required by the statute. Reference to the trial court’s findings will reveal such method was followed by it in reaching its conclusion the claimant was entitled to compensation for 37.5 weeks for his permanent partial loss of hearing in both ears. Based on that method its computation was correct and is approved.
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The opinion of the court was delivered by
Burch, J.:
This appeal involves the right of the plaintiff to recover from two auctioneers the proceeds from the sale of hay. The district court sustained a demurrer to-plaintiff’s evidence and from such ruling appeal has been perfected. Examination of the record reveals that plaintiff filed in the district court a third amended petition which alleges in substance that the plaintiff on November 11, 1943, as a landlord, was the owner of an undivided one-half interest in a crop of prairie hay grown on plaintiff’s farm; that on the above date the defendants, as auctioneers and clerk respec lively, were informed of plaintiff’s undivided ownership and agreed to cry the sale, sell the hay and pay to plaintiff his proportion of the proceeds; that the hay was so sold but that the defendants, after demand therefor, had refused to pay the plaintiff. An answer was filed, containing, among other allegations, a denial of plaintiff’s ownership in the hay and specific allegations to the effect that one A. D. Renard was the owner of all the involved hay on November 11, 1943. Consequently, under the pleadings, the principal primary question at issue was: By whom was the hay owned?
The plaintiff’s evidence established that he was the owner of the farm on which the hay was grown and that the above-named A. D. Renard was his hold-over tenant under a written lease which provided that the landlord was the owner of a one-half interest in all stacked prairie hay; that three or four days before the sale on the aforesaid date, the plaintiff saw a public sale bill which set forth that the defendants would sell, among other items, about sixty tons of prairie hay on plaintiff’s farm, which hay and other'property were shown by terms of such sale bill as the property of A. D. Renard. The evidence also developed that on the morning of the sale the plaintiff and his attorney appeared at the farm and advised the defendant, Rockhill, who was clerking the sale, of plaintiff’s ownership in the hay and that Rockhill, during that day, agreed to sell the hay and pay to the plaintiff one-half of the proceeds received therefor. Other evidence was introduced which corroborated the foregoing, but nothing is gained by reviewing it. On cross-examination the plaintiff, after timely objections by his counsel, was required to testify as to an exchange of correspondence between the plaintiff and his tenant relating to the alleged sale of the hay to the tenant. The principal objection to all questions pertaining to the correspondence was that such questions were not proper cross-examination. Such correspondence, however, was properly introduced for the purpose of possibly proving that the plaintiff was not the owner of the hay and the trial court did not err in admitting it for such purpose.
Examination of the correspondence reveals that the plaintiff had written a post card to his tenant, Renard, in July, thereon instructing the tenant to sell the plaintiff’s share of the hay at the best price obtainable. On September 1st the tenant wrote the plaintiff as follows: “Will you take 45.00 for your share of wild hay on the ground? I have to hire machinery, & help, & its just not to be had, or you can’t by any, their is a fellow I maybe could sell it to, its high but maybe I could get it, . . . if he takes it will send M. O. as I don’t know just very much about his checks.” In reply thereto the plaintiff wrote: “If $45.00 is the best I can get for my share of the wild hay, presume I will have to take it.” About two weeks after the reply was written, the tenant wrote the defendant the following: “The fellow who bought wild hay is selling some hogs to get the 45.00 soon, so when he gets his returns I’ll send M. O. . . .” Later,' instead of sending the plaintiff a money order, the tenant sent his personal check dated October 6, to the plaintiff, for $33, and requested the plaintiff to add a previously-made overpayment of $12 on another item, to the amount of the check, in payment for the hay. The check contained the following notation on its face: “Previous Ck 12.00 This ck 33.00 for all $45.00.” and on the back thereof the following: “Bal. Due for % share of wild hay.” The plaintiff endorsed and deposited the check and wrote the tenant on October 19 as follows: “Mildred forwarded me your letter which had enclosed the ck. on hay deal. I told her to deposit it to my acct. The way you explained it was O. K. Will be home in about 10 days. . . .”
When the plaintiff and his attorney arrived at the farm on the morning of the sale, November 11, they discovered for the first time that the tenant had not sold the hay to a third party but had cut and stacked it and wras offering all of it for sale as the property of the tenant. The record does not disclose any conversation had that day between the plaintiff and his tenant, although it does show that the tenant was present and heard a conversation among the plaintiff, his attorney, and the defendant, Rockhill, in which the plaintiff claimed to be the owner of an undivided one-half of the hay. There is no evidence that the plaintiff at such time tendered or offered to return to the tenant the $45. Therefore, it will be seen that the plaintiff in effect sought to retain the consideration paid him by the tenant for the plaintiff’s share of the hay and at the same time sought to repudiate the sale to the tenant without restoration of the status quo. In the case of Dutton v. Dutton, 113 Kan. 146, 213 Pac. 326, the syllabus reads as follows:
“1. One asking to rescind a contract based upon sufficient consideration and wholly executed, for fraud, must restore or offer to restore to the other party the money or thing received under the contract, and so far as practicable place him in the position he was in at the time of the execution of the contract.
“2. A party cannot affirm a contract in part and repudiate it in part nor hold some of its benefits and at the same time evade its disadvantages.”
Paragraph two of the syllabus in the case of Erdley v. Dixon, 127 Kan. 142, 272 Pac. 154, reads as follows:
“A petition for the rescission of a contract is not complete without an offer of restitution of the amount paid thereunder, if any, or an allegation of excuse for retaining it, and without such offer or allegation is demurrable.”
From the opinion the following is quoted:
“. . . In this respect we think it lacks one very essential element, viz., an offer of restitution or to place the defendant in statu quo.
“ ‘In nearly all jurisdictions a bill is demurrable in which complainant does not offer to return any consideration which it shows that he has received, or otherwise place defendant in statu quo, or sufficiently excuse himself from that duty.’ (9 C. J. 1241.)
“ ‘The vendor or grantor seeking cancellation of a contract of sale or of a conveyance must, as a general rule, restore any cash payment which has been made, or property or property rights given in consideration of the sale or conveyance.’ (9 C. J. 1217.)” (p. 143, see cases cited at p. 144.)
The court is of the opinion that the principle of law followed in the foregoing cases is controlling in the present case and that for such reason the ruling of the district court must be affirmed. The plaintiff, in connection with the appeal, in his reply brief states that defendants are not in a position to ask that their liability to the plaintiff be reduced in the amount of $45 but that if this court feels that the plaintiff would be unjustly enriched if allowed to recover from the defendants as prayed for and still retain the $45 this court can order the plaintiff to pay the $45 into the court below to await disbursement. Obviously, such an offer in this court comes too late. The appeal must be decided on the record which was before the trial court at the time the demurrer was filed. Without an offer to make restitution, on the part of the plaintiff, having been proved, the plaintiff could not have claimed title to an undivided one-half of the hay at the time the trial court passed upon the demurrer. Consequently, the plaintiff’s case failed to establish that he was the owner of the hay and he could not recover.
Many other questions have been presented to this court in connection with the appeal by attorneys for the respective parties but in view of the foregoing it becomes unnecessary for us to give consideration thereto.
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The opinion of the court was delivered by
Thiele, J.:
This was an action to determine the rights of plaintiff and of several of the defendants to a sum of money due under a contract for the construction of a railroad bridge in Wyandotte county.
For brevity in reference, the plaintiff will be referred to as the bank; the defendant The Central Construction Company as the contractor; the defendant Guy A. Thompson, Trustee for Missouri Pacific Railroad Company, as the carrier; the defendant Massachusetts Bonding and Insurance Company as the bonding company; and the names of other defendants will be set out later and then referred to by easily identifiable names.
In a preliminary way, it may be said that the carrier had entered into a contract with the contractor for the erection of a bridge, under which a portion of the moneys due the contractor was to be retained by the carrier until completion of the work. To finance its operations the contractor borrowed from the bank the sum of $3,000 and to secure payment thereof assigned to the bank its right in the retained moneys. Under the terms of the contract the contractor gave a bond, signed by the bonding company, the terms of which are more fully set out later, and in connection therewith the contractor executed to the bonding company an assignment of the retained moneys. In the performance of the contract the remaining defendants furnished materials and equipment under conditions more fully set forth later herein. When the bridge was completed the carrier had in its possession and unpaid to the contractor or some of the parties claiming to be entitled thereto, a sum now agreed to be $3,701.65. The bank brought an action against the contractor in the district court of Barton county, Kansas, and recovered a judgment of $3,000. None of the other parties herein were parties to that action. The bank then commenced the present action in the district court of Wyandotte county in order that the rights of the several parties in and to the above sum of $3,701.65, and the rights and liabilities of the bonding company, might be determined.
It is not necessary that we review in detail the petition of plaintiff, the answers, or answers and cross petitions of the several defendants, and the replies thereto. After the issues were joined, certain defendants moved the trial court to determine issues of law in advance of the trial. In a summary way, it may be said the trial court concluded that the carrier, having failed to take a statutory bond under G. S. 1935, 66-215, was directly liable to defendants, the Welborn Lumber Company, Funkhouser Equipment Company, The Victor L. Phillips Company, Barcus & Son, Electrical and Magneto Service Company, Inc., and L. B. Foster Company, Inc., on their claims totaling $3,690.70, and to other creditors, not made defendants, in the further sum of $384. The bank’s motion for a new trial and for revision of the judgment, and the motions for a new trial of the bonding company and the carrier, were denied and each of them perfected appeals to this court. Thereafter in the trial court a stipulation of facts by all parties was filed and the cause was submitted to the court, which, in accordance- with the findings and conclusions of law previously made, rendered judg- ' ments in favor of the claimant defendants for the several amounts claimed against the contractor, the bonding company and the carrier; that the carrier pay into the court the $3,701.65 retained by it for application pro rata on the claims, and when it pays balances due, it have judgment over against the bonding company. The bank, the bonding company and the carrier each filed motions for a new trial, and these several motions being denied, they perfected an appeal to this court, the notice of appeal stating it was supplementary to and in enlargement of the first appeal. The specifications of error cover the matters hereafter discussed. No -point is made of it, but as will hereafter appear some of the individual claims involve less than $100. In view of the final judgment, however, .appellants are entitled to appeal as to these claims. See Shannon v. Abrams, 98 Kan. 26, 157 Pac. 449, Ann. Cas. 1918E 502.
Among other agreements the stipulation of facts shows the following: There is no controversy between the bank and the bonding company as to the priority of their respective assignments from the contractor of moneys retained by the carrier. The contractor is indebted to Barcus & Son in the sum of $150 for rental of two concrete mixers loaned by Barcus to the contractor, used in the work and then returned to Barcus. The contractor is indebted to Victor L. Phillips Company in the total sum of $860, made up of $358 purchase price of á pump used in the work and after completion removed by the contractor as part of its equipment, of $102.44 rental on equipment used and returned to Phillips, and of $399.56 being equipment and repairs to equipment. The contractor is indebted to Welborn Lumber Company in the sum of $21.84 for material used or consumed. Welborn asserts no claim to or interest in retained funds and asserts no claim against the carrier nor against the bonding company, and is entitled to judgment only against the construction company. (This item is mentioned for the reason it is included in the entire judgment.) At the trial, Welborn sought permission to amend its pleading to ask judgment against the bonding company. The amendment was permitted, the court stating if the stipulation provided Welborn got no benefits it would get none. We think under the stipulation Welborn was not entitled to any judgment except against the contractor. The contractor is indebted to the Magneto Company in the sum of $28.88, being the net purchase price of a magneto installed on a crane used in the work and remaining a part of the crane after completion of the work. The contractor rented steel piling from the Foster Company. The rental due is $68.16. After the work was completed piling was pulled and left near the bridge. Foster paid $150 for hauling and charged $15 for inspection trips. Some piling disappeared, the value being $248.44. The claim as allowed covered these several items. The contractor is also indebted to Foster in the sum of $73.25, for reconditioning piling. The contractor is indebted to Smith and Hoffman Company in the sum of $50.78 for hauling the Funkhouser equipment to and from the work. The contractor is indebted to Funkhouser in the sum of $1,815.73, being the balance due for rental on equipment, for hauling it, and for repairs and repair parts to it. (It may here be noted that the trial court gave judgment for the several amounts as against the contractor, the bonding, company and the carrier.) Also included in the stipulation is the contract between the carrier and the contractor, and the bond given by the bonding company.
It may first be noted that the carrier did not take from the contractor and file with the register of deeds a bond conditioned that the contractor “shall pay all laborers, mechanics and materialmen, and persons who supply such contractor with provisions or goods of any kind, all just debts due to such persons . . . incurred in carrying on such work” as provided by G. S. 1935, 66-215, and under that statute it is liable to the persons mentioned for all debts covered thereby to the full extent thereof. Among its conclusions of law, the trial court concluded that the term “provisions or goods” as used in the above statute was broad enough to cover anything in the way of goods, wares and merchandise supplied to a contractor, and so construed would include rental of machinery and construction equipment furnished and used in performance of the contract. The appellants contend the conclusion, as applied to the facts, is erroneous and that the claims of the several appellees, covering various rental, hauling and purchase contracts, are not claims within the coverage of the above mentioned statute, and they direct our attention to many authorities. Although appellees make a general statement that they claim the railroad company, having failed to take a statutory bond, is directly and personally liable to them, they do not pursue the contention nor cite any authorities, but in stead contend that the bond which was given protects them. In our opinion the trial court’s conclusion of law cannot be sustained. With respect to rental of machinery the following must suffice. In Wilkinson v. Pacific Mid-West Oil Co., 152 Kan. 712, 107 P. 2d 726, plaintiff sought a mechanic’s lien upon an oil and gas leasehold. Under the statute there applicable (G. S. 1935, 55-207) the right to a mechanic’s lien is as broad, if not broader, than under the statute now under consideration. It was there said:
“It is well settled that the rental or the value of the use of machinery cannot be the basis for the claim of a mechanic’s lien.” (1. c. 714.)
See the cases in that opinion cited in support of the above statement. See, also, 36 Am. Jur. 57 (Mechanic’s Liens, §70). With respect to claim of lien for hauling, it is to be observed that the amounts claimed were not an element of the price of any work, labor or material furnished (Road Supply & Metal Co. v. Casualty & Surety Co., 121 Kan. 299, 246 Pac. 503; Southwestern Electrical Co. v. Hughes, 139 Kan. 89, 93, 30 P. 2d 114), but on the contrary were separable and distinguishable items of expense; and under the reasoning of Traction Co. v. Brick Co., 112 Kan. 774, 213 Pac. 169, the items of hauling did not form the basis of a mechanic’s lien. In addition to the items of rental and hauling are certain items of repair, inspection and the piling which disappeared. None of these items are within the. purview of the statute as being either labor or material or provisions or goods supplied. The claimants, appellees here, may not have judgment against the carrier on the theory of its liability under G. S. 1935, 66-215. If they are to recover against any other than the contractor, it is by reason of the construction contract and the bond given in connection with that contract.
Although each is set out in more detail later, the construction contract provided for a bond by the contractor. The bond made specific reference to the contract which was attached to and made part of the bond. Therefore, to determine the intent of the bond with respect to protection of the claimant appellees and the liability of the bonding company, it becomes necessary to construe them, in all their parts, together. See Haynes Hardware Co. v. Western Casualty & Surety Co., 156 Kan. 356, 113 P. 2d 574.
As printed in the abstract, the construction contract consumes fifteen pages and contains twenty-eight numbered paragraphs. It includes many provisions not of present interest. The portions re lied on by either party, or necessary for our consideration are summarized or'quoted, as follows:
In paragraph lisa definition of terms, and we note two of them:
"(e) ‘Work’ means the whole of the particular thing or things, including any and all necessary materials and labor and other and different things appurtenant thereto, which are to be done, furnished, and/or performed; Work in general terms consisting of constructing [the bridge].”
“(e) ‘Bond’ means a written bond of indemnity, in the penal sum of $14,-400.00 and having as surety thereon a corporate surety acceptable to Carrier, conditioned for performing of Contractor’s undertakings herein: which bond Contractor on own responsibility shall execute for benefit of Carrier, Carrier’s successors and assigns, and deliver thereto as part hereof and thereafter keep effective. ...”
Under paragraph 2 it is provided:
“Contractor shall at the Site provide all materials, superintendence, labor, equipment and other and different instrumentalities and things required for and in connection with the Work, and execute, construct and finish the Work, complete, in a lawful, expeditious, substantial and workmanlike manner . . . subject to the general conditions, requirements . . . elsewhere herein set forth. . . .”
And that carrier shall pay contractor at unit prices for particular items of work and material. (It is here observed that there is no stated overall consideration for performance.) Under three lettered subdivisions are provisions as to certain things to be furnished or done by the carrier without cost to the contractor. Under paragraph 4 it is provided contractor shall execute work as the engineer may direct and upon termination remove from carrier’s premises all of contractor’s work equipment, instrumentalities and other and different things, then thereon consequent on contractor’s operations and leave the premises in acceptable condition. Paragraph 10 provides for extra work, and as compensation—
“Contractor shall charge and Carrier shall pay actual cost at Site, to Contractor, of all materials so used, plus ten per centum thereof, cost of all labor so performed, plus ten per centum thereof, rental for use of any equipment at rates to be agreed upon ...”
Paragraph 12 provides for making monthly estimates of work done, and for retention of ten per cent for disposition as elsewhere provided. Paragraph 14 recites:
“Whenever Engineer, to facilitate completion of Work or to protect Carrier from loss, deems it necessary, Carrier, on Contractor’s behalf, may, out of moneys soever then or thereafter to become due and payable to Contractor, pay to one or more persons then or theretofore employed on Work wages from whomsoever except Carrier then due them because thereof, taking written receipts therefor. Whenever there appears to Engineer indication or evidence of liens, claims or charges soever for which Work or Carrier may be or become liable, Carrier, on Contractor’s behalf, may deduct and retain, from said moneys, amounts sufficient fully to indemnify Carrier there-against and may then or thereafter pay and discharge any or all such valid liens and claims. Carrier may deduct and forever retain from said moneys amounts equal to any and all such payments.”
Paragraph 15 provides for acceptance of the work by carrier,
". . . whereupon net balance of all moneys, including aforesaid retained percentages, then found due contractor shall be paid thereto at office of Carrier’s Treasurer within sixty days following Contractor submitting to Carrier written evidence, satisfactory to Engineer, of there having been fully and duly satisfied and discharged all indebtedness, including labor and material bills, and all other and different liability, which, incurred consequent on this contract or attendant on the performance thereof by Contractor, may be or become a lien, charge or claim on or against the Work or the Carrier.”
In paragraph 16 it is stated that—
“Contractor, by accepting any payment, thereby warrants there neither is nor ever can be any lien, claim or charge on or against Work or Carrier either for labor or materials furnished and incorporated by Contractor in that portion of Work covered by such payment. . . .”
Under paragraph 21, under certain specified failure of the contractor, the carrier—
“. . . may use any or all of Contractor’s aforesaid materials, labor, equipment and other and different instrumentalities and things in so doing said thing or things. Contractor at close of each calendar month shall repay total cost to Carrier thereof during such month. Carrier as one of Carrier’s remedies is authorized to deduct from time to time, and forever to retain, from moneys soever now or as same become due and payable by Carrier to Contractor, such amounts as Carrier may choose until aggregate thereof shall equal the sum total of Contractor’s liability.”
Paragraph 22 states as follows:
“Contractor hereby agrees to defend, indemnify and hold harmless the Carrier from any mechanic’s and/or materialman’s lien, and from all liability, loss, damage, cost and expenses growing out of, or arising from, damage or injury to property, or death, damage or injury to persons which shall be caused wholly or in part by the negligence of agents or employes of Contractor, or by the negligence of sub-contractors, of by the negligence of agents or employes of sub-contractors, or by the neglect or failure of Contractor or of sub-contractors, or of agents or employes of Contractor, or of agents or employes of sub-contractors, to observe or to perform any of the promises, requirements or terms of this contract, and if suit shall be brought against Carrier to recover for any liability, death, loss, damage, injury, cost or ex pense described in C of paragraph 2, [No. C of J 2 incorporated in the contract] or in this paragraph, Contractor agrees to defend such suit without cost to Carrier, and to pay any judgment that may be recovered therein, and to save Carrier free and harmless from any loss, costs, attorney’s fees, damages or expenses on account thereof.”
In paragraph 26 it is provided that neither the contract, nor any part thereof nor right of the contractor thereunder shall be transferred or assigned except by virtue of express agreement acceptable to the carrier.
The bond given to comply with the above contract contained a paragraph identifying the parties to it, 'stated a penal sum of $14,400, and continued:
“The condition of the above obligation is such, that
“Whereas, Contractor has contracted with Carrier among certain things to furnish and pay for certain materials and/or work equipment and to perform and pay for certain labor required for and in the undertaking, carrying on and completion by Contractor of certain work, including constructing [a bridge in Wyandotte County] for the considerations and as more particularly specified in one certain written agreement, dated October 22, 1940, ....
“Now, Therefore, if Contractor fully and faithfully perform all and singular the Contractor’s undertakings in said agreement, or defend, indemnify and save harmless forever the Carrier from and against any and all pecuniary loss resulting from any failure by Contractor so to perform said undertaking or undertakings, then this obligation shall be void; otherwise to be and continue in full force and effect. And, Surety . . . waives the benefit of any defense not available to the Contractor.”
When ruling on the motion for determination of questions of law in advance of the trial, the trial court filed a written opinion in which it reviewed the construction contract and bond, and following that review it concluded as a matter of law, as has been pointed out previously, that the carrier, having failed to take a bond as required by G. S. 1935, 66-215, was directly indebted to the claimants. That phase of the matter has been sufficiently discussed.
In a summary way, it may be stated the trial court also concluded that no statutory bond having been given, the bond which was given, when construed in connection with the contract, was intended for the benefit of strangers to the bond who might furnish labor or material or other and different instrumentalities and things required by the contract; that liability of the bonding company was not measured by the lien statute above mentioned but by the terms of the bond given and the contract; that under the bond the contractor should pay for materials, work equipment and labor required and consequently by its own terms included payment for work equipment; and that rental or purchase of the items charged for in the different claims were covered by the bond and were items for which the principal and surety were liable. The trial court also concluded*' that the contractor having ordered and agreed to pay for those items and having failed to do so, and having failed to plead or contest those claims, had no defense to them; that under the bond the carrier and the bonding company had expressly waived the benefit of any defense not available to the contractor and such being the case, the bonding company is liable on the bond to the same extent ■ as the carrier, and may not set up any defense not available to the contractor. Other conclusions include quotation of language from the contract and that the claims asserted are covered by them, and finally that all of the claimants have claims against the funds in the hands of the carrier, superior to the assignments to the bank and the bonding company.
Although stated in a different manner, in their briefs appellants contend generally that although the. carrier failed to take a statutory bond as specified in G. S. 1935, 66-215, it has no liability under that statute for the particular items asserted by the claimant appellees, a contention already discussed, and further that the bond presently involved was not given for the benefit of third parties but only to indemnify the carrier, and that the bond and construction contract construed together do not cover the particular debts or claims asserted by the appellee claimants. In support of their contentions appellants direct our attention to many cases which will be noticed later. Before taking up the above contentions, however, we take note of appellees’ brief in support of the judgment.
Appellees recognize that ordinarily a bond inures to the benefit of the named obligees and no other persons and that it may be relied upon by the obligees and not by persons strangers to the bond or its consideration, but they contend that the modern rule permits strangers to the bond to maintain an action in their own names upon the bond where it clearly was the intention of the contracting parties that the contract and bond were made for their benefit, and that this court has gone a long way in the adoption and application of this rule. In support of that contention our attention is directed to Manufacturing Co. v. Deposit Co., 100 Kan. 28, 163 Pac. 1076, and Haynes Hardware Co. v. Western Casualty & Surety Co., 156 Kan. 356, 133 P. 2d 574. More detailed references will be made to these cases later herein. Appellees then direct attention to the definition of the bond used in the contract and especially to paragraphs 2, 10, 14, 15, 16, 21, 22 and 26 of the contract, all of which have been quoted or summarized heretofore, as emphasizing their contention the broad coverage of the contract expands its meaning from a contract not only to furnish labor and material, but other and different things appurtenant, including equipment and other and different instrumentalities and things required for and in connection with the work. They then denominate the bond a common law faithful performance' bond, and call attention to the opening sentence of the “whereas” clause’that the contractor has contracted “to furnish and pay for certain materials and/or work equipment” and to the last sentence dealing with waiver of defenses. After taking the position it is immaterial whether the rental claims are the basis of mechanics’ lien claims, appellees argue that the liability of the bonding company is not measured by the lien statutes, but by the terms of the bond and contract, and that the obligation assumed by the bonding company goes far beyond the obligation imposed under the lien statute, and that the bonding company is liable to the claimant appellees under the bond and contract. In support, appellees rely principally on Shannon v. Abrams, supra. We pause to observe that it is not contended that under the construction contract the carrier agreed to pay anything to anyone except the contractor. If the items of the claims were not the basis of liens under the statute, then the carrier is without liability to the claimants except as to the retained moneys. The mere fact it was obligee under’the bond did not subject it to liability.
Limits of space prevent setting forth an exhaustive review of the various cases relied on by any of the parties.
In Manufacturing Co. v. Deposit Co., supra, sometimes referred to as the Algonite case, it appears a faithful performance bond was given by the contractor. The Algonite company, which furnished material used in the building, filed no lien. It brought an action against the bonding company. In that opinion may be found quotations from the construction contract showing clearly that all claims which might be the basis of liens were to be paid, and that the contractor was to furnish evidence that persons who performed labor or furnished materials had been paid, and that the owner could retain moneys due the contractor until all liabilities were discharged. In that case it was held:
“A surety bond to guarantee the faithful performance of a contract for the erection of a building, which by reference makes the contract and specifications a part of the bond, the specifications requiring the contractor upon final settlement to furnish satisfactory evidence that all persons who performed labor or furnished materials under the contract have been fully paid, otherwise reserving to the owner the right to retain final payment ‘until all liabilities are fully discharged by paying them from such money,’ is held to have been intended for the benefit of laborers and materialmen under the contract; and therefore they may maintain a suit on the bond to enforce their claims without having filed mechanic’s liens.” (Syl.)
In Haynes Hardware Co. v. Western Casualty & Surety Co., supra, may be found an exhaustive review of our'decisions dealing with construction contracts and bonds given in connection therewith. In that case plaintiffs sued in its own behalf and as assignee of various lien claimants. The contract required contractor to provide and pay for labor, material and other specified things, and the bond contained a provision for retention by the obligee of moneys due the principal Until claims were paid. The bonding company urged that the bond was not intended to cover and did not provide for the payment of liens. This court, upon examination of the contract papers and bond, which were construed together to determine intent, held that the bond was for the benefit of the claimants; that they could maintain the action; and that the judgment rendered in their favor should be sustained.
It will be observed in examining both of the cases last mentioned the claimants were those whose claims were the basis of mechanics’ liens. Both cases are authority for holding that where the laborers or materialmen are sufficiently designated as a class for whose benefit the condition requiring payment of their claims was inserted in the contract, they may maintain an action on the bond. The cases are not authority that creditors not holders of lienable claims or not covered by the contract and bond may maintain such an action.
Appellees say that the decision in Shannon v. Abrams, supra, fits their case exactly, and they quote the fourth and fifth paragraphs of the syllabus and portions of the opinion, which read as. follows:
“Where contractors agree to build a road and to pay ‘for all labor and material and all other obligations or liabilities incurred in the doing of the said work or performance of any of the things necessary hereunder,’ and a surety company, for a valuable consideration, guarantees the performance of the contract, and where the contractors fail to pay the necessary and pertinent bills incurred by them in such undertaking, the surety company is liable thereon.
“In a road-building contract, which named the quarry where the materials for the road were to be obtained, the contractors failed to pay the necessary and pertinent accounts for dynamite, for coal consumed in the engine which operated the rock crusher, for lumber, for the rent of the quarry and for the rent of tools. Held, that the surety company was liable for the payment of these accounts under its surety obligation.” (Syl. Iff 4, 5.)
In that case plaintiff sued for himself and as assignee of thirteen claims growing out of a contract for construction of a macadam road. As to five items concerning team and road work, it was stated the liability was too plain for discussion. The other items all seem to have grown out of the operation of a rock quarry and included dynamite, coal used in an engine on a rock crusher, rent of the quarry and an item for rent of tools used in an amount of $64. The surety company contended the several items were not within the terms of the surety obligation. In answering that contention it was said:
“A majority of this court [three justices dissented] .holds otherwise; that under the rule announced in Lumber Co. v. Douglas, 89 Kan. 308, 131 Pac. 563, and the cases there cited, and the fair interpretation of the contract, all these bills were pertinent to the building of the road, and that it could make no difference to the surety company whether the contractors purchased all the supplies for building the road from somebody else who had purchased dynamite and- coal and rented tools, and rented a rock quarry, and based his price for the materials thus furnished to the contractors in consideration of such expenditures, or whether the contractors procured these materials through the incurrence of these expenditures themselves. . . . If it (surety company) does not pay these bills it will pay nothing, for the materials were procured by the incurrence of the bills here presented.” (1. c. 31, 32.)
It was further stated the contract specified the quarry where the rock should- come from, and that the contractor should pay for the transportation of materials. It would appear that except possibly for rent of tools, all of the operations on which the claims were based were for production of materials consumed in the work and that the item of transportation was a direct contract obligation.
Appellants, in support of their contentions, cite other cases, but seem to rely mostly on Traction Co. v. Brick Co., supra. In that case the plaintiff brought an action to recover on a statutory bond furnished by the contractor, for freight charges on brick used in paving a street in Independence. In disposing of a contention that the company was liable, this court said:
“It is suggested that the surety company’s liability can be gleaned from the general language of the bond guaranteeing faithful performance of the con tractor’s agreement with the city in all its parts. But it is difficult to discern anything approaching a breach of the contractor’s agreement with the city of which the traction company may take advantage. In Shannon v. Abrams, 98 Kan. 26, 157 Pac. 447, the surety company bound itself not only to pay claims which might be the basis of statutory liens but ‘all other obligations and liabilities necessarily incurred’ in constructing the improvement. No such all-inclusive obligation is found in the present contract, nor can its terms be fairly so extended. The pertinent recital in the bond provides that if the contractors ‘shall well and truly pay all claims for labor or material, or both labor and material, which might be the basis of liens . . . and shall hold said city free and harmless of and from all such claims, then this bond is to and shall become null and void; otherwise to be and remain in full force, effect and virture.’ ” (1. c. 775.)'
Under the decisions above noted, we examine the bond and contract to determine whether, by reason of the terms of the bond and contract construed together, there is any liability of the bonding company to pay the claims asserted by the appellees. Liability of the bonding company arises out of its execution of the bond. In the bond and under the whereas clause is the statement that the contractor has agreed with the carrier “to furnish and pay for certain materials and/or work equipment . . . required for and in the undertaking, carrying on and completion ... of certain work ... as more particularly specified in one certain written agreement, . . .” The contractural clause of the bond has been quoted and will not be repeated. Whether, by that bond, the bonding company contracted that if the contractor did not pay appellees’ claims, it would do so is to be determined from an examination of the contract.
The definition of “work” given in the contract need not be repeated.
Although the contract defines the bond as being one of indemnity to be executed for the benefit of the carrier and its successors and assigns, we do not believe that portion may be separated from remaining portions of the contract, and construed to exclude claimants under the contract and to be solely for the benefit of the carrier, its successors and assigns. All of the contract provisions must be construed together to determine whether claimants are protected. See Haynes Hardware Co. v. Western Casualty & Surety Co., supra, 361 and corresponding part of the syllabus.
The elements of the second paragraph have been quoted and summarized heretofore. It is not specifically stated that the contractor shall pay for certain items although that may be inferred. The contract does provide what the carrier shall furnish without cost to the contractor. Possibly an inference may be drawn therefrom that the latter is all that the carrier is liable for. With reference to the contractor’s duties, the paragraph does provide that those duties are subject to the general conditions and requirements of the contract.
While appellees direct attention to paragraph 10, which provides for extra work on a cost basis including rental for use of equipment, that rental is one to be paid by the carrier to the contractor. There is nothing in the agreed statement that any extra work was done and we need not notice this paragraph further than to say that we do not construe it as warranting or compelling any recovery for the appellees.
Paragraph 12 provides for retention by the carrier of ten percent of amounts due the contractor, and for disposition thereof as pro- , vided in the contract.
Passing for the moment some intervening paragraphs, we think that paragraph 21, which provides that in event of certain failure of the contractor to perform, the carrier may use the contractor’s materials, labor, equipment and other things specified, cannot be construed into creating liability of the cárrier to the present claimants, or if it could be, there is no evidence of any such use. Neither do we believe that paragraph 26 providing about transfers or assignments has any bearing.
In paragraph 14 provision is made that the carrier may pay wages due, and the further provision authorizing the carrier, out of moneys due the contractor, to pay liens, claims and charges for which the work or carrier may be liable. Note that the provision does not say for which the contractor may be liable. Paragraph 15 refers to a time when the work as a whole has been completed, when the net balance due the contractor shall be paid upon the carrier’s being satisfied that there has been discharged all indebtedness “including labor and material bills, and all other and different liability, which, incurred consequent on this contract or attendant on the perform-, anee thereof by Contractor, may be or become a lien, charge or claim on or against the Work or the Carrier.” (Emphasis supplied.) Note again that the claims are those for which the work or carrier are liable, and not those for which the contractor is liable — it is not mentioned. Paragraph 16 has been quoted above. It covers a warranty by the contractor but contains nothing expanding other paragraphs herein detailed. Finally we come to paragraph 22 hereto fore quoted, wherein the contractor agrees to hold the carrier harmless from all liability, loss, etc. Without repeating the provisions of this paragraph, we conclude that it does not enlarge the liabilities of the carrier under the contract, nor those of the bonding cofnpany, under the contract and bond.
The contract is long and verbose, but hardly open to any argument that the carrier agreed to pay anything to anyone except the contractor. Of course, the contract notwithstanding, it having taken no bond as provided by G. S. 1935, 66-215, it had liability for lienable items. Insofar as the contractor is concerned, it had a duty generally to pay all of its debts, whether connected with the contract or its performance or otherwise — but its duties generally and the obligations imposed upon it by the contract, performance of which was assured by the bonding company, were not the same. Under the contract, before it could receive its compensation, it had the duty of paying all creditors who might have liens under the statute. Although the language varies, the contractor, before receiving its compensation in full, had also to satisfy the carrier that it had discharged all claims and charges soever for which the work or the carrier were liable, including all other and different liability consequent on the contract or attendant on its performance which may be or become a charge or claim on or against the work or the carrier. It seems significant to us that inclusion of claims against the contractor is not mentioned. The evident intent was to protect the carrier and its property against claims for which it might be liable and as to that class of claims the bond covered. We have not overlooked the inclusion of the word “work” in the language that the claims be against the “work” or the “carrier.” The word “work” as quoted above, does not pretend to do more than define the project to be performed and the means used to perform it, and although the word is used in subsequent parts of the contract, at no place is there any language susceptible of being construed as covering claims of creditors of whatever degree.
Final disposition of this phase of the case need not rest on any analysis of the contract, as distinguished from the facts giving rise to the contention that the claimants are protected by the bond. The classes of claims, rather than of creditors, show that some of the claimants seek to recover for the purchase price of equipment used on the project, but retained by the contractor when it moved off the work, others are for rental of equipment, others are for drayage charges in moving equipment. None of the claims is for anything or the use of anything consumed in performance of the contract. The construction placed on the contract by the trial court, and contended for by the appellees, would compel a conclusion that the bonding company became surety for all of the contractor’s debts incurred for the purchase of any machinery or equipment or for its use, or in any matter connected therewith, if it were used in performing the contract, a conclusion we think unwarranted. We conclude that the contract and bond, construed together, do not warrant any judgment in favor of appellees.
In treating the above matter we have not considered the last part of the bond wherein the surety waives the benefit of any defense not available to the contractor. Appellees contend that the liability of the bonding company is exactly the same as that of the contractor, and it directs attention to the fact that in its answer the carrier pleads the waiver. The gist of its other contentions is that though the contractor could have pleaded the claimants did not furnish the machinery or perform the other things claimed, or that it had paid therefor, it could raise no question the items were not lienable; that the contractor had obligated himself to pay claimants and could not otherwise defend, and the bonding company is in no better position.
In view of our conclusion heretofore reached, that based on the contract and bond the appellee claimants have no right of recovery, it is doubted that the question of waiver is of importance, for if they have no right of recovery in any event, the question of waiver becomes immaterial. It is noted, however, that it is of no consequence the carrier, the named obligee, in its answer, pleaded the waiver clause of the bond, nor that the contractor could raise no question about the items being the basis for liens. The carrier could and did raise the question, and it has been decided. Further, it having been determined that the claims of appellees are not within the purview of the contract, the appellees are not concerned with the bond.
The judgment of the trial court is reversed, and the cause remanded with instructions to render judgment consistent herewith. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action to recover damages for the alleged poisoning of cows and involved also some rental items. The appeal is restricted to the damage item.
The jury returned a general verdict on the damage feature of the case in favor of defendants and also returned a special verdict.
The defendants appeal first from the order overruling their general demurrer to plaintiffs’ evidence. This case was previously here on an appeal involving, among other things, an order overruling defendants’ general demurrer to plaintiffs’ evidence. We sustained the ruling. (Underhill v. Motes, 158 Kan. 173, 146 P. 2d 374.) Material portions of plaintiffs’ evidence was narrated in that opinion and reference is here made thereto. A careful review of the precise points of difference between plaintiffs’ evidence in the two trials to which appellants direct our attention leads us to conclude the difference is entirely too slight to justify a different ruling. In fact, appellants concede if that were the only ruling complained of the instant appeal would not be here.
Appellants complain primarily of rulings on post-trial motions. The trial court set aside the general verdict in their favor and rendered a judgment for damages in favor of plaintiffs, appellees. The rulings involved the special verdict and motions leveled against it by appellees. The special verdict reads:
“1. What caused the death of plaintiffs’ cows? A. Unknown.
“2. ' Was there any grasshopper poison put out near the pasture by anyone other than Buard Motes? A. No.
“3. If you answer the above question ‘yes,’ state: (a) Where it was? A.- (b) Who put it out? A. --.
“4. Was the grasshopper poison scattered where it could wash down to or near the fence in reach of plaintiffs’ cows? A. Yes.
“5. Was any of said grasshopper poison found near the fence close enough to be in reach of plaintiffs’ cattle? A. No.
“6. Do you find that the defendant, Buard Motes, was negligent in scattering the grasshopper poison? A. No.
“7. If you answer the above question ‘yes’ then state fully in what particular or particulars he was negligent? A.-.
“8. Do you find that the defendant, Susie Lacoe Motes, was negligent in handling the grasshopper poison? A. No.
“9. If you answer the above question ‘j'es’ then state fully in what particular or particulars she was negligent. A.-.”
In appellees’ first motion they asked to have findings No. 1, 5, 6 and 8 set aside on the grounds they were not supported by any evidence and were contrary to the evidence. The motion was sustained except as to finding No. 8. Appellants contend no part of the motion should have been sustained.
We may concede that a review of the cold record before us makes it somewhat difficult to understand why the jury made the three findings, which the trial court set aside, as it did. We cannot say, however, that the jury was compelled to answer them otherwise. For example, the jury was instructed on the subject of due care in the scattering of grasshopper poison in the alfalfa field adjoining the pasture. No error is charged with respect to the instructions on the subject. The jury answered that question by finding No. 6. Under these circumstances neither the trial court nor this court can substitute its judgment for that of the jury. We cannot say there was no evidence to support the finding or that it was contrary to the evidence. Moreover, the finding was consistent with the general verdict.
Touching question No. 1 it was appellees’ burden to prove their cows died from grasshopper poisoning as their petition alleged. The jury resolved that contention against appellees by finding No. 1. At least the finding means appellees did not prove that charge to the satisfaction of the jury. The answer was consistent with the general verdict. Appellees, however, insist there was ample evidence the cows died of grasshopper poisoning and no evidence that they died from any other cause. Appellees overlook the fact that while a jury is obliged to consider all evidence, it is not required to believe and accept as true the evidence of a witness, or witnesses, merely because there is no direct evidence to contradict the same. (Smith v. Lockridge, 145 Kan. 395, 65 P. 2d 345; Kallail v. Solomon, 146 Kan. 599, 72 P. 2d 966; Johnson v. Soden, 152 Kan. 284, 287, 103 P. 2d 812.) The last-stated principle also applies to finding No. 5. That finding likewise is consistent with the general verdict. From what has been said it follows the court was not justified in setting aside the three findings of the jury and substituting its own judgment relative to the credibility of the witnesses or the weight to which their testimony was entitled.
Having set aside the findings mentioned the trial court passed on appellees’ (plaintiffs’) motion for judgment on the remaining findings. It sustained that motion, set aside the general verdict in favor of appellants and rendered judgment for damages in favor of appellees. Assuming the three- answers previously designated properly had been set aside, were appellees entitled to judgment on the remaining findings? We do not think so. It must always be remembered that in the consideration of a question of inconsistency between answers to special questions and the general verdict nothing will be presumed in aid of the special findings and that every reasonable presumption will be indulged, in favor of the general verdict. (Lesher v. Carbon Coal Co., 127 Kan. 34, 272 Pac. 155; Waldner v. Metropolitan Life Ins. Co., 149 Kan. 287, 289, 87 P. 2d 515; Walker v. Colgate-Palmolive-Peet Co., 157 Kan. 170, 194, 139 P. 2d 157; Sams v. Commercial Standard Ins. Co., 157 Kan. 278, 283, 139 P. 2d 859.) Therefore, unless the special findings clearly overthrow the general verdict the latter must be permitted to stand. (Taggart v. Yellow Cab Co. of Wichita, 156 Kan. 88, 131 P. 2d 924; Walker v. Colgate-Palmolive-Peet Co., supra.) In other words, the special findings must be of such a character as to compel the court to set aside the general verdict.
Did the remaining findings compel a different judgment? They probably were consistent with a different judgment but they did not compel a different judgment. Finding No. 4 is merely that the poison was scattered where it could wash down to or near the fence in reach of plaintiffs’ cows. It is not a finding that it did so. It follows the motion for judgment on the remaining special findings should not have been sustained even though they properly could have been considered as a unit, separate and apart from the other findings. Of course, the findings must always be considered in their entirety with a view of harmonizing them with each other and the general verdict and not with the view of overthrowing the general verdict. (Montague v. Burgerhoff, 152 Kan. 124, 128, 102 P. 2d 1031.) And finding No. 6 disclosed Buard Motes was not negligent in scattering the poison.
The trial court was clearly dissatisfied with the general verdict and with some of the special findings and, it would appear, quite properly so. But what was the extent of its power under those circumstances? It was to set them aside and to grant a new trial. (Ward v. Grant, 138 Kan. 363, 26 P. 2d 279; Tritle v. Phillips Petroleum Co., 140 Kan. 671, 676, 37 P. 2d 996.) Any other ruling would in reality constitute a substitution of the court’s judgment for that of the jury and a denial of the right of trial by jury. (Walker v. Colgate-Palmolive-Peet Co., supra, p. 193.)
The order of the district court overruling defendants’ demurrer to plaintiffs’ evidence is affirmed. In other respects the judgment is reversed with directions to grant a new trial. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action by the president and two other stockholders of a domestic corporation against the manager and one other stockholder — there being a total of six stockholders — to be declared to have stockholders’ voting control of the corporation, and in the alternative to have a receiver appointed and the corporation liquidated. The third stockholder held only one share of each common and preferred stock. She was out of the state and was not made a party to the action.
The plaintiffs held the majority of the preferred stock and contended it carried voting rights which, if recognized, would give them stockholders’ control in conjunction with their common stock. They also sought to cancel 150 shares of common stock held by the defendant manager on the ground it was obtained by fraud and without consideration. Plaintiffs further sought an accounting from the defendant manager and the appointment of a receiver on the grounds internal dissension was defeating the objects of the corporation and that corporate assets were being wasted and dissipated by unlawful and fraudulent acts of the defendant manager.
Plaintiffs were denied the relief sought and have appealed. The corporate entity was also named as a party plaintiff and it likewise has appealed. The record before us discloses no essential function which it has to perform as a party in this particular action, the controverted issues being entirely between the preferred and common stockholders rather than between the corporation and either class of stockholders.
Before considering the merits of appellants’ complaints we are confronted with appellees’ motion to dismiss the appeal. The first three grounds of the motion are predicated upon the theory of acquiescence in or acceptance of benefits under the judgment rendered. The motion is based upon the grounds: (1) The appellant, Franklin L. Herthel, president of the corporation, subsequent to the filing of findings of fact and conclusions of law on June 29, 1944, accepted the benefits of a salary fixed by the judgment; (2) all appellants are acquiescing in the judgment which required the manager to return bonuses to the corporation in the sum of $1,425 which he had taken without authority; (3) appellants are acquiescing in that part of the judgment favorable to them which determined a stockholders and directors’ meeting on February 16, 1943, was valid; and (4) subsequent to final judgment the board of directors passed a resolution to dismiss the instant appeal insofar as the corporation itself was concerned.
The contentions will be treated in the order stated. The salary was paid to June 1, 1944, by agreement of the parties made during the pendency of the action. The president continued to draw the increased salary for the months of June, July and August, 1944. We find nothing in the record to indicate his salary as fixed by the agreement of the parties and the judgment was to be discontinued or reduced. Final judgment, following the motion for new trial, was not rendered until October 6, 1944. Moreover, a dismissal of the appeal on the first ground would not preclude an appeal by the other appellants on all substantive questions involved. Touching the second ground of the motion we find nothing in the record to indicate appellee, the manager, complied with that part of the judgment which required him to return the bonuses he had wrongfully taken. It follows neither the appellant stockholders nor the corporation has yet accepted benefits pursuant to tha,t part of the judgment. With respect to the third ground we find no action was taken pursuant to the stockholders and directors’ meeting on February 16, 1943, by which appellants or either of them benefited. Nor is the fourth ground of the motion valid. The subsequent action of the board of directors to dismiss the appeal insofar as the corporate entity is concerned could in nowise affect the right of the plaintiff stockholders to appeal and to obtain a review of all rulings which affect their individual rights as stockholders. Moreover, only appellees participated in that subsequent stockholders and directors’ meeting and the subject of their voting rights is an issue in this appeal. We think the motion to dismiss the appeal should be denied.
The trial court made exceedingly careful and extensive findings covering the facts leading up to and including the organization of the corporation, the issuance and delivery of all stock and the conduct of the officers of the corporation. The findings of fact and conclusions o'f law are set out in full, appended to and made a part of this opinion. They are essential to a clear understanding of the facts upon which the court’s rulings were made. With respect to the relief sought by appellants the trial court concluded: Appellants were estopped (1) to deny .the validity of the 150 shares of common stock owned by appellee A. I. Geiman (finding 9); and (2) from claiming their preferred stock carried voting rights (finding 3); (3) appellees acquiesced in the stockholders and directors’ meeting of February 16, 1943, and were estopped to deny its validity (finding 4); and, (4) the evidence disclosed the corporation was solvent, not in danger of becoming insolvent and a receiver should not be appointed. (Findings 21, 22.)
Appellants complain concerning the above conclusions 1, 2 and 4. The factual basis for conclusions 1 and 2 is found in the original agreement between the president, Franklin Herthel, and the manager, A. I. Geiman, made prior to the application for a charter of the contemplated corporation and in the subsequent conduct of appellants. Facts which support the trial court’s findings and conclusion of estoppel as to each of those subjects in substance are:
Appellee Geiman prior to the formation of the new corporation in 1936 was operating an electrical business of his own in the town of Hoisington; it was being operated at a profit; in addition to the stock and equipment in that business Geiman had various outstanding contracts for electrical work; he was a licensed mortician and embalmer and desired to incorporate a furniture business in connection with which he would use his experience as a mortician and embalmer; in order to obtain additional capital and create a wider interest in the new corporation he contemplated selling stock to people residing in Hoisington and in various other towns; the appellant Herthel had recently finished college and had done some work for Geiman as a salesman in the electrical business; Herthel had inherited some money and he and his mother were anxious he should become established in a business which would also give him a permanent job; Geiman and the Herthels discussed the subject of Herthel’s investment in the new corporation; Geiman, however, advised the Herthels that if he, Geiman, was putting his present business and its good will into the new corporation he would insist upon an arrangement whereby he would be in control of the management and operation of the new business; he also advised the Herthels he could not guarantee Franklin a permanent job; he told them that would depend upon whether Franklin’s services would prove satisfactory to the corporation; upon being so advised the Herthels refused to consider the deal any further; however, within approximately a week or ten days Herthel returned and advised Geiman they had decided to go ahead with' the deal; the new business was incorporated with a capital stock of $15,000; there were 150 shares of preferred stock at $100 per share and 300 shares of common stock of no par value; with each share of preferred stock sold there was issued one share of common stock; the shares of stock issued to each of the six stockholders of the corporation are shown in finding No. 1; Herthel was made president and Geiman general manager of the corporation; 150 shares of common stock were issued to Geiman in consideration of the good will of his former business, which was located adjacent to the new business; such common stock together with other common stock Geiman received for each share of preferred stock purchased gave him control of the stockholders’ meetings if the preferred stock carried no voting rights; the charter provided for six directors and the six stockholders were therefore the directors; into each certificate of preferred stock they inserted the following provision:
“Holders of the common stock reserve the sole right to control the management of the corporation and all voting rights as specified in the By-laws of the corporation and said right so as to control such corporation shall not be abridged by any subsequently enacted By-law.”
Herthel knew of the provision in the preferred stock certificates and with that knowledge signed all such stock certificates issued to himself and the other stockholders; in keeping with the original agreement that Geiman should control the management of the corporation Herthel acquired and held his position as president and drew his salary as president for seven years; he obtained a four percent annual dividend on his preferred stock; he also accepted dividends which redeemed his preferred stock to the extent of ten percent; when intolerable dissension arose between him and Geiman he sought by the instant action to repudiate the original deal and to cancel the certificate for the 150 shares of common stock which he had signed and delivered to Geiman; Herthel also sought to repudiate the original agreement whereby the preferred stock carried no voting rights and sought to obtain such voting rights in order that he, instead of Geiman, could control the stockholders’ meetings; this relief was sought on the alleged ground he had been defrauded by Geiman in the original deal in 1936.
The trial court found against appellants on the issue of fraud and, as previously indicated, held they were estopped by their knowledge and conduct to claim voting rights for the preferred stock and were estopped to claim the 150 shares of common stock issued to Geiman were invalid.
Touching the subject of appellants’ right to vote the preferred stock they direct our attention to sections of the bylaws which provided: . . each stockholder shall 'be entitled to cast one vote for each share of stock held in his name. . . .” and that amendment to the bylaws . . may be made by a vote of a majority of all stock issued and outstanding.” They also remind us the law provided that in all elections for directors or trustees each stockholder had the right to vote. (G. S. 1935, 17-235.)
The judgment of the trial court is not based upon the theory the original contract and the provision in the preferred stock certificates, which denied preferred stockholders the right to vote, constituted an enforceable executory contract. The parties had operated for approximately seven years under the agreement which gave Geiman the right to manage and control the corporate affairs. The judgment of the trial court is grounded on the doctrine of estoppel. The court concluded appellants could not knowingly enter into a contract intended to place the control of the corporation in the hands of Geiman, accept the benefits of his management and control for approximately seven years and thereafter, in equity and good conscience, divest him of such control and acquire it for themselves.
There was no change, prior to trial, in the original stock ownership. The trial court found against appellants on their charge of fraud. Notwithstanding the statutory and bylaw provisions on the subject of voting rights appellants knowingly entered into the agreement whereby the common stock was to have stockholders’ control of the corporation. They expressly provided accordingly in the preferred stock certificates which Herthel signed and delivered to himself and others. That the general doctrine of estoppel is applicable to stockholders who bring an action, equitable in character, cannot be doubted. (Fox v. Kansas Farmers’ Union Royalty Co., 157 Kan. 297, 307, 139 P. 2d 815.)
Appellants offered to return none of the benefits they had obtained over a period of approximately seven years from the transactions they now claim to be illegal. In 18 C. J. S., Corporations, § 257 (c) it is said:
“Acquiescence, laches,' or retention of benefit, will estop the corporation, stockholders, or purchasers from objecting to the validity of an issue of preferred stock on the ground that it was unauthorized, particularly where the rights of third parties have intervened. This is so, although in the light of what has subsequently transpired the transaction may appear to have been exceedingly unconscionable; for an unconscionable arrangement will not be disturbed where there has been a ratification of it with knowledge of all its bearing, if time has been had for consideration. By the weight of authority persons who participate in an unauthorized or illegal issue of preferred stock, or who with knowledge of the facts take the same and receive the benefits thereof in the way of dividends, participation in control of the corporation, etc., will be estopped to deny the validity of the issue to the prejudice of creditors or other stockholders. So, unanimous consent or acquiescence of the stockholders may estop them and the corporation.” (p. 720.)
“As is indicated in § 257 infra, even though the issuing of preferential shares may be illegal or irregular under the rules stated in the preceding sections, yet objection thereto may be precluded by acquiescence, and by the operation of the principle of estoppel with respect to those who are entitled to question the transaction. Objections to particular provisions of the contract under which preferred stock is issued may be similarly precluded.” (18 C.J. S., Corporations, § 225, p. 654.)
See, also, 13 Am. Jur., Corporations, §469; 12 Am. Jur., Contracts, § 213; Mason v. McGugin, 118 Kan. 663, 236 Pac. 845.
In the instant case there was no attempt by the Herthels to amend the bylaws. There was such an attempt by the Geimans at a meeting the Herthels did not attend but the court ruled that meeting was invalid. That ruling is not an issue here. The issue presented here pertains to the management and control of the business affairs of the corporation. On that point we fail to understand the significance or importance of the right, or absence of the right, of any stockholder to vote at a stockholders’ meeting in this particular case under the stock ownership as it existed when this action was commenced and tried. Stockholders do not have the general management and control of the affairs of a corporation. That is the function of directors or trustees (G. S. 1935, 17-608) whom the stockholders had the right to elect (G. S. 1935, 17-235) and did elect for that particular purpose. As previously stated there had been no change in the original stock ownership. The bylaws provided for six directors. There were only six stockholders. All six stockholders at a valid meeting elected themselves directors. They therefore were deprived of no voting rights as stockholders. Action at a directors’ meeting is determined by a majority vote of the directors and not on the basis of stock ownership. It follows that under the facts in this particular case appellants were deprived of no rights as stockholders.
Did the district court err in refusing to cancel Geiman’s 150 shares of common stock? ' In addition to the denial of that relief on the ground of estoppel appellants were not entitled to that relief for another reason. There is ample testimony to support the findings against appellants on the subject of fraud. Moreover, this action was not commenced until 1943. If there had been fraud in the original 1936 transaction an action to cancel the stock on that ground was barred within two years. (G. S. 1935, 60-306, Third.) If the action to cancel the stock was brought on the ground the original contract violated the speculative securities act the action was barred, assuming the provisions of that act are available to the Herthels under the facts in this case, within the special three-year period of limitation fixed by that act. (Terrill v. Hoyt, 149 Kan. 51, 54, 87 P. 2d 238, and other cases therein cited.)
Should a receiver have been appointed in view of additional findings of the court amply supported by the record?
Herthel, the president, and Geiman, the general manager, of thé corporation were both active in the daily affairs of the corporation. Dissension between them began within approximately a year after the formation of the corporation. It grew progressively worse. At the beginning of the trial the court refuséd Herthel’s application for the appointment of a receiver, hoping the men would reconcile their differences. At the conclusion of the trial the court concluded its hope was futile. It found these men were so antagonistic, selfish and offensive that they had not in the past and would not in the future compose their differences. They showed no inclination to want to get along together. For example,' Herthel had ordered merchandise he deemed necessary for the business and Geiman can-celled the order. Numerous other circumstances disclose they refused to work together for the corporate welfare. Neither of them recognized the fiduciary relationship to the corporation. Each of them was more concerned with his selfish interest than with the welfare of the business. Their attitude and conduct were harmfully affecting the business. (Finding 9.) Herthel insisted upon controlling the corporation by reason of his investment therein. Geiman insisted upon controlling it because, of his position as general manager and his greater practical experience. At the stockholders and directors’ meeting of February 16, 1943, a climax was reached. Herthel insisted upon getting his money out of the corporation irrespective of the disastrous effects such action would have on the business. One director was absent. The votes of the Herthels controlled the directors’ meeting. The following action was taken:
“Motion was made by Velma Herthel that the said Corp. pay off the preferred stock with money from the firm or by mortgages by use of capital on hand or by borrowing in any manner necessary the money needed to retire the preferred stock. Motion seconded by Addie Herthel. 10% of this to be paid by March 1st & balance within 6 months. Motion duly made & carried by vote of 3-2.”
The above action violated the bylaws of the corporation which provided the preferred stock should be retired out of the net profits of the corporation. There was testimony of witnesses that such violation of the bylaws was called to the attention of appellants at that meeting and that appellants were advised such action, if executed, would wreck the corporation and that they replied they didn’t care. Herthel, the president, is purported to have said: “Well, we don’t care what happens to the business, all we want is our money out of it.” Geiman offered to try to raise the money to pay the Herthels for their investment but the above motion was nevertheless passed.
With respect to the meeting of February 16, 1943, the trial court concluded all stockholders were estopped to deny the validity of that meeting. In order to avoid any possible misunderstanding we pause to state that if the court meant thereby to hold appellees were estopped to challenge the validity of the action taken to retire the preferred stock contrary to the provisions of the bylaws, we do not approve the conclusion. Appellees may be estopped to deny the meeting was validly called but they objected to the action taken at the meeting with respect to the retirement of the preferred stock and they are not estopped to challenge the validity of such action.
It appears that after the above action by the board of directors Geiman attempted to get as much out of the corporation as he could before the crash occurred. The court found he was responsible for various corporation shortages. It found he was guilty of; unlawful, false and fraudulent conduct in the management of the corporate business for his own benefit. (Findings 5, 7, 9, 10, 15, 17, 20, 25, 26, and 28.) This court is not concerned with determining where the greater blame should be attached for the internal dissension and the deplorable existing conditions. It is concerned only with the intolerable conditions and with the question thereby presented, namely, whether a receiver should have been appointed to preserve the assets of the corporation.
It is true the law gives to a board of directors the general management of the affairs of a corporation. (G. S'. 1935, 17-608; G. S. 1943 Supp., 17-3101.) It is also true that courts' are' reluctant to appoint a' receiver, especially for a solvent corporation, and tliereby divest directors of their right to manage and control the corporate affairs. That' 'courts of equity may, however, appoint a receiver for even a solvent corporation under proper circumstances is no longer open to debate. If statutory authority be required — which it is not — for such court action our law provides it. The pertinent provisions of G. S. 1935, 60-1201 read:
“A receiver may be appointed by the supreme court, the district court, or any judge of either, or in the absence of said judges from the county, by the probate judge:
“Fourth. After judgment, to dispose of the property according to the judgment, or to preserve it during the pendency of an appeal,
“Sixth. In all other cases where receivers have heretofore been appointed by the mages of the courts of equity." (Emphasis ours.)
Here there was internal dissension and irreconcilable conflict between the active president and general manager of the corporation, representing the great majority of both common and preferred stock, which proved highly hazardous to the continued existence of the corporate entity. Here there was a denial of official responsibility and a disregard of the fiduciary relationship of both of these officers to the corporate business. They would not work together and neither of them could be trusted separately to manage the corporation for its interest and benefit. One of them was perfectly willing to wreck the business if he could get his investment out of it, and he acted accordingly. The other was found guilty of various shortages and unlawful and fraudulent conduct which dissipated the assets of the corporation. In short, by these various means the objects of corporate existence were being jeopardized and defeated.
Under the existing circumstances a receiver should have been appointed. Courts of equity may, of course, exercise their judicial discretion in the appointment of a receiver and appellate courts are not inclined to disturb such exercise of discretion in the absence of abuse thereof. (Jordan v. Austin Securities Co., 142 Kan. 631, 51 P. 2d 38.) Here, however, the record affirmatively discloses the trial court refused to appoint a receiver on the ground it believed it had no power or authority to do so when the corporation was solvent and not in danger of becoming insolvent. In view of the express findings it clearly appears the corporation was in grave danger of becoming-insolvent if left in the hands' of these antagonistic, quarrelsome and selfish-directors or in the hands of either of them.
Moreover, courts of equity áre not required to withhold or postpone the exercise of their inherent power to do justice until a corpó- ' ration has been completely wrecked by insolvency due to unfaithful, unlawful and corrupt practices of officers in control. The law on the •general subject of the power qf courts of'equity, with or without statutory authority, to appoint a receiver under varying facts and circumstances where impossibility of attaining corporate objects affirmatively appears was quite fully treated in Jordan v. Austin Securities Co., supra. Former decisions of this and other courts, including cases involving solvent corporations, were reviewed and what was there said need nqt be repeated heré. At the moment we are not dealing with the subject of dissolving the corporation but only with the appointment of a receiver to operate the business and preserve its assets. In equity, however, impossibility of attaining corporate objects is as good a ground for putting an end to operations as inevitable insolvency. (Bowen v. Flour Mills Corporation, 114 Kan. 95, 100, 217 Pac. 301; Jordan v. Austin Securities Co., supra, p. 658.)
Notwithstanding the power of courts of equity to dissolve corporations this court is not inclined to exercise that power except as a last resort. ,It prefers to give these parties an opportunity to enter into some form of agreement, to be approved by the .district court, whereby dissolution of the corporation may be avoided. In the interim a receiver should be appointed by the district court to take charge of the corporate property and business.
The case is therefore remanded to the district court with directions to appoint a receiver for the corporation with full power and authority to take possession of its books and property of every kind and character; to make an inventory of its assets and liabilities; to operate and manage the business in all particulars; to keep a full record of his transactions; the receiver to furnish a bond for the faithful performance of his duties in such sum as to the district court may seem just and proper in the premises. In the operation of the business the receiver is authorized to retain the services of Franklin Herthel and A. I. Geiman or the services of either of them, if he sees fit to do so, with the understanding, however, that he retain complete responsibility for and control over the corporate assets and the business management.
It is the further order and judgment of this court that in the event the parties fail to agree within sixty days from the date hereof upon a settlement, to be approved by the district, court, which will make unnecessary the dissolution of the’ corporation that then and in that event the receiver shall forthwith liquidate the corporation and distribute its assets among creditors and the stockholders as their interests appear.
The judgment of the district court is modified and affirmed in accordance with the views herein expressed.
“Findings ok Fact and Conclusions ok Law.
“(Filed June 29, 1944.)
“1. The Geiman-Herthel Furniture Company is a corporation, organized and existing under the laws of the State of Kansas, and received its charter on or about the 24th day of November, 1936. Its place of business is Hoisington, Barton County, Kansas.
“2. The plaintiffs, Franklin L. Herthel, Velma Herthel and Addie B. Herthel, and the defendants,. A. T. Geiman and Helen Geiman, and Frances Churchill, at the time this action was commenced, constituted all of the stockholders of said corporation. Franklin L. Herthel owned 117 shares of common stock and 117 shares of preferred stock. Velma Herthel owned 1 share of common stock and 1 share of preferred stock. Addie B. Herthel owned 1 share of common stock and 1 share of preferred stock. A. I. Geiman owned 161 shares of common stock and 11 shares of preferred stock. Helen Geiman owned 1 share of common stock and 1 share of preferred stock. Frances Churchill owned 1 share of common stock and 1 share of preferred stock. The total amount of the capital stock authorized to be issued by its charter is $15,000, divided into 150 shares of preferred stock of the par Value of $100 each, and 300 shares of common stock without nominal or par value. The annual meeting of the stockholders is on the first Tuesday of February in each year at the office of the corporation in Hoisington, Kansas, and at such meetings the stockholders shall elect directors to serve until their successors shall be elected and qualified. The total number of directors to be elected are six. The directors are to fix their salaries and the salaries of the president, vice-president, and secretary-treasurer.
“3. For each share of preferred stock there was to be given one share of common stock. The preferred stock certificates each contained the following provision:
“ ‘Holders of the common stock reserve the sole right to control the management of the corporation and all voting rights as specified in the Bylaws of the corporation and said right so as to control such corporation shall not be abridged by anj^ subsequently enacted Bylaw.’
“The plaintiff Franklin L. Herthel was elected President of the corporation upon its organization and has ever since been, and now is, President of the corporation. The certificates of stock, both preferred and common, were all signed by Franklin L. Herthel as President, and Franklin L. Herthel at the time he signed the certificates of stock knew of the above provision contained in the certificates of preferred stock, and he not only signed the certificates, but accepted his certificates of preferred stock containing the said provisions therein, and is estopped to claim under the law or otherwise that the preferred stock of said corporation is entitled to any voting rights. The form of certificates of preferred stock and of common stock was regularly adopted at the first meeting of the corporation. The defendant A. I. Geiman has actively managed the business of the corporation since its organization, and under his management, it has paid dividends on all of the preferred stock, and ten percent of the preferred stock has been redeemed and paid off.
“4. Notices of the annual meeting of the corporation for the first Tuesday in February, 1943, were duly given, but by reason of the fact that the defendant Helen Geiman, one of the stockholders, was absent from Hoisington on the date specified in the bylaws and in said notice, said meeting was by common consent and acquiescence continued to and held on February 16, 1943, at which meeting all of the stockholders were present with the exception of Frances Churchill, who owned one share each of preferred and common stock, she being located in California. Subsequently said Frances Churchill, in writing, acquiesced and adopted the proceedings had in holding the annual ¡meeting on February 16,1943. All of the other stockholders except the said Frances Churchill participated in and voted at said meeting held on the 16th day of February, 1943. As a conclusion of law, the court finds that all of the stockholders are estopped to deny the validity of the meeting held on February 16, 1943, and the said meeting held on said date is found by the court to have been lawfully and regularly held. At said meeting, the salary of Franklin L. Herthel as president was fixed at $150 per month, and the salary of A. I. Geiman as vice-president and general manager, was fixed at $150 per month. Velma Herthel as secretary-treasurer was to receive no salary. The checks of the corporation were to be executed by both Franklin L. Herthel, as president, and A. I. Geiman, as vice-president. It was further ordered that the corporation retire its outstanding preferred stock, as soon as, and to the extent that the same could be consistently and properly done. It was further provided that no bonus, commission, or extra compensation of any kind was to be paid to the officers of the company.
“Thereafter, A. I. Geiman attempted to call and hold a purported annual meeting of the stockholders on or about March 1, 1943, at which meeting all of the stockholders were present except the said Frances Churchill, Velma Herthel and Addie B. Herthel, but the only ones participating in said meeting, or taking any part therein, were the defendants A. I. Geiman and Helen Geiman, and A. I. Geiman and Helen Geiman were the only stockholders recognizing said meeting to be a valid meeting. At said meeting held on March 1, 1943, the defendants A. I. Geiman and Helen Geiman attempted to change the corporate charter and bylaws of said corporation by reducing the number of directors of the corporation to three, and attempted to elect the defendants A. I. Geiman and Helen Geiman, and one of the plaintiffs, Addie B. Herthel as directors of said corporation.
“Thereafter, the defendant A. I. Geiman, notified the plaintiff Franklin L. Herthel that Franklin L. Herthel was no longer an officer of the corporation, and that his services to said corporation in any capacity were discontinued, and that A. I. Geiman had taken possession of all property and affairs of the corporation, and was proposing to transact the business of the corporation, and keep the safe of the corporation and all corporate records locked from the plaintiffs Franklin L. Herthel, Velma Herthel and Addie B. Herthel.
“The court finds as a conclusion of law that the said purported meeting of the stockholders attempted to be held on March 1, 1943, was void and illegal, and that all acts of the parties participating in said meeting were void and illegal and without right or authority either in law or under any of the rules and regulations and bylaws of the corporation.
“5. The court finds that following said meeting of March 1, 1943, the defendant A. I. Geiman raised his salary from $150 to $175 per month, without any authority or right, and the court finds that the salary of the said A. I. Geiman from the 16th day of February, 1943, up to the present date, is only $150 per month, and all sums paid to him in excess of $150 per month, for salary since February 16, 1943, are excess payments, and he is charged with the excess thereof, and the court will retain jurisdiction of this case to determine and ascertain the amount of salary which the said A. I. Geiman has been paid in excess of $150 per month since that date.
“6. The court finds that the salary of the plaintiff Franklin L. Herthel since February 16, 1943, up to the present time is $150 per month, and if the said Franklin L. Herthel has not received his full salary of $150 per month since February 16, 1943, he should receive the same, and the court retains jurisdiction of this case to ascertain and determine any shortage of salary in that respect and to make appropriate orders in connection therewith.
“7. The court finds that on October 17, 1941, the defendant A. I. Geiman handed to the plaintiff Franklin L. Herthel a check for $435, and about the same time paid to himself $725, and that on November 30, 1942, the defendant A. I. Geiman paid to the plaintiff Franklin L. Herthel $460, and about the same time paid to himself $700, and stated to the plaintiff Franklin L. Herthel at the time of each payment that such payment was a bonus for his services to said corporation, and that the payments made to the said Geiman were bonuses for his services to the said corporation.
“The court finds that each of said payments was made without authority of the corporation, without authority of the board of directors, and without knowledge of the board of directors, and each of said payments was without' any right whatsoever and should not have been paid. The court therefore finds as a conclusion of law that the total bonuses paid to plaintiff Franklin L. Herthel in 1941 and 1942 in amount of $895 should be charged to the said Franklin L. Herthel and restored by him to the said corporation. The court therefore finds as a conclusion of law that the total bonuses paid to defendant A. I. Geiman in 1941 and 1942 in amount of $1,425 should be charged to the said A. I. Geiman and restored by him to the said corporation.
“8. The court finds that the issuance of 150 shares of common stock to A. I. Geiman for the good will of his going business at the time the company was incorporated was knowingly participated in by the plaintiffs, Franklin L. Herthel, Velma Herthel and Addie B. Herthel; that Franklin L. Herthel signed the certificates for the 150 shares of common stock and delivered the same to the defendant A. I. Geiman, and that the corporation, Franklin L. Herthel, Velma Herthel and Addie B. Herthel, all recognized and acquiesced in the issuance of said 150 shares of common stock to A. I-. Geiman, and the court finds as a conclusion of law that the said cor poration and all of the stockholders of said corporation are estopped to deny the validity of the said 150 shares of common stock issued and delivered and now owned by A. I. Geiman, and the same should not be cancelled by this court.
“9. The cotirt finds that Franklin L. Herthel, one of the plaintiffs, and A. I. Geiman, one of the defendants, have, ever since the said incorporation, actively engaged in the sale of merchandise at the place of business of said corporation at Hoisington; that their relations for at least one year prior to the commencement of this action were unpleasant; that they refused to cooperate with each other and very seldom had any conversations with each'other while in the store or elsewhere. That when a customer entered the place of business, each of them would undertake to meet the customer first, for the purpose of excluding the other from participating in any prospective sales to the customer. That their actions in and about the store toward each other were unpleasant and disagreeable, and the defendant A. I. Geiman claimed the right and in many instances acted upon such claim to direct and control all of the actions of the plaintiff Franklin L. Herthel in his conduct and services in said corporation. The said A. I. Geiman assumed a domineering attitude towards the said Franklin L. Herthel. The court finds that the plaintiff Franklin L. Herthel and the defendant A. I. Geiman have more concern for their own personal interests in said corporation than they have for the corporation itself, that neither of said parties seem to recognize their fiduciary duties as directors of said corporation. The plaintiff Franklin L. Herthel seems to think that because he has invested much the greater sum of money in said corporation, that he should be the controlling agent of said corporation, while the defendant A. I. Geiman seems to think that because he organized said corporation, he should be the controlling agent of said corporation. As a result of their attitude toward each other, they have handicapped the operation and business of said corporation. Since none of the other stockholders of said corporation participate in the actual operation of the business óf said corporation, the turmoil existing between the plaintiff Franklin L. Herthel and the defendant A. I. Geiman has brought about strife and unpleasantness in the conduct of the business of said corporation, and the strife between the said plaintiff Franklin L. Herthel and the said defendant A. I. Geiman is so antagonistic and selfish and offensive that neither the said Franklin L. Herthel nor the said A. I. Geiman have in the past or will in the future compose their differences and adjust themselves to each other and cooperate with each other, all to the harm of the business of said corporation. Shortly after this case was filed, and on an application of the plaintiffs for a temporary receiver, the court refused to appoint a temporary receiver, believing then that by refusing to do so the said plaintiff Franklin L. Herthel and the defendant A. I. Geiman would compose their differences and get along with each other and act in the interest of the corporation, but they have refused and neglected to do so, and neither of them have shown any disposition or desire to want to do so.
“10. This action was filed on April 7, 1943, and notwithstanding the matter of the affairs of this corporation were thrown into a court of equity by reason of this action, the defendant A. I. Geiman while personally in charge of the books and records of the company, and without knowledge of any of the other stockholders or any of the other directors or officers, on September 20, 1943, credited himself with the following items:
“By credit for 19 weeks bookkeeping, extra work from June 16, 1942 to Nov. 1, 1942, at $10 per week.................................. $190.00
Rent for truck, April, May, June, July, August, September........... 30.00
By storage for three years at $5.00 per month on an elevator, refrigerators, radio, vaults, and other merchandise......................... 180.00
and on September 22, 1942, he credited himself in the same manner with the following items:
“By damage to car on 1-6-43 on a business trip to Wichita........... $100.00
By part of costs in trying to collect damages......................... 25.00
By typewriter ..................................................... 75.00
“A total of $610. Each and every one of these items of credit which the defendant Geiman entered on the books to his own credit were false, fraudulent and fictitious and without any substance or right and were entered by the said A. I. Geiman for the purpose of cheating and defrauding the corporation in the total sum of $610. The testimony regarding these items is found at pages 63, 64, 68 and 70 of the transcript.
“Notwithstanding that Geiman was drawing a regular salary for his services to the corporation, as shown at page 71 of the transcript, Geiman took credit for the following items:
“4-14-43, trip to Claflin .............................. $1.50
4-19-43 trip to Great Bend .......................... 2.00
3-20-43, two trips to Russell ........................ 2.00
“These items total $5.50. None of these items appear to have been justified. The trip to Great Bend and the two trips to Russell, Kansas, were evidently made by Mr. Geiman in consulting his lawyers in the defense of this case.
“The court therefore finds that Geiman should be charged with the sum of $610, and with the said sum of $5.50, a total of $615.50 to be charged against the said A. I. Geiman.
“At page 73 of the transcript is a record of the transaction concerning Exhibit 14, which consists of three sheets of telephone bills charged to and paid by the corporation. Many of these long distance calls were made by Mr. Geiman in consulting with his attorneys in the defense of this case and were not proper charges against the corporation and should not be paid for by the corporation.
“11. In Finding No. 4 above, reference is made to the regular annual meeting held by the stockholders of the corporation and the Directors’ meeting held by the Directors elected at said meeting, on February 16, 1943. At the said meetings of February 16,1943, both at the stockholders’ and the directors’ meetings, one Kathleen Carlile was regularly selected and chosen as secretary of said meetings and to keep the minutes thereof. A. I. Geiman after the meetings were held, ordered the said Kathleen Carlile, secretary of said meetings, not to write up the minutes of said meetings, and to not insert the minutes of said stockholders’ and directors’ meetings in the regular record book where the minutes of stockholders’ meetings and directors’ meetings were regularly kept; and acting on the order of the said A. I. Geiman the said secretary did not write up the records of said meetings and insert them in the record book.
“At the trial of this case the said secretary testified as a witness, and she produced her minutes of said meetings, which were offered in evidence and are marked plaintiffs’ Exhibit 10. The same read as follows, to wit:
“ ‘Minutes op the Stockholders’ Meeting
Feb. 16, 1943.
“The Seventh annual meeting of the stockholders of the Geiman Herthel Furniture Co. was held in the City of Hoisington, Barton County, Kansas, at 8:00 p.m. on the 16th day of Feb. 1943.
“On roll call of the stockholders by the Pres., those present were Mr. A. I. Geiman, Helen S. Geiman, Franklin Herthel, Velma Herthel & Mrs. Addie B. Herthel.
“The motion was made by Velma Herthel that the same directors serve for the isuing year. Motion was duly made and carried.
“Motion was made by A. I. Geiman that stockholders’ meeting be closed. On motion duly made and carried, the meeting was adjourned.
“Directors Meeting
“Feb. 16, 1943.
“The meeting of directors was called to order by the Pres.
“Motion was made by Velma Herthel & seconded by Addie Herthel, that officers be Franklin Herthel as Pres., A. I. Geiman as Vice-Pres. and General Manager, and Velma Herthel as Sec. & Treas. The motion was duly made & carried.
“Velma Herthel then presented resolutions as follows, Be it resolved by the Board of Directors of Geiman-Herthel Furniture Co. that the salaries of the officers of said Co. for insuing year be as follows, Franklin Herthel Pres. $150 a month, A. I. Geiman, Vice Pres. $150. a month, Secy. Treas. nothing. Motion was made on the resolution by Velma Herthel & Seconded by Addie Herthel. The vote was 3. 2 in favor of.
“Be it resolved by the Board of Directora that the checks of said Corp. of the First National Bank of Hoisington, Kans. & any other bank account on with the Co. might have be signed by the following Franklin Herthel Pres. A. I. Geiman Vice Pres, or Velma Herthel Secy. Treas. Motion was duly made and carried on this resolution.
“Motion was then made by Franklin Herthel and seconded by Velma Herthel, that. no bonus or other compensation be paid. Motion was duly made and carried vote of 5-0.
“Motion made by Velma Herthel that Co. hire an auditor to audit the accounts of said Co. for past 6 years. Motion seconded by Franklin Herthel. Motion was duly made and carried by vote of 3-2.
“Motion was made by Velma Herthel that the said Corp. pay off the preferred stock with money from the firm or by mortgages by use of capital on hand or by borrowing in any manner necessary the money needed to retire the preferred stock. Motion seconded by Addie Herthel. 10% of this to be paid by March 1st & balance within 6 months. Motion duly made & carried by vote of 3-2.
“A report was' given on the business done during 1942 by the General Manager.
“On motion duly made and carried the meeting was adjourned.’ [sic.]
“The Court finds as a conclusion of law, that plaintiffs’ said Exhibit 10 is a true and correct record of the minutes of both the stockholders’ and of the Directors’ meetings held on February 16, 1943. And the Court finds as a conclusion of law that the same should be ordered, and it is ordered, that the records of said corporation be supplied with a copy of said minutes of said meetings.
“12. The capital stock of the corporation was paid for by the stockholders of the corporation in the following amounts, to wit:
“Franklin L. Herthel................................ $11,700
Velma Herthel .................................... 100
Addie B. Herthel................................... 100
A. I. Geiman ...................................... 1,100
Helen Geiman ..................................... 100
Frances Churchill .................................. 100
“13. Regular annual meetings of the corporation were held by the stockholders each year from its creation up to and including the 16th day of February, 1943. At none of these stockholders’ meetings did A. I. Geiman, or his wife Helen Geiman, or any of the other stockholders, pay any attention to that provision of the certificate of stock which is quoted in Finding No. 3.
“14. The defendants ought to be enjoined, and they are hereby enjoined, from certifying to the Secretary of the State of Kansas, or other governmental agency, any part of the records of the minutes of the purported meetings of the stockholders and directors held March 1,1943; which meetings this Court has held were void. And they are further enjoined from applying for a change in the charter of the corporation, and from reducing the number of the Board of Directors from six to three as ordered by said purported meeting of March 1st, 1943.
“15. The Court finds that the defendant A. I. Geiman delivered to his wife Helen Geiman, one of the other defendants in this case, an air conditioner belonging to the corporation, and that the same was installed in the place of business of the said Helen Geiman, and the said Helen Geiman and the said A. I. Geiman were never charged on the books of the company with the price of said air conditioner. This was all done without the authority of any of the Board of Directors except the defendants, and was never authorized by the Board of Directors. And the Court finds that the defendants A. I. Geiman and his wife Helen Geiman should be, and they are, charged with the invoice price of said air .conditioner, plus 10%, the usual charge made by the corporation for goods sold to its officers. And the said A. I. Geiman and his wife Helen Geiman are charged therefor with the total sum of $-. .
“16. • The defendant A. I. Geiman has consistently interfered with the rights of Franklin L. Herthel with reference to the books and records of the Company, and has frequently prevented the said Franklin L. Herthel from examining the books and records of the Company. And- the Court finds that he should be and he hereby is, enjoined from interfering with or obstructing the said Franklin L. Herthel in his efforts to examine the books and records of the corporation. , ,
“17. The Court finds that, the defendant A. I. Geiman sold and delivered goods, wares and merchandise of the corporation to his brother-Geiman, and charged his brother with the price of said goods on the books of the corporation, but later on and without authority of the Board of Directors, the said A. I. Geiman charged off the accounts of his said brother without any payment whatever to said corporation, and the brother of the said A. I. Geiman has removed from the State of Kansas.
“18. The. defendant A. I. Geiman has interfered with the rights of Franklin L. Herthel as President and a Director of this corporation and as an employee of the corporation, in participating in the business of said corporation. And the Court finds that the defendant A. I. Geiman should be and he is hereby restrained from interfering with the said Franklin L. Herthel as President of said corporation, and interfering with the said Franklin L. Herthel in conducting the business and clerking in the store operated by the said corporation.
“19. Dividends have been paid upon the preferred stock of the corporation without any official action or authorization of the Board of Directors; but inasmuch as said payments were proportionately made up until the-day of-, 194-, upon all of the outstanding preferred stock of the corporation, and without any objection being made thereto, such payments are hereby approved and confirmed.
“20. At a hearing held on March 7, 1944, testimony was introduced concerning a shortage of $185 which developed in one of the cash boxes kept in the safe at the corporate place of business, in which rent money was kept. The plaintiff Franklin L. Herthel mentioned that about the 26 day of January, 1944, there was discovered a shortage occurring between January 23, 1944, and January 26, 1944, of about $35, and when examined on January 30, 1944, there was another shortage of about $25; and there were other shortages discovered in this box where the rent money was kept. A. I. Geiman kept the records and had charge of this box and the money therein. Some time in February, 1944, Franklin Herthel asked A. I. Geiman if he knew of this shortage, and A. I. Geiman informed him that he did not. Franklin L. Herthel and A. I. Geiman went to the records relating to the rent money kept in this box, and agreed that the cash was short a total of $185.
“All of the parties having access to this cash testified and denied that they took any part of it, excepting the defendant A. I. Geiman. Geiman did not take the stand or testify regarding this shortage, nor did he deny that this cash was under his charge and control.
“The Court finds that A. I. Geiman is responsible for this shortage ; and it is by the Court ordered that he make good to the corporation on account of this shortage, the sum of One Hundred Eighty Five Dollars ($185).
“21. The Court finds that the corporation has been making money, and that said corporation is not insolvent and never has been, and is not in any danger of insolvency.
“22. The Court finds as a further conclusion of law, that a receiver for said corporation should not be appointed; and the prayer of the petition of the plaintiffs for the appointment of a receiver is denied; and the costs of this action attached to the corporation.
“23. There have been no transfers or sales of any of the original stock issued by the corporation to third persons, except a transfer' of about five shares of stock made by the defendant A. I. Geiman to one of his attorneys representing him in this case. And this transfer was made after and during the pendency of this action, and after the case was actually tried.
“24. While the forms of stock certificate, being the forms which were subsequently issued, were read and adopted at a meeting of the stockholders and directors, and were ordered to be incorporated in the minutes of the meeting by the secretary, the secretary neglected to incorporate the forms of such certificate in the minutes of the meeting.
“25. In the opinion of the court, if A. I. Geiman has the exclusive charge and control of the management of the affairs of the corporation, he would be more inclined to look to his own interests rather than to the interest of the stockholders of the corporation.
“26. Since the court has made up the foregoing findings, at a hearing held at Great Bend, Kansas, on the 29 day of June, 1944, the parties to this action have gotten together and agreed between the parties that the defendant A. I. Geiman has drawn $325 in salary in excess of the $150 per month which was allowed him by resolution of the Board of Directors of February 16, 1943;
“And the court therefore orders him to be charged the sum of $325 on the books of the Company for excess salary.
“27. The court also finds by agreement of the parties that plaintiff Franklin L. Herthel has been paid in full for his salary at the rate of $150 per month from February 16, 1943, up to June 1, 1944.
“28. The court further finds by agreement of the parties that the value of the air conditioner referred to in the foregoing findings, which was taken from the store with the permission of A. I. Geiman and installed in his wife’s beauty parlor, is $101.70, being the invoice price, and in addition thereto ten percent of that amount; and the defendant A. I. Geiman and his wife are charged with $111.87'.
“29. The court further finds by agreement of the parties, that the account of the brother of the defendant A. I. Geiman, has been paid in full.
“Done in Open Court at Great Bend, Kansas, in the presence of all the parties to' this action, and in the presence of their respective attorneys, this 29th day of June, 1944.” | [
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The opinion of the court was delivered by
Parker, J.:
The plaintiff brought this action to recover damages for injuries received in an automobile accident. By answers to special interrogatories a jury allowed him $15,785. That amount was reduced $3,120 by the district court and judgment rendered for $12,665. The defendants appeal.
On the evening of June 24, ,1943, W. J. Henderson, who was a laborer and worked for the Wichita nurseries, was riding in the back end of a pickup truck belonging to his employer when it was struck from the rear by a gas transport truck owned by the defendant John Deekert doing business as Deekert Oil Company, and driven by defendant Alfred Denson. As a result the pickup truck was thrown from the highway a distance of about 175 feet into a field and Henderson was seriously injured. Subsequently he brought suit, charging negligent operation of the gas transport truck, against such driver, the owner of the truck, and the Farmers Mutual Hail Insurance Company.
In the court below no question was raised as to the pleadings or parties. The defendants’ answer conceded negligence on the part of the driver, Denson. During the trial which commenced on February 4, 1945, it was admitted Denson was acting as the servant and employee of the oil company at the time of the accident and that the defendant insurance company had issued a policy of insurance covering the truck in question under the terms of which its maximum liability was $10,000 for any one person. It was further admitted the actual bills incurred by the plaintiff amounted to $831.35 and it was stipulated his life expectancy on the date he was injured was 8.97 years. In fact the only controverted issues for determination were the extent of plaintiff’s disability as a result of the .accident and the amount of his recovery.
A careful review of the record insofar as it relates to plaintiff’s situation up to the date of the accident reveals no dispute in the testimony as to the following facts: He was 69 years of age; his work at the nursery consisted of digging holes for setting shrubs, evergreens and shade trees; when unemployed there he worked on a transfer wagon; he kept steadily employed, was a good workman and was industrious and dependable; his work compared favorably to that of other employees; he never complained of physical infirmities or asked for lighter work and so far as his employer or fellow employees were concerned they observed no physical disability which interfered with his ability to perform the duties required of him by the work in which he was engaged.
With respect to earning power prior to the accident there is some confusion, but the plaintiff’s testimony in regard thereto is not challenged by the defendants. Mr. Schell, the owner of the Wichita Nursery, stated that in June, 1943, Henderson was earning 60 cents per hour and averaged about $27 per week net (emphasis supplied). Just what was meant by use of the word “net” is not disclosed. The plaintiff himself, without stating the source from whence it came or the period of time involved, testified on one occasion that his average weekly wage ran up to $35 or $36 and sometimes more. On another, and again without fixing the date to which he had reference, he stated his wage ran from $25 to $27 up to $35 per week.
As to the extent of plaintiff’s injuries less dispute exists than is usually to be found in personal injury actions. Time and space will not permit relation in detail of the evidence adduced on that subject. It will be summarized as briefly as the state of the record will permit.
Immediately after the accident plaintiff was taken to the hospital. When first observed by a doctor he was suffering from mild shock and obviously in great pain. Examination disclosed his injuries were severe and his condition to be as follows: (1) Hanging from his left heel there was a flap of skin two to two and one-half inches wide and two and a half to three inches long which had been torn away from the weight-bearing surface thereof. It was right down to the periosteum — the fibrous envelope which covers the bone. (2) The bones of his left foot were crushed and mashed together and the arch of such foot was greatly exaggerated. (3) He had a compressed fracture of the third lumbar vertebra, otherwise described as a fracture of the arch of the back. (4) His eighth, ninth and tenth ribs on the left side were fractured.
Plaintiff remained in the hospital from June 24, 1943, to August 26, 1943. While there three different casts were applied to his left foot and his body from just below his arms to down around his hips was encased in a plaster cast. This body cast was changed from time to time but was worn until November 23, 1943. When finally removed it was replaced by a Taylor back brace — a large steel brace built to fit the patient and maintain the body in such a position as to facilitate proper healing of. the fractured vertebra. At the time of his release from the hospital plaintiff was on crutches and remained on them for several months. Later he walked with the aid of a cane for a couple of months. Thereafter, and at the time of the trial, he was able to walk, although with a noticeable limp, without supports of such character. During all of the time he experienced the pain and suffering to be expected and usually prevalent in cases where persons have received injuries as serious as those disclosed by the evidence.
With respect to his condition at the time of the trial plaintiff testified at considerable length. We shall not attempt to relate all of the things of which he complained. A few of them were in substance as follows: He had continuous pain in his foot; his back paired him when he changed positions; he was nervous and could not sit comfortably; if he did sit down he could not remain in that position for -any length of time without severe pain in his back; he did not rest at night; when he would attempt to get around his back would commence to hurt, he would get weak and unless he wore the Taylor brace — which he was then wearing — he would just seem to slip and fall down; in his opinion he could not bend forward or sideways sufficient to hold a job and was not physically able to work.
On the same subject and in particular with respect to permanent disability, Doctor Crumpacker, who had been his attending physician from the time of the accident to the date of the trial, stated that plaintiff as a result of his accident had an insufficient heel with an insufficient heel pad, a deformed left foot with a disability in the left leg of from eighty-five to ninety-five percent for purposes of manual labor, and a back injury which had resulted in some degree of disability, all of which conditions were permanent. Summarizing his views he said:
“Taking into consideration all of the disability from this accident, that is, his back, his heel, his foot, and his fractured ribs, it is my opinion that he will be unable to hold a job at manual labor of the type or nature of which he was doing while lie was hurt. I don’t believe he will be able to compete with other workmen in the open labor market to obtain and hold a job.”
Defendants made little, if any, effort to refute plaintiff’s evidence as to the seriousness of his injuries, the treatment and time required for his recovery or the extent of his suffering. They produced but one witness whose testimony in any way tended to weaken the force and effect of evidence offered by plaintiff regarding his permanent disability, or dealt with the facts and circumstances to be considered in measuring the amount of his recovery. This witness, a Doctor Curtis, examined plaintiff just prior to the trial. He knew nothing of his condition at the time he entered the hospital or of his course of treatment and progress in recovery other than what he had learned from the history of the case as given to him by plaintiff himself. He had not even examined the X rays taken during the course of treatment. He testified on direct examination that fifty percent would be a fair percentage of disability for the left foot, and that plaintiff could do any .kind of work now that he could before that would not require him to work continuously on his foot. His testimony in this regard was considerably weakened when on cross-examination he admitted that when he first examined plaintiff he might have said to him “Mr., you are done for,” and further stated “the man is sure disabled because of his foot that he could not pass an examination for any manual work, plant work in any of the plants or anything of that sort.” The major portion of Doctor Curtis’ testimony had to do with the effect of certain physical infirmities — admitted by plaintiff in his case in chief — with which he was afflicted at the time of the accident and on the date of the trial. He stated, notwithstanding plaintiff’s evidence was to the contrary, these afflictions impaired plaintiff’s ability to do work prior to the accident, retarded his recovery and were responsible for his condition at the time of the trial so far as his inability to work was concerned. The most that can be said for the testimony of this witness regarding the matters on which he gave his opinion, under the facts and circumstances of this case, is that it raised questions of fact as to them for consideration by the jury and the trial court in determining the amount of plaintiff’s recovery.
With the evidence in the state heretofore related the cause was submitted to the jury on special interrogatories, the parties having stipulated the case should be so submitted and that the trial court should render judgment on the answers returned by such jury.
The interrogatories so submitted by the trial court and the answers made thereto by the jury read as follows:
“What do you allow the plaintiff for the following items of damage?
“1. Loss of time? A. $2,400.
“2. Permanent disability? A. $9,360.
“3. Pain and suffering? A. $3,125.
“4. Bills for expenses including all doctor and hospital bills? A. $900.”
Defendants promptly filed a motion to set aside the answers to the special questions and for a new trial. When presented the trial court stated that if plaintiff would accept a remittitur of $3,120 it would be overruled. On announcement of acceptance of the remittitur action was taken as indicated and judgment was entered for $12,665.
Appellants’ specifications of error are ten in number. Several of them are neither briefed nor argued. Under such circumstances they are regarded as abandoned and receive no consideration on appellate review. (Bailey v. Dodge, 28 Kan. 72; Smith v. Kagey, 146 Kan. 563, 570, 73 P. 2d 56; Tawney v. Blankenship, 150 Kan. 41, 90 P. 2d 1111; Tri-State Hotel Co., Inc. v. Southwestern Bell Telephone Co., 155 Kan. 358, 125 P. 2d 728; Carrington v. British American Oil Producing Co., 157 Kan. 101, 138 P. 2d 463; Sams v. Commercial Standard Ins. Co., 157 Kan. 278, 139 P. 2d 859.)
Grounds of appeal entitled to consideration and which are urged by appellants as a basis for reversal of the judgment will be noted and considered in inverse order of what we deem to be their importance.
The first question to which we give attention is the contention that improper interrogatories were submitted by the trial court. Resort to the record makes it immediately apparent this objection strikes at the form of the interrogatories and is not premised upon the proposition there was no evidence to justify the submission of any question which the jury was required to answer or that any such question was not pertinent to a determination of the issues involved. The gist of appellants’ argument is that questions 1 and 2 were ambiguous and susceptible of misunderstanding. Assuming, without conceding, the correctness of appellants’ position it does not now lie in their mouths to predicate error on the form of any question. They stipulated the case should be submitted on special interrogatories prepared by the court. In fact the appellee states, and such statement is not denied, they were submitted after inspection and agreement by attorneys for both parties. Be that as it may, the record fails to disclose appellants made any objection to them or requested that they be differently stated. Having stipulated the case should be submitted on interrogatories prepared by the court and having stood by and permitted their submission without objection appellants waived any objections they may have had as to their form and cannot now be heard to say they were improper.
Another contention is that the jury was so confused in regard to the questions submitted as to require that a new trial be granted. It is not urged confusion existed with respect to questions 3 and 4, bills for expenses and pain and suffering, so this contention, like the one which precedes it, relates solely to questions 1 and 2, loss of time and permanent disability, and the answers thereto.
Much of appellants’ argument on this point is based upon their construction of evidence offered by appellee in resisting the motion for a new trial. Without detailing that evidence it should be stated it came from one of the jurors and was adduced by appellee over objection of appellants for the purpose of showing what elements of damage the jury considered in arriving at its ultimate decision as to the amounts to be allowed in its answers to interrogatories 1 and 2. Although examination of that evidence does not lead us to appellants’ conclusion it will serve no useful purpose to labor that question further. This court has repeatedly held that a verdict cannot be impeached by inquiries pertaining to matters essentially inhering in the verdict itself. (L. & W. Rly. Co. v. Anderson, 41 Kan. 528, 21 Pac. 588; State v. Keehn, 85 Kan. 765, 118 Pac. 851; State v. Taylor, 90 Kan. 438, 133 Pac. 861; Jones v. Webber, 111 Kan. 650, 207 Pac. 837; Stone v. City of Pleasanton, 115 Kan. 378, 223 Pac. 312; Anderson v. Thompson, 137 Kan. 754, 758, 22 P. 2d 438.) Here the appellants had made no attempt to sustain their position by impeaching the jury’s decision with evidence dehors the record. In fact, they could not have done so had they attempted it. We can see no reason why the rule which barred them from showing the elements which went to make up the jury’s verdict should not preclude the appellee from making any attempt to bolster it with testimony of like nature. The evidence was improper, the objections thereto should have been sustained and it is entitled to no weight in determining whether appellants’ position can be maintained.
It is obvious from what has been said decision of the question depends upon what is to be gleaned from the record itself. In approaching its determination it is well to have clearly in mind the problem which confronted the trial court on the motion for new trial with respect to the force and effect to be given the answers of the jury. Examination of the statute (G. S. 1935, 60-2918) pertaining to general and special verdicts immediately discloses the situation is not one possessing the attributes specifically contemplated by its applicable provisions. Instead, the decision of the jury, as required by the stipulation entered into between the parties, presents an anomalous one. Embodied there are characteristics to be found in both special and general verdicts. Special because, all , issues including liability of the appellants having been conceded, the interrogatories as submitted required a special verdict under all the facts and circumstances disclosed by the evidence as to one controverted issue only, namely, the amounts to be allowed for the elements of damage properly recoverable in a personal injury action, and general for the reason that under the same stipulation the answers to such interrogatories were necessarily in effect a pronouncement generally upon all the issues, both controverted and uncontroverted, upon which the trial court was to render judgment in favor of plaintiff. Under such circumstances it is our view it became the duty of the trial court on the hearing of the motion for new trial and is incumbent upon this court on appellate review to simply treat the answers to the special interrogatories as a verdict fixing liability of the appellants in the amounts stated therein on the hydra-headed issue submitted and uphold it if the record discloses evidence which supports such answers, having in mind the well established rule that both special and general verdicts — -and we add a verdict which possesses the dual characteristics to which we have heretofore referred— are to be liberally and favorably construed with the view of sustaining them if upon resort to the record that can reasonably be done (2 Thompson on Trials, 2d ed. 1934, § 2654 and Schwab v. Nordstrom, 138 Kan. 497, 27 P. 2d 242).
On the hearing of the motion for new trial appellants produced no evidence in support of their position. They argued there, as they do now, that because the answer to question 1 allowed compensation for loss of time in the sum of $2,400 without fixing the period of time that amount covered it precluded the allowance of anything additional for permanent disability in the answer to question 2. It is on that premise they base their argument the jury must have been confused and as a consequence the trial court should have granted them a new trial.
When tested by the rule which we have heretofore' held to be applicable we do not believe the verdict is open to the objection lodged against it by appellants. Otherwise stated, the answer to question 1 does not preclude allowance for permanent disability. It follows that from what appears on the face of the verdict — and it must be kept in mind that is all we have before us on that point — it cannot be successfully argued the jury was confused. The reasons for our conclusion can be briefly stated.
With respect to question 1 the record disclosed appellee was injured on June 24, 1943, and that the trial commenced on February 5, 1945. During that interim more than nineteen months had elapsed. The undisputed testimony was that appellee’s average weekly wage prior to that time had been from $27 net to $35 per week. Resort to a simple mathematical process reveals the jury properly could, and did, allow compensation for loss of time at the approximate, if not the exact, rate of $30 per week up to the date of the trial.
As to question 2 it was stipulated appellee’s life expectancy on the date he was injured was 8.97 years. There was testimony from which the jury could properly find he was wholly incapacitated from the performance of manual labor in the future. Under our decision in Dyer v. Keith, 136 Kan. 216, 219, 14 P. 2d 644, we held that in a personal injury action loss of earning subsequent to the date of trial may be included within a finding of permanent disability. Again mathematical computation reveals the amount allowed for permanent disability under the answer to question 2, after deducting the period allowed for loss of time, is less than what could have been allowed for the remainder of appellee’s life expectancy. Therefore, there was evidence to sustain such finding.
We have seen fit to dispose of appellants’ contention on its merits. Another sound but more technical answer is that by its answers to questions 1 and 2 the jury responded to the queries submitted to it on appellants’ stipulation and that when those answers were returned into court they made no application to have the jury respond more specifically or make any other or additional answers. Long ago this court committed itself to the doctrine that when special interrogatories are submitted to a jury objections based upon the ground that its answers are not sufficiently full and specific — and we now add when it is claimed the jury was confused in arriving at such answers — must be made at the time the verdict is rendered and before the jury is discharged if those contentions are to be available on appellate review (Hazard Powder Company v. Viergutz, 6 Kan. 471; Arthur v. Wallace, 8 Kan. 267 and Carlin v. Donegan, 15 Kan. 495).
For the benefit of those disposed to follow the practice indulged in by the parties in the instant case it should perhaps be added, although we do not here decide the question, that even had the face of the record disclosed some confusion existed in the mind of the jury we entertain serious doubt as to whether under the facts and circumstances here prevailing appellants’ contention would be sustained. Assuming, but not conceding, the existence of that situation there certainty was no confusion in the mind of the trial court which heard the evidence and under the stipulation had the duty of rendering judgment on the answers. It approved findings 1, 3 and 4, but in requiring the remittitur stated the amount allowed by question 2 was reduced to $20 per week for a period of six years for the reason it was in doubt as to whether appellee would be able to average more than that sum per week over such period of time. Having stipulated the trial court could take that action, and in the absence of any contention it was confused or did not comprehend the force and effect to be given the answers, when viewed in the light of the entire record, we doubt if appellants are in a position to sucessfully challenge the judgment as rendered by the trial court.
Other contentions advanced by appellants can be considered together. It is claimed the verdict resulted from passion and prejudice on the part of the jury, that the damage allowed by it in its answers was excessive and that the judgment rendered on such answers was likewise excessive.
There is, of course, no uniformity in our decisions on the proposition of when damages allowed in a personal injury action are excessive for the simple reason determination of that question necessarily depends upon the facts and circumstances of each particular case as it is presented for review. Recognized in every case, however, irrespective of its results, is the now well-established doctrine that in order for a judgment to be set aside as excessive it must appear that it is so large as to shock the conscience of the court. See Carlisle v. Union Public Ser. Co., 137 Kan. 636, 21 P. 2d 395; Weaver v. Snyder, 139 Kan. 144, 147, 29 P. 2d 1096; Sponable v. Thomas, 139 Kan. 710, 724, 33 P. 2d 721; Lewis v. Montgomery Ward & Co., 144 Kan. 656, 664, 62 P. 2d 875. Many other cases to the same effect are to be found but they would only further emphasize the rule and time and space will not permit their citation.
That the verdict in this case was liberal is beyond dispute. However, under the rule when we give full credence to all the testimony adduced by the appellee, heretofore set forth in detail, which we are required to do because the jury gave it such credence, we cannot say the verdict was sufficiently excessive, if actually excessive, as to evidence passion and prejudice on the part of the jury or to require the granting of a new trial. Obviously, under such circumstances, since the trial court in the exercise of its discretion saw fit to materially reduce the verdict we are not disposed to reverse the judgment on the ground it was excessive.
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover on a policy of fire insurance, and from an adverse judgment the plaintiff appeals.
In the petition filed June 3, 1941, it was alleged that on July 15, 1938, in consideration of a payment by plaintiff, the defendant made and delivered a policy of insurance, a copy being attached and made part of the petition. It may be said there was to be $3,500 insurance on a building at 2900 South Broadway, Wichita, and $3,500 insurance on furniture, fixtures and personal property, but the instant policy covered only $1,000 of the whole amount; that at the time the policy was issued and thereafter until destroyed, the building and personal property were used and occupied by a supper club; that on October 12, 1938, the entire property was totally destroyed by fire; that the fair and reasonable value of the real and personal property was greater than the amount for which it was insured; that on November 2, 1938, proofs of loss were made and given and plaintiff performed and agreed to perform all requirements of the policy, but the defendant failed to comply with the insurance contract and has not paid plaintiff the sum of $1,000 or any part thereof; that by reason of defendant’s refusal, plaintiff had been compelled to employ attorneys to bring the action and they are entitled to the sum of $300 for such services. The prayer was for $1,000 of insurance and for $300 attorneys’ fees.
The policy states that it covers $1,000 of its pro rata proportion of the amounts, and that it is “Uniform Standard Kansas.” The policy notes $3,500 insurance on the building and $3,500 on the furniture, fixtures and personal property therein. In the policy it is provided, in separate paragraphs, (a) the entire policy shall be void if the insured has concealed or misrepresented any material fact or circumstance concerning the insurance or subject thereof, or if the interest of the insured is not truly stated, or in case of any fraud or false swearing by the insured touching any matter relating to the insurance or subject thereof whether before or after a loss; (6) that the policy shall be void if the interest of the insured be other than “unconditional and sole ownership”; (c) that if loss occur insured shall give immediate notice of loss, protect property, furnish inventories, and similar provisions; (at) that the insured, after loss, shall submit to examination under oath by any person named by the company concerning the insurance and the subject thereof; (e) the company shall not be held to have waived any provision or condition of the policy or any forfeiture thereof by any requirement, act or proceeding on its part relating to appraisal or to any examination provided for in the policy; (/) no action shall be sustainable until after compliance by the insured with all requirements; and (g) that the policy is made and accepted subject to the foregoing stipulations and conditions and to further stipulations and conditions including that no officer, agent or other representative shall have power to waive any provision or condition except as provided in the policy and as to such provisions and conditions no officer, agent or representative shall have such power or be deemed or held to have waived unless waiver be written upon or attached to the policy. If any other provisions need to be noticed they will be mentioned later.
In its answer filed April 27, 1942, defendant admitted execution and delivery of the policy, made appropriate allegations concerning provisions of the policy as to misrepresentations by the insured, or if his interest be not truthfully stated, as to sole and unconditional ownership by the insured, and other provisions; ancj alleged violation by the insured and -that by reason thereof the policy of insurance became null and void. It was further alleged that false proofs of loss were made and that plaintiff had refused examination under oath as provided in the policy until such examination had been ordered by the district court on motion made in this action, and that plaintiff had failed to comply with the terms, provisions and conditions of the policy and by reason thereof was barred from recovery.
Plaintiff’s reply filed May 12, 1942, alleged that defendant was estopped to deny liability as it had notice of ownership at the time the policy was issued; that it extended time for examination, received proof of loss, waived forfeiture by retention of premium, acceptance of proofs of loss, negotiated for settlement, causing plaintiff to incur expense after knowledge, and with full knowledge had never given notice of forfeiture until it filed its answer, and by reason thereof it was estopped to deny existing continued validity of the policy.
A jury was waived and trial was by the court, which made findings of fact and conclusions of law, which we summarize:
The record title to the real estate involved was in plaintiff under a quitclaim deed recorded August 7, 1936. The policy was issued July 15,1938, and the premium paid by plaintiff. W. C. Cohen, the agent who wrote the policy, notified the defendant that the property was a supper club with a total value of $20,000 on building and contents, and he had agreed to secure coverage of $7,000. The property was totally destroyed by fire on October 12, 1938. Finding 5 is that on October 13, 1938, plaintiff made a sworn statement to one Roy Allison, Deputy State Fire Marshal, concerning the fire. In the course of it he stated:
“The Riverside Supper Club is owned by Max Cohen I am the manager of the same and have been the manager since it opened the first part of May of this year and was the manager of the same at the time of the fire.
“My only interest in the Riyer Side Club is a working interest, by that I mean if the Club shows a profit I receive a portion of same, in addition to my salary. I do not have any interest of any kind or character in any shape form or manner in the building or in the fixtures in same at the time of the fire.”
Finding 6 is that plaintiff permitted other persons to operate the “Riverside Club” which was separate and apart from the supper club. The business of the “Riverside Club” was sale of intoxicating liquors and gambling, and certain property covered by the policy and included in proofs of loss was used by it. Finding 7 is that on November 3, 1938, plaintiff filed with the defendant’s adjuster a sworn proof of loss which stated that defendant had insured plaintiff doing business as “Riverside Supper Club,” its destruction by fire, that at the time it was used by plaintiff as a supper club and for no other use, and that the interest of plaintiff was unconditional ownership. Other findings are- to the effect that on April 9, 1941, plaintiff filed a supplemental proof of loss; also that on December 22, 1938, counsel for defendant wrote and plaintiff received a letter demanding plaintiff’s examination under oath and that similar requests were made under dates of March 21, 1941, and July 7, 1941. On July 16, 1941, defendant filed a motion in the present suit, stating that examination under oath had been demanded and plaintiff had refused to submit, and praying for an order. The motion was sustained and examination was had on December 10,1941. Reference is then made to a Hammond organ which was in the premises at the time of the fire and was covered by a conditional sales contract, title in seller until the purchase price was fully paid. No claim was made for this organ in the proof of loss. Reference is also made to a cash register which was in the premises under a similar sales contract. The fourteenth and fifteenth findings recite:
“14. The only interest the plaintiff, Sam Marett had in the Riverside Club, or the Riverside Supper Club, was a working interest; if the club showed a profit he received a portion of same in addition to his salary. He did not have any interest of any kind or character in any shape, form or manner, in the buildings, fixtures or personal property therein at the time of the fire.
“15. Defendant made no declaration of forfeiture or claim of forfeiture, until it filed its answer herein on April 27th, 1942.”
As matters of law the trial court concluded that plaintiff had no interest in the property covered by the policy; that defendant did not waive the sole and unconditional ownership provision of the policy, and that defendant was entitled to judgment.
Plaintiff then filed his motion that the court strike findings of fact 6 and 14 and make certain requested findings and strike out the conclusions of law and substitute requested ones. He also filed a motion for judgment on the undisputed evidence and all findings of fact except 6 and 14, as well as a motion for a new trial. Although some colloquy between court and counsel occurring on the hearing of these motions is abstracted, the journal entry of judgment shows only that on April 22, 1944, these motions were denied, and on the same date judgment was rendered for defendant. In due time plaintiff perfected his appeal to this court. The parties will be referred to hereafter as Marett and the company.
Marett revamps his specification of errors into nine questions. Not all of them require separate notice, for our decision concerning those noticed renders discussion of others unnecessary.
Marett first contends that he was the owner' of the property insured within the meaning of the insurance policy. Both parties direct our attention to many authorities dealing with the meaning of “sole and unconditional ownership” as those words are used in the policy. We do not find it necessary to discuss this phase of the matter. If Marett’s testimony be fully believed, and no contrary conclusions be reached from the defendant’s testimony, he was at all times the sole and unconditional owner of all property insured, except the Hammond organ and the cash register, under all of the authorities to which our attention has been directed.
The more important question is whether there was competent evidence to sustain the trial court’s finding that Marett did not have any interest of any kind in the insured property. The evidence disclosed that shortly after the fire occurred an investigation was had by the State Fire Marshal. When the investigation was held there were present, the fire marshal, his deputy, an adjuster for a concern which did adjusting of losses for the company, and an agent for the Na tional Board of Fire Underwriters. At that investigation Marett was examined under oath as provided by statute (G. S. 1935, 31-201 et seg.) and his testimony reduced to writing. At the trial of the present action the fire marshal consented to the evidence being disclosed, witnesses testified with respect thereto and Marett’s sworn statement at the investigation was received. Quotations from it appear in the trial court’s findings above set forth. There was also some evidence that at the same investigation Max Cohen gave testimony tending to support Marett’s statement. No particular complaint is made as to competency of the above evidence. On trial the company also offered and the court admitted testimony of one Ripstra, a contractor who installed a part of the equipment in the club and whose testimony tended to show that Max Cohen rather than Marett directed the installation. The company had requested the trial court to find that Cohen was the owner, which it declined to do. Marett now insists that if Cohen was not the owner, the testimony was incompetent and hearsay as to Marett and that his motion to strike the same was erroneously overruled. In effect the argument amounts to this: If the trial court had given full credence to Ripstra’s testimony and had found Cohen to be the owner, the evidence would have been competent, otherwise it was not. Competency does not depend upon credibility. Marett cites no authorities in support of the direct contention which is not sustained. On the question of Marett’s ownership of the insured property no incompetent evidence was received. There was ample evidence to sustain finding No. 14 quoted above.
The important contention raised in this appeal is whether the company, by its conduct subsequent to the loss, waived its right to say Marett was not the owner of the insured property and at the trial was estopped to raise the question of ownership by Marett and that the policy was forfeited. In the authorities may be found a multitude of cases dealing with the questions of waiver and estoppel under policies of varying terms, and in some of them it will be found there is lack of clear distinction between waiver and estoppel, or that the two are commingled and confused. For present purposes we accept the statement in 29 Am. Jur. (Insurance, § 799) p. 603:
“Technically, a distinction exists between ‘waiver’ and ‘estoppel’, and the terms are not convertible, since a waiver is an intentional relinquishment of a known right and is a voluntary act, while the elements of estoppel are the misleading of a party entitled to rely on the acts or statements in question, and a consequent change of position to his detriment.”
See, also, 26 C. J. (Fire Insurance, § 351) p. 279.
Bearing in mind these distinctions we take note of the factual situation. The fire occurred October 12, 1938; the fire marshal’s investigation was held on October 13, 1938, at which time the company’s adjuster was present and knew of Marett’s sworn statement he was not the owner; on November 2,1938, proofs of loss were furnished by Marett and retained by the company; on December 22, 1938, the company demanded examination under oath of Marett; on March 21, 1941, the company again demanded Marett submit to examination under oath; on April 9, 1941, Marett filed a supplemental proof of loss which the company retained; on June 3, 1941, Marett filed action on the policy; on July 7, 1941, the company again demanded examination of Marett; thereafter on order made by the court an examination of Marett under oath was held December 10, 1941, and not until April 27, 1942, when the company answered Marett’s petition, did it claim a forfeiture. Although repetition, attention is also directed to the policy provisions more fully set out above, providing for the examination of insured under oath concerning the insurance and subject thereof.
Marett directs our attention to the fact that the company, through its adjuster, had notice of his statement at the fire marshal’s examination, as early as October 13, 1938, but without immediately asserting the policy was forfeited and of no effect because of the fact the insured was not the sole and unconditional owner of the property on November 2, 1938, received from Marett and retained proofs of loss, and permitted him to go to the trouble and expense of making supplemental proofs on April 4, 1941, and never asserted a forfeiture until after suit was filed, and contends that the failure of the company to immediately declare forfeiture when it discovered Marett was not the owner was a waiver of its right, and by reason of Marett’s trouble and expense in furnishing additional proof, and the delay, the company was estopped, when it finally filed its answer, to assert forfeiture. In. substance the company’s answer is that the information it received as the result of the fire marshal’s examination, was not usable by it by reason of the terms of the statute which prevented its disclosure without consent of the fire marshal (G. S. 1935, 31-206); that under the policy it had the right to examine Marett under oath and made three attempts to do so, which were frustrated by his refusal to appear; that such examination was only held as result of a court order, and it then as serted in its answer its nonliability and the grounds thereof; that under the policy it was expressly provided that it was not to be held to have waived any provision of the contract or any forfeiture thereof by calling for such examination and that the policy was made and accepted subject to that condition; that by its acts it had not waived any condition of the policy or its right to declare a forfeiture, nor was there anything done by which it was estopped to assert forfeiture.
Preliminary to any discussion of the contentions of the parties concerning waiver and estoppel, we shall assume, without exposition, that it is the general rule that where an insurer, with knowledge of facts warranting forfeiture, enters into negotiations after loss which recognize continued validity of the policy and induces the insured to incur expense or trouble under belief his loss will be paid, the forfeiture is waived. See 29 Am. Jur. (Insurance, § 872) p. 668, and 26 C. J. (Fire Insurance, § 352) p. 281.
In support of his contention that the company waived its right to declare the policy of no effect and was estopped to declare forfeiture when it filed its answer, Marett directs our attention to Insurance Co. v. Allen, 69 Kan. 729, 77 Pac. 529 (Iron Safe Clause case); Mayse v. Great American Ins. Co., 123 Kan. 692, 256 Pac. 1002 (Hail Insurance); Sedlachek v. Home Ins. Co., 141 Kan. 626, 42 P. 2d 557 (Auto Fire); Insurance Co. v. Weeks, 45 Kan. 751, 26 Pac. 410 (Fire); and Insurance Co. v. Knutson, 67 Kan. 71, 72 Pac. 526, 100 A. S. R. 382 (Fire); in all of which it was held that under the facts the company had waived a right of forfeiture. None of these cases, however, disclose that there was any provision in the policy similar to the one now before us that, "This company shall not be held to have waived any provision or condition of this policy or any forfeiture thereof by any requirement, act, or proceeding on its part relating to the appraisal or to any examination herein provided for”; and for that reason they will not be noted further.
Marett also directs attention to the leading case of Titus v. Glens Falls Insurance Company, 81 N. Y. 410, 8 Abb. N. C. 315, wherein it was said :
“But we are of opinion that the claim of the plaintiff is well founded that the forfeiture caused by the foreclosure proceedings was waived by the defendant. After the fire, and after the defendant had notice of the proceedings, it required the insured to appear before a person appointed by it for that purpose, to be examined under the clause in the policy hereinbefore mentioned, and he was there subjected to a rigorous inquisitorial examination. It had the right to make such examination only by virtue of the policy. When it required him to be examined, it exercised a right given to it by the policy. It then recognized the validity of the policy, and subjected the insured to trouble and expense, after it knew of the forfeiture now alleged, and it cannot now, therefore, assert its invalidity on account of such forfeiture.
“When there has been a breach of a condition contained in an insurance policy, the insurance company may or may not take advantage of such breach and claim a forfeiture. It may, consulting its own interests, choose to waive the forfeiture, and this it may do by express language to that effect, or by acts from which an intention to waive may be inferred, or from which a waiver follows as a legal result. A waiver cannot be inferred from its mere silence. It is not obliged to do or say any thing to make the forfeiture effectual. It may wait until claim is made under the policy, and then, in denial thereof, or in defense of a suit commenced therefor, allege the forfeiture. But it may be asserted broadly that if, in any negotiations or transactions with the insured, after knowledge of the forfeiture, it recognizes the continued validity of the policy, or does acts based thereon, or requires the insured by virtue thereof to do some act or incur some trouble or expense, the forfeiture is as matter of law waived; and it is now settled in this court, after some difference of opinion, that such a waiver need not be based upon any new agreement or an estoppel.” (Citing cases.) (1. c. 418.)
An examination of that case will disclose nothing about the force and effect of a saving clause of the‘policy similar to that quoted above.
In Connecticut Fire Ins. Co. v. Boydston, 173 Ark. 437, 293 S. W. 730, not cited by either party, the policy contained a provision for examination of the insured under oath and a general provision the company should not be deemed to have waived any conditions of the policy unless by written agreement or by endorsement on the policy. After loss the company required the insured to make a trip for examination under oath. This was held to be a waiver of its right to declare forfeiture, it being held in that case that the clause for examination applied only while the policy was running and not after loss was sustained, and in the course of its opinion the court distinguished its holding from that in Phoenix Insurance Co. v. Flemming, 65 Ark. 54, 44 S. W. 465, 39 L. R. A. 789, 67 A. S. R. 900, W'here it had held that forfeiture is not waived by the company’s making an examination of the insured’s books after knowledge of forfeiture, if the policy provided that in case of loss the company could make such examination without waiving any condition in the policy. The opinion in the Boydston case does not make it clear but apparently there was no saving clause in the policy like that presently involved. But if there was, we would not be able to follow the reasoning of that case in the case before us. The context of the policy before us is in the order heretofore indicated. One after the other the paragraphs of the policy provide (a) for proofs of loss, (b) for examinations of insured under oath, (c) for appraisers for valuation if the insured and the company could not agree, (d) that the company should not be held to have waived by proceedings to have appraisal or examination, as more fully set forth in other parts of this opinion, followed by other provisions referring to loss, and ending with the clause the policy is made and accepted under those stipulations and conditions. Sound rules of construction of written instruments will not permit us to lift the clause for examination out of the context of the policy and say that the clause pertaining to examinations applies only while the policy is running and not after loss has occurred.
In American Central Ins. Co. v. Nunn, 98 Tex. 191, 82 S. W. 497, 68 L. R. A. 83, the policy did contain a nonwaiver clause apparently the same as the one before us and a further clause that the policy was made and accepted subject to the foregoing stipulations and conditions, quite like the one before us. As indicated by the headnote the court held:
“An insurance company did not waive its defense under the ‘iron safe clause,’ by reason of the failure of insured to keep and produce books, by requiring him to submit to an examination concerning the loss, where the policy provided that he should do so when required and that the insurer should not be held to have waived any condition of the policy thereby.” (Syl.)
In the later case of White v. National-Ben Franklin Ins. Co., (Tex. Civ. App.) 1 S. W. 2d 1117, the opinion does not disclose the full terms of the policy, but it was there said:
“The following authorities hold that, where the policy contains the stipulation giving the insurer the right to examine the insured, and providing that such examination shall not constitute a waiver of any defense, the insurer may have to the liability asserted under the policy, such examination cannot be asserted as a waiver of such defense: [citing the Nunn case,' supra, and other authorities].” (p. 1117.)
In Hill v. London Assur. Corp., 9 N. Y. S. 500,16 Daly 120, 30 N. Y. St. Rep. 539, the case arose from removal of goods, subsequently destroyed, without obtaining requisite written endorsements on the policy. Apparently the policy contained no nonwaiver clause of the same nature as we are considering but did contain a clause the policy was made and issued under its stipulations and conditions. It was held that the fact the company made investigation and appraisal did not warrant an inference of waiver. Referring to Titus v. Glens Falls Insurance Co., supra, it was said the doctrine of implied waiver could not be applied where there was an express provision in the policy that the company could make investigation and appraisal without being deemed to have waived any forfeiture.
The policy of insurance involved in Bishop v. A. Ins. Co., 130 N. Y. 488, 29 N. E. 844, contained a nonwaiver clause similar to the present one. A loss occurred, the company was notified, its adjuster called on plaintiff, there was controversy about the appraisal and under a clause of the policy appraisers were selected by instrument in writing. Without going into detail, the appraisers failed to perform and the plaintiff then filed proofs of loss. In a suit which followed the company defended on the ground proofs of loss were not timely served and that it was not precluded from asserting that defense as against claim it had waived proofs of loss. The company’s contention was denied, and under the facts it was held estopped by its conduct from enforcing the provision against the party who acted in reliance upon its conduct.
In Kiernan v. Duchess County Mut. Ins. Co., 150 N. Y. 190, 44 N. E. 698, policy provisions similar to those before us were involved. Without reviewing the facts fully, it may be said it was there held that where an appraisal is proper under the policy the mere fact one has been had at the instance of the company has no bearing upon the question of a waiver of forfeiture, the claim being that plaintiff was not the sole and unconditional owner. It was further held, however, that an election by the company to insist upon a forfeiture must be asserted within a reasonable time after acquiring knowledge of the breach.
Many other cases may be found involving the policy provision present in the case at bar, but those cited are illustrative of all of them which have come to our attention. Although it may be said there is some contrariety in the decisions, a good deal of it arises because of application to the particular facts of each case.
Applying the general principles of the decisions to the facts in this case, we note the following: It is true that at the fire marshal’s investigation in October, 1938, the company, through its agent, received notice of Marett’s sworn statement he was not the owner of the insured property, and that thereafter it received proofs of loss from Marett. Marett first furnished a proof in November, 1938, and the company, under date of December 1,1938, acknowledged receipt and made its first demand for examination under oath. It did not at that time assert any forfeiture. At that time it was confronted with this situation: The statute under which the fire marshal’s examination was held made it an offense punishable by fine or imprisonment for any person, without consent of the fire marshal, to disclose any testimony given by any witness at such hearing or the substance thereof (G. S. 1935, 31-206). The company, being aware of the policy provision for examination of Marett under oath, sought on three occasions to hold such examinations, and Marett refused, and he did not submit until ordered by the trial court after the present action was filed. The evident purpose of the examinations sought was to obtain verification of the testimony before the fire marshal, Avhich the company was then not privileged to use. The right to have such examination under oath was preserved by the policy, and we think it may not be said that the company’s repeated efforts to have such examination constituted any waiver, or if it should be so considered, the nonwaiver clause covered it. As has been shown above in some of the decisions it has been held that a company may waive forfeiture or be estopped to assert it by putting the insured to trouble and expense in complying with provisions for examination under oath, making proofs of loss or other somewhat similar things. We are of opinion that where the policy calls for examination, and it is held or attempted to be held in the city of his residence, it may not be said the insured is put to trouble and expense. Possibly if he attended assured would lose a little time and be inconvenienced, but he knew when he accepted the policy that one of its conditions was that such an examination could be demanded. The fact it was demanded cannot be converted into a waiver, nor used as an element of estoppel. Insofar as proofs of loss are concerned, the evidence is that Marett furnished proof in November, 1938, under circumstances previously set forth. After ignoring demands for examination he asked the company for additional blanks. In sending them to him the company again demanded his examination under oath. Without further statement, we are of opinion that the company's acts may not be separated from Marett’s and waiver or estoppel based on proofs of loss. Considering what Marett did, in connection with what the company did, it is quite clear the companjr never deviated from its demand that Marett submit himself for examination. Marett could not ignore those demands and by furnishing some proofs not demanded by the company build up a waiver by the company of its right to assert the policy was void, or to create a situation where it could be said the company, by its conduct, was estopped to assert that defense.
Nor have we overlooked the argument presented, and supported by some of the decisions, that the company may not say the policy continues for the purpose of permitting it to assert its defenses, but is forfeited so that plaintiff may not recover under it. That argument will not withstand analysis. The contract itself sets up the grounds under which the forfeiture may be declared. The company asserts nonliability here by reason of policy provisions and not in opposition to them. There is a further argument that forfeiture must be promptly asserted, and that may be conceded. But it can only be asserted effectively when the moving party is in possession of facts and evidence that in event of litigation, he can prove his ground for forfeiture. That situation has already been sufficiently treated. Whilé equity does not favor forfeitures, it displays no kindlier feeling for estoppels. Insofar as waivers are concerned they only come into being when a party, in full possession of the facts, relinquishes a known right. .
As applied to the facts in this case we. think the trial court properly concluded that the plaintiff Marett had no interest in the property covered by the policy of insurance, and that the defendant company had not waived the ownership provisions of the policy, and its judgment should be affirmed. It is so ordered.
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The opinion of the court was delivered by
Smith, J.:
This is an action ón a promissory note, and to foreclose a mortgage. Judgment on the note was given for plaintiff. The court refused to foreclose the mortgage on the fee-simple estate, but rendered a decree of foreclosure against a life estate on the land in question. From this judgment plaintiff appeals.
The petition set out the note, and a mortgage on- 400 acres of land in Jewell county securing it, and alleged a default in payments.
The defendants answered admitting the execution of the note and mortgage and the default. The answer further stated that Myrtle Vandeventer and Christopher Vandeventer, the mortgagors, did not have title to the land at the time of the execution of the instruments and that prior to May 13, 1913, the fee title to the land in question was held by Ira Vandeventer; that he died testate May 28, 1913, and by his will left a life estate in the land in question to Christopher Vandeventer, with the power to devise it by will to his heirs without the power to alienate or encumber; that this will was admitted to probate and plaintiff knew the conditions of it.
The answer further alleged that on account of these restrictions neither of defendants had any power to make a valid mortgage.
Margaret Davisson and Mabelle Vandeventer asked and were given leave to be made parties defendant. They are children of Christopher and Myrtle Vandeventer. They denied all the allegations of the petition except what were admitted in the answer of their father and mother. They also filed a cross petition in which they alleged the facts about as had been alleged in the answer of their father and mother, and that the will of Ira Vandeventer devised the remainder of the estate in the land in question to them as the heirs of Christopher Vandeventer. They prayed for a decree quieting their title to the land against the plaintiff.
The plaintiff replied to the answer of Christopher Vandeventer and Myrtle Vandeventer and answered the cross petition of Margaret Davisson and Mabelle Vandeventer, setting up the pleadings and judgment in another action had in 1925 in the district court of Jewell county. Plaintiff alleged that on December 19, 1924, an action was filed in the district court of Jewell county in which Myrtle Vandeventer was plaintiff and Christopher Vandeventer, her husband, and Margaret Vandeventer (now Margaret Davisson) and Mabelle Vandeventer, both minors, were defendants; and that in this action the plaintiff alleged that she was the owner in fee simple of the lands; that a guardian ad litem for the minors was appointed by the court; that the guardian for the minors filed an answer in that action denying the allegations of the petition of plaintiff; and that at a trial the minors were represented by counsel and the court heard the case and rendered judgment; that under the terms of the will of Ira Vandeventer, Christopher Vandeventer had full power to divest himself of any estate he had in the lands in question and that since the commencement of that action he had exercised such power by conveying it to Myrtle B. Vandeventer, and that she was in actual possession of the premises and the owner thereof in fee simple; and that the judgment barred Margaret and Mabelle and all others whom they may represent from any right or title in the land.
The defendants in reply to the new 'matter set up in the pleadings of plaintiff alleged that the judgment of the court in the former action, awarding to Myrtle Vandeventer fee-simple title to the lands in question, was void for the following reasons:
“1. That the remaindermen created by the last will and testament of Ira Vandeventer, deceased, are contingent and are not now known and cannot be known until the death of Christopher Vandeventer.
“2. That in 1925 the district court of Jewell county did not have before it the necessary parties to'determine the ownership of the fee-simple title to the lands in controversy.
“3. That the court was without jurisdiction by reason of the lack of proper párties and proper pleadings to enter any judgment in 1925 vesting fee-simple title to the lands in controversy in the plaintiff therein, Myrtle Vandeventer.
“4. That none of the instruments executed by parties to that suit, copies of which are attached to the supplementary petition of the plaintiff, Myrtle Vandeventer, filed therein constituted a legal and valid exercise of the power of appointment delegated to Christopher Vandeventer by the will of his father; and that said instruments so executed were made for the sole and only purpose of enhancing the title of Christopher Vandeventer in and to the lands involved in this controversy and to make them available for the security of his own indebtedness due the State Exchange Bank of Mankato, Kan.
“5. That a subsequent exercise of the power of appointment made by Christopher Vandeventer in 1932 revoked, canceled, and set aside all previous wills made by him, including those referred to in the pleadings in the former suit.
“6. That in the prosecution of said case in the district court of Jewell count}», Kansas, in 1924 and 1925, the plaintiff therein and her attorneys in the handling of said case were guilty of extrinsic fraud upon the rights of these defendants, in that the court was not informed of the issues presented by the pleadings nor of the judgment to be entered; that the guardian ad litem, in fact represented parties to said suit adverse to the rights of the minors and permitted a judgment to be entered which was not authorized by the pleadings or the evidence produced.”
The case was tried before the court. The court found' that the plaintiff was entitled to judgment against Myrtle B.'Vandeventer and Christopher Vandeventer for the amount of the notes and interest, and that the indebtedness was a first lien upon their interest in the real estate in question, and that this interest was a life estate only. The court further found that the allegations of Margaret Davisson and Mabelle Vandeventer in their answer and cross petition were true, and that judgment should be rendered against the plaintiff, quieting the title of these two parties to the fee-simple title to the land. Judgment was entered accordingly. From the judgment limiting the lien of plaintiff to the life estate plaintiff appeals, and from the judgment allowing the lien on the life estate defendants, Myrtle B. Vandeventer and Christopher Vandeventer, appeal.
The plaintiff urges here that the former judgment settled the right of Christopher Vandeventer and Myrtle Vandeventer to execute the mortgage in question; that the judgment was not void; that the attack on it in this case is a collateral one and must fail.
We will examine the record in that case. Prior to 1913 the title to the real estate in question was in Ira Vandeventer. He bequeathed a life estate in it to Christopher Vandeventer. The portion of the will with which we are concerned reads as follows:
“I hereby will and devise to my beloved and only son, Christopher Vandeventer, for his natural life time, and after his death to his heirs and assigns, the following described real estate, to wit:
“To have and to hold the premises above described, together with all the hereditaments and appurtenances thereunto belonging or in anywise pertaining to the said Christopher Vandeventer, during his natural life time, but without the power to sell, assign, transfer or incumber, except as to the rents and income thereof, and afterwards to the heirs of the said Christopher Vandeventer, in absolute fee simple forever as he may will and devise, or, as the laws of descent and distribution of the state of Kansas may provide in case the said Christopher Vandeventer, my son, should die intestate.”
Ira Vandeventer died May 13, 1913, and the will was admitted to probate. Christopher immediately took possession of the land.
Prior to November, 1924, Christopher Vandeventer and his wife became indebted to the State Exchange Bank at Mankato on notes for about $6,000. On November 4, 1924, Christopher Vandeventer and Myrtle Vandeventer entered into a post-nuptial contract between themselves. By the terms of this contract Christopher agreed to devise to Myrtle the land in question here and Myrtle agreed to devise her lands to Christopher, the contract to serve as a settlement of the marital rights of both parties.
Christopher then executed a will in which he devised the real estate in question to his daughter, Margaret, in violation of the terms of the above contract. Myrtle then filed an action against Christopher and Margaret and Mabelle, minors, and all those whom they might represent. In that case Myrtle filed a supplemental petition. In this she alleged that Christopher, in violation of his contract with her, had executed the will just referred to; that this last mentioned will was revocable; and that subsequent to the filing of her original petition Christopher had complied with the terms of the contract by executing his last will and testament, devising the land in question to her; that this will was contractual in character, was based upon a sufficient consideration, and constituted a valid and irrevocable exercise of the power devised to Christopher Vandeventer by Ira Vandeventer. She also alleged in her petition that Christopher had executed a deed by which he had relinquished to her his life estate in the land in question and had delegated to her his power of appointment and that by reason thereof she was seized with a fee-simple title to the land in question. In that action Myrtle asked that she be decreed to be the owner in fee simple of the real estate in question and that her title as against Christopher Yandeventer, Margaret Yandeventer and Mabelle Yandeventer and all persons or classes whom they represented be quieted.
A guardian ad litem was appointed for the minors. This guardian answered denying generally the allegations of the petition. The answer further alleged that the minors and the class which they represented were the owners of an undivided one-half interest in the remainder in the land. The prayer of the answer was that this title should be established and that it should be allotted to them by judgment.
Christopher answered in that case setting out the facts about as they have been given here. He alleged that on the death of his father the fee-simple title to the land' immediately vested in him, and that any limitation on his power to dispose of it was of no effect. He prayed that the will be construed and that the rights of all parties be settled.
With the issues thus made up the case was tried. The trial court made findings of fact and conclusions of law. The final judgment was that Myrtle Vandeventer was the owner in fee simple of the land, and that Christopher, Margaret and Mabelle, and all others whom they virtually represented, had no interest in the land. The title was quieted in Myrtle. No appeal was ever taken from this judgment. Shortly after that judgment was rendered a mortgage was executed to the Mankato bank. Several months thereafter a mortgage to plaintiff was executed. This action is brought to foreclose that mortgage.
The plaintiff in this action relies on the judgment which has just been described to confer sufficient title on Myrtle and Christopher to enable them to execute a valid mortgage on the fee-simple estate. Defendants claim that this judgment was void and that Myrtle and Christopher had no such title.
There can be no doubt that the attack made in this action on the former judgment is a collateral one. It is so well settled as 'not to require citation of authorities that a collateral attack cannot be made on a judgment unless it is void. (See Chicago, R. I. & P. Rly. Co. v. Ford County Comm’rs, 138 Kan. 516, 27 P. 2d 229.)
We will consider this question.
It is the contention of defendants that the instruments that were passed on by'the court in that case, by which Christopher Vandeventer exercised' the power of appointment, and to vest the title to the land in the plaintiff in the former section, were void, and that the pleadings in that action did not present to the trial court any issue which conferred on the court jurisdiction to render any judgment affecting the fee-simple title to the land in question, and that any judgment affecting the fee-simple title to the land was outside the issues in that case. The argument is that since the judgment would havé been otherwise had the infirmities in the instruments passed on in that case been called to the attention of the trial court, the judgment must of necessity be void. Wé cannot agree with that contention. Where a court had jurisdiction of the parties and of the subject matter óf the action, the judgment is not void. (See Goodman v. Cretcher, 132 Kan. 142, 294 Pac. 868; also, Wyandotte County v. Investment Co., 80 Kan. 492, 103 Pac. 996, and cases cited.)
We see nothing in the record in' the former case which would operate to cause the rule announced in the above authorities to be not applicable here. The vigorous argument of defendants that the instruments passed on in that case could not have had the effect given them by the trial court is not in point. All the points raised in the present case against the validity of these transactions were raised by the pleadings in the former action. If this court should hold here that the former case did not settle the title to the land, then it is difficult to see why in a subsequent action a party could not question the title established in this action. Under such a condition the title to real estate would never be certain. There is abundant reason for the rule laid down in 34 C. J. 537. There it is said:
“In the case of a collateral attack upon a domestic judgment of a court of general jurisdiction by.a party thereto every reasonable presumption is indulged to. support the judgment, and the burden is upon a party collaterally attacking a judgment to establish its invalidity. It will be presumed in such a case that the court had jurisdiction both of the subject matter and of the person, and that all the facts necessary to give the court jurisdiction to render the particular judgment "were duly found, except where the contrary affirmatively appears.”
Defendants point out that Margaret Davisson and Mabelle Vandeventer were minors when the former action was filed and judgment rendered, and did not become of age until a short time before this action was filed. They argue that this fact gives them a reason for questioning the judgment. When the action was filed a guardian ad litem for these two minors was appointed by the court to safeguard their interests. This was in conformity with the provisions of R. S. 60-408 and 60-409. This guardian filed an answer on behalf of these minors and the class which they represented. This court has held that a failure to name a guardian ad litem under this statute for minors who were parties to an action would render the judgment voidable and not void. (See Walkenhorst v. Lewis, 24 Kan. 420; Clevenger v. Figley, 68 Kan. 699, 75 Pac. 1001; Swartwood v. Sage, 68 Kan. 817, 75 Pac. 508.) There is much more reason where, as in this case, a guardian ad litem is named, to hold that the judgment is not void, because the defense is made by the guardian. This rule does not work any hardship on a minor since under the provisions of R. S. 60-3121 any minor against whom a judgment has been rendered before he has attained his majority may question the judgment within a year after he attains his majority. This record does not show that any such action was taken by either one of the minors who are questioning the former judgment here.
The defendants argue further that the findings of the trial court amount to a finding that the action of counsel in the former action prevented the court from ascertaining what issues were presented by the pleadings. The facts are that a member of the firm to which the attorney who drew the petition belonged was appointed guardian ad litem and prepared most of the pleadings. We have examined the record in both cases. There was nothing that might have been brought to the attention of the trial court in the former case to which its attention was not directed. There was no new fact called to the attention of the trial court in this case bearing on the title to the real estate of which the trial court had not been advised on the trial of the former case. We see no reason for holding this judgment void on account of conduct of counsel.
In view of what has been said here, it will not be necessary to deal with the cross appeal. The judgment of the trial court limiting the lien of plaintiff to the life estate of Christopher Yandeventer is reversed, with directions to grant plaintiff a lien on the fee-simple title of the land. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal from an order of the trial court overruling a motion by one of the defendants to set aside a personal judgment rendered against him in an action upon certain notes and to foreclose mortgages given to secure them.
The record discloses that the action was brought on a note for $5,000 secured by a mortgage on certain real property, and another note of $500 secured by a second mortgage on the same property; that these notes and mortgages were executed by L. N. Dundas and wife; that about the time of their execution Dundas and wife conveyed the property described in the mortgage to John H. Flynn, the deed of conveyance containing the clause: “subject to an encumbrance of seven thousand and no/100 dollars, which second party assumes and agrees to pay;” that about a year later Flynn and wife conveyed the real property to Elmer R. Jordan, the deed of conveyance containing the clause: “subject to an encumbrance of seven thousand and no/100 dollars, which second party assumes and agrees to pay;” that thereafter Jordan conveyed the real property to W. L. Beardmore, the deed of conveyance containing a similar assumption clause. When the notes became due and were not paid action was brought on them and to foreclose the mortgages. Dundas and wife, Flynn, Jordan, Beardmore and others were made parties defendant. Each was served personally with summons. The defendant Flynn appeared and demurred to the petition, and his demurrer was sustained. The reason for that ruling is not clear, but it is unimportant on this appeal. None of the other defendants answered or otherwise pleaded to the petition. In due time, and on June 24, 1931, the action came on for trial. A personal judgment in the sum of $6,176.52 was rendered on the notes in favor of plaintiff and against Dundas and wife, Jordan and Beardmore. The mortgages were foreclosed and it was ordered that the mortgaged property be sold and the proceeds applied to the payment of costs, taxes, the amount due plaintiff, and the balance, if any, be brought into court to abide its further orders. Thereafter the property was sold in accordance with the judgment for the sum of $4,646.93, and the sale was confirmed August 29, 1931. This left unpaid on the judgment which had been rendered something more than $1,500. No appeal was taken from'any .of the orders or judgments of the court.
Thereafter, and on April 22, 1933, the defendant Jordan filed a motion to cancel and vacate the judgment against him “in so far as it attempts to make him personally responsible for any alleged deficiency of said judgment” above the amount the mortgaged real property sold for, and alleged such judgment is void, for the reasons: (a) the petition does not allege facts entitling plaintiff to a personal judgment against him; (b) the fact that Flynn’s demurrer to plaintiff’s petition was 'sustained was a bar to a personal judgment against him; and (c) the sale in the foreclosure action was for a grossly inadequate price, was inequitable and insufficient as a basis for deficiency judgment. After a hearing, at which evidence was received and briefs furnished, the trial court overruled Jordan’s motion, and he has appealed.
The last ground of the motion is not urged upon our attention,, and perhaps could not successfully be pressed, for, after all, Jordan’s' liability for any part of the judgment depends upon the validity of the judgment. It is attacked as being void apparently under R. S. 60-3009, which provides a void judgment may be vacated at any time on motion of a party or any person affected thereby.
Considering appellant’s contention that the petition did not state a cause of action for a personal judgment against Jordan, we note the petition alleges the execution and delivery of the notes and mortgages by Dundas and wife; that they conveyed the real property described therein to Flynn, who, at the time of the said conveyance and as a part of the purchase price of the same, assumed and agreed to pay the indebtedness represented by the notes and mortgages, all of which is shown by the deed of conveyance then of record; that thereafter Flynn and wife conveyed the real property to Jordan, who assumed and agreed to pay the debt evidenced by the notes and mortgages as shown by the deed of conveyance to him of record; and that thereafter Jordan conveyed the real property to Beardmore, who assumed and agreed to pay the same indebtedness, as shown by his deed of conveyance then of record. So far as the petition is concerned, there is nothing lacking in necessary or proper allegations. Appellant points out that the deed to Jordan referred to the encumbrance of $7,000, which he assumed and agreed to pay. It is clear from the record that the mortgages sought to be foreclosed in this action were encumbrances of record at the time of the conveyance to Jordan. What additional encumbrance there was on the property to make up the $7,000'mentioned in the deed is not shown by the record. Possibly those figures were copied from an old deed and are erroneous. However that may be, Jordan, by accepting this deed, assumed and agreed to pay $7,000 encumbrance on the property. He should not complain that he is called upon now to pay $1,500 less than that. This discrepancy in the amount of encumbrance which Jordan assumed and agreed to pay — if it is a discrepancy — is not of a character which destroys the allegations of the petition to the effect that by the deed to him Jordan assumed and agreed to pay the mortgages sought to be foreclosed in the action. We find nothing lacking in the petition which prevents it from stating a cause of action in favor of plaintiff against Jordan for personal judgment. The court had jurisdiction of the subject matter and jurisdiction of the parties by reason of personal service of summons, hence the personal judgment against Jordan cannot be said to be outside of the issues in the case and hence void under the authority’of New v. Smith, 86 Kan. 1, 119 Pac. 380, and similar cases, relied upon by appellant.
Appellant next contends that Jordan’s grantor, Flynn, was not liable personally for the debt secured by the mortgages, hence that he could not be made liable personally by assuming and agreeing to pay the encumbrance in the deed from Flynn to him. This argument is predicated upon the rule announced by this court in Bank v. Bales, 101 Kan. 100, 165 Pac. 843, where it was held a grantee in a deed who assumes and agrees to pay a mortgage on the land conveyed is not personally liable to the mortgagee unless the grantor in that deed is liable. Without analyzing the question we shall assume, for the purpose of this opinion, that the rule announced in that case correctly states the law of this state. But in this connection we wish to call attention to Duvall-Percival Trust Co. v. Jenkins, 16 F. 2d 223, where a different rule was applied; also to the annotations on this point in 12 A. L. R. 1528; 21 A. L. R. 439, and 47 A. L. R. 339. There is nothing in the record in this case to indicate Flynn was not personally liable on these notes except the fact that his demurrer to the petition was sustained. We heretofore have pointed out that the reasons for that ruling are not disclosed by the record. Possibly it was on the theory of the statute of limitations (Schmucker v. Sibert, 18 Kan. 104), which, perhaps, was available to Flynn, but not to Jordan or to Beardmore. There is nothing in this record to indicate that Flynn was not personally liable on the notes sued on in this action at the time he made a conveyance of the property to Jordan., Upon the record before us we cannot assume Flynn was not liable on the notes at the time he conveyed to Jordan. If any assumption were indulged in on that point it would be that he was liable, or at least that he thought he was liable, and contracted with Jordan in such a way as to make Jordan primarily liable instead of himself.
While we have considered the two points argued by appellant, and conclude they are not well taken, both of them are answered by the fact that Jordan, although personally served with summons in the action, did not answer or otherwise plead, and permitted the judgment authorized by the petition to be rendered against him by default. Such a judgment is as good against him as though it had been rendered after his appearance and contest. (Miller v. Miller, 107 Kan. 505, 192 Pac. 747; Pattison v. Kansas State Bank, 121 Kan. 471, 247 Pac. 643; Skaer v. Capsey, 127 Kan. 383, 273 Pac. 464, and authorities cited therein.)
We find no error in the record. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for personal injuries sustained when the automobile in which plaintiff was riding was driven into an excavation, made, by defendant, in a highway shoulder. Plaintiff recovered, and defendant appeals.
The accident occurred at about 9:30 p. m., July 4, 1932, approximately at the intersection of highway • 10 with Twenty-first street in Kansas City. From the intersection, 'Twentyffirst street extends north and south. The direction of the highway is northeasterly and southwesterly. The highway was paved with an eighteen-foot concrete slab. Twenty-first street had recently.been paved from the north to the highway. The somewhat pointed piece of land east of Twenty-first street, and north of the highway, had been rounded, and a concrete slab wing had been put in, making access easy to each thoroughfare from the other. The work was not fully completed when the accident occurred and Twenty-first street north of the highway had not been opened to traffic. The improvement necessitated some changes in defendant’s telephone line. A cable was installed under a street railway north of the highway and under the highway pavement. In course of this work an excavation was made north of the highway and east of Twenty-first street. The excavation had not been filled at the time of the accident.
South of the highway Twenty-first street was narrow and was graveled, only. Plaintiff and her husband lived on a small farm south of the highway, reached by Twenty-first street. On the evening in question they approached the intersection on the highway from the east, on the way home, the husband driving the car. To make the left turn south into Twenty-first street the driver turned out to the north, so that the north wheels of the automobile were off the pavement and on the highway shoulder. He proceeded in that manner some thirty feet, when the automobile went into the excavation. The automobile was damaged, and plaintiff was injured.
Contested issues were covered by findings of fact, which read:
“1. Prior to and at the time of the accident and while the right front and right rear wheels of the automobile in which the plaintiff was riding were traveling along the shoulder, state how far north of the northerly edge of highway 10 slab such wheels were traveling. A. About eighteen inches.
“2. State the distance westerly from the east end of the Twenty-first street slab wing to a point opposite the center of Twenty-first street where it enters highway 10 from the south. A. Seventy-one feet.
“3. On the evening of July 4, 1932, at any time prior to the accident were there any (a) coverings, or (b) barricades or lights on or about the hole excavated by defendant? A. (a) No. (b) No.
“4. With reference to the northerly edge of highway 10 slab, state the location of the southerly end of the trench excavated by the defendant and existing on the evening of July 4, 1932. A. About eighteen inches.
“5. Prior to the accident was the driver of the car in which the'plaintiff was riding exercising due care when he drove his car off the slab of highway 10 and along on the shoulder for a distance of thirty feet? A. Yes.
“6. Was there a depression or hole not made by defendant near the junction of Twenty-first street slab wing with the pavement on highway 10? A. No.
“7. Did the car in which the plaintiff was riding strike a hole located immediately adjacent to the east end of the Twenty-first street concrete slab wing? A. No.
“8. Did the car in which the plaintiff was riding strike the concrete block near the east end of the Twenty-first street concrete wing? A. No.
“9. Did the plaintiff, Viola Harrison, take any precautions' for her own safety immediately prior to the happening of the accident on July 4, 1932? A. Yes.”
Defendant moved the court to set aside the first finding, and then to render judgment for defendant on the remaining findings. The motion was based on the contention the first finding was not sustained by any evidence, and was contrary to the only evidence on the subject. The motion was denied.
No witness testified the north wheels of the automobile were eighteen inches north of the slab edge. No witness knew how far the wheels were over on the shoulder, unless it was the automobile driver, and he testified as follows:
“(On direct examination) Q. Can you tell us about where your wheels were? A. Well, my wheels were off the pavement, I would judge to be six or eight inches; not over ten, I’m sure.
“(On cross-examination) Q. Were the right front wheel and the right rear wheel off the slab for those thirty feet? A. Yes, sir.
“Q. Now, about how far north of the edge of the slab were your right front and rear wheels running? A. Eight or ten inches.”
Defendant’s construction foreman testified the excavation extended over into the highway shoulder some. Estimates of distance of the excavation from the north edge of the highway slab varied from six inches to four feet. The fourth finding located the southerly end of the excavation at about eighteen inches from the edge of the highway slab. No motion was made ,to set aside this finding. Whether the findings were well sustained by evidence or not, for purposes of this appeal the southerly end of the excavation was about eighteen inches from the north edge of the highway slab.
To get into the excavation it was necessary the wheels of the automobile should have been about eighteen inches north of the slab. This was contrary to the positive testimony of the driver that the wheels were not more than ten inches from the slab. How can this testimony be reconciled with finding 1? The answer is, the testimony and the finding are not reconcilable. That being true, what sustains finding 1?
There was no dispute that an accident occurred. The accident was not caused by driving into an excavation other than the one made by defendant. (Findings 6 and 7.) The accident was not caused by collision with a concrete block. (Finding 8.) There was no dispute that defendant’s unfilled excavation existed near the highway, and it was not lighted or barricaded. (Finding 3.) The evidence was, the accident was caused by driving into an excavation from which the driver backed out, turned to the left, and drove home. These facts, which excluded cause of accident except defendant’s excavation, simply overcame the driver’s estimate of distance of wheels from slab.
There is nothing which fails more in exactness, precision and sharply defined accuracy than testimony of witnesses regarding time, speed, and what is important here, distance. The driver of the automobile was driving at night, by light of the headlights of his car. The condition of the atmosphere, as he described it, was not conducive to visibility. There was considerable traffic on the highway. He was meeting approaching cars, and cars were passing him. Just before the accident, his wife called attention to an approaching street car on the railway track at the side of the highway. He was preparing to cut traffic on the highway by a left turn. Therefore the court and jury were authorized to conclude that no matter what he believed, he could not tell just how many inches, measured by foot-rule, he was off the pavement.
The jury awarded plaintiff $3,000, a sum which defendant contends was excessive. It is said the jury did not deal fairly with the evidence as shown by findings 1 and 4. The place to complain of finding 4 was in the district court, and finding 1 is not vitiated by the fact it did not accord with a portion of the testimony. The verdict was for the amount"prayed for in the petition. This occurred in a case in which the trial court required a remittitur of $25,000 as a condition to denial of motion for a new trial. (A. T. & S. F. Rld. Co. v. Cone, 37 Kan. 567.) The decision did not establish a rule that whenever the verdict is for the amount prayed for, the verdict was returned under a misconception of duty, or because of passion and prejudice. Plaintiff’s injuries are discussed, and observations of the trial court, made when the motion for new trial was denied, are referred to. The court, however, declared it could not say from the evidence the verdict was excessive. It is not the province of this court to assess damages. All it can do is to correct errors in assessment of damages which seem to it to be manifestly egregious. The court is not able to say such an error was committed in this case.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
The question in this appeal, whether the plaintiff was a shareholder in the defendant association, or by reason of a claimed deposit, a creditor of the association, was raised in the lower court by a demurrer to the petition, which, omitting formal parts, is summarized as follows:
Plaintiff had been a shareholder in the association, and about September, 1932, had been informed the association was not meeting its obligations; he visited the association and the secretary, the defendant Atkins, informed him that the association was not paying in full on withdrawals of unmatured stock, but was meeting its matured obligations at maturity, which statement was false, and that if plaintiff continued paying his monthly installments that he would be paid any time after maturity he desired, and that relying thereon he continued making his installment payments and matured $2,000 worth of shares about April 1, 1933. On April 2, 1933, he presented his matured certificate of shares for $2,000 to the defendant Atkins, secretary of the defendant association, for payment; that Atkins then stated that the association had the funds on hand with which to pay, but urgently insisted that plaintiff reinvest the money from the shares in the association, which plaintiff refused to do; that he needed his money and would not consent to awaiting a turn to receive it; that Atkins told him he could place the money on deposit with the association and could draw on the deposit the same as if it were in a bank, and further could add to or draw from the balance at any time, and at the end of any period of six months he would receive five per cent interest, compounded semiannually, on any balance; that Atkins at the time knew neither he nor the association had legal authority to accept said deposit, but, believing the statements of Atkins and relying thereon, he deposited the sum of $1,300 with the association, and Atkins, as evidence of the deposit, made an entry in a deposit book and handed the same to the plaintiff, face open, which deposit book he did not examine beyond reading the entry as made by Atkins. A copy of the deposit book was attached to the petition as an exhibit, and is hereafter referred to. It is further alleged that the association knew it had no right to accept deposits subject to check or withdrawable upon demand, and that the statements of Atkins were made for the purpose of ob taining and keeping the funds of plaintiff and by reason thereof the sum of $1,300 came unlawfully into the hands of the association and Atkins, and that neither Atkins nor the association acquired any right, title or interest in said sum, and it never entered into the capital or assets of the association, but was a trust fund, and not subject to any rules, regulations or by-laws of the association relative to shareholders and that Atkins and the association became unjustly enriched at the expense of plaintiff; that on July 3,1933, and again on July 12, 1933, he demanded return of the sum of $1,300 and his demand was refused. His prayer was for judgment against both defendants for $1,300 and interest' and costs.
The so-called deposit book, attached as “Exhibit A,” is a book about 3 by 3% inches. In the front inside cover are printed certain rules, and in the back is a printed certificate of stock. Bound into the book are lined and ruled sheets so arranged as to show dates of deposits and withdrawals and balances, and showing that on April 4, 1933, a deposit of $1,300 was made. The certificate of stock is to the effect that the person whose name is written on the cover (presumably plaintiff’s name, although the exhibit as printed in the abstract does not show the outside cover) is a member of defendant association and owner of- shares of class H deposit stock of said association of the par value of one hundred dollars per share, and recites:
“The holder of this certificate accepts the same upon the above terms and conditions, the rules printed in this book, and the following' section of the bydaws:
“Article 2. Section 5. Class H deposit stock may be issued for one or more fractional shares, and the members be entitled to deposit any sum, at any time in payment thereon. This stock shall be governed by rules and regulations to be established by the board of directors from time to time, not inconsistent with these by-laws, or the laws of the state of Kansas. Dividends on this-stock at rates to be determined by the board of directors, shall be declared semiannually, and credited or paid in January and July of each year.”
Rule 2 reads as follows:
“A shareholder may withdraw a part of the accumulations to his credit without thereby reducing the number, of shares held by him. All withdrawals must be made by the shareholder only or some person legally authorized, and only upon presentation of pass book.”
And rule 3 reads:
“The association will pay withdrawals upon application, but reserves the right to require thirty days’ notice. .(While under the by-laws and the state law, notice of withdrawal can be required,' and while' during financial panics or in stringent times members may be obliged to wait their turn, these restrictions are seldom enforced.)”
To the above petition the defendants demurred on the grounds of misjoinder of causes of action, and that facts sufficient to constitute a cause of action were not stated. The trial court sustained the demurrer on the second ground, and plaintiff appeals.
We may first observe that the allegation plaintiff was induced to complete payments on and mature his stock by reason of false statements made to him about September, 1932, is not material in view of his later allegations that on April 2, 1933, the association had funds with which to pay him. The principal question presented is whether the allegations of the petition, coupled with the statements in the book called by him a “deposit book,” constituted plaintiff a creditor of the association, or a shareholder in it. Lacking the elements of fraud, a converse situation was presented in Loan Association v. Merriman, 67 Kan. 779, 74 Pac. 256. Over a period of years Merriman had paid to the association sums of money, receiving for each payment a printed document signed by the secretary, denominated “certificate of deposit” and evidencing deposit of money payable on return of the certificate. Interest was provided. Across the end was a printing headed “Certificate of Stock” certifying that Merriman was a member of the association. The association notified him to withdraw. • Upon his refusal, the action was filed to recover one year’s return on his investment, the association contending he was a depositor to whom it could return his money at will, or if he had been technically a stockholder, his stock was matured and his relation to the association was merely that of a creditor. In disposing of the case,, it was held:
"One who invests money in a building and loan association, receiving as evidence of his investment a document in two parts, one in the form of a certificate of deposit for the amount paid, drawing annual interest based on the earnings of the business, the other in the form of a certificate that he is a member of the association and the owner of a share of its stock, is a stockholder and not merely a creditor, unless the by-laws forbid such conclusion; and held, that the by-laws of the association here involved do not forbid it.” (Syl. 111.)
And in the opinion it was said:
“It frequently has been held that, in the absence of statutory prohibition, building and loan associations may issue paid-up stock, and that the holders are members and not merely creditors. (Citing cases.)” (p. 785.)
In Abrahams v. Medlicott, 86 Kan. 106, 119 Pac. 375, it was claimed that the building and loan stock involved was not a credit within the meaning of the taxing laws, it being said in the opinion:
“Thus it appears that this stock really represents the holder’s interest in the corporation, differing from other classes of stock in respect to the holder’s share of the annual earnings, and to the right of withdrawal upon the conditions named, and the right of the corporation to retire the stock. The holder is, however, a member of the corporation, with a voice in its management and a share in its liabilities.” (p. 110.)
Appellant seems to rely on his allegation that he was making an investment. But what did he allege? That when his shares matured he wanted his money, the association being in funds to pay; that the secretary wanted him to reinvest and told him he could place the money on deposit with the association and could draw on the deposit the same as if it were in a bank, that he could add to or withdraw from the balance and at the end of any six-months period receive five per cent interest; that the association and Atkins knew they had no authority to accept the deposit, but plaintiff, relying on the statements, deposited $1,300 and received the “deposit book” which was handed to plaintiff “face open” and he did not examine it. From this he concludes the association and Atkins acted unlawfully and that the money did not become a part of the capital or assets of the association, but is a trust fund for his use and benefit.
Putting aside plaintiff’s conclusions that the taking of the money was beyond the authority of the association, and that its receipt therefore made it a trust fund, we have left only the allegation that the secretary informed him he could place the money on deposit, and add to or subtract from his balance, on which he would be paid interest. While he argues that the association could borrow money (R. S. 1933 Supp. 17-1018), and that is conceded, there is no allegation of a loan, nor that one was intended. When the transaction was being completed, plaintiff received the “deposit book.” He seeks to avoid its force and effect by saying it was handed to him face open, and that he did not examine it. Does that make the transaction fraudulent? The book, showing notation of the amount paid, contained his certificate of stock and the rules of the association pertinent thereto and shows clearly that he became a shareholder of class H deposit stock, entitled to deposit any sum at" any time thereon. Under rule 2 he could withdraw a part of his ac cumulations. Rule 3 stated the association would pay withdrawals upon application, but reserved the right to require thirty days’ notice. While he does not allege anything with respect to notice being required, he alleges he had been a shareholder who had matured $2,000 worth of installment shares, so he knew of the by-laws and statutes with respect to withdrawals. It is only in respect to withdrawals that the statements in the “deposit book” vary from what he says was told him, and that he would have discovered had he read the certificate and rules therein. Neither can it be said that this was not according to statutory provisions. R. S. 17-1016 provided that a shareholder wishing to withdraw might, subject to the by-laws and his certificate of stock, and the limitations prescribed in the statute, have power to do so upon giving one month’s notice. This above statute was amended by section 2 of chapter 147 of the Laws of 1933, effective March 2, 1933 (R. S. 1933 Supp. 17-1016), and was in effect when the transaction here complained of took place. One of the effects of the amendment was to eliminate the thirty-day notice requirement, leaving withdrawals subject to the by-laws, certificate, and the limitations prescribed in the statutes. We are not now concerned with such statutory limitations. As we view the petition, the allegations therein with reference to the power of the association to receive money on deposit, and that the association acted without authority of law and had no right to accept deposits subject to check or withdrawable upon demand, and that the moneys coming into the hands of the association are trust funds, are conclusions of law and not of fact, are not admitted by the demurrer and are not to be considered in determining the sufficiency of the petition. Stripped of these allegations, and that of claimed fraud with respect to the shares matured by him prior to the instant transaction, there is nothing left that constitutes a cause of action.
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The opinion of the court was delivered by
Hutchison, J.:
This is an action to recover from the defendants on account of promises and representations made by them to A. W. Long in his lifetime. It was originally brought by A. W. Long, personally, against most of the same defendants, and it was here on appeal before on two preliminary matters, the ruling upon them being reported in 135 Kan. 440,10 P. 2d 894, the one being the right to take depositions of defendants before the issues were framed, and the other on the ruling of the trial court striking out some parts of the petition. Since that time A. W. Long has died, and the case was revived in the name of his wife and daughter, as executrices of his estate, and an additional corporation was made a party defendant. The defendants now consist of three corporations and four individuals. One of the individuals has died since the ruling of the trial court in the matter that is now before us, and no revivor has been made as to him.
The substituted plaintiffs filed an amended and supplemental petition. Each and all of the defendants filed general demurrers to that petition. Before the hearing on the demurrers each and all of the defendants filed three motions: one to require the plaintiffs to separately state and number their causes of action; another to require the plaintiffs to make the amended and supplemental petition more definite and certain; and the third to strike out three certain parts of the amended and supplemental petition. The plaintiffs filed a motion to strike from the files each and all of these motions filed by the defendants. The motions were all heard by the trial court before hearing the demurrers.
The court overruled the motion of the plaintiffs to strike the motions of the defendants from the files. The trial court then overruled the defendants’ motions to separately state and number the causes of action and to make the petition more definite and certain, and overruled the motion to strike out one certain part of the petition and sustained it as to two other parts. The court then heard the demurrers and ruled upon them by sustaining them as to the 'defendants Brown and Crawford (Crawford how deceased), and overruling them as to all the other defendants. All parties excepted to each adverse ruling. The plaintiffs appeal from rulings adverse to them, namely, the striking out of two parts of the amended and supplemental petition, paragraphs 8 and 9, and sustaining the demurrers as to Brown and Crawford, and the defendants each and all, except Crawford, have filed cross appeals as to the rulings adverse to them.
The controversy involved between the plaintiffs and defendants as to all these rulings depends almost entirely upon what the nature and character of the action is, which the plaintiffs have brought, and what they seek to recover thereby. The plaintiffs maintain that their action is for damages for fraud and conspiracy, and that they were entitled to recover upon the fraudulent promises and representations of the defendants, compensation for the life expectancy of Mr. Long, and also exemplary and punitive damages.
The trial court accepted, in a measure, the theory advanced by the plaintiffs, but expressed in its written opinion a serious doubt as to the measure of recovery, whereas the defendants assert that the allegations of the petition may be for breach' of contract, with several possibilities as to the measure of recovery, if any, under the amended and supplemental petition, and because of this apparent indefiniteness and uncertainty in the -nature of the cause of action and right of recovery and the fact that the defendants filed motions to make the petition more definite and certain, which were overruled before the ruling upop the demurrers, the question properly arises on the demurrers as to the actual election of remedies by the plaintiffs so as to fully advise the defendants as to the nature and cause of the action at this earlier stage of the proceedings rather than during the progress of the trial, as would be the privilege of the plaintiffs had no such motion been filed to make the petition more definite and certain.
The amended and supplemental petition pleads in substance as follows:
1. The fact of the death of A. W. Long and the appointment and qualification of the executrices and their residence.
2. The organization and existence of the several corporations and their relations one to the other as purchasers or holders of stock therein, and control and operation of the business with headquarters at Independence, Montgomery county, Kan., and that the last mentioned of the three corporations was a subsidiary of and controlled by the Sinclair Consolidated Oil Company, a New York corporation, not made a party to the action; that said New York corporation had purchased all the assets of the first two named corporations and agreed to pay all the indebtedness of the Prairie Oil and Gas Company; that the New York corporation so owning and holding the stock was not authorized to do business in Kansas and that it transacted business through its subsidiary company, the Sinclair Prairie Oil Company, and that this was so devised by the defendants in connection therewith to prevent Kansas creditors of the companies from collecting their claims in the courts of Kansas against the Commonwealth Oil and Gas Company from the assets which were transferred to the New York company, and that this was a fra-ud on its creditors, notwithstanding it received valuable property transferred to it by the Sinclair Prairie Oil Company without notifying the creditors of the Commonwealth Oil and Gas Company, as required under the bulk-sales law of Kansas; that the defendant Crawford was a resident of Independence, Kan., and agent and trustee for the Prairie Oil and Gas Company for the purchas ing, acquiring, holding, controlling and operating of gasoline and motor-oil distributing properties; that the defendant Spencer, a resident of Independence, Kan., was an attorney at law and acted as agent and attorney for and on behalf of the defendant, the Prairie Oil and Gas Company, and that defendant Brown was a resident of Independence, Kan., and an engineer and acted as agent and engineer for and on behalf of the Prairie Oil and Gas Company.
3. That the Long Oil Company was a Kansas corporation with its principal office and place of business at Manhattan, Kan.; that it owned and operated in 1930 and the early part of 1931 sixty-eight gasoline and oil service stations and a number of bulk stations, all located in the state of Kansas, selling annually about 5,000,000 gallons of gasoline, kerosene and distillates, approximately 220,000 gallons of lubricating oil, and approximately 75,000 pounds of grease; that the business was built up by A. W. Long, who is now deceased; that he was the original plaintiff and commenced this business in 1915 with one service station and developed it to its condition in 1931, it having been chartered and organized under the laws of Kansas as the Long Oil Company in 1917. The Long Oil Company in the early part of 1931 had 2,500 shares of common stock outstanding at the par value of $100 per share, and 4,700 shares of preferred stock at the par value of $100 per share, without the voting power in the common stock unless the preferred stock passed three consecutive annual dividends; that of these 2,500 shares of the common stock A. W. Long owned 1,082 shares. His wife owned 10 shares and his daughter 5 shares. That friends of his and those who reposed trust and confidence in him and his business ability owned and controlled enough more shares to give him the control of the Long Oil Company, and he would have continued to control the company for as long a time as he should live had he, his wife and daughter continued to own and hold their shares of common stock; that he had for several years prior to February 6, 1931, been elected as president and had acted as general manager of the Long Oil Company at a salary of $500 per month, and he would and could have continued to act in such capacity and receive such salary as long as he should live had he and his wife and daughter continued to own and hold such common stock.
4. That W. D. Womer, a resident of Manhattan, Kan., and president of the First National Bank at that place, for and on behalf of the bank, from 1924 to February, 1931, handled the bank ing business of A. W. Long and the Long Oil Company, extending numerous loans in his own name and the name of the bank to the Long Oil Company and discounting paper with other financial institutions for the Long Oil Company, indorsing many other notes so discounted; that about February, 1931, the First National Bank held about $85,000 of indebtedness against the Long Oil Company.
5. That the health of A. W. Long for more than two years prior to the spring of 1931 was seriously impaired by hemorrhages of the bronchial tubes and a slight stroke of paralysis which made it impossible for him to exercise his usual mental capacity to the fullest extent, and caused him'to tire easily when discussing or considering business matters and to ease up on his physical and mental exertions, and that he relied implicitly and depended more completely than before upon the business and financial advice of Womer; that all the defendants except the Sinclair Prairie Oil Company knew of Long’s depleted mental and physical condition and they conspired' among themselves to obtain for the Prairie Oil and Gas Company, now named Commonwealth Oil & Gas Company, from Long and his associates; and without paying any consideration therefor, the control of the Long Oil Company, and did obtain such control by means of false representations and acts and breach of fiduciary relationship existing -between Long and Womer and the wrongful, concerted use of the interests and influence and power of the several defendants. Among the conspiracies was that to deprive Long of his income of $500 per month which he had from the Long Oil Company and to prevent him from ever again engaging in the gasoline and distributing business in the territory in which the Long company was operating and in which he had the good will of thousands of customers.
6. That Womer at first suggested to Long that the Prairie Oil and Gas Company might purchase the Long Oil Company at a price advantageous and fair to the stockholders thereof, and suggested that the company be permitted to have access to and examine the business and financial affairs of the Long Oil Company for that purpose, and that because of his physical health such a sale would be advantageous to him and to the stockholders of his company. To this Long assented, and permitted the Prairie Oil and Gas Company, through its agents and representatives, defendants Spencer and Brown, to have access to and examine the business and financial affairs of the company; that in the early part of February, 1931, Womer and his own attorney, who was also the attorney for Long and the Long Oil Company, went to the home of Long and told him that the papers were prepared for the appointment of a receiver of the Long Oil Company by the • attorneys for the First National Bank of Manhattan, which was demanding immediate payment of the money due it from the Long Oil Company, and advised Long that the investigation had been made by the agents and representatives of the Prairie Oil and Gas Company and that it was going to make a proposition to him concerning the purchase of the property of the Long Oil Company, and that the investigation showed the common stock of the oil company was worthless, and that it would require the surrender of such stock without compensation, except that the oil and gas company intended to arrange for the employment of A. W. Long for a period of two years at a salary of $500 per month, and that- as he was sick he would be unable to properly manage and control the company, and that said offer would be the best thing that he could do, and that if he did not consent to accept the offer of this company, the First National Bank would immediately file its petition for receivership, and that it would not do to attempt to consult the holders of the preferred stock. The only thing that could be done would be to make the sale or go into receivership; that at that time the Long Oil Company possessed a number of sites and filling stations erected thereon and other real estate which were unencumbered, and on which funds could have been realized if no suit or receivership proceedings were commenced, and that the defendants knew of such facts; that in the early part of February, 1931, the defendant Spencer told Long that on account of his health the only thing for him to do was to get out of the company before it broke, and at the same time orally stated in behalf of the defendant oil and gas companies that they would give him a contract for $500 a month for a period of at least two years and until he was rested and free from his worries, and would pay the preferred stockholders $55 a share and would want seventy-five per cent of the preferred stock at that price and would loan the company $200,000 and take a mortgage on its property to secure the same, provided he would turn over to the Prairie Oil and Gas Company 1,300 shares of the common stock of the Long Oil Company; that these representations made to A. W. Long by W. D. Womer and P. C. Spencer with reference to the salary were false and fraudulent in' that the Prairie Oil and Gas Company and the Commonwealth Oil & Gas Company and their agents did not intend at that time that Long should be continued in the employ of the Long Oil Company or any of the defendant companies, but intended to discharge him within a short time after these defendant companies should acquire full control of the Long Oil Company. Thereafter, on the 5th day of February, 1931, the defendant Womer orally stated to Long that Spencer had a contract prepared, that he had read it, and that it guaranteed to Long a salary of $500 a month for at least two years and that it was a good deal for him, that the Long Oil Company would go ahead just as it had and that he should by all means avail himself of it before something happened to spoil it, and that it would not be safe to look for a better deal because the attorneys were going to file a suit for receivership; that on account of his physical and mental infirmities and the confidential and fiduciary relationship existing between him and Womer, Long agreed to accept the offer of these oil companies so made by Spencer and Womer and to sign the agreement and assign his 1,082 shares of common stock and procure his wife and daughter to assign their 15 shares and to deliver the same to Womer, all indorsed in blank, which he would not have done if he had not relied upon and believed the representations by defendants.
7. That on the 5th day of February, 1931, upon the oral statements of Spencer that he had prepared a contract along these lines, including a salary to Long of $500 a month for a period of at least two years, and that the stock of Long, delivered to Womer, was to be held by Crawford as trustee for the Prairie Oil and Gas Company, Long signed the contract so prepared and represented without reading it and relied fully upon the representations of Spencer that the contract contained these provisions heretofore enumerated and again repeated by Spencer, and thereafter it was found and called to the attention of Long that the matter of salary as stated was not contained in the agreement but was made “subject, however, to the payment of a salary to the first party which may be mutually- agreeable to the parties in case the first party is requested to remain as an active official”; that upon the attention of Spencer being called to such oversight, he orally stated that it was a mere oversight and that he would prepare a writing to correct the matter, which was done, and in pursuance of such conspiracy the defendant Spencer did prepare another contract attached thereto as exhibit B, and orally advised Long that it provided for the salary as theretofore stated of $500 a month for a period of at least two years, and on account of the fiduciary relationship existing between Long and Womer, Long on that day signed the additional letter or contract said to correct the oversight as to the promised salary for at least two years, and that the representations were false and fraudulent and known by Spencer to be false and fraudulent; that neither the contract nor the letter granted to the plaintiff the right to receive such salary for at least two years, and that Long would not have signed such contract and letter unless he had believed the representations and the contract and letter to give him such salary; that believing that such was the contract and with his confidential relationship which existed he procured his friends to assign their certificates of stock and deliver them to Womer for the trustee Crawford so as to make a total of 1,300 shares of the 2,500 shares of stock, none of which things he would have done if he had not believed the promises made and that the contracts were as stated, and because of the confidential relationship with Womer; that the Long Oil Company thereafter on May 25, 1931, advised Long in writing that the company would not continue his employment for a longer period, and refused to pay him any further salary, and that he did not know until he received such letter of May 25 that the company and other defendants did not intend to continue him in its employ nor pay him the salary, and that the letter, or exhibit B, was not a legally enforceable contract; that the defendants have neither paid nor offered to pay anything to Long, his heirs or assigns since the first of June, 1931, and have not returned, nor offered to return, to them the 1,300 shares of common stock that the defendant companies received from him and his relatives, but that the companies have retained the same and all -the benefits received by them through such conspiracy, fraud, duress and unlawful concert of action; that Long was unable to earn any salary or hold any similar position without such stock, all of which the defendants well knew; that outside of the salary for the months of March, April and May, 1931, Long has received nothing in the way of cash or other remuneration to himself, his heirs or assigns from the defendants -on account of the assignment and delivery of 1,300 shares of stock, and that by reason thereof he was deprived of the control of the Long Oil Company and the employment of himself at a salary of $500 per month.
8. That A. W. Long died on the first day of June, 1932, at the age of 59 years, and that by the American Experience Table of Mortality he had a life expectancy of fourteen years; that if he had continued in the ownership of the stock and control of the Long Oil Company and had lived out his life expectancy he would have been able to receive a salary of $84,000 during said life expectancy; that by deducting the interest on the same it would amount to a present sum of $57,000, which is due him and his heirs and assigns from the defendants.
9. That because of the conspiracy and fraudulent representations, and on account of the wantonness and unconscionable conduct and deceit by which the foregoing damages were perpetrated upon Long by the defendants under the circumstances as they existed, the plaintiffs, as executrices of the estate of A. W. Long, are entitled to exemplary damages against the defendants in the sum of $2,000,000.
The allegations of the amended and supplemental petition, without the exhibits, cover nineteen pages in the printed abstract. Some of the allegations might be classed as evidence pleaded, rather than allegations, and some might be termed conclusions of law which might very properly and without loss or detriment have been omitted from the petition. (Kansas Gas & Electric Co. v. Public Service Com., 122 Kan. 462, 467, 251 Pac. 1097.)
While the appellants consistently maintain that this is an action to recover damages for fraud and conspiracy, yet they fail to explain the use and necessity for so many allegations which imply at least a breach of contract and a desire to recover many different amounts and for many different losses sustained. In the recent case of Sluss v. Brown-Crummer Inv. Co., 137 Kan. 847, 22 P. 2d 965, it was held:
“While the general rule is that where a general demurrer is filed to a petition, no motion to make more definite and certain having been presented, the demurrer should be overruled if the facts stated constitute a cause of action, whether well pleaded or not, and inconsistent causes of action do not render a pleading demurrable, a different rule must be applied where plaintiff, as a result of procuring rulings favorable to him, defeats every effort of the defendant to ascertain on what theory he founds his cause of action; and in such case, if the petition is not drawn upon a single and definite theory or there is such a confusion of theories that the court cannot determine from the general scope of the petition upon which of several theories a recovery is sought, it is insufficient, and a demurrer thereto should be sustained.” (Syl. U 2.)
This modification of the general rule as to the insufficiency of a petition under such circumstances as to create a confusion as to the real and only theory upon which the plaintiffs can or are attempting to recover is plainly and conclusively outlined and stated in the concluding part of the opinion above cited on page 854 thereof, so that it will not serve any good purpose to attempt such reasoning again except to say that we find it applicable to the allegations in the amended and supplemental petition in the case at bar, and therefore conclude that the demurrers of the two individual defendants were properly sustained and the demurrers of all the other defendants should have been sustained.
Appellants cite many authorities as to the uncertainties which affect merely the measure of recovery. If that were all the uncertainty involved in this pleading, we would not think the decision in the Brown-Crummer case, supra, would strictly apply, but if appellants’ theory is correct, that this is purely and exclusively an action for damages for fraud, there is unquestionably a serious surplus of allegations contained in the petition tending to state a breach of contract.
The rulings upon the several demurrers were made after the trial court had struck out paragraphs 8 and 9, setting up damages sustained for the period of life expectancy and punitive damages. We concur in both these rulings under the present allegations of the amended and supplemental petition as the necessary allegations upon which the first was attempted to be based were too speculative and uncertain, and of course the punitive damages must fail when actual damages are eliminated.
The rulings of the trial court are therefore sustained in part and overruled in part, as heretofore indicated, and the cause is remanded with instructions to sustain the demurrers of all the defendants. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action to establish a trust and declare it to be a lien upon the estate of the father of the plaintiff and also upon real property which the father conveyed shortly before his death to children of his second marriage. The trial court found in favor of the plaintiff that a trust had been created for the benefit of the plaintiff in the hands of his father, and rendered judgment for plaintiff making it a lien upon the estate and the land conveyed to the other children. These other children and the administrator appeal.
The trial court made findings of fact and conclusions of law. The first three findings give a history of the situation leading up to the important facts with reference to the existence of a trust, which facts may be briefly stated as follows: Simon B. Shumway, the father of the plaintiff and defendants, except the administrator, married Carrie VanGasbeck in 1881 and lived in Jefferson county five or six years; they then went farther west, taking with them their son, the plaintiff, who was bom in 1882. They remained West only for about one year and returned and lived with the wife’s father, Frank Van Gasbeck, and family, for about two years. They had neither prop erty nor funds other than two or three horses and a few household goods when they returned. Frank Van Gasbeck ¡furnished his daughter with personal property and money with which to buy cattle and the Allen farm, consisting of 99 acres, on which they moved and established their home. Carrie Shumway died in a few months after moving on the Allen farm, leaving her husband and Frank, the plaintiff, as her only child. There was no administration of her estate, but her husband converted both real and personal property into cash, and about two years later married again, and the defendants, except the administrator, are the three children of the. second marriage. The second wife died in 1927, and Simon B. Shumway died in January, 1933.
The following are the fourth and fifth findings of fact:
“That, after the second marriage of Simon B. Shumway and in the year 1895 or 1896 the said Simon B. Shumway and Frank Van Gasbeck, the father of Carrie Shumway and grandfather of this plaintiff, met in the store and post-office at North Cedar in Jefferson county, Kansas, at which time a conversation was had between the two, relative to Frank Shumway’s interest in his mother’s estate, and as to the method of handling the same, in which- conversation it was stated by Simon B. Shumway that the son’s interest in his mother’s estate amounted to the sum of $2,500, and that such an amount was agreed by the said Simon B. Shumway and Frank Van Gasbeck as the son’s proper share, and that Simon B. Shumway stated that he was holding said sum for Frank and would turn it over to him at the proper time, to which arrangement Frank Van Gasbeck agreed.
“That said sum of $2,500 was kept by Simon B. Shumway in a separate- fund and was invested and reinvested by said Simon B. Shumway and that in the fall of 1926 plaintiff was informed by his father that said sum of $2,500 was then invested in bonds issued by the Capper Publications and that said money would be paid to plaintiff the following spring; that in the spring of 1927 plaintiff was informed by his father that said fund, had been withdrawn from the Capper Publications and had been reinvested in a loan of $2,500 made to one John Coleman; that in September, 1982, plaintiff was informed by his father that John Coleman had paid said sum of $2,500 but that he the said Simon B. Shumway had used the same for necessary expenditures, including the taking back of a farm and the paying of taxes, but that said sum of $2,500 would be delivered to plaintiff by said Simon B. Shumway and that plaintiff would not lose a penny by reason of his having used the same. So far as the evidence discloses this was the first time the said Simon B. Shumway had used said money for his own use and benefit. That no part of said sum of $2,500 has been'paid to plaintiff.”
The trial court concluded and rendered judgment as above stated in favor of the plaintiff. It will be observed from the above findings that there was no writing in connection with any arrangement for the father to pay the son Frank $2,500, and his oral promise was in substance that he was holding that sum for Frank and would turn it over to him at the proper time. This statement and promise was made about four or five years after his first wife’s death and when Frank was about fourteen years of age. The next incident we have in connection with the matter was thirty or thirty-one years later in 1926, at which time the money was said to have been invested in bonds of the Capper Publications. A year later the money was said to have been loaned to John Coleman, and five years later, in 1932, the father told the plaintiff that he had used the funds for necessary expenditures. This action was commenced on June 12, 1933.
As neither party to this action claims the promise related to real property, an oral agreement may create a trust. (Hoover v. Hopkins, 122 Kan. 65, 251 Pac. 411; Diller v. Kilgore, 135 Kan. 200, 9 P. 2d 643; and Stahl v. Stevenson, 102 Kan. 844, 171 Pac. 1164.)
With reference to the findings of fact made by the trial court, our only duty is to determine from the record whether or not they are supported by substantial testimony, and we are accepting them as being sufficiently supported, although we do fail to find very strong evidence in support of the first part of the first sentence in finding No. 5, which is as follows: “That said sum of ,$2,500 was kept by Simon B. Shumway in a separate fund and was invested and reinvested by said Simon B. Shumway.”
Accepting the findings as made by the trial court as supported by the evidence, the only other question before this court on review is a legal one as to the facts stated in the findings constituting a trust. It is said in 65 C. J. 231 that — •
“. . . to constitute an express trust there must be an explicit declaration of trust, or circumstances which show beyond reasonable doubt that a trust was intended to be created, accompanied with an intention to create a trust, followed by an actual conveyance or transfer of lawful, definite property or estate or interest, made by a person capable of making a transfer thereof, for a definite term, vesting the legal title presently in a person capable of holding it, to hold as trustee for the benefit of a cestui que trust or purpose to which the trust fund is to be applied; or a retention of title by the owner under circumstances which clearly and unequivocally disclose an intent to hold for the use of another. . . . Considered from the standpoint of parties, an express trust implies a cooperation of three persons: (1) A settlor, or a person who creates or establishes a trust. (2) A trustee, or person who takes and holds the legal title to the trust property for the benefit of another. (3) A cestui que trust or person for whose benefit the trust is created.”
There is no difficulty in locating the trustee and the cestui que trust in this case, but it is not so certain about the grandfather being the settlor, or the person who created or established the trust. The findings show that he furnished the funds with which his daughter purchased the farm and live stock some four or five years before the conversation was had in which the promise was made to him by his son-in-law, which is claimed to constitute the trust, and the daughter had been dead four or five years and her husband had sold all her property, real and personal, without administering upon her estate, so it is difficult to see what supervision, authority or control the grandfather would have over any of the proceeds of his daughter’s property even if he had originally given it to her. But this feature of the case is easily solved by the fact that a donor or settlor in creating a trust may make himself the trustee as it is stated in all the texts on the subject. (See 1 Bogert on Trusts and Trustees, p. 5.)
It was therefore possible for Simon B. Shumway, possessing the proceeds of the property formerly belonging to his wife, to create a trust in favor of his son, the plaintiff, and appoint himself trustee to carry out the trust. We can, therefore, leave the question of parties and consider whether or not the promise made by the father of the plaintiff fully meets the outlined and necessary terms of a trust as above quoted from Corpus Juris. Especially, Was the promise an explicit declaration of trust or that a trust was intended to be created and was it followed by an actual transfer of lawful, definite property, estate or interest which was to be held by such person as a trustee? Even if the settlor was also the trustee, there appears to. be three definite and important features necessary to create in himself a trust — the explicit declaration and intention to create such, the transfer of lawful and definite property and the requirement to hold such as trustee.
Appellee in support of the trial court’s conclusion that this was a trust cites Tenney v. Simpson, 37 Kan. 579, 15 Pac. 512, where it was held:
“No particular form of expression is required to create an express trust, nor need all the terms and conditions of the trust be declared in a single writing.” (Syl. 112.)
Appellee also cites the following three cases from other states, viz., Knagenhjelm v. R. I. Hospital Trust Co., 43 R. I. 559, Eshbach’s Estate, 197 Pa. 153, and Hamer v. Sidway, 124 N. Y. 538, all of which were concerning promises made in writing.
In the Rhode Island case 422 shares of stock of a certain corpo ration came into the hands of the administrator of the estate of the former owner of them, where the testator by a deed of trust quite a while before his death established a trust in favor of the plaintiff who was not to receive any benefits, however, until after the testator’s death, and it was there held that the words, “I hereby declare to be held in trust” show an intention to give the beneficial interest in praesenti, and such beneficial interest having been created, the character of the trust is not changed by the fact that the beneficiary is not entitled to receive possession of the trust property until the death of the donor, and it was further held in the opinion:
“It is enough if, having the property he conveys it to another in trust, or, the property being personal, if he unequivocally declares, either orally or in writing, that he holds it in prcesenti in trust, or as a trustee for another.” (p. 567.)
The Pennsylvania case was where—
“A father executed a writing in which he declared that he held $2,000 of his daughter’s money, that she was to receive interest thereon during her life, and that at her death the principal should be paid to her children. The payment of one year’s interest was indorsed upon the paper, and the paper was found amongst the father’s effects after his death. Held, that the paper constituted the father a trustee for his daughter and her children.” (Syl.)
In the opinion it was further stated that the donor relinquished his ownership of or dominion over the money and constituted himself a trustee of the fund clearly and explicitly.
The New York case was where an uncle had agreed with his nephew that “if he would refrain from drinking liquor, using tobacco, swearing and playing cards or billiards for money until he should become twenty-one years of age he would pay him $5,000.” The nephew performed his part of the agreement and became of age in 1875, and wrote his uncle advising him of full performance on his part. The uncle replied by letter admitting the agreement and stating “that he had the money in bank, set apart, which he proposed to hold for W. (the nephew) until the latter was capable of taking care of it.” It was thereupon agreed between the parties that the money should remain in the hands of S. (the uncle) on interest. In an action upon the agreement it was held, “that it was founded upon a good consideration and was valid and enforceable” and “that under the agreement made in 1875, the relation of the parties thereafter was not that of debtor and creditor, but of trustee and cestui que trust.” In the opinion in that case the court further said:
“At the time the uncle wrote the letter he was indebted to his nephew in the sum of $5,000, and payment had been requested. The uncle, recognizing the indebtedness, wrote the nephew that he would keep the money until he deemed him capable of taking care of it. He did not say T will pay you at some other time,’ or use language that would indicate that the relation of debtor and creditor would continue. On the contrary, his language indicated that he had set apart the money the nephew had 'earned’ for him so that when ho should be capable of taking care of it he should receive it with interest.” (p. 550.)
In the case of Greenwood v. Greenwood, 97 Kan. 380, 155 Pac. 807, a decree of court in a divorce case was under consideration as creating a trust, and was compared with a similar decree of divorce in the case of Arnold v. Arnold, 83 Kan. 539, 112 Pac. 163, where the decree in the latter case provided for the use of the property to be for the care and benefit of the children, and in the former provided for the remainder, and the court said in the opinion:
“Bécause the decree is utterly barren of any description of the nature and purpose of the trust, it fails to meet the requirement of a declaration of trust.” (p. 389.)
In the case of Staples v. Murray, 124 Kan. 730, 262 Pac. 558, a brother of a soldier accepted the trusteeship and promised to carry out the trust as declared by the soldier for the benefit of his own stepson, in one-half the war-risk insurance he held. Later the soldier declared a revocation and—
“In an action by the infant to impose a trust upon one-half of the fund it is held that the request of the soldier did not vest a present property right in the stepson and that his original request did not amount to a complete and executed trust beyond the power of revocation.” (Syl.)
In the per curiam opinion in the case of Hull v. Hull, 78 Kan. 886, 96 Pac. 1118, it was said:
“The written agreement involved in these cases no more creates a trust than' would a promissory note. There was no intention of a trust, no expression of a trust, no fiduciary or confidential relation between the parties, and no circumstances out of which a trust could have resulted or be implied.”
Of the three cases cited above from other states the one from Pennsylvania is the only one which did not specifically designate the identical property that was being held, and in that case the payment of the first year’s interest was indorsed on the written document that-created the trust which -helped to show the intention. In all of those cases cited above from other states there was specific or unequivocal language showing intention to treat the property as a trust. In the New York case the court said until the exchange of letters definitely setting the fund aside for a specific purpose it was merely an indebtedness and the relation of debtor and creditor only existed.
In 26 R. C. L. 1180 it is said:
“To constitute an express trust, there must be either explicit language to that effect or circumstances which show with reasonable certainty that a trust was intended to be created. The legal owner of property is prima facie entitled to its beneficial enjoyment, and to convert him into a trustee there must be a sufficient indication of the intention of the parties that he is to hold for the benefit of others.”
This and subsequent sections show the necessity of unmistakable intention to hold the property in trust, although the word “trust” need not be used, and such intention is confirmed by the subsequent acts of the trustee.' This is one of the weak points about the transaction in the case at bar being a trust. A period of thirty or thirty-one years passed before we again hear of any steps to effectuate it.
In 1 Bogert on Trusts and Trustees, page 195, under the heading of The Existence and Expression of a Trust Intent, it is said:
“This second element is believed to be the existence in the mind of the settlor of an intention that he himself or some other person shall be a trustee, and the expression of that intent. This intent is commonly referred to as the ‘trust intent.’ If it exists secretly, surely no trust will begin. And, similarly, the expression of what purports to be a trust intent will not give rise to- a trust unless that intent actually existed.”
On pages 200 and 201 of the same volume numerous instances are given in application of this rule.
In 65 C. J. 218 it is said:
“It is fundamentally essential to the existence of any trust that there be a trust res or subject matter and that there be a separation of the legal estate from the beneficial enjoyment.”
On page 304 it is further said as to trust intent:
“In order to create an express trust in such a case the essentials of a trust must exist, including the intention to create a trust. Such transactions are not to be confused with those creating or intending to create some relation other than that of trustee and cestui que trust, and the facts in some cases, although involving transactions between persons related to each other or occupying confidential relations, have been held insufficient to create an express trust, but to create, at the most, a mere debt.”
Also in the same volume, on page 279, it is said:
“Such intention must be made apparent in an unequivocal manner, and while, in accordance with the general rule, any words which indicate with sufficient certainty an intention to create a trust will be effective without the use of the words ‘trust’ or ‘trustees,’ or, as sometimes stated, without-declaring the trust in express terms, the mere expression of an intention, or an intention not carried into effect, to create a trust is not sufficient, and a written statement sufficient in form will not control in the absence of an intention to create a trust.”
We cannot help but conclude that there is a decided shortage in the facts as found by the trial court in meeting the three essential requirements of the law in creating a trust, viz., the explicit declaration and intention to create a trust, definite property or subject matter of the trust and the subsequent holding of it by the trustee as a trust, and while the long time intervening may not preclude the beneficiary from enforcing an unquestionable trust, as the authorities cited maintain, yet the immediate and subsequent conduct of the trustee in handling and using the subject matter goes strongly toward dispelling any thought or intention on the part of the settlor of creating a trust, appointing himself trustee or conducting himself as trustee in the handling of the subject matter.
We think the conclusion of the trial court -in holding that the facts found constituted a trust and showed the creation of a trust was wrong.
Of course, if it was not a trust the statute of limitations would run against the claim as a debt, and the action would be thereby barred.
The judgment as to the trust is reversed. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an appeal from an order overruling a demurrer.
On March 13, 1930, Mary McKittrick, appellant, was register •of deeds of Montgomery county. She had collected about $1,200 of fees due the county and had deposited the same in the Commercial State Bank of Independence, pending her quarterly settlement with the county. On March 13, 1930, the bank failed. Later a settlement of the bank’s affairs was made and defendant collected part of her deposit, and on March 9, 1932, she had paid the county treasurer $713.74, leaving her indebted' for a balance of $488.55. On the last mentioned date she executed a written document reciting the above facts, and containing the following:
“Now, therefore, I, Mary McKittrick, register of deeds of Montgomery county, Kansas, do hereby promise to pay the county treasurer of Montgomery county, Kansas, the sum of $488.55 in six monthly installments, the entire balance may be paid at any time prior to the expiration of this period, should that be possible, first payment to be made on the 10th day of April, 1932.”
On August 5, 1933, plaintiffs filed their petition against defendant which, after formal statements, alleged the making of the above written agreement and the promise to pay the $488.55, the failure to pay, and prayed judgment therefor. A copy of the agreement was attached to the petition. To this petition defendant filed a general demurrer, which the court sustained. Thereafter the plaintiffs filed an amended petition which, after formal parts, alleged that defendant was register of deeds from January 12, 1925, to January 9, 1933, that as such register she collected fees which it was her duty to turn over to the county treasurer; that on March 13, 1930, she had in her possession $1,202.29 which it was her duty to turn over to the county treasurer; that subsequent to said date she paid the county treasurer $713.74 and that there is due and unpaid by her the sum of $488.55, with interest thereon from March 13, 1930, which sum she refused to pay; that on March 9, 1932, she acknowledged and recognized said indebtedness in writing, a true copy of the writing being attached, and being the same document heretofore referred to. Judgment was asked accordingly. Defendant filed a motion to strike the petition from the files on the ground that there was a departure and that a demurrer had been sustained to the original petition, which was denied, and she then filed a demurrer to the petition, alleging among other grounds that the petition did not state facts sufficient to constitute a cause of action, and that the petition showed on its face the statute of limitations had run against said cause of action. This demurrer was overruled. From the rulings on the motion to strike and on the demurrer, the defendant appeals.
.We need consider only the question whether the claim is barred by the statute of limitations. The first proposition to be noticed is the nature of the liability of the defendant. R. S. 28-115 details the fees to be charged and collected by the register of deeds, the concluding sentence of the section reading:
“All of such fees herein provided for shall be paid by the -register of deeds to the county treasurer and covered into the general fund of the county.”
Under R. S. 28-123 it was the duty of the register of deeds to keep a fee book, and to keep a true and accurate account of all fees ' charged and collected, and on the first day of the regular session of the board of county commissioners in January, April, July and October of each year to make out and file with the county clerk and present to the board a verified itemized account of all moneys charged and collected during the preceding quarter and the amount of fees due and uncollected, and that upon failure to keep such accounts or to make such reports, or “to pay the money due to the county as shown by such report” he shall forfeit to the county ten dollars per day for each day he shall fail to do so, and that if failure continue for fifteen days he shall forfeit his office. Other provisions of the section need not be here noticed.
The liability is one created by statute, and under the statute referred to it was the duty of the register of deeds to have made settlement with the county some day early in April, 1930, and under the provisions of R. S. 60-306 Second an action upon such liability could only be brought within three years. As has been noted, the first petition declared on the written instrument, and a demurrer thereto was sustained. The second or amended petition declared on the statutory liability. It was filed December 13, 1933, at which time the action would on its face be barred. To avoid the bar of the statute of limitations appellee argues that an implied contract existed between appellant and the county that she would pay the county the amount of fees collected; that R. S. 60-312, reciting as follows:
“In any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt or claim, or any promise to pay the same, shall have been made, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment or promise'; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby,”
is applicable, and should be applied; that the written document above referred to is sufficient as an acknowledgment under the last-quoted statute, and applying such statute the period of limitations would begin to run March 9, 1932, and has not yet expired.
That portion of R. S. 60-306 relied on by appellant recites:
“Second. Within three years: An action upon contract, not in writing, express or implied; an action upon a liability created by statute, other than a forfeiture or penalty.”
It will be noted that the legislature saw fit to distinguish between express and implied contracts not in writing and liabilities created by statute. Such a distinction having been made, are we warranted in reading into R. S. 60-312 words which are not found therein? The precise point does not seem to have been heretofore discussed by this court. In Railway Co. v. Grain Co., 68 Kan. 585, 75 Pac. 1051, it was held that the enumeration by the legislature of specific exceptions to a statute of limitations excludes all others, and that the provision that a cause of action for relief on the ground of fraud may be brought within a certain period after discovery has no application to an action founded on contract.
In Marchetti v. Atchison, T. & S. F. Rly. Co., 123 Kan. 728, 255 Pac. 682, it was said:
“Our statute (R. S. 60-312) relating to extending, by a new promise, the time for the bringing of an action, applies to actions founded on contract. It has no application to action ex delicto.” (Syl. U 1.)
In State, ex rel., v. McKay, 140 Kan. 276, 36 P. 2d 327, an action was brought against a county treasurer.and the surety on her bond to recover for moneys not paid over, and an attempt was made to avoid the bar of the statute by alleging concealment by the making of false entries. In discussing the question the court said:
“Now the wrong or delict) of the county treasurer, which by the petition is the foundation of this action, was her failure to pay to her successor in office the full amount she should have paid. The petition and its amendment allege inaccuracies in keeping the books and making reports. Whatever these were, and whatever the motive which prompted them, they would not have formed the basis of a civil action against the treasurer or her surety if, notwithstanding them, she had paid over to her successor all that should have been paid. The failure to do this is what hurt, and it is the one wrong or delict of the treasurer which furnishes the basis for this action. The statute (R. S. 19-513) requires the treasurer, upon the termination of his office', to deliver to his successor ‘all the books and papers belonging to his office, and all moneys in his hands by virtue of his office.’ The petition alleges the treasurer failed to perform that duty. The civil liability is one- created by statute, and the three-year statute' of limitations (R. S. 60-306, last part, second clause) applies.” (p. 279.)
In the case at bar the statute required periodical settlements, and the failure to make them constituted a delict which, under the statute, bore consequence even so great as forfeiture of office, the statute further providing that nothing in the act should prevent the prosecution of such officer, under' any other law, for failure, neglect or refusal to perform his official duties. An action against such an officer to compel compliance with its terms is ex delicto and not ex contractu. It is clear from the allegations of the amended petition that the plaintiffs sought to recover a statutory liability, and were not relying upon any contract, express or implied. Under such circumstances it must be held that the action is not founded on contract, and the statute of limitations was not tolled by the written instrument mentioned.
It may here be remarked that if any action on contract, as distinguished from an action to recover a statutory liability, was contemplated or brought it was that stated in the original petition to which a demurrer was sustained, from which ruling the plaintiffs did not appeal.
Appellees present some argument that the statute of limitations does not run against the state. This contention was discussed in State, ex rel., v. McKay, supra, and what is said there applies here and will not be repeated.
The judgment of the lower court is reversed, and the cause remanded with instructions to sustain the demurrer. | [
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The opinion of the court was delivered by
Johnston, ,C. J.:
This action was brought by Everett DeHart and W. H. Joseph, against W. G. Eveleigh, to recover damages for breach of’ a contract for the sale of an oil and gas royalty on a certain quarter section of land in McPherson county.
The purchase price of the royalty was $12,000, plus $3,200 in assigned notes. An abstract of title was to be furnished to Eveleigh, whose attorney would examine the title for the purchaser, and he made a number of requirements, calling attention especially to two mortgages and some other requirements to be met in order to make it a merchantable title. The attorney made three separate examinations, and the requirements were complied with except the mortgages, which were conceded to be defects in the title and should be paid or released in order to make it a merchantable title. Several efforts were made to obtain a release of the mortgages, but they were not successful, and further steps were taken to overcome these defects.
In the final action it was claimed by defendant that the mortgages were a lien upon the premises and the abstract did not show a merchantable title, and the defendant purchaser insisted that they must be released before he would accept the title as merchantable. The mortgages were not paid, but plaintiffs claim they were told that the defendant was not going through with the deal and that there was no use to release the mortgages.
The plaintiffs seek to excuse the failure to release the mortgages by showing they tendered Eveleigh a check in full payment of the mortgage encumbrances. The court found, however, that Eveleigh had not said a word about paying off the mortgages and this is corroborated by two other witnesses. There was a requirement that the mortgages be paid so that the plaintiff could know that he was getting a good title for his money. The testimony showed that Eveleigh was refusing to consummate the deal for the reason that the requirements had not been met, that the mortgages had not been paid. There is no contention on the part of the plaintiffs that the mortgages have been paid. Under the terms of the contract, before the defendant could be compelled to take the royalty interest and pay for the same, plaintiffs were required to furnish a merchantable title, and were to convey by good and sufficient deed, and of course they could not convey a merchantable title so long as these mortgages remained of record and were unreleased.
The court found there was no evidence that there was any oral agreement changing the terms and conditions of the written contract. On the contrary, it shows that the defendant was standing on the written contract, and was ready, able and willing to comply with the same whenever the mortgages were released of record.
The court wrote an opinion finding the facts, and held, as we have seen, that there was no subsequent oral agreement, no waiver, and that Eveleigh was not to accept terms other than those in the agreement. The purchaser was not required to deal with the owners of the mortgages. He was not required to accept the offer of money to pay the mortgages, and the court found that Eveleigh did not say a word looking towards a promise of paying off the mortgages with money furnished.
Attention is called to the fact, too, that the evidence of witnesses confirmed the testimony of Eveleigh on the subject. Defendant was able, ready and willing to comply with the contract, but was not required to accept the deed with the mortgage lien standing unpaid and unreleased. If he had taken money and undertaken to pay off the mortgage liens he might have found trouble in satisfying them and in finding someone with authority to accept payment and sign terms of release and cancellation.
This was not a burden that could have been imposed on the purchaser; the evidence did not satisfy the court that there was any subsequent agreement or that Eveleigh ever agreed to accept the money and secure a release of the mortgages. In the early decisions of this court on the subject of unsatisfied mortgages it is held to be sufficient defense for the purchaser to show that the mortgage has not been paid and released. It is sufficient if he shows a mortgage of record which is unsatisfied and uncanceled and that he was ready, willing and able to purchase, to accept the conveyance, and meet the terms of the agreement that had been made. In O’Neill v. Douthitt, 40 Kan. 689, 20 Pac. 493, it was held that where án unreleased mortgage is shown by the abstract it is necessary not only to show that the mortgage was released, but that the person releasing •it had authority to do so, and that when the person'releasing it signed as attorney in fact and there is nothing of record showing he had authority to release it, it is not sufficient. (See, also, Durham v. Hadley, 47 Kan. 73, 27 Pac. 105; Kimball v. Bell, 47 Kan. 757, 28 Pac. 1015; Kimball v. Bell, 49 Kan. 173, 30 Pac. 240.)
The trial court, as we have seen, found against the claim of ■plaintiffs that there was a changing of the terms of the original written contract, found that there was no waiver of those terms, and that defendant was ready, willing and able to comply with the terms of the contract upon the release and cancellation of the mortgage of record.
We discover no room for the application of the rule insisted on by the plaintiffs as to concurrent or simultaneous performance, and it will not be dealt with at this time.
The judgment is affirmed. | [
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Per Curiam:
In our opinion and judgment filed in this appeal {Woods v. Jacob Dold Packing Co., 141 Kan. 363, 41 P. 2d 748) this court held that since the workmen’s compensation act is complete in itself, its remedies are exclusive, it does not sanction the imposition of interest charges upon specific items of an award, and its legislative history shows the lawmakers’ deliberate intent to exclude allowances of interest from its provisions, it was error for the trial court to allow an interest charge on the item awarded for burial expenses of the deceased workman.
Counsel for appellant now direct our attention to the full scope of this appeal. The record does show that over appellant’s objection the trial court imposed an interest charge on the weekly payments which had been withheld during the pendency of the appeal from the order of the compensation commissioner, and error was predi cated thereon. This point is well taken. Counsel for the claimants suggest that the respondent employer could have avoided this interest charge by making the weekly payments. But. the employer would thereby have cut off its right to a judicial review of the award. Counsel for claimants likewise suggest that by the familiar provision of the statute (R. S. 41-104) all money judgments bear interest. An award of compensation has some aspects which are fundamentally different from an ordinary money judgment. It is not the culmination of a jury trial for the recovery of money as contemplated in section 5 of the bill of rights. And the statute touching the imposition of interest is no more controlling on this matter than on many others which frequently, but ineffectually, have been invoked in workmen’s compensation cases. (Norman v. Consolidated Cement Co., 127 Kan. 643, 649, 650, 274 Pac. 233; Jackovich v. Armour & Co., 132 Kan. 656, 296 Pac. 708; Ketchell v. Wilson & Co., 140 Kan. 163, 32 P. 2d 865.) The fact that an award of compensation may have to be enforced as an ordinary judgment (Lenon v. Standard Oil Co., 134 Kan. 289, 5 P. 2d 853) does not enlarge or alter the substantive rights and liabilities of the parties to a compensation case, since an allowance of interest is a matter of substance, not of mere procedure.
Our original judgment and order will therefore be modified, and the trial court directed to eliminate from its judgment all interest charges on the award, and thus corrected its judgment will stand, affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Dawson, J.;
The defendant, Harvey Ridge, was convicted of murder in the second degree for the killing of F. C. Johnson, an Allen county farmer and dairyman.'.
The evidence developed no sharp dispute of important and material fact. It appears that for some ten years Johnson and wife lived on a farm a few miles from Iola. Their family consisted of two sons and two daughters. Three of these were married; and the youngest, a daughter of 15 years, lived with her parents. Johnson appears to have been a jealous and violent man, and may have been cruel to his wife. He was wont to carry a pistol.
The defendant has been a widower for a few years, and roomed and boarded in Iola. About six years ago he became acquainted with Mrs. Johnson, and an intimacy of some sort developed between them. Defendant frequently called upon her; he took her to picture shows; and sometimes she accompanied him to various places. Johnson resented this association; and Mrs. Johnson cautioned defendant that her relationship with him might be dangerous to both of them. She informed defendant that once in a fit of jealousy Johnson had so violently assaulted a man suspected of paying attention to her that he died of his injuries.
About a year before this homicide Johnson met defendant in Iola and the two had a conversation in the presence of a police officer. Johnson accused defendant of paying too much attention to his wife; he told defendant he was breaking up his home; and that he wanted defendant to quit coming to his home. Defendant promised Johnson he would not cause him any more such trouble, and that he would not see Mrs. Johnson any more.
The record tends to show that defendant did not wholly refrain from seeing or visiting Mrs. Johnson thereafter, although apparently they met less frequently. On the day of the fatality, August 28, 1933, perhaps in response to a telephone request from Mrs. Johnson, defendant called at the Johnson home about dusk. That same day he purchased some -loaded shells for his revolver. The night was rainy. He and Mrs. Johnson sat down to visit on the front porch. The daughter, Opal Johnson, was reading in bed. Johnson had pretended to start for town, but returned, and came around the house with a pistol in one hand and a knife in the other. Johnson fired two or three times at defendant. One bullet passed through-defendant’s back and he fell to the ground. Defendant then drew his revolver and fired twice in the direction of Johnson, but it was too dark to see with what result. Defendant then fled in one direction and Mrs. Johnson in another. She testified:
“Opal and I were home by ourselves that night. Mr. Johnson started to town between 7:30 and 8 o’clock at night. It was dark. . . . Mr. Ridge came through the south gate. We sat down on the front steps and I was telling Mr. Ridge about Mr. Johnson giving me a beating about two weeks before that. . . . and I had gotten so I was afraid of him. . . .
“A. Well, the dog barked and I said to Mr. Ridge, ‘He might turn around and come back,’ and I jumped up right quick and started around the corner of the house and I met someone, and I couldn’t tell just for sure who it was, and I look down — I wasn’t close enough to him to see who it was — and I looked down and I could see Mr. Johnson’s feet, and I could tell by the way he set his feet out that it was him, and he went on around and never said a thing to me, ....
“Q. Did Mr. Ridge get up and run? A. No, he never moved.
“Q. He just sat there, did he? A. . . . Mr. Johnson shot twice and he [defendant] fell forward, and I thought he had killed him.
“A. He [defendant] just set there until Mr. Johnson shot twice, and I thought he had killed him, because he pitched forward, and that’s all I saw.
“Q. Who pitched forward? A. Mr. Ridge, .... When he pitched forward, I turned and ran.
“A. ... I just supposed he [Johnson] had killed him. I went out past the milk house and out back of the bam. I thought I could get away. I was so scared I fell many times. I thought once I would hide in the cornfield. I thought Mr. Johnson was after me. I thought Mr. Ridge was killed. I got out of the pasture and was so scared I didn’t know where I was going. I was afraid to come out in the light, but I finally go inside of Lowman’s house. I got hold of the officers and they came out.”
Defendant testified:
“When Mr. Johnson came around the house, he . . . had something in his hand that was glistening; I couldn’t say positive it was a knife.' After the second shot was fired, I went to the ground in front of the steps. ... I just sort of doubled up to dodge the blow I thought was coming when I was shot. My gun was in the pocket of my coat at the time Mr. Johnson came around the corner of the house, and the first time I took the gun into my hand was when I was knocked to the ground. Mr. Johnson was standing just a little bit north of where I was. At that time he had gotten me between him and the lights of the city of Iola. He had gotten north of me. After I fell on the ground I fired a couple of shots in quick succession, just as quick as I could get my gun out of my pocket toward where he was standing. He moved; the flash of my gun temporarily blinded me for an instant, and the next time I located where he was, he had fired at me from about the northwest corner of the porch and I fired in the direction which the shot came from. He fired again, and by that time I had raised to my feet and he fired at me. I returned the fire and ran for the fence. I did not know at that time Mr. Johnson had been hit. I got on my feet and ran as soon as Mr. Johnson ceased firing. I went the nearest way and climbed over the fence across the road and went west until I came to the railroad track and went from there to the Austin farm. ... I asked the parties who lived there to call Doctor Lenski, that I was hurt, and the doctor came and got me. He took me to my rooms in the Northrup building and dressed my injury. . . . The officers returned later. I was in bed when they returned. Doctor Lenski returned with the officers and said, ‘Harvey, it is tough; you have killed him.’ ”
Such was the testimony of the only witnesses to the tragedy.
The jury returned a verdict of guilty in the second degree as charged in the information. Defendant’s motion for a new trial was overruled and he was sentenced to—
“Be imprisoned in the Kansas State Prison at Lansing, Kan., at hard labor, until discharged therefrom by due process of law, such sentence, however, not to be for a period of less than ten years from this date.”
Defendant appeals, assigning various errors, in the first of which it is contended that the record shows clearly that the whole case was tried by the court on the theory that defendant had no right to defend himself. This complaint is too general for appellate review. If such error inheres in the record, it is not altogether clear that counsel for defendant did not help to induce it. They asked an instruction which contained some rubbish about the “unwritten law,” by which, we presume, they meant the notorious figure of speech, “dementia Americana,” once used by counsel for the defense in a burst of forensic eloquence in the cause celebre of Harry Thaw in New York a generation ago. Such forensic froth is to be expected in jury arguments, but it has no place in the precise and serious statements of pertinent law which should characterize instructions to a jury.
. Defendant also complains of the court’s failure to give a clear-cut and definite instruction on the law of self-defense, such as an impartial interpretation of the facts in evidence would appear to require. The instruction asked by defendant and refused read:
“ ... If you find from the evidence that Curt Johnson, on the night of August 28, 1933, left his home and then returned home with a revolver and a knife, or either, and that he returned believing that the defendant Ridge was there at his home, and if you believe that he returned and attempted to take the life of the defendant Ridge, you are then instructed that, if in your opinion, the said defendant Ridge was in immediate danger of losing his life, that then the defendant Ridge would, as a matter of law, be permitted to defend himself, even to the extent of killing the said Curt Johnson, if that was necessary under the existing circumstances, for the protection of the said defendant, Harvey Ridge.”
What the trial court did instruct on this phase of the case reads:
“11. Gentlemen of the jury, the defendant in this case has interposed the law of self-defense, or what is denominated in law as ‘justifiable homicide,’ as hereinbefore defined. Ini this connection you are instructed that a party who is unlawfully attacked by another may stand his ground and use such force as at the time reasonably appears to him to be necessary. He is justified in acting upon the facts as they appear to him, and is not to be judged by the facts as they actually are or appear to others.
“12. The genera] rule is that the right of self-defense does not imply the right of attack, and one who provokes or brings on an affray in which he kills or inflicts bodily injury on his adversary, or who produces or brings about the occasion which makes it necessary for him to commit homicide or inflict the injury, cannot justify his act on the plea of self-defense.
“13. In other words, gentlemen of the jury, self-defense is a defensive act, and not an offensive one, and one who, by his own acts, brings on a conflict, is not acting defensively, but is acting unlawfully, and he cannot escape the consequences of his wrong upon the plea of self-defense or apparent danger.”
These instructions are not erroneous as abstract legal propositions, but they are too general, and Nos. 12 and 13 were not pertinent. There was no evidence which tended to show that defendant provoked the affray in which he killed Johnson that dark and rainy night. Defendant did not bring on any conflict with Johnson on the occasion of the homicide. The fact that defendant had been visiting or consorting with Johnson’s wife, without Johnson’s permission or despite his disapproval, was not in legal contemplation the provoking of an affray or the bringing on of a conflict of violence with Johnson. The court should have plainly told the jury that any forbidden visits of defendant to the Johnson home, or conversations between defendant and Mrs. Johnson, or any other suspected intimacies of defendant and Mrs. Johnson, would not justify Johnson in taking the law into his own hands nor deprive defendant of the right of self-defense. The law affords various remedies against a wrongdoer who interferes with his marital happiness. He may sue him for alienation of his wife’s affections; he may obtain an injunction to prevent him from coming upon his premises; he may prosecute him for seduction or for other breaches of the criminal law which deal with sexual irregularities with a married woman. And while the law will not condemn the suspicious husband for giving his wife a single opportunity to indulge her adulterous disposition (Harmon v. Harmon, 111 Kan. 786, 791, 208 Pac. 647) such a course is only countenanced to obtain evidence of her infidelity, and gives no shadow of excuse for shooting her paramour. In discussing this phase of the law, this court has no intention of placing a sinister interpretation on the relationship of defendant and Mrs. Johnson. That relationship, curious as it was, may have had no taint of immorality. Mrs. Johnson may have been an ignorant person who did not know enough to complain of Johnson’s tyrannies or brutalities to the public authorities or to a private lawyer, and may have innocently sought such counsel as defendant might give her. There was testimony that deceased had beaten his wife about two weeks before the homicide, and had threatened to hang her in the barn in such a way that it would appear to be a case of suicide.
Another error urged relates to misconduct of the judge in the course of the trial and in the presence of the jury. This criticism is directed to the judge’s remarks and insinuations in the course of the examination of the state’s chief witness, Mrs. Johnson. The record reads (Mrs. Johnson testifying);
“We went around and sat down on the front steps; we sat down there. Mr. Ridge had on an overcoat. ... I had on a pair of rubber boots and a coat thrown around me.
“By the Court: Wait a minute. You just had on a pair of rubber boots and a coat? A. Well, I had my clothes on.
“By the Court: You didn’t say that. A. Sure, I did.
“By the Court: You had your clothes on? A. Sure I did.
“By the Court: Well, you just stopped on the coat and rubber boots, and I wondered if that was all you had on.”
Later the presiding judge took up the examination of this witness in extenso:
“By the Court: . . . You met up with the defendant, Ridge, several years previous to August 28th, 1932? A. Yes.
“Q. Your husband finally got on to it? A. Yes, sir.
“Q. And he cautioned you to quit it, didn’t he? A. Yes, sir.
. “Q. Then why didn’t you? A. Well, there was trouble between him and I.
“Q. No, no, not between you and your husband. I am asking you about the relations between you and Ridge. A. Well, I just didn’t.
“Q. The secret meetings between you and Ridge were the ones that brought about the disagreement between you and Johnson, weren’t they? A. Not altogether, no.
“Q. Not altogether, but it superinduced it, aided it? A. No.
“Q. Well, then, why didn’t you obey? If you would have listened to what your husband said, this trial wouldn’t now be in progress would it, Mrs. Johnson? A. No. I don’t think so.
“By the Court: No, you know it wouldn’t. That’s all.”
“Recross-examination:
[Counsel for Defendant] : “Q. Now, Mrs. Johnson, the court asked you a question of whether this matter between you and Ridge caused all the trouble and you said no, there were other things. Now I will ask you to tell the jury what the other things were.
“By the Court: You are not going to go into that, because she is the one who volunteered the information, and I don’t care what it is, but you gentlemen brought it out.
[Counsel for Defendant] : “No, if the court please, she testified to that in answer to your question.
“By the Court: She testified she had been married to this man, F. C. Johnson, and was his lawfully wedded wife for thirty-one years, and here she was carrying on a secret liaison, secret meetings, adulterous in character, I expect, wasn’t it? A. No.
“By the Court: It wasn’t? A. No.
“By the Court: And this has been going on for four (4) or five (5) years, that long, anyway, wasn’t it? A. Yes, sir.
“By the Court: And nothing out of place — just—you know. Now, she said that was one of the causes that led to the disagreement between her and her husband. Now, then, any other causes wouldn’t aid it any, or explain it away.
[Counsel for Defendant]: “Now, if the court please, I object to these remarles of the court because the court himself was the one that asked this witness if this trouble with Ridge wasn’t the only trouble.”
The record contains more of such colloquy between court and counsel which it is needless to reproduce. While it is true that a trial judge need not refrain from asking questions of a witness to elucidate and clarify material facts which the examining counsel have not sufficiently developed for the jury to grasp (State v. Keehn, 85 Kan. 765, 118 Pac. 851; State v. Miller, 127 Kan. 487, 274 Pac. 245), it is not proper for him to take the examination out of the hands of counsel, nor to assume a partisan attitude; and certainly it went altogether beyond the bounds of judicial propriety to insinuate in the presence of the jury that this witness had been involved in an adulterous liaison with the defendant; and likewise improper, when the witness had denied such a relationship with defendant, to damn her denial with the observation: “And this had been going on for four or five years — and nothing out of place— just — you know.” Such a course on the part of the presiding judge could only have the effect of discrediting the testimony of the witness in the eyes of the jury — leading them to believe defendant was an adulterous Lothario who ought to be in the penitentiary on general principles — regardless of the possibility that he had to shoot his assailant to save his own life or avoid further bodily harm than he had already suffered at the hands of Johnson.
No cases of this or any other court of last resort are cited which hold that the matters of record abridged as above do not constitute prejudicial error. In State v. Marek, 129 Kan. 830, 284 Pac. 424, which was a murder case, it was held that the remarks of the trial judge which “probably affected the credibility of a witness in the minds of the jurors” were improper and prejudicial. That opinion cites earlier cases of this court to the same effect. In O’Shea v. The People, 218 Ill. 352, 359, 360, the discretion a trial judge must invariably exercise when he assumes to question a witness in a criminal case was thus stated:
“Where the trial judge in a criminal case deems it necessary to cross-examine witnesses in order to prevent a miscarriage of justice, he must exercise great care to prevent giving the jury the impression that he is biased against the accused, and he must not forget the function of a judge and assume that of an advocate.” (Syl. If 4.)
In the opinion it was said:
“As argued by the representatives of the people, the nisi prim judge is not a mere umpire presiding over a contest of skill and ingenuity between the respective attorneys. On the contrary, it is his duty to see that justice is done; and where justice is liable to fail because a certain fact has not been developed or a certain line of inquiry pursued, it is his duty to interpose, and either by suggestion to counsel or an examination conducted by himself, obviate the miscarriage of justice. Under unusual circumstances it may become his duty to call and examine witnesses himself, but where he does this he must not forget the function of the judge and assume that of the advocate. Necessarily, the extent to which the trial judge will participate in the examination of a witness is largely a matter of discretion with him, to be determined from the' circumstances of the particular case as they arise; but in a jury trial, where the parties, as here, are represented by able, conscientious and experienced attorneys, it is scarcely possible to conceive circumstances under which the court is, in the performance of his duty, free to enter upon a lengthy cross-examination of witnesses. A suggestion to one or the other of the attorneys of the matter or line of inquiry which the judge desires developed is ordinarily all that is necessary.
“The valid objections to the course pursued by the trial judge in this case are several, irrespective of the erroneous character of the questions which were here propounded. In the-first place, counsel is placed in a most embarrassing position where he deems the questions improper, as he is loath to enter into a discussion of their propriety with the judge who has propounded them. Then, where the examination so conducted is lengthy and the objections from one party are many, it is almost impossible for the judge to preserve a judicial attitude. It is difficult for him, however wise, experienced and impartial, to pass on objections to his own questions fairly. Again, where objections are constantly made to the judge’s questions and they are constantly overruled, as they are apt to be, the jury, in many cases prone to guide themselves by an intimation of the opinion of the judge, may conclude that he looks with disfavor upon the cause of the party objecting.” (p. 359.)
See, also, State v. Davis, 136 N. C. 568; Davis v. Dregne, 120 Wis. 63; Thompson on Trials, 2d ed., § 219.
Another error urged relates to the admission of testimony of a witness that she overheard a telephone conversation between Mrs. Johnson and some unidentified man. Mrs. Lowman testifying:
“Q. During the summer, and before August 28th, when Mr. Johnson was killed, did you hear any conversation Mrs. Johnson had with someone that would call her up, or that she would call up? A. Yes, sir; we did.
“Q. Was that someone a man? A. Yes, sir.
[Counsel, for Defendant] : “Now, if the court please, now let’s be fair. This is getting a pretty long ways off. She says a man. I don’t know about this. How many men might have talked to Mrs. Johnson? I don’t know anything about that. Let’s get some connection here.
“By the Court: Yes, let’s connect it up with some individual.
“Q. Do you know, Mrs. Lowman, who it was talking there on the. other end of the line with her? A. No, I don’t.
“Q. You don’t know whether it was Mr. Ridge talking to her or not? A. No, sir.
“Q. How often would this conversation take place?
[Counsel fob Defendant] : “I object to it as immaterial, not tending to prove any issue in this case.
“By the Court: Well, let him do some fishing. He is trying to find out if he can.
[Counsel for Defendant] : “Well, if the court please, she says she doesn’t know anything about it. She doesn’t know that it was Ridge, and it doesn’t make any difference how 'many other men she might have talked to.
“By the Court: I know; overruled. Let’s go ahead and see what he can find out.
[Counsel for Defendant] : “We don’t know how many were on the line talking at the same time.
“By the Court: Well, let’s give him a chance. Maybe he can connect it up.
“Q. It would be Mrs. Johnson talking to this man, would it? A. Yes, sir.”
Eventually the court instructed the jury to disregard this testimony “for the reason the state has failed to connect it up with the defendant.”
It is difficult to measure the extent of the prejudice this line of testimony may have created in the minds of the jury. It is clear, we think, that the court’s final ruling that the jury should disregard it was insufficient to dissipate that prejudice, because of the court’s expressed reason for their disregarding it, solely because the state failed to “connect it up with the defendant.” What would the average juryman conclude? That doubtless defendant was the man on the telephone, although the eavesdropper could not swear to the fact.
Some other matters are complained of, but as this cause will have to be retried and they are not likely to arise again they will not require discussion.
One other error is urged which was not pressed on the trial court’s attention, but which is now conceded by the state. It relates to the imposition of an indeterminate sentence, whereas the statute requires the sentence in a murder case to be definite and specific. (R. S. 62-1521; State v. Deming, 79 Kan. 526, 100 Pac. 285, syl. ¶ 2.)
The judgment is reversed, and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action in the nature of a creditor’s bill brought by the mortgagee against the mortgagor, his wife and daughter to set aside a deed to certain real property other than that which had been mortgaged which was conveyed by the mortgagor and his wife to their daughter for one dollar, love and affection. This action was commenced after personal judgment had been procured in a foreclosure action, the property sold at sheriff’s sale, the sale confirmed and an execution on the deficiency judgment had been returned unsatisfied.
The plaintiff, after setting out in full in its petition the various steps taken in the matter from the beginning, alleged that the conveyance to the daughter was voluntary and without a valuable consideration and with the intent to hinder and delay the plaintiff in the collection of the obligation due it from the mortgagors,. and was actually, and as a matter of law, fraudulent as against the plaintiff. The answer was a general denial, with a counter allegation of fraud, which is not involved in this review. After the introduction of some evidence the trial court limited the issues to whether or not the actual market value of the mortgaged property was ample to cover the debt held by the plaintiff, and at the close of the evidence made one finding of fact, which is as follows:
“The court finds from the evidence in this case that the actual market value of the property on which the plaintiff held its mortgage which had been executed by the defendants, E. W. Swartz and wife, to the plaintiff for the face amount of $6,000 was, on the 10th day of August, 1931, in excess of the total amount of the principal and interest then due thereon.”
The one conclusion of law was that “defendants are entitled to judgment for their costs.”
After the overruling of the motion for a new trial the plaintiff appealed, assigning many errors, among which were the failure of the trial court to make more definite and certain the one finding it did make, and its failure to make findings ás to the other issues raised by the pleadings, particularly with respect to the issue of the intent of defendants to hinder and delay the plaintiff in the collection of the obligation due plaintiff from the defendant mortgagors. ■
Appellees cite Moorhead v. Edmonds, 99 Kan. 343, 161 Pac. 610, and other Kansas decisions to the effect that if no request is made in the trial court by the party desiring the findings to be made more complete or clear, such a complaint will not be considered on appeal. The abstract shows such a request in the motion for a new trial filed two days after the finding was filed by the court. The fourth ground of the motion for a new trial is as follows:
“4. That the finding as to the value of the property in controversy deeded by E. W. Swartz and Mayme Anne Swartz to Cloris M. Johnson is too vague and indefinite and the court erred in not making a definite finding as to the value of the property so conveyed on the 10th day of August, 1931.”
The journal entry shows this motion was argued orally in court two days after the finding was filed.
Other grounds of the motion urged as ah error the failure to make any findings on the other issues under the pleadings, setting them out separately in the motion for new trial. In this same connection it must be remembered that the plaintiff requested the trial court to make findings upon a number of points raised as issues by the pleadings. In Briggs v. Eggan, 17 Kan. 589, it was held:
“Where an action is tried by the court without a jury, and one of the parties requests the court, in accordance with section 290 of the civil code, to state in writing its conclusions of fact found, separately from its conclusions of law, and the court refuses so to do, and makes only one general finding of fact and of law, which finding is against the party making such request, and in favor of the other party, and judgment is rendered according to such finding, the court commits substantial error.” (Syl.)
In Vickers v. Buck, 70 Kan. 584, 79 Pac. 160, it was held:
“Where a case is tried to a court without' a jury and one of the parties requests the court to state its findings of fact separately from its conclusions of law, it is error for the court to refuse the request, or to refuse to make such separate findings so definite that the party may have a fair opportunity to except to the decision of the court upon the conclusions of law involved in the trial.” (Syl. If 2.)
In Fuller v. Williams, 125 Kan. 154, 264 Pac. 77, it was held:
“When an action is tried to the court, and the court is requested to make findings of fact as provided by R. S. 60-2921, and undertakes to find evidentiary facts, it is error for the court to refuse, on timely request, to make findings of fact on material matters put in issue by the pleadings and on which evidence was introduced.” (Syl. If 1.)
The plaintiff did all it reasonably could do to have the court make findings of fact on all the issues raised by the pleadings and to call its attention to the indefinite and incomplete finding that was made, and under the authorities above cited the findings should have been made on all the issues raised in the pleadings, and the finding that was made should have been made more definite. -
The theory of the appellees, adopted and followed by the trial court, was to the effect that if the market valúa of the property mortgaged was equal to or exceeded the amount of the mortgage indebtedness on the day the mortgagors conveyed away their other property, the matter of intention to hinder, delay or defraud the plaintiff was of no consequence in the action.
Before the court limited the issues to the market value of the mortgaged property on the day the deed to the daughter was made to the other property owned by the mortgagors in the same county, the evidence already introduced showed that the original mortgage had been made to the plaintiff by a man named Bailey, who sold or traded this property to defendant, and when the mortgage became due on June 1, 1930, the defendant mortgagor wrote the plaintiff company requesting that it be extended for three years, and added this sentence:. “As soon as I can sell other properties I now hold, I intend to pay this loan.” The company renewed the loan of $6,000 with entirely new papers and required that the principal be reduced on June 1, 1931, by the payment of $500, and by a similar payment a year later. No part of the loan nor interest thereon was paid on June 1,1931.
On July 31, 1931, defendant mortgagor personally called on the officers of the plaintiff company in Topeka and tendered a deed to the property mortgaged for the surrender and cancellation of the note and mortgage. The plaintiff company declined to accept a deed, because the property was not worth the amount of the note and mortgage, and further because he had advised the company when the loan was renewed that he had other property and knew that the company would expect payment in full of the amount due. The testimony of the defendant mortgagor is that he said he was not able to make the payments, that he would hold the property the full eighteen months unless the company accepted his proposition and that a deficiency judgment would be worthless in his case. Ten days after this conversation, viz., on August 10, 1931, the mortgagor and wife executed this deed to another property in the same town to their daughter for one dollar, love and affection, and the mortgagor testified it was an outright gift. His testimony further shows that he and wife, on the same day they executed the deed to the daughter for the property in town, executed a deed to their son for 160 acres in another county, which was all the property he had except that mortgaged to the plaintiff.
The plaintiff company immediately commenced foreclosure proceedings and obtained a personal judgment against the mortgagor for $6,642.72, and on March 14, 1932, purchased the property at sheriff’s sale for $4,000, which sale was confirmed, leaving a deficiency judgment against defendant mortgagors of $3,055.01. During the same month an execution on the deficiency judgment was returned unsatisfied and then this action in the nature of a creditor’s bill was commenced.
We are confronted with a new theory to the effect that a mortgagor has a legal right to completely settle a mortgage obligation by tendering to the mortgagee a deed to the property mortgaged. Because this is often done by way of compromise is no ground for it as a legal right of the mortgagor.
Appellees cite R. S. 60-3463 and chapter 218 of the Laws of 1933 as practically forbidding the practice of taking deficiency judgments in foreclosure actions. We do not so understand these acts. If so, there would be no need whatever for the court fixing a minimum or upset price in such cases asas authorized in the latter act cited. The trial court evidently, after having confirmed the sheriff’s sale in the foreclosure action at a price which left a deficiency judgment, is attempting, in this different action, to consider the matter wholly as if it were in effect acting upon the sufficiency of the bid at the sheriff’s sale, eliminating the main features of this action based almost entirely upon the issue of intent to hinder, delay and defraud the plaintiff by conveying to a daughter as an outright gift a part of the other property he told the mortgage company he owned and on the strength of which he procured a renewal of the loan. Of course, the value of the security is a part of the issues here involved, but it is not the sole issue, and findings should have been made on all the issues raised by the pleadings on which evidence was introduced. This action, properly falls under R. S. 33-102, commonly called the statute of frauds.
The case of Hunt v. Spencer, 20 Kan. 126, was where the father conveyed to his daughter nearly all his property three days before an action was commenced against him on a preexisting debt, and in the opinion, written by Judge Brewer, it was held:
“A voluntary conveyance can be sustained as against existing creditors,' only when under all the circumstances of the case the property retained by the grantor furnishes reasonable and adequate provision for the discharge of his debts.” (Syl. H 3.)
The case of Buck v. Vickers, 93 Kan. 766, 145 Pac. 904, was where a debtor, being pressed by numerous creditors, conveyed all of his property to a member of his family for a consideration considerably less than its value, which he used in part toward the payment-of some of his debts, and it was there held that—
. . the transaction disclosed an intent to hinder and delay creditors and had that effect within the purview of the statute of frauds and perjuries.” (Syl.)
In the case of Hardware Co. v. Semke, 105 Kan. 628, 185 Pac. 732, it was held:
“The transfer of property by a debtor to his wife without consideration, thereby placing all of his property subject to be taken by creditors beyond the reach of his creditors, amounted to a fraud in law, and the intent of the wife in accepting the transfer is immaterial.” (Syl. II.)
In Bump on Fraudulent Conveyances, 4th ed., p. 18, it is stated:
“The time for the performance of a contract is both in morals and in law an essential part of the contract itself, and a debtor who attempts to postpone the time of payment, endeavors to deprive his creditors of a valuable right, and thus it may justly be said that a positive intent to defraud always exists where the inducement to a conveyance is to hinder and delay creditors, since the right of creditors to receive their demands when due is as absolute as their right to receive them at all.”
In The Law of Fraudulent Conveyances, by Glenn, on pages 365 and 366, it is said with reference to the value of property left: .
“Market values constitute the primary basis; it is only if there was no ready market at the time that secondary methods are to be employed, such as book values, expert opinion and the like.....a person, although he is indebted at the time, may give away a part of his property, if in so doing he has no- actual intent to defraud present . . . creditors . . . , provided he has sufficient property left to pay his creditors.”
In 27 C. J. 501 it is said:
“With respect to the financial condition of the grantor, within the rule governing fraudulent conveyances, he will be considered insolvent when his property, subject to the payment of his debts, is not sufficient to pay all his debts. Insolvency has also been defined as the inability to pay debts when they become due in the ordinary course of business, or where the value of his remaining property is so near the amount of his debts that the conveyance tends directly to impair the creditors’ power to force collection by judicial process.” (See, also, Glenn v. Callahan, 125 Kan. 44, 262 Pac. 583; Jennings & Sons Tire and Accessory Co. v. Farmer, 127 Kan. 164, 272 Pac. 167; and Kinsley Bank v. Aderhold, 130 Kan. 126, 285 Pac. 597.)
Market value is the usual and general basis and test as to value, but sometimes there is no market for certain kinds of property, as some of the witnesses in this case testified. We cannot measure securities and their adequacy to pay debts by original or replacement costs, but by such values as can be realized therefrom at the time in question for the purpose of applying the same toward the payment of the debt.
For the reason that there were no findings of fact on some of the important issues raised by the pleadings, and because the one finding made was indefinite and not modified when requested, the judgment must be reversed and a new trial granted.
■ The appellant urges that since much of the testimony in this case was given by deposition, this court can give it independent consideration and make findings on the issues concerning intent of defendants to hinder, delay or defraud the plaintiff, citing Linn v. Blanton, 111 Kan. 743, 749, 208 Pac. 616, and Corson v. Oakley, 138 Kan. 520, 529, 27 P. 2d 229, in support and approval of so doing, but such would not be proper in this case because of the fact that the court in the midst of the taking of testimony declined to hear any further testimony on any issue except that of the market value of the encumbered property, and it might be that the parties, and particularly the defendants, had further testimony on these other issues which they intended and were prepared to offer, and the matter should not be decided without an opportunity being given to offer the same.
The judgment is reversed and the cause is remanded with directions to grant a new trial. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment denying an injunction forbidding the county treasurer of Wyandotte county to return to three taxpayers certain payments of tax moneys made by them under formal protest, which protests were sustained by the state tax commission.
It appears that in August, 1932, the plaintiff drainage district prepared and published its budget for the fiscal year, July 1, 1932, to June 30, 1933. In it the drainage board made an estimate that the expenses which would probably have to be met from its general fund would be $22,495 for the ensuing year, and to meet such expenses it would be necessary to raise $15,000 by a tax levy of three tenths of a mill on all the taxable property of the district. At the time those estimates, budget and levy were determined upon, the district actually had on hand in its general fund the sum of $82,000 in cash.
Taxpayers objected to the imposition of any levy for the general fund for the then current fiscal year because of the large amount of cash already on hand — more than three and a half times as much as the budgetary estimate of the year’s expenses required.
When taxpaying time arrived, three railway companies, the Santa Fe, the Rock Island, and the Union Pacific, which have large holdings in the plaintiff drainage district, paid the first half of their current taxes under protest, specifying particularly the levy for the general fund of the district on the ground of its illegality. Through proper procedural steps these taxpayers brought their claimed grievances before the state tax commission for correction. On January 22, 1934, that commission, pursuant to a hearing theretofore had and on notice to all parties concerned, sustained the application of these taxpaying railways for a refund of the excessive and illegal exactions they had been compelled to pay, and directed the county treasurer of Wyandotte county to refund the following sums, out of the protested funds of the plaintiff district which he ought to have in his hands:
To the Atchison, Topeka & Santa Fe Railway Co.................. $1840.48
To the Chicago, Rock Island & Pacific Railway Co............... S89.44
To the Union Pacific Railroad Co................................ 447.64
An excerpt from the order of the state tax commission in the Santa Fe case summarizes the facts and the basis for the several orders:
“On July 31, 1933, the Atchison, Topeka and Santa Fe Railway Company filed with this commission its application for the refund of taxes paid under protest in Wyandotte county, Kansas.
“Kaw Valley drainage district general fund:
“According to the budget of the Kaw Valley drainage district, for the year 1932, the needs of the district for the ensuing year totaled $33,742.50. This district had on hand, cash and other revenue totaling $85,328.62. The district proceeded to make a levy of .30 mills, which on the valuation of the district produced $15,900. It is the finding of this commission that the levy made was entirely excessive, due to the fact that the assets of the district were more than sufficient to meet the budget requirements. It is, therefore, found by this commission, that the prayer of the petitioner (The Atchison, Topeka & Santa Fee Railway Company) should be and the same is hereby granted, and the county treasurer is directed and ordered to refund the sum of $1,840.48.”
It was to prevent the defendant county treasurer from paying these amounts to these railway companies pursuant to these orders of the state tax commission that this action was begun.
The pleadings developed no issue of material fact, and all the pertinent matters which the trial court should consider in determining the legal questions involved went in by stipulation of parties.
The injunction prayed for was denied; judgment was entered for defendant; and the drainage district brings the cause here for review.
The first point raised by appellant challenges the authority of the county treasurer to withdraw moneys from the general fund of the district without authorization so to do by its board of directors. This preliminary point arises from the fact that when the protested taxes were paid by the railway companies, the county treasurer did not make a separate bookkeeping entry of them, but entered them to the credit of the general fund of the district. The protested moneys, however, were and still are in the actual custody of the county treasurer, although he prematurely and, as it turned out, erroneously distributed them to the general fund and made bookkeeping entries in his accounts accordingly. But the error was a harmless one. Bookkeeping entries, if made erroneously, may be corrected; and in so simple a case as the present the courts will presume that what ought to be done has been done and the moneys of the protesting taxpayers will be regarded as being still in the undistributed mass of protested taxes in the hands of the county treasurer and available for disbursement by him on the lawful order of the state tax commission. In Hicks v. Davis, 97 Kan. 312, 154 Pac. 1030, the action was one in mandamus to compel the state auditor to draw a warrant in conformity with an act of the legislature of 1913 which carried an item of money to reimburse the plaintiff for expenses incurred in the service of the state. One of the defenses urged in the auditor’s behalf was that there was no money in the fund designated by the legislature from which the item was to be paid. This court said:
“The auditor suggests that there is no money in the grain inspection fee fund to pay this claim. We assume that this is because the books for the fiscal year ending June 30, 1915, have been closed, and that any balances then existing in that fund have reverted to the general revenue funds of the state. But the books were open when the petitioner filed this action. That crystallized the status of the fund as of that date, and if there were moneys in the grain inspection fee fund at that time, the closing of the books will not bar the petitioner. There is no magic in bookkeeping. Books which have been closed in derogation of a lawful outstanding claim which had been provided for by the legislature must be reopened and the claim paid and the proper entries made to recite the pertinent facts.” (p. 317.)
And so here. A mere bookkeeping entry which erroneously credited plaintiff’s general fund account in the county treasurer’s records instead of entering it ad interim in some suitable manner as an item of protested taxes until the validity of the protest should be settled by competent authority is not sacrosanct. It may be corrected as other errors of bookkeeping are corrected in the official and business world many times every day of the year. Were this a more serious matter than it is, the right of the protesting taxpayers to the return of their due could not be defeated because the public official whose duty it was to retain control of the money had failed in that duty. Moreover, if the moneys thus paid under protest had passed into the exclusive control of plaintiff it would be no better off than it is now. It could not withhold such moneys on the just claim of the proper public authority. (City of Frankfort v. Warders, 119 Kan. 652, 654, 240 Pac. 652; Nemaha County Comm’rs v. City of Seneca, 138 Kan. 895, 898, 28 P. 2d 1034; Woodson County Comm’rs v. City of Yates Center, 139 Kan. 519, 32 P. 2d 209; Greenwood County Comm’rs v. School District, 139 Kan. 297, 31 P. 2d 723.) On the right of protesting taxpayers to recover moneys unlawfully exacted from them when the illegality is determined, regardless of what disposition the county treasurer may have made of such moneys, see Hodgins v. Shawnee County Comm’rs, 123 Kan. 246, syl. ¶ 3, 255 Pac. 46; Bank of Holyrood v. Kottman, 132 Kan. 593, 296 Pac. 357; Chicago, R. I. & P. Rly. Co. v. Ford County Comm’rs, 138 Kan. 516, 27 P. 2d 229.
Counsel for appellant cites Chicago, R. I. & P. Rly. Co. v. Paul, 139 Kan. 795, 33 P. 2d 304, but in that case no steps were invoked by the aggrieved taxpayer to bring the alleged excessive levy before the state tax commission, which is the administrative board authorized by law to review and correct such matters; nor were its powers invoked by the protesting taxpayer to perfect any right it may have had to recover the amount sued for.
And this leads us logically to appellant’s next contention, which is that the state tax commission had no authority to consider and sustain the protest of the railway companies in respect to the general-fund levy of the drainage district for 1932, nor to order a refund of the taxes illegally levied and paid under protest by the railway companies. On this question of law, certain pertinent sections of the tax law will require examination. R. S. 79-1702, in substance, provides that where a taxpayer has a grievance not otherwise remediable he can have redress through the state tax commission, which is given power, among other matters, to order a refund of the amount found to have been unlawfully charged and collected. R. S. 1933 Supp. 79-2005 also directs what preliminary steps a pretesting taxpayer shall take to perfect his right to recover taxes illegally exacted. Of what avail would it be for him to conform to these steps if they were not intended by the legislature to lead to their logical fruition?
We note, of course, the legislative declaration in the “cash-basis” law of 1933 that the levying of a tax which raises more money than the needs of a taxing district may require to establish itself upon a cash basis shall not be the basis of a protest, and that all such protests shall be void. (R. S. 1933 Supp. 10-1120.) We construe this section to mean just what it says and no more. The statute does not say — and no reasonable application of the rules of statutory construction would justify its interpretation to mean — -that the general provisions of the taxation statute are to be superseded and that an excessive levy of taxes is hereafter to be remediless to an aggrieved taxpayer. The apparent purpose of this statute of 1933 was that in its endeavors to get its fiscal .affairs on a cash basis the taxing district was not to be harassed with litigation because its official board and one or more of its taxpayers might disagree as to the amount of money the budgetary needs of the district' would require; and that neither the judgment of the district court nor of this court should be invoked to interfere with the discretion of the taxing officials as to the amount of money required to conform to the purpose of the cash-basis act.
The title to the cash-basis act in which the section under discussion appears reads:
“An act in reference to indebtedness of cities, counties, townships, board of education, municipal universities, school districts, high-school districts, drainage districts, and other municipalities, and providing for the funding of the same, and prohibiting the drawing of warrants or making of contracts under certain circumstances, and providing penalties for the violation of this act.” (Laws 1933, ch. 319.)
Clearly this title gave no indication that the act was intended to supersede the powers of the state tax commission; and such has not been the operative interpretation of our taxation statutes since the enactment of the “cash-basis” law.
There may be another good and sufficient reason for not attaching ‘ greater significance to R. S. 1933 Supp. 10-1120 than the fair import of its text. Constitutional questions not infrequently arise when the just rights of individuals are altogether suppressed by legislation. In City of Emporia v. Norton, 13 Kan. 569, 586, where the construction of a statute authorizing a tax levy was under scrutiny, Justice Brewer said:
“That construction which supports would be preferred to that which destroys the law.” (p. 585.)
See, also, Bailey v. Baldwin City, 119 Kan. 605, syl. ¶ 2, 240 Pac. 862.
Counsel for appellant invokes the rule announced in Chicago, R. I. & P. Rly. Co. v. Paul, 139 Kan. 795, 33 P. 2d 304, where it was held that the making of a higher levy than the published budgetary estimates would appear to require was not a sufficient basis for an action to recover a portion of taxes collected pursuant to such levy, notwithstanding the protest of a taxpayer. The legal questions considered in that case centered about the provisions of the budget law, and the right of taxpayers to be heard before the amount of the tax levy was determined. No issue was raised and no right of the protesting taxpayer to recover was based on the power of the state tax commission t.o order a refund in a proceeding properly instituted and prosecuted before that tribunal for redress. The same controlling rule of law disposed of the more recent case of Kurn v. Miami County Comm’rs, 141 Kan. 7, 40 P. 2d 321. This present case, in its essential particulars, is governed by the rule announced in Chicago, R. I. & P. Rly. Co. v. Ford County Comm’rs, 138 Kan. 516, 27 P. 2d 229. It was there said, inter alia, that an order of the state tax commission is only, an administrative order, not a binding judgment like that, of a judicial tribunal. But such an order is prima fade valid, and public officials may and should act upon it, where its validity is not. promptly challenged before a court of competent jurisdiction. And if'this present proceeding may be regarded as a sufficient challenge of the validity of the tax commission’s order, this court has no hesitancy in holding, in substantial accord with the views of the state tax commission and the trial court, that where the published budget showed that the taxing district had two or three times as much cash on hand in its general fund as the budgetary estimates of the current year would- require, any levy whatever was entirely excessive; and the commission’s order directing a refund of taxes paid pursuant thereto was valid; and the judgment of the trial court refusing to interfere therewith was correct and should be affirmed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This was an action for specific performance of a party wall option contract after the defendant had exercised her option in favor of purchasing a half interest in the wall, already constructed, and also for an injunction to prevent her from using the wall without complying with the terms of the contract.
A copy of the party wall option 'contract was attached to the petition, also a copy of a supplemental contract, a copy of a stipulation of acceptance and a copy of a disputed appraisement award. Later an amended petition was filed, repleading all the allegations of the original petition and the exhibits attached, and further pleading concerning controverted matters in the stipulation and in the originally prepared award asking that they be reformed and corrected, alleging full compliance on the part of the plaintiff and a tender of deed and offer to do any and all things required of it by the terms of the contract. After the overruling of a demurrer to the amended petition defendant filed an answer admitting the execution of the original and supplemental party wall contracts and the appointment of appraisers thereunder. These admissions were followed by a general denial and allegations of ambiguity in the original contract and that it should be reformed. Plaintiff filed a reply consisting of general and special denials of the allegations of the answer.
After the opening statement of the attorney for the plaintiff, the defendant interposed the following motion:
“Comes now the defendant and moves the court for judgment on the pleadings and opening statement as far as specific performance is concerned, for the reason that the facts pleaded and stated preclude the plaintiff from recovering, and further as to any damages, we request a trial by a jury as to any damage feature, which is not in equity.”
During the argument on this motion the defendant was permitted to withdraw from her answer all allegations upon which the prayer for reformation of the original contract was based, together with the prayer for relief. And the plaintiff called the court’s attention to offers made by it in its petition and amended petition to make such further performance of the terms of the contract as might be proper on its part and to do all other things and acts which the court might deem equitable and proper, and in all respects to do equity in the premises. The following closing paragraph of the journal entry gives the ruling of the trial court on the motion:
“Thereupon it was ordered, adjudged and decreed by the court that said motion for judgment on the pleadings made by the defendants be and the same was sustained as far as any claimed right of plaintiff as to specific performance of the contracts set up in plaintiff’s pleadings and as to all rights of injunction sought thereunder and as to all equitable relief asked for, and it was further ordered and decreed by the court that this action proceed as an action at law and that the defendant’s request for trial by jury be and the same was granted. To all of which judgments and decrees the plaintiff duly objected and excepted.”
From this ruling the plaintiff appeals.
The petition alleges that the original party wall option contract was made and executed May 7, 1889, by the plaintiff as owner of the west half of lot eight and .the then owners of the east half of said lot, which contract was duly recorded in the office of the register of deeds of Mitchell county, Kansas, on February 15, 1890, and that the supplemental contract was made between the same parties on the 12th day of March, 1910, concerning the extension of the party wall to the rear of the lot, and it was recorded in the office of the register of deeds of said county on May 5, 1910, and that thereafter the defendant, Eda Quinn, became the owner of the east half of said lot. That in January, 1933, the defendant and her husband commenced the erection of a brick building on the east half of said lot, and about February 18, 1933, she made and executed a formal written election to purchase under the contract and to join the wall theretofore constructed by the plaintiff as the west wall of her building, and joined the plaintiff in the selection of arbitrators to appraise the value of the wall and the use of a strip of land on which a part of the party wall stands. That thereafter a majority of the arbitrators rendered an award. That copies of the stipulation and award are attached as exhibits. That plaintiff tendered into court a conveyance in accordance with the terms of the contracts to be delivered to defendant upon payment by her of the award. That no part or portion of the award has been paid, and defendant has continued with the erection of her building and completed the. same by using the party wall by attaching beams and other supports thereto.
In the amended petition plaintiff calls attention to what it terms mistakes in the phraseology of the stipulation in one particular and the language of the original form of award to show that they are out of harmony with the terms of the original party wall contract, and asks reformation thereof to agree with the original contract.
With such as the general substance of the amended petition met by an answer consisting of general and special denials, the question on appeal is mainly whether this is an equity case for specific performance of a contract and for injunction, or, as held by the trial court, only an action at law for trial by a jury.
The defendant, in support of the views accepted by the trial court, maintains that the contract has been fully performed except as to the amount to be paid, about which there is a disagreement, and that being solely a question of damages, it is a question for a jury, and plaintiff has an adequate remedy at law, citing Young v. Schwint, 108 Kan. 425, 195 Pac. 614, where it was held in an action for specific performance of a contract for the sale of land, that specific performance is not a matter of course and that it would be decreed only when upon all the facts it is equitable that it should be done, and where it was doubtful whether the minds of the parties ever met in respect to the meaning of certain terms, and in view of all the circumstances and the great inadequacy of price specific performance should not be ordered.
Appellee also cites Seward v. Seward, 59 Kan. 387, 53 Pac. 63, where a widow sued to recover from a life-insurance company the amount of a beneficiary certificate on the life of her husband, alleging that others claimed some interest in the matter, making them defendants, and they in turn answered that the deceased had, just prior to his death, revoked the former arrangement as to beneficiary and named one of the defendants instead. To this the plaintiff replied that at the time of the alleged change the deceased was mentally incapable of making the change, and it had been procured by fraud, duress and undue influence. The money was paid into court, and the case was tried by a jury to determine which party should have the money. This court held that it was neither commenced nor tried as an equity case, the action being for the recovery of money only, and was properly submitted to a jury.
Our attention has also been directed to a number of cases where plaintiff sought to recover possession of real property, and they were held to be actions at law and either party would be entitled to demand a jury.
In the case of Chadsey v. Condley, 62 Kan. 853, 62 Pac. 663, it was held:
“An optional agreement to sell and convey land, signed by the owner alone, although unilateral at its inception, becomes absolute and mutually binding on both parties if the option be accepted by the vendee within the time and on the terms specified; and such an agreement will be specifically enforced, if fairly made and for a sufficient consideration.” (Syl. If 1.)
It was held in the case of Knipe v. Troika, 92 Kan. 549, 141 Pac. 557, that—
“In an action for the specific performance of a contract to convey real estate, and as a minor consideration to deliver personal property also, an order made upon the trial of the principal issue that questions concerning the delivery of the personal property and damages for default should be tried afterward, upon a modification of the pleadings to more clearly present that issue, is not erroneous.” (Syl. 114.)
The case of Municipal Power Transmission Co. v. City of Lyndon, 127 Kan. 59, 272 Pac. 158, was where there had been a contract between two cities whereby one was to furnish electric current to the other, and it did so for several years, then the selling city sold its distributing plant to another party and assigned its contract with the other city, which was fulfilled for two more years, when the purchasing city repudiated the contract, and it was held the assignee of the contract was entitled to specific performance.
In the mining case of Zelleken v. Lynch, 80 Kan. 746, 104 Pac. 563, where the owner of lots made a long-term oral lease thereof for mining purposes and the tenant entered into possession, made expensive preparations and developed the property and operated the mines thereon for three years, after which the owner refused to execute the lease for the agreed period, it was held:
“. . . that as against a claim of want of mutuality in the obligation and remedy of the parties specific performance of the oral agreement should be decreed.” (SyL 12.)
The language of the stipulation, which it is alleged in the amended petition is out of harmony with the contract and should be reformed, is as follows:
“. . . and the value of the use of the land occupied by said one-half of said wall upon the land of said Eda Quinn, as of this date.”
The language of the originally prepared award which was crossed off by the arbitrators and said by plaintiff to need reformation to agree with the terms of the contract is as follows:
“We, the undersigned, having been selected and duly qualified to appraise the value of one-half of the property wall of the building owned by the Beloit Building Company, being that part extending upon the east half of lot eight, block twelve, in the city of Beloit, Mitchell county, Kansas, and to appraise the value of the use of wall, to wit, nine inches upon which said wall stands.”
In the original party wall option contract the parties of the first part were the owners of the east half of lot eight and grantors of the defendant Eda Quinn, and the party of the second part is the plaintiff herein and owner of the west half of said lot eight, and was the owner thereof in 1889 when the contract was made.
The part of the original contract particularly necessary to compare with the above alleged mistaken statements is as follows:
“In consideration of the right of use of said premises of said parties of the first part hereinbefore described, the said party of the second part hereby promises, covenants and agrees that in case the said parties of the first part shall at any time hereafter elect to build a stone or brick building on the east half of said lot number eight (8), and shall elect to join said wall of the party of the second part, and use the said wall as one wall of said building, then said party of the second part hereby agrees to sell said parties of the first part one-half of their said wall; and the price or sum of money to be paid to said party of the second part by said parties of the first part shall be ascertained as follows: The parties of the first part shall select one person to act as arbitrator, and party of the second part shall select one person as an arbitrator, and the said two persons so selected shall choose a third person to act with them; and said three persons so chosen shall appraise the value of one-half of said wall and the value of the right of use of nine inches of ground upon which said wall stands, being the number of inches of ground upon which said wall stands, being the number of inches of ground in excess of one-half on which said wall shall stand, owned by the party of the second part, the value of wall and use of ground to be appraised at the value at the time party of the first part shall elect to erect a building on said lot and use said wall. Said party of the first part shall pay to said party of the second part the sum of money so named by said appraisers, as aforesaid.” (Italics ours.)
The stipulation in which the first of the alleged mistakes occurs refers to this original contract by its date and is an acceptance of the option therein provided, and a careful reading of the portion of the contract, particularly the parts italicized, plainly shows that the only payments provided to be made thereunder are to be made by the parties of the first part to the party of the second part, and the value of the use of the nine inches of ground upon which the wall stands is that which is in excess of one-half on which the wall stands and owned by the party of the second part. There was therefore something before the trial court for reformation by virtue of the allegations of the plaintiffs’ amended petition, as this reference in the stipulation to the value of the use of the land of Eda Quinn is entirely out of-harmony with the definite terms of the contract which the stipulation states defendant is accepting.
It can also be said that the language of the originally prepared award distorts and changes the definite terms of the contract, which it was supposed to follow, and it, too, needs reforming as requested in the amended petition. The award alleged to have been made properly shows that under the terms of the contract the two items go together, but it is said that the award was rendered by only a majority of the arbitrators and in the absence of the third. For this reason it may not, in its present form and substance, be effective, although if otherwise proper a majority may render an award, as stated in R. S. 6-107.
It was held in the case of Swisher v. Dunn, 89 Kan. 412, 131 Pac. 571, that awards of 'arbitrators, if irregular in any particular, may be set aside.
In the case of Haston v. Citizens State Bank, 132 Kan. 767, 297 Pac. 1061, it was held:
“The court, having held that the plaintiff was not entitled to the specific performance asked and having before it all the interested parties and all the evidence pertinent to the transaction out of which the controversy arose, was warranted in proceeding to determine the rights of the parties and to administer equity between them.” (Syl. If 4.)
In the opinion in the case of Guild v. Railroad Co., 57 Kan. 70, 45 Pac. 82, it was said, at page 80:
“It would seem to be settled, under the authorities, that where there is an agreement for the purchase and sale of lands or chattels to be appraised by third parties, and such agreement is upon a valid consideration, and where the appraisement is rather an incident of the contract than a single subject of agreement between the parties, one party may not retain an advantage gained by the contract and revoke the authority of the appraisers.”
In an action for specific performance it was said:
“Where in such action the plaintiff asks for the conveyance of a specific tract, upon the ground that the defendant had selected it, although such selection may be ineffective because not made in writing, the petition is not on that account demurrable, for it may state facts sufficient to entitle the plaintiff to a conveyance of some portion of the larger tract, although he may not be entitled to the very part claimed.” (Peckham v. Lane, 81 Kan. 489, syl. ¶ 2, 106 Pac. 464.)
The following statements from opinions rendered outside of this state are pertinent:
“An option to buy or sell land, more than any other form of contract, con templates a specific performance of its terms and it is the right to have them specifically enforced that imparts to them their usefulness and value.” (Watts v. Kellar, 56 Fed. 1, 4.)
“A vendor of real estate may recover the purchase money by a suit in equity for specific performance in every case where the vendee would have the right by such a suit to compel the execution and delivery of a deed by the vendor.” (Raymond v. San Gabriel Val. Land and Water Co., 53 Fed. 883, syl. ¶ 1.)
“Where in a contract of sale of real estate at a -price to be fixed by appraisers chosen by the parties, the stipulation for the valuers is not a condition nor the essence of the agreement, but is subsidiary or auxiliary to its main purpose and scope, and the parties may not be left or placed in statu quo by a refusal to enforce the contract, a court of equity may.determine the price itself, by its master or by appraisers of its own selection, and may enforce specific performtance of the agreement of sale.” (Castle Creek Water Co. v. City of Aspen, 146 Fed. 8, 12.)
Under the above authorities we have no hesitancy in concluding that the claim of the plaintiff in its amended petition states a cause of action in equity for specific performance, and should be tried by the court, and that under the terms of the original contract the plaintiff should recover not only for the value of one-half of the wall but also the value of the right of use of nine inches of ground upon which the wall stands, being the number of inches of ground in excess of one-half on which it stands, owned by the plaintiff.
The matter of the regularity of the action of the arbitrators in making and reaching an award is not, strictly speaking, here on appeal. It was not passed upon by the trial court. Neither is the matter of the right to an injunction before us at this time, except to state that the granting of such rests in the sound discretion of the trial court.
The ruling of the trial court on the motion of the defendant is reversed and the cause is remanded with instructions to continue the trial of said cause as a qase in equity for specific performance in accordance with the construction placed herein upon the terms of the original contract. | [
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The opinion of the court was delivered by
Hutchison, J.:
This was a compensation case and there are two law points involved in the appeal: (1) Whether the widow of the deceased workman had under the findings of the trial court abandoned her husband, as intended by R. S. 1933 Supp. 44-508, and excluding' herself thereunder from being partially dependent; and (2) whether a married woman, a sister of the deceased, in very poor health, who had been largely supported by the deceased for two and one-half years, but had never been a member of his family, and had been separated from her husband for several years but not by divorce — and he a strong, healthy, able-bodied man able to earn wages — is entitled to take as a dependent of her deceased brother under the compensation law.
The sister commenced this action as complainant before the compensation commissioner, and when it came to the hearing and the commissioner learned that there was a widow he ordered that she be brought in as a party. She was, and was represented by counsel and testified at length in the case. The commissioner found her to be- partially dependent and awarded her twenty per cent of the compensation, which was calculated from data furnished by stipulation and amounted to $535.84. The balance of the compensation, if the full amount was allowéd, aside from the amount paid the workman in his lifetime, was $2,143.38.
The commissioner, after hearing all the testimony, as usual, stated a history of the case, made findings and awarded the widow $535.84 and denied the claim of the sister as a dependent. From this award and any and all the decisions and findings by the commissioner, the sister appealed to the district court. The widow did not appear before the district court in person or by attorney.
The trial court, after repeating the history given by the commissioner, stated: “The commissioner’s statement above is a fair statement of the evidence contained in the transcript so far as stated by him, as the basis of his opinion.” The substance of the history so made by the commissioner, and copied by the trial court, is as follows:
“The widow and the deceased were not living together at .the time of deceased’s accident and death and had not been for more than six months prior thereto. However, there was not an abandonment, and though the widow had earned most of her livelihood, yet the facts show such contribution by the deceased as to warrant a finding of such partial dependency by the widow as to entitle her to twenty (20%) per cent of the amount allotted for total dependency. ...
“The sister in this case is a married woman whose husband is physically and mentally capable of wage earning. She has, however, been living separate and apart from her husband for a number of years and the testimony here is that her husband abandoned her. This claimant testifies that for more than two years prior to the death of deceased she had been supported by deceased and that she is and has been physically unable to earn a livelihood. She states that about six years prior she worked in a home about a month or two and at the time of deceased’s accident she worked at a hotel for about a month and a half, but couldn’t hold the job. Claimant was, during the course of the hearing, examined by a doctor who made a report to the commissioner, and to enable the parties to determine if they wished to have claimant examined further and produce further testimony, the commissioner advised that he would conclude from the testimony before him that claimant was an invalid. The parties did not seek to have further testimony produced. This claimant never lived with deceased, though she says she saw him every day, as she cooked and washed for him.
“Is a married sister, whose husband is physically and mentally capable of wage earning but who has deserted her, and who is not living with a brother although she is being supported by him, to be considered a member of such brother’s family so as to be a dependent within the meaning of the Kansas workmen’s compensation act?”
The trial judge made further findings of fact in his opinion with reference to the question of abandonment, which are as follows:
“The evidence in the record when briefly stated amounts to this: The deceased, prior to sometime in 1932, was working for the North-Mehornay Company, earning $18 per week, and things were serene between husband and wife; that the deceased in that year lost his job and had not worked up to July 9, 1933; that Dan Terry and his wife were living in Kansas City, Missouri, and with them lived the wife’s mother and her daughter and husband; that Blanche Terry, the wife, was working during all of the married life and still is ■working and earning wages; that shortly prior to July 9, 1933, a son of Dan Terry, living in Texas, wrote to his father that he and his wife and little daughter were coming to Kansas City, and to the same house with his father. Mrs. Terry, without any ado about it, announced to her husband that she was leaving; that she had wanted to get rid of him for about three years; that Dan Terry remonstrated with her, told her she couldn’t leave and begged her to stay till Monday; that she declared that she was going.and she did go. The husband followed her out into the yard crying and begging her to stay; that she stated that she had already paid rent on an apartment of four rooms where she was going to live; that she returned on the eleventh to get some of the furniture and that while there her husband requested her to see him alone. She replied, ‘If you want to see me about coming back, I am not coming back.’ The evidence shows further that she departed with some of the furniture and that her husband assisted her in moving; that he went up to help her fix up her apartment and that she claims that he went to her place a few days afterward ■in an intoxicated condition and disturbed her peace, whereupon she had him arrested, but she did not appear. She says in her testimony that during all of the time since Blanche Terry left her husband, he frequently begged her to come back to him. She testifies that she told him she would come back when he got a place just big enough for the two of them. The evidence shows that when she had him arrested, he had no employment, but that he later obtained employment at Wilson & Company and began giving her or paying for her, small sums of money; that her husband moved from the place where they separated, into another apartment and while there, he had a friend with him who was also working with him at Wilson & Company, by the name of Henry Miles, and that he requested Henry Miles to leave because his wife had promised to come back to him and he wanted the room so his wife could live with him, but that his wife did not return. The evidence further shows that while Dan Terry visited her frequently, she never at any time demanded money from him for support, nor did she offer to let him come and stay in the apartment where she was residing if he would pay the rent or perform any other duties. That she had notice of the accident and injury to her husband, but never visited him while he was in the hospital, which was a period of about seven weeks, nor was she present when he died, but it does show that she was present at the funeral, nor that she took charge of the body or exercised any rights of a wife in regard to. the funeral. That she never made a claim for compensation, but from suggestion of others appeared at the hearing before the commissioner, where she set up claim to partial dependency. It is true that she testified that he visited her frequently; that they talked about living together again; that the separation was mutual until they could locate together, and that he gave her money from time to time, but in weighing this testimony I have in mind that Dan Terry is dead; that these are communications between husband and wife; that there is no one to dispute them; that while in a hearing before the commissioner such evidence is competent and is competent before this court in compensation cases, it is still subject to close scrutiny when it comes to giving weight to it.”
The trial court concluded that the widow had voluntarily abandoned the deceased workman and was not a partial dependent and that the sister was a dependent and entitled to the entire amount of compensation, and rendered judgment in her favor for $2,679.22, from which judgment the respondent appealed to this court.
The appellant insists that under the findings of the trial court the widow had not abandoned the deceased workman, as contemplated under the provisions of R. S. 1933 Supp. 44-508. The appellee insists that the question of abandonment is one of fact and not of law, and therefore it is not within the jurisdiction of this court to review it after it has been determined by the trial court, citing in support of that view Shay v. Hill, 133 Kan. 157, 299 Pac. 263, and Meredith v. Seymour Packing Co., 141 Kan. 244, 40 P. 2d 325. The contention of the appellee is undoubtedly correct if the question of abandonment is purely a question of fact. The Shay case, above cited, involved the matter of whether or not the deceased was an independent contractor, and the court there said:
“While this court has the same transcript before it the district court had, it is not the province of this court to determine whether the evidence, duly weighed and duly considered in the light of the legal definition of independent contractor, supports one conclusion better than another. The question here is: Was there evidence, whether opposed or not, warranting a reasonable inference, although a contrary inference might reasonably be drawn, to sustain the judgment of the district court.” (p. 158.)
And the court concluded that the question of whether the workman was an employee or an independent contractor was purely a question of fact.
Corpora v. Kansas City Public Service Co., 129 Kan. 690, 284 Pac. 818, was where the workman, a few minutes prior to the beginning time, went to register his attendance and then went to a dressing room and there sustained a fall and injury while putting on his overalls, from which injury and other infirmities he died, and the question was whether or not the injury was incident to the employment. The compensation commissioner found that it was. The district court on the same evidence concluded it was not, and this court on review found that it was incident to the employment, reversing the district court, and it was said on page 693, after speaking of the limitation of jurisdiction in this court to law points only:
“In this case, however, it is not apparent that the district court disagreed with the compensation commissioner on any mere question of fact. While the trial court made a finding that the injury to the workman did not arise out of his employment, that finding was a conclusion correctly or incorrectly deduced from the evidence about which there was no serious controversy.” (p. 693.)
The case of Kearns v. Reed, 136 Kan. 36, 12 P. 2d 820, was another case of whether the injury arose in the course of employment, and it was held:
“Under the limited jurisdiction of this court in compensation cases by the enactment of 1929 (R. S. 1931 Supp. 44-556), it remains for this court to determine on review if there was sufficient evidence to support the finding of the district court that the deceased sustained injuries by accident arising out of and in the course of his employment resulting in his death. This is, strictly speaking, a law point and included within it are the two other law questions of whether the injury was an accident, and whether it arose out of and in the course of his employment.” (p. 39.)
Surely the question of abandonment under the compensation statute, as well as under any other statute, is a question of law after the facts have been determined, and the question of whether or not there were sufficient facts to sustain the conclusion of the trial court that abandonment had been established is also a question of law.
In the case of Banta v. Banta, 112 Kan. 713, 212 Pac. 657, which was a divorce case, it was held:
“To establish abandonment it is necessary to show cessation from cohabitation for the statutory period, and where the husband is away from home a large portion of the time, and the parties have grown children living in a near-by city and the wife, in accordance with a prearranged plan of the family, including the husband, goes and lives with the children, and the husband visits her at frequent intervals and she returns home at intervals, during all of which times they cohabit together as man and wife, and this practice continues up to within eight months prior to the filing of the petition for divorce, the granting of a divorce to the husband on the grounds of abandonment, held error.” (Syl. 112.)
R. S. 1933 Supp. 44-508, which defines “members of a family,” and especially as to separation of husband and wife, is as follows:
“In the meaning of this section a widow shall not be regarded as a dependent of a deceased workman or as a member of the family, if she shall have for more than six months willfully or voluntarily deserted or abandoned him prior to the date of his death.”
If the statute had used the words “lived separately from him willfully and voluntarily,” it might have been simply a question of fact, but when it uses the terms “deserted” and “abandoned” our courts have found it necessary to interpret and define such terms, as was done in the case of Banta v. Banta.
Webster’s New International Dictionary, 2d ed., defines abandonment as “Desertion by a husband or wife of his or her consort with the intention of creating a permanent separation.”
Bouvier’s Law Dictionary, 3d ed., defines abandonment as follows:
“By Husband or Wife. The act of a husband or wife who leaves his or her consort willfully, and with an intention of causing perpetual separation.”
19 C. J. 56 defines abandonment as used in connection with divorce proceedings as follows:
“Desertion or abandonment consists in the voluntary separation of one spouse from the other for the prescribed time without the latter’s consent, without justification, and with the intention of not returning.”
Taking the findings of the trial court, including the last sentence copied herein, which discredits some of the testimony of the wife in this case, the evidence, as stated, does not show the intention required in the definition of desertion or abandonment. We therefore conclude that the wife was not, by the evidence found by the trial court, shown to have deserted and abandoned her husband so as to exclude her under the statute from being partially a dependent of his.
This holding may not entitle her to recover compensation, as the matter appears to be moot, as is claimed by the appellee, for the reason that she did not appeal from the order or judgment of the trial court, and the appeal of the respondent would not have the effect of restoring to her the benefit of the award made by the compensation commissioner, but the question of her dependence in whole or in part upon the deceased workman at the time of his death may be proper to be considered in connection with the second question of law here involved.
The second law question involved is the right of the sister of the deceased workman to be his dependent under all the facts found by the trial court. The pertinent part of the statute here involved (R. S. 1933 Supp. 44-508) is as follows:
“ ‘Dependents’ means such members of the workman’s family as were wholly or in part dependent upon the workman at the time of the accident. ‘Members of a family,’ for the purpose of this act, means only legal widow or husband, as the case may be, and children; or if no widow, husband or children, then parents or grandparents; or if no parents or grandparents, then grandchildren; or if no grandchildren, then brothers and sisters.”
The question under this statute is whether there was sufficient evidence in the findings stated by the trial court to support the conclusion or judgment that th’is sister, the claimant herein, is a member of the family of the deceased workman and a dependent of his. This is purely a question of law as was stated in Fair v. Golden Rule Refining Co., 134 Kan. 623, 7 P. 2d 70, as follows:
“A judgment in a workmen’s compensation case, as in any other case appealed to the supreme court, should be. supported by substantial, competent evidence.
“Whether a judgment is supported by substantial, competent evidence is a question of law, as distinct from a question of fact.” (Syl. ill 2, 3.)
Under the findings the sister is not shown ever to have been a member of the family of the deceased.
Appellee cites the case of McCormick et al. v. Coal & Coke Co., 117 Kan. 686, 232 Pac. 1071, which refers to the matter of determining the relative claims of dependents and the proportion thereof and particularly the degree of dependency, as being said to be questions of fact. But that was not under the present statute as to appeals and reviews in such cases. The parties there involved were the widow and two minor children and the additional question of the remarriage of the widow, and it was held the respondent was not concerned with the question of the apportionment of the compensation among those wholly dependent.
Appellee cites the decision in the case of Winchester v. Stanton-Wallace Construction Co., 124 Kan. 458, 260 Pac. 614, where it was held that the mother of the injured workman, with whom he was living at the time of the injury, was a partial dependent, and the wife was held to have abandoned him, and she and their young daughter were living with her parents, and the daughter was given sixty per cent and the mother forty per cent of the compensation, which was approved by the court.
The case of Fennimore v. Coal Co., 100 Kan. 372, 164 Pac. 265, is cited, where a minor son was injured and died, and it was held that the parents were dependents under the statute, he being their only son, unmarried and had always lived with them, although the father owned his home and other property and received a regular salary of $125 a month.
It can readily be noticed in the cases above cited the importance and emphasis that is placed upon the fact of being a member of the family. (See, also, Young v. Shellabarger Mill and Elevator Co., 123 Kan. 628, 256 Pac. 992.)
It was said in Taylor v. Sulzberger & Sons Co., 98 Kan. 169, 157 Pac. 435, that—
“It is not the purpose or policy of the statute to continue compensation to a dependent minor after reaching the age of eighteen years unless physically and mentally incapable of earning wages, or to award compensation to an adult married son, the head of a family living separate from that of his mother, who from her wages as an employee made small contributions towards his support, he being physically and mentally capable to earn and actually earning fair wages.” (Syl. 112.)
In the case of Dunnigan v. Coal Co., 115 Kan. 57, 222 Pac. 109, it was held:
“Assuming, without deciding, that a married man, thirty years of age, having a family consisting of a wife, three children and a mother-in-law, and having a household establishment of his own, could because of temporary physical ailments be classified as a dependent member of the family of his single brother who was two years his junior, the trial court committed no error in terminating an award of compensation when such senior brother’s temporary ailments and disabilities had ended and when he was restored to full physical capacity to earn wages for himself and family.” (Syl.)
And in the opinion it was said:
“It is possible, of course, that an invalid brother could be a dependent member of another brother’s family and thus entitled to compensation. But Patrick Dunnigan, deceased, had no family, no dependents of any sort within the meaning of the statute.” (p. 60.)
As stated above, the very important feature in the determination of dependency and the sufficiency of the evidence and findings in support of a conclusion of dependency seems to be largely the question of being a member of the family of the injured workman, and we are not convinced that the findings in this case are sufficient to support a conclusion that this sister, the claimant, although an invalid and had for more than two years received support from her brother, now deceased, was such a member of his family and otherwise found to be situated as to entitle her to be properly classed as a dependent under the provisions of the statute defining such dependency.
The judgment of the trial court is therefore reversed. | [
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The opinion of the'court was delivered by
Burch, J.:
The action was one to compel performance of a gas-purchase contract, and to recover damages for nonperformance. Plaintiffs prevailed, and defendants appeal.
The district court made extended findings of fact, based on voluminous evidence, introduced in support of issues formed by pleadings, the framing of which consumes 88 pages of the abstract. The meritorious questions are just two, and are very simple. Was there a contract, and if so, was the contract against public policy? The court will make only a brief statement of the case, utilizing established facts, inferences from established facts, and conclusions of law indiscriminately, as may be necessary for purpose of condensation and abridgment.
W. N. McKnab and W. L. Sidwell went into wildcat territory and discovered a natural-gas field in Stevens county. Wells were very difficult to drill and very expensive. The discoverers began to market gas in a small way in the vicinity of the field, and began to look about for other markets. An engineer was employed, who made a survey to determine possibility of substantial marketing of gas from the field. Without an engineer's report, a glance at a map will show that the profitable markets accessible from the field were Dodge City and Garden City. There is a sugar factory just outside Garden City which would likely be, and in fact became, the largest consumer of natural gas in southwestern Kansas. Along pipe-line routes were small places which could be served, and there was a possibility pipe-line extensions might reach other markets. To supply city markets it would be necessary to obtain franchises, build pipe lines, and install distributing systems. To keep up production and maintain reserves new wells must be sunk, and existing leases must be kept alive. One not in the gas game can see that profitable gas business involves two reciprocal and mutually dependent branches, production and distribution. Large profits come from large production and large distribution, which require expenditure of large sums of money.
Sidwell obtained a franchise at Hugoton, in Stevens county, built a short pipe line, and put in a distributing system there. McKnab negotiated for a franchise at Dodge City, in Ford county, but consummation of the grant was delayed to see what the grantee would be able to do by way of assured production. About this time, with actual production small but potentially great, and actual distribution small but potentially great, A. J. Hardendorf appeared, and negotiated with McKnab and Sidwell, who lacked capital to carry on both branches of their business in a profitable way. The result was separation of distribution from production by two contracts, whereby McKnab and Sidwell confined themselves to' production, and Arthur K. Lee, trustee, became distributor. The first contract was dated December 29, 1928, and provided for the other contract, which was dated January 18,1929.
Pursuant to the contracts, production and distribution began in earnest. The Dodge City franchise was consummated. A pipe line to Dodge City was completed, a distributing system was installed there, and towns along the pipe line were supplied with gas. In construction of the Dodge City pipe line, provision was made at Copeland Junction, the nearest point to Garden City, for connection of a pipe line to Garden City.
Other persons and companies in the gas business took notice, and a ruthless contest was on for the prizes, Garden City and the sugar factory. Ultimately a franchise was granted to the Garden City Gas Company. A pipe line was built connecting with the Dodge City pipe line, and by means of the two pipe lines, Garden City and the sugar factory were supplied with gas from the McKnab and Sidwell wells.
A corporation is a means to an end of great social value, but the corporate method of doing business may be overdone. In some instances, in recent times, it has become a social menace. In this instance, the simple McKnab and Sidwell — Lee, trustee, enterprise became involved in a corporate structure, the units of which were as plentiful as blackberries in season. The Lee, trustee, distributing interests, including benefits and burdens, passed to the Argus Pipe Line Company. The Argus Pipe Line Company is owned by the Northern Gas and Pipe Line Company, which is a tool of other corporations, involved in one way and another in a network of corporations having to do with production and distribution of gas extending from Texas to Minnesota.
In order to get a franchise in Garden City it was necessary that the grantee be a Kansas corporation. So the Garden City company was organized under Kansas law, with 5,000 shares of nonpar stock, but the shares were issued to the Northern Gas and Pipe Line Company. Abbreviating law and facts, the Argus Company and the Garden City Company constitute n single concern, under one management, for distribution of gas from the McKnab and Sidwell wells* pursuant to the contracts of December, .1928, and January, 1929.
The contracts were performed on both sides for a while, and then the power which wiggles the tentacles of the corporate octupus which has been referred to,' deliberately and arbitrarily discontinued taking gas from the McKnab and Sidwell field.
The McKnab and Sidwell interests passed to plaintiffs, the Southwest Kansas Oil and Gas Company, a corporation, the Stevens County Oil and Gas Company, a corporation, and the Texas Interstate Pipe Line Company, a corporation.
The initial contract between McKnab and Sidwell on one side and Lee, trustee, on the other, embraced several subjects. It provided for purchase by Lee, trustee, of the existing Hugoton franchise, pipe line and distributing system, and purchase by Lee, trustee,, of the Dodge City franchise, if it became effective. Among still other provisions, the contract contained the following:
“6. It is further agreed that in’ event the franchises above referred to or either of them are conveyed, assigned and delivered to the party of the second part, then the party of the second part agrees to buy and the parties of the first part agree to sell, all gas produced from any and all of the gas wells developed by first parties or their assigns in the vicinity of their present holdings in Stevens county, Kan., up to the requirement of second party in serving the cities of Dodge City, Hugoton and all other towns and customers served by him or his assigns, up to the reasonable capacity of such wells on property now owned by first parties or hereafter acquired, the said first parties, however, to develop their property so as to produce, if possible, a minimum of ten million feet per day before completion of gas line to Dodge City.
“In the event of failure of first parties to so develop the properties held by them to meet the requirements of second party, and to maintain a production under test exceeding by sixty (60) per cent the peak load purchased by second party or his assigns, then the second party or his assigns shall have the right to enter on such property and drill additional wells, taking the costs of such wells out of the gas purchased, or the second party shall have the right' to obtain additional gas from other sources, but without liability on the part of first parties.
“7. The second party or his assigns agree to pay to first parties or their assigns, a sum of monej equal to eight cents per thousand cubic feet,.of gasdistributed by second party for domestic consumption and six cents per thousand cubic feet of gas distributed by second party for industrial consumption, such gas to be measured at the well at 14.4 pounds atmospheric pressure, and the price at the well prorated on the basis of the percentage of gas distributed for each of such purposes.
“The term of such gas-purchase contract shall be for the term of the franchises held by second party, or the life of the field.
“8. A gas-purchase contract embodying these terms shall be executed by the parties hereto or their assigns in a separate instrument.”
The gas-purchase contract provided for in the first contract fixed prices of gas sold and bought, fixed duration of the contract, con tained other provisions pertinent to a gas-purchase contract, and contained the following provisions, McKnab and Sidwell being parties of the first part and Lee, trustee, being party of the second part:
“Whereas, parties of the first part desire to sell and party of the second part desires to buy gas produced from any and all wells upon said above-described lands.
"Now, therefore, party of the second part agrees to buy and parties of the first part agree to sell all gas produced from any and all of the gas wells developed by first parties or their assigns upon their present holdings in Stevens county, Kansas, up to the requirements of second party in serving the cities of Dodge City, Hugoton and all .other towns and customers served by him or his assigns up to .the reasonable capacity of such wells on property now owned by first parties. First parties agree to sell and second party agrees to purchase and receive at the mouth of the well or wells heretofore mentioned, drilled and to be drilled, all merchantable gas in its natural state as produced necessary for the requirements of second party during the term of the present leasehold thereon or any renewal thereof, and as long as gas is produced from said well in paying quantities.....”
The two instruments must be read together, and so considered they evidence the set of promises — that is, the contract — -for breach of which remedy is invoked. Defendants contend the contract lacks mutuality, and is so indefinite as to be unenforceable.
McKnab and Sidwell sold to Lee, trustee, the franchise procured at Hugoton, the Hugoton pipe line and the Hugoton distributing system. The sellers also sold the Dodge City franchise in fieri, which became effective. With respect to those places, the contract to sell and to buy gas was manifestly definite for the usual term in all such cases.
“A promises B to sell to him and B promises A to buy of him all goods of a certain character which B shall need in his business during the ensuing year. There is a contract.’’ (Restatement, Contracts, H 32, Illustration 12.)
The contract also provided that the seller would sell and the buyer would buy all the seller’s gas up to the requirements (need) of the buyer in serving all other towns and customers served by the buyer. Lee, trustee, was not then serving any town or customer, and this provision looked to the future. Defendants contend Lee, trustee, did not obligate himself to serve any other towns or customers.
The standard of interpretation of a contract when, as in this case, there is integration by adoption of writings as final and complete expression of agreement, is as follows:
“The standard of interpretation of an integration, except where it produces an ambiguous result, or is excluded by a rule of law establishing a definite meaning, is the meaning that would be attached to the integration by a reasonably intelligent person acquainted with all operative usages and knowing all the circumstances prior to and contemporaneous with the making of the intégration, other than oral statements by the parties of what they intended it to mean.” (Restatement, Contracts, § 230.)
“Correlative obligation sufficient to sustain specific performance may be implied from the situation of the parties and the circumstances surrounding the execution of the contract.” (Zelleken v. Lynch, 80 Kan. 746, 748, 104 Pac. 563.)
“If the conduct of the parties subsequent to a manifestation of intention indicates that all the parties placed a particular interpretation upon it, that meaning is adopted if a reasonable person could attach it to the manifestation.” (Restatement, Contracts, § 235 [e].)
Bearing in mind the principal apparent purpose of the parties is given great weight in determining the meaning to be given a contract (Restatement, Contracts, § 236 [b]), any reasonable person in possession of all the facts, excluding oral statements of intention by parties, would understand the contract in question to include prosecution of distribution beyond Hugoton and Dodge City, with accompanying expansion of production.
When the Argus Pipe Line Company acquired the rights and privileges and assumed the duties created by -the contract, distribution had been extended to a dozen towns besides Hugoton and Dodge City, in four counties besides Stevens and Ford. The towns were or soon became “towns and customers served.” Distribution, however, did not stop there. The master of the Argus and Garden City companies obtained the Garden City franchise, and the sugar factory as a customer, and supplied the city and the factory with gas from the McKnab and Sidwell wells. Any reasonable person could come to but one conclusion, namely, that the parties to the contract had interpreted it as meaning Lee, trustee, would continue to find markets which McKnab and Sidwell would supply.
The result is that by fair interpretation, verified by unequivocal conduct, the contract meant production and distribution would go hand in hand, after Hugoton and Dodge City were supplied, to include what was obviously the most desirable and- desired market to be reached. Besides that, the promise of Lee, trustee, to buy gas up to his requirements in serving “all other towns and customers served by him,” had been made perfectly definite and certain, and Garden City and the sugar factory had been brought within the terms of the contract.
In connection with the subject of mutuality, defendants refer to the decision in the case of City of Holton v. Kansas Power & Light Co., 135 Kan. 58, 9 P. 2d 675. The syllabus reads:
“In a contract between a producer of electric current and a city, the producer agreed it would furnish and sell to the city electric current sufficient for the wants of the city and its inhabitants for a period of years, and the city agreed it would purchase all the electric current used by it during the period from the producer. Held, the contract was not void for lack of mutuality.”
Defendants distinguish the case on the ground an established business was involved. There is no reason in law why a person proposing to produce, but not yet owner of gas land or gas lease, may not enter into a contract with another proposing to distribute but without a foot of pipe, having the effect of the contract between McKnab and Sidwell, and Lee, trustee.
Having reached the Garden City and sugar-factory goals, and having enjoyed the benefits of the contract for a period of time, the defendants had a lapse to virtue. It would be against public policy to supply Garden City and the sugar factory with gas, pursuant to the contract. Incidentally, defendants could buy gas for five cents per 1,000 feet, and so materially increase profits on the Garden City and sugar-factory service.
As indicated at the beginning, the contract created what was virtually a joint enterprise, including the interdependent elements of production on one side and distribution on the other. The territory within which the contract could operate was not supplied with gas and had not been explored for gas. There was no intent or attempt to stifle competition or to create a monopoly in service to the territory. No competitor able to produce, or distribute, or both, was restrained from serving the territory, and service to that territory would distinctly and manifestly promote the public welfare.
Under the common law, a bargain between two persons, requiring them to deal exclusively with each other, is not in unreasonable restraint of trade, unless in connection with monopoly. (Restatement, Contracts, § 516 [e].)
We have in this state a monopoly and unfair-trade statute, R. S. 50-101, supplemented by R. S. 16-112, which deals with the subject of contracts. They do not forbid exclusive sales of goods, wares or merchandise. (McConkey v. Motor Co., 112 Kan. 560, 211 Pac. 631.) The statute, which fixes the public policy of this state, and which need not be reprinted here, may be checked, provision by pro vision, and the contract in question does not transgress any one of them.
Defendants contend the contract was void, because it fixed the price of gas for resale to the public. The contention is not well founded. The case of Mills v. Ordnance Co., 113 Kan. 479, 215 Pac. 314, is cited, which illustrates the principle involved. In that case the contract of sale provided the purchaser should maintain the seller’s published list prices. There is nothing of that kind in the contract under consideration, either expressed or implied. A bargain in restraint of trade is illegal, not if there is restraint, but if the restraint be unreasonable. (Restatement, Contracts, § 514.) Length of time restraint is to last, and territory over which it is to spread, are not conclusive (Restatement, Contracts, §515, Comment c.), and in this instance clearly do not vitiate. Other features of the contract must be tested by the same rule of reason. (Restatement, Contracts, § 515, Comment a.)
No producer could go to the expense necessary to equip himself for large production, and then have the distributor say, “Cut your price in two or I will not take.” No distributor could acquire franchises obligating him to serve, construct pipe lines and install distributing systems, and then have the producer say, “Pay double or I will not supply you.” In this instance, price was a necessary element of the contract, and there is no suggestion the price was unreasonable when the contract was made, in view of the circumstances under which it was made. Customers may buy or refuse to buy at prices offered by the distributor, but the' contract between producer and distributor does not become illegal.
Illustrating the fact the contract had no tendency to suppress competition, there were numerous applicants for the Garden City franchise. A franchise was tendered to supply gas at a certain rate. Rivals were obliged to meet the rate. The city imposed a condition that the successful applicant should be a Kansas corporation. Finally a franchise was granted. A sentiment had been created (who first aroused it may be surmised) that local production should be encouraged. The franchise contained no provision that would foster local production. A referendum was held, and the franchise was repudiated. Then there was demand that whatever franchise was granted should provide that all gas furnished the city should be from the locality, if enough were available. Finally a franchise was granted to the Garden City Gas Company, a domestic corpora tion, which fixed rates, and which contained a provision that at least fifty per cent of the gas supplied to the city should be from local sources.
The city was permitted to intervene, and contends that to enforce the contract would be to prevent the Garden City Company from responding to public sentiment and taking more local gas if it wanted to. Garden City, as a municipal corporation, has no interest, protected by law, other than that created by the franchise which it granted. There is no complaint of violation or abuse of the franchise,. and the city has no standing to demand breach of a lawful contract of the gas company with its producer, to give the gas company a chance to be public spirited.
Plaintiffs had some wells connected with another distributing system, but there is no testimony the wells connected with the Argus system were also connected with the other system, or testimony showing feasibility of connection with and sale to the other system, until contract relations could be restored. The result is, what plaintiffs lost by breach of the contract was the quantity of gas defendants should have taken but did not take at the contract price.
The judgment of the district court is affirmed.
Hutchison, J., not sitting. | [
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The opinion of the court was delivered by
Hutchison, J.:
Three different school districts in Stafford county bring this action against the board of county commissioners, the county clerk and the county treasurer of that county, seeking (1) to recover money for the districts claimed by plaintiffs to have been paid by defendants out of the Barnes high-school fund under authority of an unconstitutional law, (2) to obtain a declaratory judgment declaring a certain law unconstitutional, and (3) to obtain an injunction against the board of county commissioners to prevent the charging of tuition of pupils attending high schools in adjoining counties against the Barnes high-school fund.
To the plaintiffs’ petition the defendants filed a general demurrer, which after due consideration was sustained, from which ruling the plaintiffs appeal, urging in particular that R. S. 1933 Supp. 72-3807, being section 2 of chapter 239 of the Laws of 1929, is unconstitutional, being in violation of three constitutional provisions and requirements. It is only the second part of this section that is involved in this controversy, that is, the part beginning with the word “Provided,” which portion is as follows:
"Provided, That where the pupil or pupils reside in a county operating un der the provisions of chapter 397, Laws of 1905, and acts amendatory and supplemental thereto, or in any other county and outside of any high-school district, the county commissioners shall allow and pay said tuition from the high-school fund of said county. Such payment to be made monthly for such time as such pupil or pupils may attend such school, on verified vouchers filed with the clerk of the high-school district or board of county commissioners wherein such pupil or pupils reside.” •
The title to this act is as follows:
“An Act relating to the payment of tuition of certain pupils attending high schools in counties other than that of their residence.”
Appellants maintain that this part of section 2, above quoted, making reference to the Barnes act, chapter 397 of the Laws of 1905 and acts amendatory and supplemental thereto, is unconstitutional and void for the reason that it undertakes to amend and repeal two original sections of the Barnes act and one section supplemental thereto, without referring to or repealing them, viz., R. S. 72-3003 and R. S. 72-3013 of the original act and R. S. 1933 Supp. 72-3006, being section 2 of chapter 235 of the Laws of 1925. The first of these earlier sections provides that — ■
“. . . the county treasurer shall pay the same to the treasurers of the school districts maintaining high schools according to the provisions of this act. ...”
The section of the supplemental law, above cited, contains the following provision near the close:
“. . . and said county treasurer shall pay such proportion of such fund to the respective treasurers of boards of education and school districts . . .”
Both of these sections require the county treasurer to pay the proportionate sums of the Barnes high-school fund to the several school-district treasurers. The earlier part of the last-mentioned section provides for paying each high-school district in the county $1,200 and the balance of said fund shall be apportioned among such high schools in proportion to the actual daily attendance of the pupils during the year. The other section of the original act, above cited, being R. S. 72-3013, provides:
“. . . That the county commissioners shall pay such tuition from the general fund of the county where such pupil resides.”
Now the new act of 1929, first above quoted, directs the county commissioners to pay to the high-school districts where the pupils attend from the high-school fund of the county where they reside. There are several radical changes affected by the law of 1929 which never before existed: First, the county commissioners allow and pay out the fund instead of the county treasurer; second, the county commissioners pay the tuition of resident students attending high schools in adjoining counties to high-school districts of such adjoining counties from the Barnes high-school fund, instead of paying it from the general fund of the county; and third, this high-school fund, which was formerly apportioned between the several high-school districts of the county, is now paid to districts in adjoining counties.
Section 16 of article 2 of the state constitution is as follows:
“No bill shall contain more than one subject, which shall be clearly expressed in its title, and no law shall be revived or amended, unless the new act contain the entire act revived or the section or sections amended, and the section or sections so amended shall be repealed.”
Is the allowing and paying the tuition to high-school districts in adjoining counties by the county commissioners out of the high-school fund instead of out of the general fund of the county, and the county commissioners thus disposing of this high-school fund instead of the county treasurer paying it to the school-district treasurers in a certain proportionate amount, an amendment and repeal of the provisions in the three earlier sections above cited or any one of them? It would certainly appear to be an amendment and repeal. Appellees concede that it is, but urge that it is a repeal by implication, citing texts and several Kansas decisions. The line between these two results is not easily drawn. The general rule- is to hold the act valid if it can be reaspnably done, and on the other hand repeals by implication are not favored. (Kansas Breeze Co. v. Edwards, 55 Kan. 630, 633, 40 Pac. 1004.)
The federal government and many of the states of the union do not have a constitutional provision similar to our section 16 of article 2, and it was said in State v. Pauley, 83 Kan. 456, 112 Pac. 141, that its use was —
“. . . to prevent uncertainty and confusion which might arise from adding or striking out words and making additions or substitutions without-rewriting the section as amended.” (p. 464.)
Appellees cite Parker-Washington Co. v. Kansas City, 73 Kan. 722, 85 Pac. 781, where an existing law authorizing cities of the first class to issue bonds for the purpose of improving streets was changed by a new law applying to cities having a population of more than 50,000 to meet such expenses by the issuance of special tax bills against the property chargeable with such costs, and it was held not to be within the purview of the constitutional provision as to amendment and repeal, and in that connection it was said in the opinion written by Judge Mason:
“The act of 1905 in a sense amends various sections of the earlier act, but it does so by implication; it does not cover their entire subject matter, and hence does not supersede them, but merely restricts the field of their operation; it is a complete and in a sense an independent enactment, which requires no reference to any other statute to make its meaning clear.” (p. 724.)
The act in the case at bar affects all the Barnes high-school districts throughout the state, and takes the tuition money from a different fund in every county in the state operating under the Barnes high-school law and places the handling and control of it everywhere in the hands of different county officers.
Another case cited by appellees is State, ex rel., v. French, 111 Kan. 820, 208 Pac. 664, where the new law referred to the same fund used for high-school purposes by different words than those used in the former act, and also the terms “county high school” and “rural high school” were apparently used confusedly, but the constitutional question under section 16 of article 2 was not involved. Another case cited by appellees is Harding v. Wyandotte County, 110 Kan. 542, 204 Pac. 763, which did involve this section of the constitution, and it was held not to be in violation of its provisions. The new law permitted the board of county commissioners in counties having a certain population to construct or reconstruct a courthouse and issue bonds therefor within certain limitations without a vote of the people. It will be readily noted that this did not in fact change the existing law, but only made exceptions to it as applied to certain counties.
A recent decision cited by appellee; State, ex rel., v. State Corporation Comm., 138 Kan. 159, 23 P. 2d 606, where two statutes concerning the blue-sky law were enacted at the same session of the legislature, legislative intent was the matter under consideration, rather than a constitutional question, and it was held these acts were irreconcilably conflicting and the latter enactment should prevail.
Alter v. Johnson, 127 Kan. 443, 273 Pac. 474, also cited by appellees, gave the following rule as regards conflicts in laws:
“A primary rule for the construction of a statute is to find the legislative intent from its language, and where the language used is plain and unambiguous and also appropriate to the obvious purpose the court should follow the intent as expressed by the words used and is not warranted in looking beyond them in search of some other legislative purpose or of extending the meaning beyond the plain terms of the act.” (Syl. If 1.)
In 59 C. J. 904 and 905 it is said:
“An implied repeal is one which takes place when a new law contains provisions which are contrary to, but do not expressly repeal, those of a former law. A statute, or a provision thereof, may be repealed by implication. Whether it has been so repealed is a question of legislative intent. While such a repeal is not favored, nevertheless it must be recognized and accorded effect where it is apparent that it was intended. Conversely, there is no room for repeal by implication where no legislative intent to repeal is indicated or expressed or an intent not to repeal is apparent of manifest. It has been held that repeals of statutes by implication are not to be worked piecemeal; but, as hereinafter shown, repugnancy may effect an implied repeal only pro tanto to the extent of the repugnancy. . . .
“The repeal of statutes by implication is not favored. The courts are slow to hold that one statute has repealed another by implication, and they will not make such an adjudication if they can avoid doing so consistently or on any reasonable hypothesis, or if they can arrive at another result by any construction which is fair and reasonable. Also, the courts will not enlarge the meaning of one act in order to hold that it repeals another by implication, nor will they adopt an interpretation leading to an adjudication of repeal by implication unless it is inevitable, and a very clear and definite reason therefor can be assigned. Furthermore, the courts will not adjudge a statute to have been repealed by implication unless a legislative intent to repeal or supersede the statute plainly and clearly appears. The implication must be clear, necessary and irresistible.”
In 25 R. C. L. 922 it is said:
“Where a repeal, if admitted, would operate to the prejudice of the government, the supposed repugnancy ought to be clear and controlling before it can be held to have that effect.”
The case of Atchison, T. & S. F. Rly. Co. v. Board of Education, 123 Kan. 378, 255 Pac. 60, was where the legislature attempted to change and modify an existing law relating to levies for school purposes by a new act by eliminating the maximum limit of levy, the classification of cities of the first class was changed from a population of 38,000 to 40,000, and a limit of six mills’ levy in one class and five mills in another, thus striking out eleven words and the first proviso in the old law, and “new matter was inserted radically changing the law." The new law was held to be in violation of section 16 of article 2, and unconstitutional. The following is part of the opinion so holding:
“Invalidity was multiplied, not cured, by dealing in wholesale fashion, with many statutes whose provisions were changed without compliance with the constitutional requirement. The act was not legislation by reference, because legislation by reference leaves the law referred to unmodified. (State v. Shawnee County, 83 Kan. 199, 110 Pae. 92.) The act was not a new, independent superseding act, a code complete in itself, relating to power of taxing bodies, including boards of education in cities of the first class, to levy taxes. It was not interpretative. It could not operate to repeal the law of 1907 by implication because that law was expressly referred to and modified, and attempt was made to repeal the inconsistent portion. The purpose of the constitutional restriction was ‘to prevent uncertainty and confusion which might arise from adding or striking out words and making additions and substitutions without rewriting the section as amended.’ ” (p. 382.)
In a case from Stafford county, concerning the levy of taxes for the support of the Barnes high schools in that county, the new act attempted to reduce the levy and insert a new basis of population, and it was said in the opinion:
“They are taxation statutes which attempt to amend a school law found in another statute book, which has itself been amended many times, and the method of amendment is to strike out part of the law, insert a substituted provision, and leave the remainder standing. The result is confusion in legislation, which section 16 of article 2 of the constitution sought to forestall.” (School District v. Hahn, 126 Kan. 117, 119, 267 Pac. 28.)
In Hicks v. Davis, 97 Kan. 312, 154 Pac. 1030, it was held:
“An act of the legislature which attempts expressly to amend or repeal a prior act must conform to the procedure prescribed by the constitution. (Const., art. 2, § 16.)
“In the body of a section of a statute enacted by the legislature of 1913 was an item appropriating a sum of money to the petitioner. The legislature of 1915 sought to abrogate that item by an act purporting to repeal the act of 1913 ‘in so far as it relates to item 106 of section 1 of said chapter.’ Held, that the later act wholly disregarded section 16 of article 2 of the constitution and is consequently void.” (Syl. ¶¶ 5, 6.)
See, also, State v. Barrett, 27 Kan. 213; State v. Carter, 74 Kan. 156, 86 Pac. 138; Fisher v. Beck, 99 Kan. 180, 160 Pac. 1012; and State v. Webb, 133 Kan. 650, 3 P. 2d 485.
Besides, this later act of 1929 did not attempt to cover all the grounds contained in any of the three earlier enacted sections, and under the authorities above cited it could not be held to have repealed any of them by implication.
We conclude that section 2 of chapter 239 of the Laws of 1929 is an attempt to amend preexisting laws in violation of section 16 of article 2 of the constitution, and is therefore unconstitu tional and void, and the demurrer to the plaintiff’s petition should not have been sustained.
Other questions of importance are argued in the briefs, but we deem the ruling on this question all that is necessary to determine at this time.
The judgment is reversed and the cause remanded with directions to overrule the demurrer to the petition. | [
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The opinion of the court was delivered by
Burch, J.:
After a shifting of plaintiffs and beneficiaries, the action in the district court became one by F. L. Hagaman, as administrator of the estate of George Miller, deceased, to recover damages for Miller’s death. Death was caused by collision between two motor trucks. One was owned by John Manley, doing business as the Manley Transfer Company. At the time of the accident this truck was operated by John Lowen. Miller was riding in the other truck. Manley and Lowen were made defendants.
The action was originally commenced by Janie Miller, as administratrix of George Miller’s estate. Janie claimed she had been Miller’s common-law wife. As such, the probate court had appointed her as administratrix. Then a technical impediment to effective exercise of Janie’s rights as widow and administratrix was discovered. She had a regular husband, Sam Moore, from whom she had not been divorced.
Many years before Miller’s death, Moore had sued Janie for divorce, but the action had been dismissed for want of prosecution. In 1919, assuming Moore had procured a divorce, Janie openly and notoriously took up with Miller as his common-law wife, and for some eleven years they shucked their shoes together in many places, from Ardmore, Okla., to Butte, Mont. Finally they came back to Kansas City.
One day in June, 1930, Miller met an eighteen-year-old girl, who was on her way to the drug store. The result was, that soon afterward they commenced to common law together. Her name was Helen. Helen contested Janie’s, claim that Janie was Miller’s common-law widow, and entitled to be administratrix. To protect her interest, Janie sort of quieted her title. She went into district court, had the dismissal of Moore’s old divorce action set aside, had the record “corrected,” and procured a nunc fro tunc decree of divorce to be entered against herself and in favor of Sam Moore.. The result of this solemn judicial pronouncement in furtherance of justice and Janie’s damage suit was that Miller died leaving, so far as known, at least two common-law widows. That muddled the damage suit. Perhaps under the law that the first shall be last (Matthew XX, XVI) the probate court removed Janie as administratrix, but in furtherance of justice and the damage suit, the probate court fixed up matters in this way: Janie had one lawyer and Helen had another. Helen waived privilege to be appointed administratrix, her lawyer was appointed administrator, and Janie’s lawyer was retained as attorney for Helen’s lawyer. By leave of court, Helen’s lawyer, as administrator, was substituted for Janie as plaintiff in the damage suit.
Janie’s suit as administratrix had been for her benefit as common-law widow. The petition was amended to show that the administrator’s suit was for the benefit of Helen as common-law widow. The attorney for defendants made trouble over the shift of beneficiaries, and finally the petition was amended to make it read that the. damage suit was for the benefit of Helen or Janie, .as interest might appear.
.The damage suit .was for $10,000, a good round sum, and the attorney for defendants insisted that since there is no flat rate for common-law widows, interest in fact ought to be determined.
At the time of his death, Miller was working for the government and was earning $3.20 per day for one day in the week. The day he was killed he was going fishing. The damage suit for Helen’s benefit was for deprivation of support, maintenance, companionship and consortium, which must have been chiefly for companionship and consortium. She was with him on the fishing trip.
Janie testified that before Miller took up with Helen, he had .lived with a woman named Anna, and had lived with a woman named Luella, and Janie just lost confidence in him. Janie said that while Miller was living with Helen, he would visit Janie, but he hadn't supported her much, would give her fifty cents or twenty-five cents, whatever he had.
The verdict was in favor of plaintiff for $3,000, for somebody’s benefit.
The accident which resulted in Miller’s death occurred just south of the south entrance to a bridge over Turkey creek on highway 10, between Merriam and Kansas City. The highway extends in a northerly and southerly direction from the bridge. The bridge is sixty-six feet, five inches long. The roadway on the bridge is eighteen feet wide, but at each end of the bridge the roadway is narrowed twenty-eight inches.
Cornelius Robinson had converted a Buick touring car into a half-ton truck by putting a box bed on the rear end. Back of the driver’s seat were two benches or seats, constructed of boards put across the bed. On the day of the accident, Robinson, Miller, and several ladies started from Miller’s house on a fishing trip, in the Buick truck. Robinson drove the truck. Miller sat on the first board seat and behind the driver. As they approached the bridge, Miller’s left leg was hanging outside the truck bed.
As the Buick truck approached the bridge from the north, a Cadillac car approached the bridge from the south. The Cadillac was owned by Paul J. Byrne. Byrne had been to Merriam to inspect his lumber yard there and was returning to Kansas City. His car was operated by a chauffeur.
Behind the Cadillac car was a freight transfer truck owned by defendant Manley and driven by defendant Lowen. The freight truck had a body eight feet wide, twelve and one-half feet long and ten and one-half feet high, and was loaded with two and one-half tons of eggs.
Byrne testified for defendants as follows:
“As we got to the bridge, we saw a car coming from the north very fast and we were dubious about crossing the bridge with this car coming at us so fast, so we stopped. We stopped right at the south entrance to the bridge.”
Lowen testified for defendants as follows:
“When I got near to the south end of the bridge, a car ahead of me, when it got onto the south end of the bridge, stopped suddenly. I was about sixty or seventy feet behind this car. I pulled my truck to see if there was anything that would hinder me from trying to cut across, because I did not think that I could get by without hitting Mr. Byrne’s car, or the car that was ahead of me, and I saw that there was, saw this car coming through the bridge and I swerved back into right position, taking a chance of hitting Mr. Byrne’s car, which I did not do. . . . The car that was coming toward us was running fast and that is why I pulled back in as quick as I could. When I noticed it, it was just getting ready to approach the bridge.”
Robinson testified for plaintiff that as he came across the bridge he was going about twenty miles per hour, and testified further as follows:
“As we approached the bridge that spans Turkey creek near Merriam, Kan., I observed two vehicles approaching from the opposite direction. I do not know what the first car was but the second was a Chevrolet truck. The first car was a pleasure car driven by a white man. The truck was right behind this pleasure car. I was driving on the right side of the road, going south. We were about a foot and a half to the right of the center line of the highway and continued that far from the center line when we were just about across the bridge. As we were about to leave the bridge the pleasure car was about a car’s length from the bridge. The truck was so close to the pleasure car that he just could not stop and he just come out from behind it. When I saw him come from behind the pleasure car, I put on my brakes and turned to the right. The track did not stop, but kept on coming. It did check its speed. I cut to the right in order to keep from hitting face to face and when I cut to the right he just kept coming and then I got a jar. . . . The corner of the bed of that truck struck my truck about middleways of the bed and right where George Miller was sitting. It tore the fender off of my track and broke the bed right at the point where George Miller was sitting.”
Other witnesses for plaintiff gave their versions of the incidents of the accident. The corner of the transfer truck struck Miller’s leg hanging outside the Buick truck, crushed the leg, and soon afterward Miller died.
The instructions to the jury covered the subjects of negligence, conduct in an emergency, contributory negligence and “proximate” cause, and no complaint is made of the instructions by either plaintiff or the defendants.
With the general verdict for plaintiff, the jury returned the following findings of fact:
“1. Did Janie Miller, formerly Janie Moore, ever enter into an agreement with George Miller to become his common-law wife, and, if so, on or about what date? A. Yes, about June, 1919.
“2. If you find they entered into an agreement- to marry, state whether they lived together as husband and wife pursuant to and in fulfillment of that agreement. A. We do.
' “3. Did Helen Miller, formerly Helen Francis, ever enter into an agreement with George Miller to become his common-law wife, and, if so, on or about what date? A. Yes, on or about June, 1930.
“4. If you find they entered into an agreement to marry, state whether they lived together as husband and wife pursuant to and in fulfillment of that agreement. A. Yes, they lived together for said two and one-half years.
“5. Was the proximate cause of this accident, as defined by the court in its instructions, the excessive speed at which the said Buick car was running at the time of said accident? A. Was not.
“6. Was the proximate cause of this accident, as defined by the court’s instructions, the carelessness and negligence of the driver of the Buick car? A. Was dot.
“7. Was the deceased riding with his leg extending outside of the body of the car at the time of the accident in question? A. Yes.
“8. If you answer the foregoing question in the affirmative, was that the proximate cause of the injury of the deceased which resulted in his death? A. Yes.
“9. After the danger of the situation became apparent to the driver of the defendant’s truck, did he use ordinary care and prudence to prevent an accident, in view of conditions at the time and the short length of time he had available to think and make a decision? A. Yes.
“10. If you find that the defendants were guilty of any carelessness and negligence which caused the accident in question, state specifically of just what that carelessness and negligence consisted. A. For driving from his lane of traffic.”
“12. Was the defendant’s truck standing still or moving at the time of the accident in question? A. Moving.”
Plaintiff moved to set aside the answer to question 8 and the motion was denied. Defendants moved for judgment in their favor, notwithstanding the general verdict, and the motion was allowed. Plaintiff appeals, and assigns as error the two rulings just referred to.
The district court filed a written opinion in which the court interpreted finding 8 as a finding that Miller was guilty of contributory negligence, without which his injury and death would not have occurred. This court is inclined to agree with the district court, but the subject may be left at one side. The district court also based its judgment on the fact the evidence did not establish actionable negligence on the part of the driver of the transfer truck, although the jury found he was negligent in driving from his lane of traffic. In discussing that subject the district court said:
“The testimony is practically undisputed that the driver of the northbound Cadillac car was apprehensive of danger from the approaching Buick truck and suddenly stopped his car in front of the defendants’ truck, which was following . . .”
In another part of the opinion the district court said:
“The evidence stands uncontradicted that the driver of the Cadillac car stopped suddenly in front of defendants’ truck and that the defendants’ driver was ■ confronted with a situation which called for- quick action in order to prevent a collision; that in attempting to avoid the collision he .turned,his truck to the left ...”
Plaintiff challenges the district court’s conclusion on two grounds: first, that the Cadillac did not stop suddenly, and second, that the driver of the transfer truck himself created the emergency in respect to which he subsequently acted prudently.
There are differences in the testimony of the various witnesses with respect to just what occurred. Thus, there was testimony the Cadillac did not stop. Robinson said the Cadillac did not stop. This testimony really meant no more than that the Cadillac had not stopped when the last observation was made, and carefully analyzed, there was no substantial testimony which would authorize the jury to say the Cadillac did not stop. Byrne said his car slowed down, something which Robinson saw, and stopped, something which Robinson did not observe. Lowen said the Cadillac stopped. There was no rebuttal after Byrne and Lowen testified the Cadillac stopped, and in this appeal plaintiff does not contest the fact that the Cadillac stopped. As indicated, plaintiff does dispute that the Cadillac stopped suddenly, and so created the emergency which confronted Lowen.
Lowen said the Cadillac stopped suddenly. Byrne said his car did not stop suddenly, it “just slowed up and came to a standstill”; “apparently we just slowed up and stopped.”
As indicated above, Byrne testified that as he “got to the bridge” he saw the Buick truck coming at a rapid rate of speed. He was dubious about crossing the bridge, “so we stopped. We stopped right at the south entrance to the bridge.”
Byrne testified as follows:
“Q. What rate of speed were you going as you approached the bridge? A. Oh, I think approximately fifteen miles an hour, maybe twenty. I don’t think over fifteen.”
If his car was moving at a rate of twenty miles per hour, it was moving twenty-nine feet per’ second. If the car was moving at a rate of fifteen miles per hour, it was moving twenty-two feet per second. Whatever the distance from the point at which Byrne “got to the bridge” and the “south entrance to the bridge,” the Cadillac was not long in stopping.
Lowen said the stop light on the back of the Cadillac gave him a signal. The primary meaning of the word “sudden” is, “happening without previous notice or with very brief notice; coming or occurring unexpectedly; unforeseen; unprepared for”; (Webster’s New International Dictionary, Second Edition). While to Byrne his car doubtless stopped smoothly and without shock, to Lowen it necessarily stopped suddenly.
Lowen testified that after leaving Merriam he attained a speed of perhaps thirty miles per hour and gained on the Cadillac. He thought the Cadillac was traveling at about the same rate of speed, but he did not dispute Byrne’s estimate of the rate at which the Cadillac was moving. Lowen said he was within sixty or seventy feet of the Cadillac, and could stop within seventy-five feet. Helen Miller, a witness for plaintiff, said the transfer truck was right behind the Cadillac. Robinson, a witness for plaintiff, said the transfer truck was right behind the Cadillac and was so close to the Cadillac the driver just could not stop and just came out from behind the Cadillac. The result is, the testimony was conclusive that the action of the Cadillac created grave danger of collision between it and the transfer truck.
In response to request for specific statement of in just what Lowen’s negligence consisted, the jury made specific answer — driving from his.lane of traffic. He was not driving too fast; he was not driving too close to the Cadillac; he was not inattentive to his driving; he was not slow of apprehension; he was not unskillful; and he did not lack control of the truck. The finding of the jury acquitted him of all negligence, except that he drove from his lane of traffic, and he did not do that until the Cadillac created the situation which was fraught with peril. The jury approved Lowen’s subsequent conduct.
The result of the foregoing is, the court properly rendered judgment for defendants, notwithstanding the general verdict in favor of plaintiff. This being true, propriety of the court’s refusal to strike out finding 8 relating to proximate cause need not be discussed. The social problem presented by the record must also remain unsolved.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to enjoin the defendant from operating a creamery station in such a manner as to constitute it a nuisance to the plaintiffs.
It appears that in 1928 defendant purchased three town lots at the southwest corner of Fifth and Pottawatomie streets in Leavenworth and set about the erection of a creamery station thereat. The city has no zoning ordinance. The locality was mainly, but not exclusively, a residence district. There were some small business establishments nearby. Immediately west of the creamery station, with only a ten-foot driveway between, was the home of one of these plaintiffs. Nearly all the residences of plaintiffs' in the vicinity antedated the creamery station by many years.
Defendant developed his creamery and dairy business rapidly until, when this cause was tried, he was buying dairy products from 200 farmers, manufacturing 15,000 pounds of butter and 15,000 pounds of ice cream per month, bottling 1,000 to 1,200 quarts of milk daily, and was giving employment to seventeen people. His business building was a two-story structure of brick and concrete. Defendant made two additions to it and added an ice-making machine during the two years which elapsed from the inception of this lawsuit to its conclusion in the district court.
As defendant’s business grew it began to annoy the neighboring residents. The usual early morning bustle of trucks and handling of milk cans and loud voices of employees disturbed the former quiet of the vicinity. These noises lasted about two hours, beginning about 2 o’clock a. m. in summer and about 3 o’clock a. m. in winter. Quite naturally the noises at such unseasonable hours prevented some of the plaintiffs from sleeping, and some of them were rendered nervous thereby.
At first the machinery in the creamery station was driven by electric power; but in December, 1931, defendant installed a fifty-horsepower semi-Diesel engine which greatly added to plaintiffs’ disquiet. Besides the popping of its exhaust, and the fumes and disagreeable vapors which it emitted, and which frequently permeated the houses of some of the plaintiffs, the engine caused the ground thereabout to vibrate, the houses to shake, the dishes to rattle, and the very beds to shake, so that living conditions became unbearable to plaintiffs.
The aggrieved parties at first appealed to the public authorities; and functionaries of the local and state boards of health examined the premises; but as the creamery station was maintained in sanitary fashion there was nothing the health officials could do about it. Hence this lawsuit, to enjoin the business as a nuisance.
Plaintiffs’ petition alleged the foregoing facts. Defendant’s .answer contained a general denial, stated the extent and character of his business, and further alleged:
“8. The dairy business of the defendant is a necessary and legitimate business. In the successful conduct of said dairy business, the defendant finds it necessary to operate, and does operate trucks and milk wagons, does load and unload milk cans and the products of said dairy.
“9. It is impossible to conduct said business without making some noise.
“10. Said defendant finds it necessary in the proper conduct of said business,- and does operate said dahy at all hours of the day and night in some parts of the year.
“11. Some slight vibrations and noises are necessarily made by the machinery and the exhaust of the engine.
“12. A low grade of fuel oil is used in the engine and the fumes of the exhaust are only the products of the combustion of kerosene oil. . . .
“13. In the conduct of the said dairy business no more noise is made than is necessary and inherent in the very nature of said business.
“14. Whatever annoyance is caused by the operating of the business of the said defendant to the plaintiffs, as alleged by them in their petition, comes under the legal classification of damnum absque injuria.
“15. To cut down the operating expenses the following machinery has been installed by the defendant in said dairy plant: One fifty-horsepower Weber-oil engine, equipped with one three-section patented Gold silencer, weighing 2,500 pounds, . . .; one 24-kilowatt alternating-current generator; three refrigerating plants; one ice crusher; one steam boiler, 20 horsepower; one 500-pound churn; bottle washers; can washers; pasteurizing vats and various other pieces of machinery and equipment. Said equipment costing over $20,000.
“16. Modern methods and appropriate machinery and appliances only are used by the said defendant in the conduct of his business. Said plant and machinery as now installed and operated is not a nuisance, nor a source of danger to the health and welfare of the said plaintiffs, nor is the annoyance caused by conducting said business excessive, or of such nature as to entitle said plaintiffs to an injunction as prayed for by them.
“17. Defendant has courteously listened to all complaints made to him by each and every one of said plaintiffs and has endeavored and does now endeavor to conduct his business in a manner that will give said plaintiffs the least amount of annoyance.”
The cause was tried without a jury. Evidence was adduced at length by the parties. The court took the cause under advisement,' but eventually judgment was entered for plaintiffs substantially as. prayed for. Defendant filed the usual motions, including one to clarify and modify the judgment. This last motion was sustained in part, and the main features of the final judgment read:
“. . . The said defendant herein, its successors, grantees or assigns, be and they are hereby enjoined and restrained from operating or running said Diesel engine or any other engine or machinery causing such vibrations as will jar, shake or otherwise disturb or put to great inconvenience, annoyance or damage the property or peaceable enjoyment thereof by said plaintiffs;
"From loading or unloading milk cans and operating trucks or other vehicles in and upon said premises so as to cause loud and violent noises sufficient to disturb the peace and quiet of said plaintiffs ;
“From operating said plant in such a manner as to cause disagreeable, obnoxious, dangerous or unhealthy fumes and smoke or gases to permeate the houses of said plaintiffs to their discomfort, annoyance and inconvenience, and that said plaintiffs recover their costs herein expended, and that execution issue therefore, . . .”
Defendant appeals, contending first that the evidence did not support the judgment. The most significant features of plaintiff’s evidence have been summarized above and it would serve no purpose to repeat or enlarge upon it. Representatives of twenty-one families residing in the neighborhood testified in the case. Defendant quotes some of these witnesses who testified that the operation of the creamery station caused them no annoyance until the semi-Diesel engine was installed. Others, however, testified that soon after defendant commenced business operations there were disquieting noises of men’s voices, the rattling of milk cans, and coming and going of trucks at two o’clock and three o’clock in the morning and that this unseasonable clamor usually lasted for two hours every morning. This court holds that the issuable facts which were resolved in favor of plaintiffs were abundantly supported by the evidence.
Defendant next invokes the equitable rule that a lawful business in an authorized place will not be enjoined on the mere ground that it causes some inconvenience to those living in the neighborhood. To be sure there is such a rule. In Shepler v. Kansas Milling Co., 128 Kan. 554, 278 Pac. 757, we said:
“Certain natural rights of persons may be curtailed which the sufferer must sustain without other return therefor than the manifold benefits which inure to him as a citizen privileged to reside in and earn his livelihood in- an orderly community of his fellows. Typical of these are the noise of trains or street cars, the rumbling of early morning traffic, the cutting off of ancient lights and the erection of obstructions to his view. Such instances of damnum absque injuria could be indefinitely multiplied. (See Lapere v. Luckey, 23 Kan. 534; Anderson v. Bloomheart, 101 Kan. 691, 168 Pac. 901; 1 C. J. 1227-1229; 17 C. J. 1125 and citations; 1 R. C. L. 318; 1 Bouvier, 3d ed., 754.)” (pp. 555, 556.)
But in that same case we also said:
“Appellee cites various cases where the freedom of an owner to devote his property to a use of his own choosing has been judicially interfered with as a nuisance. Of course, there are many such cases, as where gases from a brick plant destroj'ed vegetation (Fogarty v. Pressed Brick Co., 50 Kan. 478, 31 Pac. 1052); where smoke, dust and cinders caused substantial injury to neighboring property (Phillips v. Brick Co., 72 Kan. 643, 82 Pac. 787); and where poisonous fumes from an oil refinery passed over neighboring lands (Helms v. Oil Co., 102 Kan. 164, 169 Pac. 208).” (p. 556.)
In McMullen v. Jennings, ante, p. 420, 41 P. 2d 753, decided March 9, 1935, where the question was whether so useful an institution as a grain elevator might become a nuisance to the complainant on account of the way it was operated, it was held:
“In the operation of such an elevator, it is a nuisance to unreasonably pollute the air with dust having a foul odor or with other offensive substances, to the annoyance, damage or harm of the owners or occupiers of adjacent lands in the use and enjoyment of the properties, and in determining whether it is unreasonable, the annoyance is measured by what would unreasonably •disturb the ordinary and usual comforts of persons of normal tastes and sensibilities.” (Syl. ¶12.)
The law books are laden with cases to the same effect. In Clay County Ice Co. v. Littlefield, 187 Ark. 911, the syllabus in part reads:
“Operation of an ice plant in a residential district held a nuisance and .should be restrained where it materially injured property and annoyed the residents, regardless of how well it was constructed or conducted.” (¶ 1.)
In the closely analogous case of Mitchell v. Flynn Dairy Co., 172 Ia. 582, the syllabus and its pertinent headnote read:
“2. The carrying on of a private plant in such a manner as to unreasonably •disturb the sleep of the neighborhood (a residence part of a city) creates a private nuisance which may be abated. (See 5078, Code, 1897.)
“Principles Applied. A dairy and ice-cream plant, located in a residence ■neighborhood, was operated in some form during every hour of the day. ■One hundred thirty teams came and went each day, most of them passing ■through a public fourteen-foot, brick-paved alley west of the plant, where they unloaded. The defendant had practically taken possession of this alley for the purposes of its business. One private residence, with one east door .and five east windows, faced the alley, only a few feet away. The loading .and unloading of milk bottles and cans commenced about 1:30 a. m. and continued into the forenoon. Another unloading platform was on the east of the building. There was profanity and some obscenity among the teamsters about the plant. A steam exhaust added to the noise. An ice crusher, handling 350 tons of ice per month, added much to the noise. The congestion was so great at times that the sidewalk was used for unloading. The alley especially was offensive with manure. Residents 100 feet distant were disturbed. Held, to show a private nuisance.”
In Kobielski v. East Side Creamery Co., 222 Mich. 656, the headnote reads:
“In a suit by the owners of a two-family flat to abate a nuisance claimed to be created by defendant by operating its creamery plant in a residential section of a city at night in such a way that the noises keep plaintiffs and their tenants awake, and by reason thereof plaintiffs are unable to keep tenants in their other flat, evidence held, sufficient to entitle plaintiffs to a decree.”
See, also, Washington Cleaners v. Albrecht, 157 Md. 389.
On the question of noise incident to the lawful operation of an industrial business as an element of nuisance, see notes in 17 L. R. A., n. s., 287; 44 L. R. A., n. s., 236; 23 A. L. R. 1407; and 90 A. L. R. 1207.
It is next contended that the injunctive order which the court issued is indefinite and uncertain. It seems to us that in the light of the evidence the court’s decree is about as specific and definite as language could make it. In Washington Cleaners v. Albrecht, supra, an injunction had been issued against the operation of a cleaning and dyeing plant as it had theretofore been conducted to the annoyance of a neighborhood which was largely, but not exclusively, residential. On appeal the court said:
“Appellant complains that the decree is too vague and indefinite in that it does not point out to it how it is to rearrange its plant so as to comply with its terms. But it is no part of the function of a court of equity to tell the appellant how to run its business. Such a court has the undoubted power to prevent it from so using its property as to deprive others of the reasonable enjoyment of their properties, or in appropriate cases it may grant affirmative relief by requiring a wrongdoer to remedy the mischief he has caused, but beyond that it cannot go. To require it, in such a case as this, to conduct an inquiry involving the employment of highly skilled and technically trained advisors and to formulate plans which would enable appellant to conduct its plant so as to conform to its decree verges upon absurdity. When, therefore, the court restrained appellant from using varnalene or gasoline ‘in such quantity and manner’ as to ‘be deleterious to the health of the neighborhood’ it did precisely what it was authorized to do, no more and no less.” (p. 400.)
The record contains no error and the judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action by the holder of a second mortgage on real property to foreclose the mortgage subject to the first mortgage. She made as parties defendant The Capitol Building & Loan Association (hereinafter called loan association), holder of the first mortgage, Page and Burkholder, holders of the mortgage alleged to be inferior to plaintiff’s, and Floyd F. Shields, the record owner of the title. The loan association, by answer and cross petition, set up its mortgage and the amount due thereon and alleged that it was in possession of the property,-and asked that its rights be adjudicated as a mortgagee in possession. Page & Burkholder set up their mortgage and the amount due thereon and asked that it be foreclosed subject to the rights of the holder of the first mortgage and of plaintiff under her mortgage. The defendant Shields answered alleging he was owner of the property subject to the mortgage, but specifically denied that the loan association was a mortgagee in possession; alleged he was entitled to the possession of the property and rents therefrom; asked that the loan association be required to foreclose its mortgage, and that the period of redemption be fixed at eighteen months. The only controverted question in the case was whether the loan association was a mortgagee in possession. After a trial to the court on the merits the court found that the loan association was a mortgagee in possession, found the amount due it, and rendered an appropriate decree, among other things, that it should not be required to give up possession until its mortgage debt was paid, and fixed a period of four months in which the defendant Shields could pay the debt, and if he did not do so that he have no further interest in the property. The court also found the amdunt due the plaintiff and that the same was a second lien on the property, also the amount found due Page & Burkholder, and that the same was a third lien on the property, and made appropriate provisions in the decree with respect to their liens.
Floyd F. Shields has appealed and contends that the court erred in finding that the loan association was a mortgagee in possession. This was largely a question of fact upon which thqre was parol as - well as documentary evidence, and we examine the question only so far as to see whether there was substantial competent evidence to support the findings of the trial court. Briefly, the evidence on this point discloses that the property was owned by Lillian Oney. She had executed the several mortgages in litigation. In the aggregate their face value was approximately the fair, reasonable value of the property. She had other property at Kansas City which appears also to have been encumbered, but which she hoped she might be able to save, but she practically lost hope of saving the property in litigation unless the rents from it would so reduce the first mortgage that she could dispose of it to some advantage. She went to the officers of the loan association and explained her purpose, stating she had a chance to lease the property in litigation for $55 per month, and expressed a desire to do so, have all the rents paid to the loan association, and have it look after the property and keep it in repair while she went to Kansas City to live and to look after her property there. This was agreed upon. The lease was approved by the loan association and provided all rents should be paid to it, and the tenant was advised and consented that the loan association should look after and care for the property and he would pay rent to it. That was done. Mrs. Oney' moved to Kansas City. The loan association collected the rents, looked after the property and made repairs, some of which, such as renewing the furnace, were comparatively expensive. It kept Mrs. Oney advised of the expenditures made and rents collected, and Mrs. Oney did convey her interest in the property to the defendant Shields. Nothing, of course, was being paid on the second or third mortgages, which fact caused this action. There is abundance of evidence in the record to sustain the findings of the trial court. It is argued by appellant that the provisions in the lease by which the tenant was to pay the rents to the loan association would not, standing alone, make it a mortgagee in possession. That point is conceded, but it was only one of the items of evidence establishing the relation and understanding between the parties. The parties discussed an alteration of the’ lease after it had been written. The finding of the court on that point is sustained by evidence; there is no serious contention it is not so sustained; hence, the facts concerning it need not be detailed here.
Appellant further contends that the court erred in overruling his motion for a new trial in order to enable him to get additional evidence. The trial court found that there had been no diligence in procuring the evidence for the trial, and if it were obtained it would be cumulative only. The ruling was not erroneous.
We find no error in the record. The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.;
This case was commenced by the Fourth National Bank of Tulsa, Okla., against the defendant, John T. Smith, as an ordinary foreclosure action, alleging that the defendant executed a note and mortgage on May 15, 1931, in favor of the Fourth National Bank for $9,800, payable August 3, 1931, with interest. The petition set up payments of principal and interest amounting to $1,379.18, and that there remained due from the defendant $8,500 principal, with interest thereon from May 22, 1933, and that the mortgage given as security was upon land in Chautauqua county, Kansas, which was duly recorded, and had been breached by the defendant, entitling the plaintiff to foreclosure and a first lien on the land.
The defendant answered by way of general denial and alleged that the note and mortgage sued on were given by the defendant without any consideration directly or indirectly, and that the note and mortgage were void for want of consideration; further, that the note and mortgage were procured from him by the plaintiff under false and fraudulent representations to the effe.ct that plaintiff and its officers represented to defendant that it had procured his notes from the Producers National Bank of Tulsa, Okla., in a valid and regular manner and was the owner thereof and requested him to give the note and mortgage sued on herein; that such statements were false and fraudulent in that the plaintiff had not procured his notes held by the Producers National Bank and was not then and is not now the owner thereof; that they were delivered by someone representing the Producers National Bank to the plaintiff who had no authority to deliver them, and did not convey any authority or ownership of said notes to the plaintiff bank; that the defendant relied upon the statements made by the officers of the plaintiff bank and executed and delivered the note and mortgage herein sued on, but later discovered and ascertained that the plaintiff had no right or ownership in the notes, that the Producers National Bank is still the owner of the notes and that payment to the plaintiff would not release or satisfy the obligation of the defendant to the Producers National Bank; and then, as a cross petition, the defendant alleged that he had paid in interest and principal to the plaintiff the sum of $3,-618.88 between July 15,1930, and May 22,1933, and that such payments were fraudulently obtained by the plaintiff from the defendant, and the defendant is entitled to recover the same with interest at six per cent.
To this the plaintiff replied, denying the allegations of having received the notes from the Producers National Bank without consideration and procuring the present note and mortgage sued on by false and fraudulent representations, admitting that defendant did owe notes to the Producers National Bank and that plaintiff procured them from the Producers National Bank for a good and valuable consideration in a valid and legal manner and admitting it requested the defendant to execute the note and mortgage set out in the plaintiff’s petition for the obligation, and alleged that it became the true and lawful owner of defendant’s notes which were given to the Producers National Bank, and denied that the Producers National Bank is still the owner thereof or has any interest therein, and states that payment to the plaintiff will result in full satisfaction of the obligation.
It was stipulated at the beginning of the trial that the Fourth National Bank of Tulsa, Olda., was chartered to do business July 15, 1930, and that its capital stock is $250,000.
Two witnesses, the present cashier of the plaintiff bank and the former cashier of the Producers National Bank, explain the whole transaction with this defendant and the assignment of the assets of the Producers National Bank to the plaintiff bank for the consideration of ,the plaintiff bank assuming all the legal obligations of the Producers National Bank, and that the Producers National Bank immediately closed its doors and a receiver was appointed to collect double liability from the stockholders of the Producers National Bank; that a written contract was made between the two banks, dated July 15, 1930, which had the approval of the board of directors and the owners of more than two-thirds of the capital stock of the Producers National Bank and was signed by the officers of both banks and had the approval of the comptroller, of currency. The contract is fully set out in the abstract, as well as statement of a note given under such contract by the Producers National Bank to the plaintiff bank for $4,411,725.89, the note being dated July 15, 1930, and to become due June 1, 1932. It shows credits indorsed thereon from July 15, 1930, to June 28, 1933, covering the whole amount except $92,328.71, and interest payments made in the total sum of $85,710.40.
The defendant testified about the Producers National Bank holding two of his notes, one for $7,000 and the other for $1,000, at the time this arrangement was entered into between the two banks; that he was asked by the plaintiff to give a new note and security, which he agreed to do provided the plaintiff bank would increase the loan by $2,000 in cash, which was done, making the new loan $9,800, which was secured by a mortgage.
The defendant was the only witness called to testify in his behalf, and he testified he did not know there was a special ownership of his notes to the Producers National Bank and that he supposed the plaintiff bank owned the notes at the time they returned them to him and he gave the new note.
The trial court rendered judgment for the plaintiff and against the defendant for $9,327.85, with interest from May 8, 1934, and gave an eighteen-months period of redemption, from which judgment the defendant appeals.
The appellant states four legal questions as being involved: (1) That the contract and note between the Producers National Bank and the Fourth National Bank are absolutely void because beyond the powers of the banks to make such contracts; (2) that the defense of illegality of such contract can be shown by the appellant, although he was not a party to the illegal transaction between the two banks; (3) that the appellee is not the real party in interest herein; and (4) that the appellant is entitled to recover from the appellee the sums of which he has been defrauded by it.
The appellant includes under these principal legal propositions several subordinate ones with reference to the obligation of the contract between the banks and the amount of the loan, as it is claimed to be: That the contract is against public policy because it is intended to perpetrate a fraud on the Producers National Bank and its stockholders, that it is contrary to the civil and criminal law, and that the renewal and extension of the notes did not change the situation or estop the appellant from claiming his rights.
A careful consideration of the many legal propositions raised by the appellant leads to the conclusion that the one first stated and urged by the appellant is almost of decisive importance, viz., whether the contract between the two banks is absolutely void because beyond the powers of the banks making it. Other matters as to the real party in interest, rights of third parties and similar questions raised, are all subordinate to the one question of the validity of such a contract as made by the banks in this case.
Appellant insists that the giving to the plaintiff of the large note exactly equal to deposits and other obligations of the Producers National Bank was a new obligation or a loan to it in excess of ten per cent of the capital of plaintiff bank, and cites in support of his contention the recent case of Thomas v. Hubbard, 4 Fed. Supp. 520, where it was contended that the note given created a new obligation and was therefore void, and the court said:
“Had the agreement created a new indebtedness, that position would have been correct, but such was not the case. We have here a situation where the Third National Bank merely changed many creditors into one. That is a perfectly lawful arrangement and one within the power of the Third National Bank to make.” (p. 521.)
That action was by the receiver of the failing national bank to recover an assessment against a stockholder because of the failed condition of the bank. The Third National Bank of Pittsburg had by authority of its directors and without any action of the stockholders sold all of its assets to the Mellon National Bank, which in consideration thereof assumed all the liabilities of the Third National Bank. This was done pursuant to an agreement entered into by both banks the day after the doors of the Third National Bank were closed, and the Mellon National Bank accepted a note of $500,000 given by the Third National Bank contemporaneously with the execution of the contract. The agreement was that the Mellon bank would liquidate and convert into cash the assets so transferred to it and apply the proceeds thereof to pay the expenses of liquidation and administering the assets, to reimburse itself for the amount paid out on liabilities assumed with interest, and to return the balance of said assets if any remained after making the payments specified. In addition to the quotation above made from the opinion in this case, the court cited numerous authorities where such contracts had been upheld against similar objections, and quoted from one of them, namely, Hightower v. Amer, Natl. Bank, 263 U. S. 351, the language of Mr. Justice Van Devanter, as follows:
“The remaining contention is that the debt sought to be enforced was created during the process of liquidation, and therefore is not one for which the shareholders are liable. The premise is faulty. The debt arose from the contract and represents moneys advanced in excess of what was realized from the assets. . . . There was power to make the contract. The purpose was not to obtain money to engage in new business but simply to change from many creditors to one.” (p. 360.)
The opinion in the Thomas case, supra, then adds:
“That fits the situation in the instant case exactly. If the suit were by the Mellon National Bank as a creditor to enforce liability against the stockholders of the Third National Bank, we should be obliged to hold the agreement valid.” (p. 521.)
Appellant cites the case of Federal Intermediate Credit Bank v. L’Herrisson, 33 F. 2d 841, which emphasizes the ten-per-cent rule stated in section 84, 12 U. S. C. A. This was where a failing bank assigned some of its assets to a depositor to secure the same in order to retain the deposit, and it does not come under the broad language of another section of the same act concerning national banks, being 12 U. S. C. A., § 24 (7), all subject to the approval of the comptroller of currency.
Appellant also cites cases where banks made discrimination in the payment of its depositors, gave notes indorsed by the bank in lieu of their deposits, and guaranteed payment to another bank of checks to be drawn in the future.
Several cases from Kansas and other states are cited holding certain contracts are void because they were fraudulent or against public policy, but we are here concerned exclusively with the question of two national banks making a contract, one assuming all the obligations of the other and taking a note and an assignment of all of its assets.
In the case of Richter v. Laredo Nat. Bank, 62 F. 2d 289, a stockholder in the First National Bank brought an action on behalf of the bank and against the Laredo National Bank alleging the First National Bank was not insolvent when it entered into the contract with the Laredo bank and that the contract was illegal and void. The liabilities of the First National Bank were assumed by the Laredo bank and the First National Bank assigned to it all of its assets and gave it a note for $160,000, the estimated amount that the liabilities would exceed the assets, and it was there held:
“The agreement, plain and clear on its face, was entered into in good faith by the two banks; it was approved by the representative of the comptroller; it was in the interest of the First bank, whose primary obligation was the protection of its depositors; and it was by the Laredo bank carried out exactly as agreed. . . . That this transaction, entered into in good faith, without fraud, and for the best interests of the bank, was not in its nature illegal or beyond the powers of the corporation, is clear. . . . The contract in this case was designed to, it did, accomplish the very purpose of the statute. It was made with a view to insuring the payment of all its depositors and creditors and the prevention of the preference of any.” (p. 290.)
In the case of Wannamaker v. Edisto Nat. Bank of Orangeburg, 62 F. 2d 696, the circuit court of appeals affirmed the ruling of the district court in dismissing the action, which was one brought in equity by certain stockholders of the Orangeburg National Bank against- the receiver of that bank and the Edisto National Bank, to enjoin a stockholders’ liability assessment and to secure an accounting for the assets of the Orangeburg bank coming into its possession under a contract between the two banks by which the Edisto bank assumed the payment of all the liabilities of the Orangeburg bank except the stockholders’ liability and received from the Orange-burg bank $100,000 in cash and certain selected assets amounting to more than $670,000 and also a note for $710,850.14 with six per cent interest, secured by collateral. The contract was approved by the directors of the Orangeburg bank and by the comptroller of the currency, but was not approved by two-thirds of the stockholders. The opinion states that the bill of complaint abounds in charges of fraudulent schemes and designs on the part of the Edisto bank. As to some of the deviations from the definite provisions of the statute, the court said:
“These provisions, however, are designed to govern the actions of a board of directors in conducting the affairs of a solvent going concern, and not to render the board powerless to act so as to safeguard the assets when the corporation is insolvent or in imminent danger of becoming so. . . . that a transfer of assets, in consideration of an assumption of a liability, by one national bank on the verge of insolvency to another, was within the general authority of the board of the failing bank under R. S. § 5136 (7), 12 U. S. C. § 24 (7), 12 U. S. C. A. § 24 (7), to exercise all such incidental powers as should be necessary to carry on the business of banking.” (p. 700.)
Appellant insists that these two decisions are not applicable to the contract in the case at bar, the difference being in the first case that the note was only for the excess of the indebtedness over assets, instead of being as in the case at bar for the entire obligation, and in the second that “there is no element of a loan of credit,” as is claimed to be in the case at bar.
In the case of City Nat. Bank of Huron, S. D., v. Fuller, 52 F. 2d 870, it was held by the circuit court of appeals that—
“Transfer of assets, in consideration of assumption of liabilities of national bank on verge of insolvency, to another national bank by virtue of resolution of boards of directors, held legal and not ultra vires of either bank [12 U. S. C. A. §24 (7)].” (Syl. n.)
It was held by the supreme court of the United States in the case of Hightower v. Amer. Natl. Bank, 263 U. S. 351, that—
“A contract between two national banks under which the assets of the one were transferred to the other and the latter assumed the liabilities of the former and advanced money, in excess of the assets, to pay the liabilities and expenses, construed as intending, not a sale, but a pledge of the assets, as security for repayment of the money advanced.” (Syl. IT 1.)
In the case of First Nat. Bank v. Harris, 27 F. 2d 117, the court made the following statement in the opinion pertinent to some of the provisions criticized in the contract in the case at bar:
“It was an out-and-out sale of assets in consideration of an assumption of liability with an accounting over for any surplus realized.” (p. 124.)
It was held by the circuit court of appeals of the eighth circuit in the case of Schofield v. State Nat. Bank, 97 Fed. 282:
“A contract by a national bank to assume and pay the liabilities of another bank in consideration of the transfer to it by the other bank of its office furniture and lease and its cash and cash assets, and the further assignment to a trustee for its benefit of bills receivable and securities, is not ultra vires, but is within its powers conferred by statute to conduct a general banking business.” (Syl. 113.)
We conclude in harmony with these strong and convincing federal decisions in favor of the power and authority of two national banks entering into a contract such as the two banks did in this case, and that such a contract is not void but valid, that it was not a loan of credit nor a new indebtedness or obligation of the assigning bank, but merely the changing of many creditors into one.
There was no evidence of fraud produced on the trial, except as may have been shown by the contract and other exhibits in connection therewith and the testimony of the defendant that the facts with reference to the contract were misrepresented to him and he did not discover that they were misrepresentations until suit had been commenced against him. And now since we uphold the validity of the contract, the misrepresentations vanish and change into true and correct statements, as far as this court is concerned.
It would serve no beneficial purpose in taking up and considering the many other legal propositions raised and discussed in the briefs, because they all hinge and depend upon the contract and note being void and invalid.
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The opinion of the court was delivered by
Burch, J.:
The Beacon Publishing Company was charged, with others, in five counts of an indictment returned by a grand jury, with violation of the statute relating to false, deceptive and misleading advertising. The publishing company was convicted on each count, and appeals.
The circumstances which led to the indictment may be related.
• In Wichita the Beacon Publishing Company, a corporation, publishes a newspaper, the Wichita Beacon. Max Levand and Louis Levand are officers in charge, and, in common parlance, are the publishers. W. C. Shanklin is managing editor, T. L. Givens is city editor, and Charles J. Claus is advertising manager. Henry Dan, a salaried employee, solicits advertising.
Advertising is a legitimate source of profit to a newspaper, a legitimate source of profit to the advertiser, and a highly beneficial service to the public. In a sense, advertisements are informative news items. They tend to stimulate consumption of goods. That stimulates production. That stimulates employment of labor, and the result is, desirable economic consequences spread in ever-widening circles.
What were called advertising campaigns were not infrequent in Wichita. Testifying at the trial for the state, Dan said another newspaper in Wichita was conducting such a campaign, which suggested to him that he inaugurate one. He chose a “quality” campaign in the field of merchandising. To accomplish his purpose, he desired active cooperation of R. E. Hobbs, M. D., director of public welfare of the city. Mr. Claus, advertising manager, was out of town and Dan outlined his plan to the managing editor. Shanklin asked the city editor, Givens, to get in touch with Doctor Hobbs. Doctor Hobbs was interviewed, approved the program, and told Givens to go ahead with it.
Dan had in mind an advertisement which would present the appearance of an emblem of quality, reproductions of which could be furnished to the advertisers. Gundell Goldansky had been the designing artist for the Beacon for many years. He had previously obtained and engraved the signature of Doctor Hobbs, for use in another advertising campaign, which Doctor Hobbs had approved, and Goldansky created, or adapted, decorated and lettered a sketch, on a card, of a design to be used in advertisements to appear in a supplement to the edition of the Beacon of Sunday, August 20,1933. The design was shown to Doctor Hobbs on Monday previous to August 20, and he approved it. Later in the week a proof of the advertisement of the Wichita Water Company, showing the design, as the advertisement would appear in the Sunday supplement, was .shown to Doctor Hobbs. He approved it and said he would make an addition to the advertisement which would improve it, and he did so.
Advertisements were procured, which were printed, using the design, in the Sunday supplement, which was published as contemplated. One of the advertisements follows:
The indictment charged that the words of the advertisement “Approved by R. E. Hobbs, M. D., Director of Public Welfare, City of Wichita,” were untrue, and were known by the publishing company to be untrue. Since the case is one of first impression in this court, and is of great importance to all newspapers in the state, something may be said concerning the history of the statute relating to the subject of untrue advertising.
The law relating to false representation and deceit permits a certain amount of “puffing” by the seller in the sale of salable things. The line between sales talk and misrepresentation is frequently difficult to draw. Expressions of opinion by the seller touching the merits of his wares are not regarded as statements of fact. While the line is difficult to draw, the distinction between opinion and fact tends to become more and more narrow, in order better to prevent fraud. Falsehood, 'fraudulent representation, and statement which is deceiving or misleading, are condemned, and the common law provides remedies, more or less effective, to the injured person.
Losses resulting from untrue advertising reach gigantic sums every year. The common-law remedies do not furnish adequate redress to victims, and demand arose for legislation with penal sanction, to cope with the evil. A movement to that end was fostered by many business men’s organizations, advertising clubs and associations, and others interested in truthful advertising. A history of the movement may be found in 36 Yale Law Journal at page 1155. The well-known magazine, Printers’ Ink, sponsored a model criminal statute to be adopted by state legislatures, and Mr. Henry D. Nims prepared for the magazine what became known as the Printers’ Ink model statute. The statute was designed to be comprehensive with respect to subjects and methods of advertising. The essence of the statute, so far as material here, was that anyone who, with intent to sell merchandise, shall publish in a newspaper an advertisement containing a statement of fact which is untrue, deceptive, or misleading, shall be guilty of a misdemeanor. A notable feature was that words such as “knowingly,” “willfully,” “with intent to defraud,” “with intent to deceive,” and the like, were not used. The theory was, the advertiser knows or should know the truth, and he was made absolutely responsible for the integrity of his advertisement. Another notable feature was that the newspaper or other organ of dissemination in which the advertisement appeared was not subject to punishment.
The model statute was adopted in a number of states; in others it was adopted in modified form; in others, adoption was defeated; and some states which adopted the statute in some form subsequently amended it. In 1915 a decided variant from the model statute was introduced in the legislature of this state as Senate bill No. 229, by Senator Kinkel, by request. The bill was passed, became effective as a law on March 17, 1915, and section 1, which appears as R. S. 21-1112, reads:
"Section 1. That any person, firm, corporation or association, who, with intent to sell or in any wise dispose- of any merchandise, securities, service or anything offered by such person, firm, corporation or association, directly or indirectly, to the public for sale or distribution, or with intent to increase the sale or consumption thereof, or to induce the public or any person in any manner to enter into any obligation relating thereto, or to acquire title to or an interest therein; who makes, publishes, disseminates, circulates or places before the public, or causes the same to be done, either directly or indirectly, in this state, whether by newspaper publication or otherwise, as herein ' provided, any label, notice, handbill, poster, bill, circular, pamphlet, or letter, or in any other way, any advertisement of any kind or character regarding merchandise, securities, service, or any other thing or commodity offered to the public, which advertisement contains any assertion, representation or statement which is in fact untrue, deceptive or misleading, shall be deemed guilty of a misdemeanor and, upon conviction in any court of competent jurisdiction, shall be punished by a fine in any sum not exceeding five hundred dollars, or by imprisonment in the county jail not exceeding one year, or by both such fine and imprisonment for every such offense, and each day such publication or communication shall be published or disseminated shall constitute a violation of the provisions of this act and shall be deemed a separate and distinct offense: Provided, also, That the provisions of this act shall not apply to the publisher of any newspaper or other publication, who publishes or causes to be published, disseminated or circulated any written or printed statement prohibited by the provisions of this act, without knowledge that it is false.”
Like the model statute, this statute embraces many classes of promotions which may be aided by advertising, and many means of advertising. Like the model statute, the only “intent” involved is that of the advertiser to sell, etc., to increase sale or consumption, etc. No intent to deceive, defraud, or mislead is required. Culpability lies in the character of the published advertisement. If it be untrue, deceptive, or misleading, the advertiser is subject to punishment. If a newspaper publisher should use his own paper to advertise whatever he offers, he would be simply an advertiser.
Responsibility of a newspaper publisher for publishing another’s advertisement, which was absent from the model statute, was brought into the statute by the concluding proviso. The proviso says the provisions of the act (doubtless the penal provision) shall not apply to the newspaper publisher who publishes a prohibited statement (untrue, deceptive, or misleading) without knowledge that the statement is false. False means not trae, and subtle statements garbed in apparent candor, which deceive and mislead, are not included.
There was debate in state legislatures- with respect to whether newspaper publishers should be held for publication of the advertiser’s copy at all, and if held, to what extent? Advertisements are shrewdly prepared. Must a newspaper publisher refuse an advertisement, or take the risk of fine or imprisonment, or both, should a jury conclude, against the publisher’s- honest judgment, that the advertisement is deceptive or misleading? As indicated, the statute limits liability of the newspaper publisher to instances in which the statement in the advertisement is false, and is known by the publisher to be false. The distinction is illustrated by comparison with the Iowa statute, the principal portion of which forms a section in substance the same as ours, preceding the proviso. Then follows a well-framed section on the subject of our proviso, which reads (italics used for emphasis):
“The provisions of section 13,069 shall not apply to any owner, publisher, printer, agent, or employee of a newspaper or other publication, periodical, or circular who in good faith and without knowledge of the falsity or deceptive character thereof, publishes, causes to be published, or takes part in the publication of such advertisement.” (Code of Iowa, 1931, § 13,070.)
Interpreted in the manner described, the court regards the statute as constitutional.
The paternity of the indictment on which defendant was convicted is not known. The county attorney did not draw it, and authorship has not been recognized by the attorney-general in the manner required for recognition of illegitimates. The form got into the grand jury room, and came out an indictment, and is probably the worst piece of criminal pleading which it has been the misfortune of the court to peruse.
The fourth count of the indictment, to which a copy of the advertisement reproduced above was attached, follows:
“fourth count
“The grand jurors of the state of Kansas, duly empaneled, charged and sworn by the court aforesaid, at the term aforesaid, on their oath do find, charge, and present, that on or about the 20th day of August, 1933, at and within the county of Sedgwick and state of Kansas, and within the jurisdiction of this court, one Max M. Levand, then and there being the general manager and president of the Beacon Publishing Company, a corporation duly organized and existing under and by virtue of the laws of the state of Kansas, and publisher of a daily newspaper known as the Wichita Beacon, in the city of Wichita, Sedgwick county, Kansas, and Louis Levand, then and there being the publisher and one of the managing agents of the Beacon Publishing Company, a corporation duly organized and existing under and by virtue of the laws of the state of Kansas, and publisher of the Wichita Beacon, a daily newspaper published and circulated in the city of Wichita, Sedgwick county, Kansas, and the Beacon Publishing Company, a corporation duly organized and existing under and by virtue of the laws of the state of Kansas, and publishing a daily newspaper known as the Wichita Beacon, in the city of Wichita, Sedgwick county, Kansas, then and there being, did unlawfully, intentionally, willfully, and knowingly make, publish, disseminate, circulate, and/or place before the public and/or cause the same to be published, disseminated, circulated, and/or placed before the public, directly and/or indirectly in the city of'Wichita, county of Sedgwick and state of Kansas, an advertisement, label, notice, letter, and/or pamphlet, regarding merchandise and service and/or commodity known as the products of the Sunflower Sausage and Packing Company, a copy of which advertisement is hereto attached, marked ‘Exhibit D,’ and made a part hereof as fully as if set out at length herein, said commodity and merchandise being offered to the public with intent to sell and/or dispose of said merchandise to the public for sale or distribution and/or with intent to increase the sale and consumption thereof and to induce the public and any person to enter into obligations relating thereto, said merchandise and commodity so advertised and offered to the public purporting to be approved by the city health officer, to wit: R. E. Hobbs, M.D., director of public welfare, city of Wichita, and which advertisement contains the assertion, representation, and/or statement that said products of the Sunflower Sausage and Packing Company, were approved by the city health officer, R. E. Hobbs, M. D., director of public welfare of the city of Wichita, which assertion, representation, and/or statement was in fact untrue, deceptive, and/or misleading, and known to be untrue, deceptive, false and/or misleading, by them, the said Max M. Levand and Louis Levand and the Beacon Publishing Company, a corporation aforesaid, at the time said advertisement, label, notice, letter, and/or pamphlet was published, printed, circulated, and/or disseminated, all in violation of section 21-1112, R. S. 1923, and contrary to the -statutes in such cases made and provided and against the peace and dignity of the state of Kansas.”
Other counts were framed in the same fashion.
The code of criminal procedure reads:
“The indictment or information must contain, . . . second, a statement of the facts constituting the offense, in plain and concise language, without repetition.” (R. S. 62-1004.)
“The indictment or information must be direct and certain as it regards the party and the offense charged.” (R. S. 62-1005.)
As indicated, the statute was designed to cover whatever may be advertised and all ways of reaching people by advertisement. Specification of merchandise, securities and service shows they are distinct subjects of advertising. While merchandise and securities are sold, or otherwise disposed of, service is rendered, as by working, furnishing aid or help, supplying facilities, and the like. The advertisement reproduced above related to products, and judging from the name of the advertiser, one of the products was sausage. Another advertisement related to bread, another to milk and milk products. All advertised articles were merchandise. All were pleaded as service.
To sell or in any wise dispose of meat and bread and milk is one thing. Under the statute, to induce the public or some person to enter into obligation respecting commodities, is something else. All the advertisements were charged as involving creation of obliga tions. No label, notice, letter, or pamphlet was involved, and no indirection in reaching the public was involved. No effort was expended, in framing the indictment, to analyze the statute and apply it to the advertisements complained of, and the result was, the indictment became multifarious jargon.
In the indictment, corporate organization of defendant and place of publication of the Beacon were alleged at length three times. The words of the indictment, “intentionally, willfully, and knowingly,” are not found in the statute, and would tend to emasculate it if they were. The statement of the advertisement on which prosecution was based was alleged to be deceptive and misleading, something for which defendant could not be prosecuted. The certainty-destroying expression “and/or” was used fourteen times.
In reading the indictment, the court told the jury to disregard “/or.” The jury should have been told to disregard “and/or” and all that followed to which the expression supposedly pertained.
To protect against mistake in judgment, carelessness, and incompetency, the criminal code directs that in considering the sufficiency of an indictment, surplusage shall be disregarded. If, using the advertisements themselves as guides, the direction be vigorously observed, the little that would remain of each count of this indictment would probably serve to charge defendant with publishing a prohibited advertisement, knowing it to be false.
Defendant did not merely plead not guilty. Defendant filed an answer, which admitted corporate organization, admitted publication of the Beacon, and admitted publication of all the advertisements set forth in the indictment. The purpose and intent of the advertisers were not in fact in dispute, and the answer narrowed the issues to be tried to just two matters: First, was the statement common to each of the five counts, “Approved by R. E. Hobbs, M. D., Director of Public Welfare, City of Wichita,” untrue? Second, if the statement was untrue, did defendant know it was untrue?
The state produced a number of witnesses who were allowed to testify, over objection, that they were solicited to run advertisements in the Sunday supplement, of the same kind as those published, and the conversations with the solicitors were repeated. The testimony was professedly offered under the rule permitting evidence of similar offenses, to show guilty knowledge. The rule had no application to the issues. Publication of five advertisements was specifically admitted. Defendant was prosecuted for publishing those advertisements, and evidence of a thousand solicitations to take other advertisements of the same kind would have no tendency to establish falsity and knowledge of falsity of the published advertisements.
The state says the testimony would have a bearing on intent and motive. What would intent and motive to do several times more what defendant admitted it had done five times amount to? Besides that, as indicated above, the statute, down to the proviso, deals with just one person, the advertiser, who with intent to sell, increase sales, etc., concocts and publishes an advertisement, untrue, false, or misleading. Such an advertisement is prohibited, under prescribed punishment. The proviso deals with another person, the newspaper publisher. His intent in publishing a prohibited advertisement is not an ingredient of his offense. If the advertisement be untrue and he knows it to be untrue, and publishes it, his offense is complete, whatever his intention, motive, purpose, or what not.
The character of advertisements to appear in the Beacon Sunday supplement was brought to the attention of Bert C. Wells, city manager, on Saturday, and in the Wichita Evening Eagle of the same day he published the following:
“Executive Department
“city OF WICHITA, KANSAS
“To Whom It May Concern:
“It has been brought to my attention that an advertising racket of some description is being followed in the city involving a seal of approval of the City Health Department and the signature of the director of public welfare, Dr. R. E. Hobbs.
“Anything of this character has been without the knowledge of the city and is not authorized either by the City Health Department or by the director of public welfare.
“This notice is a warning that any practice involving the use of the City Health Department or Doctor Hobbs is in violation of law and will not be permitted. Neither Doctor Hobbs nor the City Health Department has any seal of approval. Bert C. Wells, City Manager.”
This notice was introduced in evidence, over objection. Admission of the notice in evidence was error.
No use of seal of approval of the city health department, or of Doctor Hobbs, or of any seal of anybody, was charged in the in dictment or was involved in the case. It was perfectly immaterial whether Doctor Hobbs or the city health department had a seal of approval, or whether anything of that character was authorized by the city health department or by the director of public welfare, or was known to the city.
The designing of advertisements is a special field of creative endeavor. Designs range from the figure of a bull, which may be daubed on the side of a barn, vulgarity of the design being accentuated by a scrap of fence, to a reproduction of an old engraving on copper plate of the highest artistic excellence, on which are superimposed, in beautiful typography, the words “Rolls-Royce.” What Goldansky did was to create a background for certain words to appear beneath the words “Our products,” and all the indictment charged 'was, that the words were untrue.
Not only was there no charge that the background was a seal of any kind or of anybody, but there was no charge the background was a simulation of a seal or anything else, and the only issue presented with respect to the design was, whether the superimposed words were true, as applied to the products indicated in the advertisement.
Shanklin testified he read Wells’ signed statement published in the Eagle, and the state contends the statement was notice to Shanklin the words of the advertisement were not true. The statute does not impose fine, or imprisonment, or both fine and imprisonment, for mere notice of falsity which, if followed by investigation, might lead to knowledge. There must be knowledge, and no caustic declaration volunteered by some disturbed city official about rackets and seals could bring home to Shanklin knowledge in fact that the words on the design were untrue.
In its case in chief, the state was permitted, over objection, to prove by Wells that he did not authorize use of the design. Whether Wells authorized use of the design was a subject quite foreign to the case, and whether Doctor Hobbs exceeded authority of his office, or violated instructions, in giving approval, was quite foreign to the case. The only question was, Did he approve?
While on this subject, it may be noted that Shanklin testified, and nobody disputed his testimony, that about noon on Saturday Doctor Hobbs came to the Beacon office, told Shanklin his resignation had been demanded, said he thought he would be fired, and said he had been asked to sign an affidavit that the advertisements were unauthorized, but he had refused to do so.
The district court’s instructions misconceived the statute with respect to the subject of intent, and the verdict actually found the Beacon Publishing Company guilty of publishing the advertisement exhibited above, with intent of the Beacon to sell the sausage company’s products. The instructions misconceived the statute with respect to the subject of deception, and the jury found the Beacon guilty of publishing statements which were deceptive.
The instructions injected some extraneous matter into the case. The court instructed the jury in effect that the advertisements belonged to the prohibited class, if, in fact, the merchandise had not been “officially inspected,” and approved by the director of public welfare. The basis of the welfare director’s approval was not material, so long as he did approve.
The court gave the jury two instructions, which follow:
“Both the state and the defendant are entitled to the separate judgment of each juror. It is the duty of each juror to refuse to concur in a verdict of guilty unless and until he is satisfied that each and every fact necessary to establish the guilt of the defendant has been proved by the evidence to his satisfaction beyond a reasonable doubt.
“It takes all of the jury to convict or all to acquit. Hung juries are an abomination to any court, an abhorrence to taxpayers and a reproach upon the members thereof.”
The first instruction is an abbreviation of an instruction to be given in criminal cases which this court has several times approved. The instruction properly authorized a hung jury under the conditions stated. The second instruction nullified the first, because if a juror should do his duty, or a small minority of jurors should do their duty and refuse to concur with the others, their conduct would be an abomination to the court, an abhorrence to the taxpayers and a reproach to themselves. The second instruction was improperly given. (Neely v. Travelers Ins. Co., ante, p. 691.)
A separate verdict was returned for each count. The verdicts were identical in form, and one of them reads:
“We, the jury, empaneled and sworn in the above-entitled case, do upon our oath find the defendant, The Beacon Publishing Company, a corporation guilty of publishing, disseminating and circulating, an advertisement regarding merchandise, containing a statement which was in fact untrue and deceptive, with the intent to sell or dispose of said merchandise to the public and with the intent to increase the sale and consumption thereof and to induce the public and any person to enter into obligations relating thereto, in violation of section 21-1112 of the Revised Statutes of Kansas, 1923, as charged and set forth in the fourth count of the indictment.”
It will be observed the verdict was not a general verdict of guilty. The verdict specified the things of which defendant was guilty, and from what has already been said, all of it after the word “untrue” should be stricken out except the concluding words, “in violation of,” etc. While the verdict found defendant guilty of publishing an advertisement regarding merchandise, containing a statement which was in fact untrue, the verdict did not find defendant guilty of publishing the advertisement with knowledge of the fact that the statement was untrue. That was indispensable to a finding that defendant was guilty under the statute, and the verdicts as verdicts of guilty were contrary to law.
There were other defects in the proceedings, but from the foregoing it is perfectly manifest the conviction cannot be allowed to stand, and the question arises: What shall the order of this court be?
Doctor Hobbs was consulted before the advertising campaign was started. He approved it, and agreed to cooperate as he had done before in other campaigns. He was shown just what form advertisements would take, and he approved the form shown him. He wrote an article to be printed in connection with the advertisements, and the article was printed, together with a cut of himself. One of the advertisements related to mattresses, concerning which there is a statute. Doctor Hobbs gave an interview relating to mattresses, to be printed in connection with the advertisements, and the interview was published in the supplement.
On .Saturday, with the material for the supplement assembling for printing and for distribution on Sunday, he was called on the carpet by the city manager. ■ The city manager had a picture on a card of the design to be used in the advertisements. Doctor Hobbs saw it and knew it was to be used as an advertising measure. The result is, Doctor Hobbs was intimately associated with the publication of the advertising supplement to contain advertising, the form of which he knew and approved. He used the expression “O. K.’ d,” which meant approved.
On Saturday, after the interview with Wells, Doctor Hobbs went to the Beacon office. He saw Shanklin, Givens, and Goldansky. Goldansky testified he asked Doctor Hobbs if he would like to see the smaller cuts, made from the original design, for the advertisements. There were different sizes for different advertisements. Doctor Hobbs replied he did not have time, he was going on his vacation, and he was sure they were all right.
Doctor Hobbs was called by the state in rebuttal. He testified he had heard Goldansky’s testimony, and then testified:
“I can’t remember him telling me about different sizes, so, for sure, I can’t say I knew anything about the various sizes until Sunday night.”
He did not dispute saying he knew they were all right.
Goldansky testified that in the same conversation he asked Doctor Hobbs how long he would be gone on his vacation, they discussed the situation in the city hall, and Doctor Hobbs said the cuts were all right, the (advertising) section was all right, and everything was all right. On rebuttal, Doctor Hobbs said nothing about this part of his conversation with Goldansky.
Continuing to make its evidence speak of one thing while the indictment spoke of another, the state centered its attack on use of the seal. Doctor Hobbs testified that when Givens consulted him, he told Givens any time they O. K.’d anything, they would have to know what they O. K.’d. The water company advertisement was the only one he saw and approved, and the five advertisements which appeared in the paper were run without his knowledge or approval.
• This was not important, if true. Defendant was not charged with publishing advertisements which Doctor Hobbs had not seen and had not approved. The charge was, that a statement .in the advertisements was not true, and the state introduced no testimony that the products of the five advertisers were not approved by Doctor Hobbs.
On cross-examination by defendant, Doctor Hobbs testified two food inspectors made weekly and monthly inspection of various food establishments, to see that everything was done according to law and, on complaint, furniture stores were investigated with respect to mattresses. Previous to August 20 four of the establishments involved in the indictment had been inspected, one of them had been inspected by Doctor Hobbs himself, and a few mattress complaints had been investigated. Doctor Hobbs testified that when Givens came to see him about the advertising supplement, he told Givens he would O. K. any reputable firm. If Givens had any doubt, Doctor Hobbs would send an inspector out to see. Doctor Hobbs also testified that if he had been asked to do so, he would have made a statement that the five places had been inspected and found O. K., and Doctor Hobbs testified as follows:
“Q. Now, Doctor Hobbs, didn’t you tell Hank Givens, during the week preceding August 20, 1933, when he came over to see you about this proposed advertising supplement, that all reputable firms had been inspected by j'our department and were undoubtedly all right? A. Yes, I made that statement.”
The result is, reputable firms were approved by Doctor Hobbs for purpose of the advertising campaign. There was no suggestion at the trial that any one of the five advertisers was not a reputable concern, and as indicated, Doctor Hobbs testified he would have made a specific statement they had been inspected and found O. K. As the securing of advertisements under this approval progressed, Doctor Hobbs was shown the precise form in which one of the advertisements would appear, and he approved it and added a line, strengthening the advertisement. When trouble broke, he did not countermand the publication of his' article, or his interview, or his picture, or anything else which he knew would appear the next day.
The state contends the jury was at liberty to believe or disbelieve the testimony of any witness, could disregard the testimony of Doctor Hobbs, and may have done so. A jury is not at liberty arbitrarily to disregard the testimony of a witness. In this instance, the state produced Doctor Hobbs as its own witness. At the trial, the state exhibited no surprise at his testimony. He was corroborated by Shanklin, Givens and Goldansky. The testimony was all one way, and without pursuing the subject further, the state failed to prove falsity of the statement which the indictment alleged was untrue.
The judgment of the district court is reversed, and the cause is remanded with direction to set aside the judgment of conviction, and discharge the defendant. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to enjoin the issuance of bonds by the city of Topeka, and from a ruling sustaining a demurrer to its petition the plaintiff appeals.
Omitting formal allegations, the petition alleged that at a special election held November 2,1926, the voters of Topeka authorized and directed the governing body of the city to acquire sites and to construct fire stations and to issue bonds of the city in a sum not exceeding $165,000 to pay therefor, and that it did construct one station costing $92,265.63; that on October 23,1934, the governing body passed a resolution to purchase a site west of Lane street and to construct a fire station thereon and to issue bonds to pay the cost and expense of construction over and above any amount which may be obtained from the federal government for relief work and to levy a general tax for the payment of said bonds. A copy of the resolution attached to the petition sets out the history above noted, and that at this time there is no fire station west of Lane street, and that part of the city does not have adequate fire protection, and calls for the issuance of bonds not exceeding the unexpended amount between the $165,000 authorized, and the $92,265.63 already issued, or $72,734.37. It was further alleged that since November, 1926, the circumstances and conditions have very materially changed in that in 1926 there was no necessity for a fire station west of Lane street; that at said time there Was general business prosperity in Topeka, but at the present time, on account of business depression, the taxpayers of the city are much less able to bear the additional tax burden which would be caused by the issuance of such bonds; that on account of the lapse of time since the election in 1926, the purchase of a site and issuance of bonds for the above purposes are not authorized, as the voters did not authorize the making of improvements and issuance of bonds eight years thereafter; that the purchase of site, erection of a fire station and the issuance of bonds would be in violation of law. It is further alleged that the governing body is threatening to and, unless restrained, will purchase the site, construct the station and issue the bonds, all without lawful authority, etc. To raise the question of law involved, defendants demurred, and it is from the sustaining of that demurrer plaintiff appeals. Although not shown by the petition, we are informed by the parties that the proceedings in 1926 were in virtue of R. S. 13-1024 which, for our purposes, is abstracted to read as follows:
“For the purpose of paying for any . . . public building ... or for any other improvements or works not otherwise herein provided for, and for the purpose of rebuilding, adding to or extending the same from time to time, as the necessities of the city may require, the city may borrow money and issue its bonds for the same; but no bonds shall be issued for such purposes unless the same are authorized by a majority of the votes cast at an election held for that purpose. ...”
The sole question presented is whether, by lapse of time, the city abandoned the proceedings for making improvements. There is no statute fixing the time within which the bonds must be issued or' the improvement made, neither has there been any affirmative action by the city after the date of the election in 1926 and prior to the resolution in 1934 indicating an intention not to proceed with the erection of other fire stations to be paid for out of the remaining authorized bond issue.
In 44 C. J. 295 it is stated:
“The intention of the municipal authorities to abandon proceedings for the making of a public improvement may be implied, as well as express, but such an intention will not be inferred unless the facts are not reasonably consonant with any other theory.”
The petition does not charge an abandonment, but alleges two grounds — which to a certain extent are inconsistent with each other —why it should be held the governing body has waited too long to exercise the authority conferred on it. The claim that in 1926 there was no necessity for a fire station west of Lane street is an argument in favor of waiting. It would have been improvident to build a station when there was no need for it. The argument that the depression makes it more burdensome to pay taxes to retire the bonds has more force, standing alone, but it ignores the present policy of both the state and federal governments to proceed with public works in order to afford employment.
The statute under which the bonds were authorized not only does not contain a limitation of time, but shows on its face that it is not limited to a single bond issue for a single improvement, for it uses this language:
“for the purpose of rebuilding, adding to, or extending the same from time to time as the necessities of the city may require.”
The proposition submitted in 1926 was to authorize the city “to acqixire lands for sites and establish and construct thereon fire station buildings,” which indicated a program of improvement to be carried on in the future under the discretion of the governing body. It did not present a situation like State, ex rel., v. City of Lawrence, 98 Kan. 808, 160 Pac. 217, where bonds were voted to purchase a water plant, and it was held that mandamus would lie to compel issuance 6£ bonds for that purpose. Here discretion was vested in the governing body; it was contemplated that the bonds would be issued and the proceeds used to provide fire stations where needed. Did the fact the city awaited development amount to an abandonment of the project, or a recognition that no other stations should be built out of the particular authorized bonds?
No Kansas case Under a similar situation has been cited, nor does our search disclose any. As bearing on the question, our attention is directed to State, ex rel., v. Davis, 114 Kan. 270, 283, 217 Pac. 905, and State, ex rel., v. Davis, 115 Kan. 10, 221 Pac. 895, involving issuance of bonds to pay the soldiers’ bonus. Under chapter 255 of the Laws of 1921 (R. S. 73-101) an election was held authorizing issuance by the state of bonds not exceeding $25,000,000 to pay the soldiers’ compensation at the rate of one dollar per day. It developed that the amount would not be sufficient, and by chapter 6 of the Laws of 1923 Special Session (R. S. 73-106, et seq.) an additional $7,000,000 of bonds was authorized, the validity of which was questioned, and in the above cases it was held they might be issued without a submission to the electorate. While the last-mentioned act specifically allowed issuance of bonds in installments, by reason of change of time in which claims could be made (see Laws 1925, ch. 246; Laws 1927, ch. 283; Laws 1929, ch. 246; Laws 1931, ch. 277, and Laws 1933, ch. 269), the amount necessary to be issued has increased and installment bonds have been issued from time to time, the last installment being in March, 1934, in the amount of $250,000, as appears from the records of the state compensation board. While no question appears to have been raised, here bonds are issued eleven years after their authorization.
In 19 R. C. L. 1000 is the following:
“A provision that the question whether bonds shall be issued for a certain purpose shall be submitted to the taxpayers to be affected thereby does not cause a vote in the affirmative to lapse upon the completion of the assessment roll for the following year, even though there may have been changes in the body of the taxpayers in the meantime. All that is required is that the municipality shall proceed with reasonable promptness to exercise the authority given to it at the election, and if this is done the fact that the body of the taxpayers may have changed since the election was held does not affect the validity of the bonds issued as security for the debt.”
And in 44 C. J. 1207, note 13 (b), is the following:
“In the absence of a statute requiring the bonds to be issued within a specified period of time after the election, the time of issuance rests within the sound discretion of the city officials.”
In support of which Stokes v. City of Montgomery, 203 Ala. 307, 82 So. 663, is cited. In that case it was said:
“It would appear that there is no inhibition of the constitution, statutes,' or ordinance that would now prevent the board of city commissioners from issuing and selling said bonds or from applying the proceeds as prescribed by law, unless the time elapsing between the authorization by the election and the proposed issue and sale of the bonds has affected the right of the city in the premises. Does the time that has elapsed from the due authorization of said bond issue, to the proposed issue and sale of the bonds to build the hospital, pursuant to the last ordinance declaratory of the necessity therefor (May 7, 1919), affect the power of the board of commissioners or the right of the city of Montgomery to issue and sell the bonds that funds may be available for the building and equipping of a hospital?
“It is conceded in argument of counsel, and there is no question but that the city could have legally issued and sold these bonds on December 15, 1908, the time of its authorization. The fact of the changed form of government of the •city did not affect that right. No statute or ordinance has been passed since authorization by election of the bond issue negativing the right or power of the ■city to issue the same. The fact that the bond issue was required to be authorized or sanctioned by a majority vote cast in favor thereof, at the election held pursuant to the statute for such purpose, did not require the issue of the bonds at or within a specified time, since there was no statute to that end. The election was had in conformity with the statutory requirement for the consent of the people to the governing body of the city (mayor and council, or board of ■city commissioners) to exercise the power at such time thereafter as deemed by such body to be necessary and expedient. We are of opinion that the bonds in question may be issued and sold at this time, that the proceeds of such sale may be expended for the specific purpose authorized by the people and in accordance with the declared judgment of the board of commissioners. The exercise of this power by the board of city commissioners and the necessity and ■expediency for the erection and equipment of a city hospital were given solemn expression by the board of commissioners of the city of Montgomery in the aforesaid ordinance of May 7, 1919.” (p. 310.)
In Covington v. McInnis, 144 S. C. 391, 142 S. E. 650, injunction was sought to prevent issuance of bonds seven years after they were authorized at an election. In discussing the effect of delay, it was said:
“The only limitation which should affect the right to issue bonds under these ■circumstances is where the purposes for which the bonds were originally voted have ceased to be necessary, or where the conditions have so changed that it would be inequitable to allow the bonds to be issued, and, unless one of these conditions clearly appears to the satisfaction of the court, the exercise of their discretion by the trustees should not be interfered with.” (p. 394.)
In In re Verde River Irri., etc., Dist., 37 Ariz. 580, 296 Pac. 804, it was said:
“The seventh point raised is that too great a length of time elapsed between the election at which said bonds were authorized and the date of the decree of the lower court validating them, it being a period of some seven years. The ordinary rule is that unless the statute requires bonds to be issued within a specified period of time after the election at which they were authorized, the time of issuance rests in the sound discretion of the officials upon whom that duty is imposed. (Stokes v. Montgomery, 203 Ala. 307, 82 So. 663; Covington v. McInnis, 144 S. C. 391, 142 S. E. 650; 44 C. J. 1207.)” (p. 590.)
The most recent case called to our attention is Hager, Mayor, v. Bd. of Ed. of City of Ashland, 254 Ky. 791, 72 S. W. 2d 475, involving bonds authorized in 1929, and about to be issued in February, 1934, where it was said:
“It is the settled rule that a county or municipality is not required to issue all the bonds voted at an election at one time, but may issue them as needed, and a delay in issuing a part or all of the bonds, at least for a reasonable time, does not bar the right to issue them when necessity arises. Thus in the case of Sutherland et al. v. Board of Education of City of Corbin et al., 209 Ky. 351, 272 S. W. 887, the bonds were authorized in 1922 and issued and sold in 1925. Their issuance was upheld. So, too, in Young v. Fiscal Court of Trimble County, 190 Ky. 604, 227 S. W. 1009, where the bonds were authorized in 1916 and issued and sold in 1921, and in the City of Dayton v. Board of Education of City of Dayton, 201 Ky. 566, 257 S. W. 1021, where the bonds were authorized in 1919 and issued and sold in 1922, and in Nall v. City of Elizabethtown, 200 Ky. 321, 254 S. W. 893, where the bonds were issued four years after they were authorized. In the light of these authorities, and especially that of the Young case, we cannot say that more than a reasonable time has elapsed since these bonds were authorized and that therefore the board of education is not precluded by the lapse of time from requiring the city of Ashland to now issue them.” (p. 792.)
Our conclusion is that there being no statute specifying or limiting the time within which the improvements must be made and the bonds issued after they are authorized, the governing body could proceed at any reasonable time within its discretion; that unless it appear to the contrary, the passage of the resolution to proceed would be within its discretion; that under the allegations of the petition no abuse of discretion is pleaded, nor do the facts pleaded show such abuse; that mere lapse of time is not of itself sufficient to show abandonment, and under the facts and circumstances of this case, the court should not substitute its judgment for that of the governing body of the city as to the advisability of completing the improvement authorized by the electorate of the city.
It follows that the judgment of the trial court sustaining the demurrer to the petition was correct, and it is affirmed.
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The opinion of' the court was delivered by
Harvey, J.:
This was a workmen’s compensation case. Claimant had been in the employ of respondent about eleven years as a track laborer. On March 22,-1934, while in the regular course of his employment, a piece of steel about the size and thickness of a dime flew into his left eye, cutting and severing the eyeball. He was taken to the hospital, where an eye specialist removed the eye, and soon thereafter put in a glass eye, and he was able to leave the hospital April 9. Respondent’s representative advised him that under the compensation law (R. S. 1933 Supp. 44-510 [3] [c] [15]) he was entitled to sixty per cent of his average weekly wages for 110 weeks, as for a scheduled injury. The amount was computed and paid, with five per cent deduction, and claimant executed a release of the employer from further liability. On May 17, 1934, claimant filed with the compensation commissioner a petition to set aside the release on the grounds that he had been induced to execute it because of misrepresentation made to him by respondent’s representative, mutual mistake, and that the amount of compensation paid was grossly inadequate, .contending that he was entitled to compensation for total permanent disability for 415 weeks. On the same date he filed his written claim for compensation. Respondent filed the release with the compensation commissioner on June 13. After a hearing and on June 30 the commissioner made an order disapproving the final release in order that he might determine the adequacy of the compensation, but in doing so specifically found that no fraud was practiced on claimant to procure his execution of the release, and that there was not a mutual mistake of the parties. There appears to have been no appeal from this order, but perhaps that is' of no special consequence since the principal question involved here is the amount of compensation claimant was entitled to receive. On July 7 the compensation commissioner made findings and an award on the claim for compensation and denied claimant further compensation. He appealed to the district court. That court considered the evidence and allowed claimant compensation for total permanent disability for 415 weeks, less the amount previously paid. The employer has appealed.
In the trial court claimant contended that he should be compensated for total permanent disability under the compensation law, and not for a scheduled injury, for the reason that he was industrially blind in the right eye, hence that the loss of his left eye made him totally and permanently disabled. The trial court found and rendered judgment in accordance with that view. The evidence tending to support the finding is as follows: Claimant testified that after the loss of his left eye he found.he could see very little with his right eye. He could not see to drive a nail with a hammer, or to recognize a friend who was more than six feet away, or to walk about without stumbling, and could not see enough to do any work. An eye specialist who tested his right eye a few days before the hearing before the commissioner found his vision at that time was 12/200. This is less than ten per cent vision and is tantamount to industrial blindness. An examination of the eye did not disclose it to be diseased in any way, but it was a “farsighted” eye. Obviously it had been that way for many years, perhaps from birth. There is some testimony as to how much that might be improved by the use of glasses. While there appears to be some lack of harmony in the testimony of the two eye ‘specialists who testified on that point, it appears that with a very strong lens he might be able to have 40 per cent vision for close work and 76.5 per cent for distance. Quite a little is said in the briefs as to whether claimant’s industrial vision should be computed with or without the use of glasses. The decisions from other states, some of which have a statute on the point, are not in harmony. Many of the cases are collected in Kelley v. Prouty et al., 30 P. 2d 769 (Ida.), which appears to make the distinction that if the industrial vision of an injured eye is being determined the use of glasses should not be considered, but if one eye is entirely lost and the industrial vision of the other is being determined the use of glasses should be considered. We are cited to no specific provision of our statute on the question. Perhaps it would be governed by the principle which underlies our decisions to the effect that under some circumstances an injured workman should submit to an operation (Gentry v. Williams Brothers, 135 Kan. 408, 10 P. 2d 856), although this point is not suggested. We do not deem it necessary to decide the point in this case, for the trial court was of the opinion that the type of glasses claimant would be compelled to wear would be such a handicap that they could not enable him to engage in industry. Respondent offered no evidence to the effect that claimant would be industrially useful with glasses. He had inquired of respondent’s representative about his job and was told he had no job. He was not told that he would be given work if he had glasses, nor did respondent offer to provide him glasses. The trial court therefore found that the accident which claimant received resulted in a total permanent disability. There is substantial evidence to sustain this finding.
Appellee concedes an error in the computation of the judgment of the trial court. There should have been an allowance on the award as though the right eye had previously been injured by accident in an industry, and 110 weeks should have been deducted from the 415 weeks for permanent total disability. (R. S. 1933 Supp. 44-510 [3] [c] [24]; Stevens v. Kelly-Carter Coal Co., 140 Kan. 441, 37 P. 2d 48.)
The judgment of the trial court will be modified by reducing the award from $3,465.40 to $2,237.80, and as so modified it is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for personal injuries. Judgment was for defendant. Plaintiff appeals.
Plaintiff was employed in an office on the ninth floor of an office building owned and operated by defendant. The floor in the hallway on this floor of the building is made of a substance known as terrazo. It is made by putting a mixture of cement and marble chips on the floor and then rolling and grinding it down until it has a smooth surface.
On the night of the 12th or 13th of August, 1931, defendant put a new wax on this floor. On the 14th of August plaintiff slipped and fell in the waxed hallway and was injured. This action followed. The jury returned a verdict for defendant. Judgment was entered accordingly.
At the close of defendant’s evidence defendant asked that the jury be permitted to inspect the floor in the hallway of the Central building and one of the floors of Wesley Hospital. Plaintiff objected to the jury being permitted to inspect either the Central building or the hospital. The court overruled the objection and permitted the inspection.
Plaintiff argues this ruling of the trial court was erroneous. In this connection it is pointed out that the hallway on the ninth floor of the Central building was not in the same condition at the time the jury viewed it as it was when the injury occurred. The wax that had been put on prior to the time of the accident was removed the next day and its use discontinued, and none had been put on at the time of the trial, over a year later. There was no evidence that the floor of the hospital was in the same condition as the floor where the accident occurred, beyond the fact that the floor was of terrazo and had been treated with the same kind of wax that had been used on the Central building.
The theory of the plaintiff is not that the terrazo floor is so slippery as to be dangerous, but that this floor was dangerous on account of the particular wax that had been applied, and that it had been improperly applied at the spot where the injury occurred.
The right to have the jury view a place which is the subject of the action is a statutory one. It is as follows:
“Whenever in the opinion of the court it is proper for the jury to have a view of the property which is the subject of litigation, or of the place in which any material fact occurred, it may order them to be conducted in a body under the charge of an officer to the place, which shall be shown to them by some person appointed by the court for that purpose. While the jury are thus absent no person other than the person so appointed shall speak to them on any subject connected with the trial.” (R. S. 60-2910.)
There is no provision for a view of any place other than where the cause of action is alleged to have occurred. In this case, Wesley Hospital -was not the subject of the litigation, nor did any fact occur there.
In Tedens et al. v. Sanitary District, 149 Ill. 87, in speaking of this question, the court said:
“It appears on the trial that the jury, after viewing the premises involved, were taken upon and examined another tract of land in the same locality, and this is relied upon as error. In the trial of a case of this character, section 9 of chapter 47 of our statute provides ‘that the jury shall, at the request of either party, go upon the land sought to be taken or damaged and examine the same.’ . . . It is under this statute that the jury made the view under consideration, and as the statute contains no provision authorizing the jury to view other lands in the locality of the lands sought to be condemned, we do hot think they had any authority to do so. The proceeding being under the statute must conform to the statute.” (p. 93.)
In Wright v. Carpenter, 50 Cal. 556, the court said:
“In ejectment, the statute authorizes the court to direct the jury to be conducted to view the land in controversy; but it does not authorize them to view any other property than that which is in litigation.” (Syl. ¶ 1.)
The view by the jury of the floor in Wesley hospital was no doubt prejudicial. The jury would consider .the fact that the floor was in a hospital and might very well overlook the fact that the basis for the liability of the building company was the fact that the wax had been improperly applied at the spot in question. Regardless of all that, the defendant had no right to have the jury view any property other than the place where the injury occurred. The ruling of the trial court in overruling the objection of plaintiff to a view by the jury of the floor in Wesley hospital was error, which by itself would require a reversal of the judgment in this case and the sending of it back for a new trial.
The court also permitted the jury to view the place in the Central building where the injury occurred. It will be remembered that the ground upon which plaintiff claimed liability was that the wax had just been applied and had been improperly put on. The wax in question was removed the next day after the injury. It had never been replaced. The place viewed must be in the same condition as it was at the time of the accident. (See State v. Henson, 105 Kan. 581, 185 Pac. 1059; Rudy v. Headley, 103 Kan. 417, 173 Pac. 913; also, Seininski v. Wilmington Leather Co., 83 Atl. 20; 3 Boyce 288, 26 Del.) This is a wise rule. Where the condition that is claimed to have caused an injury no longer exists no good purpose can be served by taking the jury out to see the place where it once existed. The only result of this would be to confuse the jury. There was no evidence that the floor where the injury occurred was in the same condition when the jury saw it as it was when the injury occurred, and it was error for the court to permit the view. The burden of showing that the floor was in the same condition was on defendant.
Among other instructions the court instructed the jury as follows:
“You are instructed that the object of the view is to acquaint the jury with the physical situation, conditions, and surroundings of the place and things viewed.
“You have a right to take into consideration in this case such knowledge and information as you may have acquired by a view of the place testified to as to the alleged damages by the personal examination of the premises that you have been permitted to make under direction of the court. Such information as the jury may have acquired from the making of the view is not to be considered as exclusive or predominating evidence. The jury is not to disregard other evidence in regard to the character and situation and natural conditions of the place in question, but, on the other hand, the information obtained by the jury at the view of the place in question is to be considered in connection with the evidence introduced from the witness stand in the case.”
Plaintiff argues that this instruction is erroneous because it infers the information gained from the view is evidence. It is argued by plaintiff that information gained in the view is not evidence, but is explanatory of the evidence. Some courts have held it is error to instruct the jury to take into consideration any knowledge obtained while viewing the premises. Other courts have held the jury is not bound by the testimony of the witnesses but may rest its verdict on the knowledge obtained by a view of the premises. This court has taken a middle ground.
In Junction City v. Blades, 1 Kan. App. 85, the court held:
“The inspection of a place by the jury is not evidence, but merely comes in aid thereof, and the information which the jury may acquire from making the view is not to be elevated to the character of exclusive or predominating evidence.” (Syl. If 7.)
In City of Topeka v. Martineau, 42 Kan. 387, 22 Pac. 419, this court held the following instruction not to be error:
“The court has sent you, under charge of a bailiff, to examine the premises in question. You may, in considering your verdict, take into consideration the result of your observation in connection with the evidence produced before you.” (p. 389.)
Following these two authorities, as well as those examined from other jurisdictions, we conclude that an instruction such as the one given here, which treated the information gained at the view as evidence, was erroneous.
The judgment of the trial court is reversed, with directions to grant plaintiff a new trial in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal from an order of the district court sustaining a demurrer to a petition filed by the defendant to vacate a judgment previously rendered in the action on the ground of unavoidable casualty or misfortune preventing defendant from defending. (R. S. 60-3007, 7th clause.)
The case was here before (Royse v. Grage, 138 Kan. 779, 28 P. 2d 732), which was an appeal from an order of the court overruling a motion to set aside the judgment on the ground that it was void. It then appeared the action was one for damages for malpractice; that the petition was filed December 6, 1932; that no answer was filed; that on March 23, 1933, the action was regularly called for trial, and the court, as authorized by R. S. 60-3109, heard the evidence and rendered judgment for plaintiff; that thereafter the defendant filed a motion to set aside the judgment on the ground it was void, for the reasons: (1) That the petition did not state facts sufficient to constitute a cause of action, and (2) that the evidence offered was insufficient to sustain the judgment. The trial court overruled this motion, and this court affirmed the ruling.
Thereafter, and on April 6, 1934, the defendant filed the petition involved in this appeal. The unavoidable casualty and misfortune alleged were: (1) That at the beginning of the action service of summons was obtained upon defendant (the petitioner here) by leaving a copy thereof at his residence, but that the copy actually never was received or seen by defendant, or any other persons at his residence, and that he had no knowledge that the action had been brought. (2) That the attorney for petitioner had conferred with plaintiff’s attorney respecting the claim and that he depended upon the attorney for plaintiff to inform him of the filing of the action. In this connection it may be noted there is no allegation that plaintiff’s attorney agreed to inform the attorney representing defendant of the filing of the action in any other manner than by filing the petition and causing summons to be issued thereon. It is alleged that shortly after the action was filed the attorney representing defendant became a member of the state legislature and by reason thereof was absent from his office for a period of about three months, during which time he was unable to remain in contact with sources of information which would have apprised him of the pendency of the action. In this connection we take judicial notice that the session of the legislature did not begin until January 10, 1933, which was more than a month after the petition was filed. It is further alleged defendant had a good' defense to the action,’ and accompanying the petition to set aside the judgment is an answer which in effect is a general denial of negligence on the part of defendant, or that plaintiff sustained any damages by reason of defendant’s negligence.
The principal legal question presented concerns the service of summons upon defendant at the beginning of the action. The petition to vacate the judgment alleges that it was served by leaving a copy thereof at the residence of defendant. In Atchison County v. Challiss, 65 Kan. 179, 69 Pac. 173, it was held:
. . Service by leaving a copy of the summons at the usual place of residence of a defendant is personal service, within the meaning and intent of the act, and valid.”
The “act” referred to in this quotation is our present R. S. 60-2507. The point determined was carefully considered in the opinion and the earlier cases cited. The opinion has been cited with approval in the following cases: Thisler v. Little, 86 Kan. 787, 790, 121 Pac. 1123; Sheehy v. Lemons, 99 Kan. 283, 284, 161 Pac. 662; Railway Co. v. Cowley County, 103 Kan. 681, 684, 176 Pac. 99; Montgomery County v. Wilmot, 114 Kan. 819, 824, 221 Pac. 276.
Appellant asks us to say th^t there is a difference in legal effect between the serving of a copy of summons upon a defendant personally and leaving it at his usual place of residence. To so hold would be to change the law which has existed in this state from the beginning. If such a change is to be made the legislature, not the court, should do this.
It is rather obvious that the other matters relied upon as constituting unavoidable casualty and misfortune are not substantial. On this point appellant cites and relies largely on Gordon v. Tennhardt, 134 Kan. 799, 8 P. 2d 328. That case originated in the city court, where both parties appeared and were represented by counsel, and was appealed to the district court, where it was tried in the absence of defendant and his counsel and without the notice to them required by our rule No. 31 (now No. 48), and the journal entry filed without being submitted to opposing counsel, as required by our rule No. 32 (now No. 49). There are other differences in the facts, but these are sufficient to distinguish it.
We find no error in the ruling of the trial court, and its judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action brought in Hamilton county January 17, 1934, on a note for $6,000 executed by Stanton K. Schroll and wife and to foreclose a mortgage executed by them on certain described real property. E. C. Bray held a second mortgage on the real property. He and others were made parties defendant, and as to them the petition alleged they have or claimed to have some interest in or lien upon the premises, which interest or lien, if any, is second and junior to the lien of plaintiff, and that no personal claim is made against any defendant except Stanton K. Schroll and wife. The defendants Schroll and wife did not answer or otherwise plead to the petition. After some preliminary pleadings the defendant E. C. Bray, on March 23, 1934, filed an answer in which he first admitted the incorporation of plaintiff and the execution and delivery of the note and mortgage sued upon and denied all other allegations of the petition, and “for a second defense and by way of counterclaim against the plaintiff” he sought damages in the sum of $35,-000. As a basis for this claim of damages he alleged that for several years prior to September, 1932, he had been selling many loans to plaintiff and servicing and looking after loans in western Kansas made by other brokers and owned by plaintiff; that he received no monetary consideration for servicing such loans, but did so pursuant to an oral understanding with plaintiff that all renewals of loans so serviced by defendant should be made through him, and in that manner he would be able to make a commission on such renewals; that on September 1, 1932, for the purpose of evidencing such agreement and reducing it to writing, plaintiff, by its then president, E. H. Lupton, Jr., executed an instrument in writing in the form of a letter which was intended to and did set forth the terms of the agreement and was transmitted to, received, and its terms accepted by defendant, a copy of which was set out as a part of the answer. It further was alleged that the agreement was carried out between plaintiff and defendant until about August 1, 1933, at which time plaintiff breached and repudiated the agreement, to defendant’s damage in the sum named.
Plaintiff moved to strike from this answer this second defense and counterclaim for the reasons, broadly stated: First, that it did not arise out of the contract or transaction set forth in plaintiff’s petition as the foundation of its claim, nor was it in any way connected with the subject matter of the actions set forth in such petition; and, second, that on January 15 (two days before this action was filed in Hamilton county and more than two months before defendant’s answer was filed in that action) plaintiff had filed an action in Shawnee county against E. C. Bray, E. H. Lupton, Jr., and others, to set aside the contract alleged to have been evidenced by the letter of September 1, 1932, the breach of which was relied upon by defendant in this action as the basis of his claim for damages, on the grounds that the defendants in the Shawnee county action had entered into such contract as a part of a conspiracy to defraud the plaintiff, and had in fact defrauded the plaintiff in a large stun, which it sought io recover. In the action in Shawnee county personal service was had on the defendant E. C. Bray in that county, and the court, on the motion of plaintiff, had issued an order restraining the defendant E. C. Bray from attempting to enforce such claimed contract. This restraining order was in full force and effect at the time E. C. Bray filed his answer in the Hamilton county action and at the time plaintiff in that action filed its motion to strike. Copies of the pleadings, prsecipes, service of summons on E. C. Bray, and of the restraining order issued, in the Shawnee county action, were attached to the motion to strike.
The trial court in Hamilton county overruled plaintiff’s motion to strike, and plaintiff has appealed from that order.
Plaintiff’s motion to strike should have been sustained upon both grounds urged. What was pleaded as a second defense and counterclaim is not a counterclaim as that term is defined in our statute (R. S. 60-711), for it did not arise out of the contract or transaction set forth in the petition as the foundation of plaintiff’s claim, nor was it connected with the subject matter of the action. Appellee suggests it more properly should have been called a set-off, but since plaintiff’s petition contains no allegations which would authorize a money judgment against Bray it could not be pleaded as a set-off. (R. S. 60-713.)
Upon the other ground urged, the motion to strike shows that before the Hamilton county action was filed, and long before Bray answered in that action, the same plaintiff had brought an action in Shawnee county, making Bray and others defendants, involving the rights of the respective parties under the identical contract pleaded by Bray in the Hamilton county action, the breach of which he alleges resulted in the damages he seeks to recover. Both were courts of general jurisdiction, having jurisdiction of the subject matter. Both acquired jurisdiction of the person of the defendant Bray. The Shawnee county court acquired such jurisdiction first in time, hence the controversy should have been tried in that court. In Juhlin v. Hutchings, 90 Kan. 618, 135 Pac. 598, the rule is thus stated:
“In such case the general rule is, as between courts of concurrent jurisdiction, that the court first acquiring jurisdiction may draw to itself all the issues between the parties which fairly inhere in the action before it and may enjoin other courts from interfering therewith during the pendency of the action.” (Syl. 114.)
This rule is firmly established in our jurisprudence. See City of Hutchinson v. Hutchinson Gas Co., 125 Kan. 346, 357, 264 Pac. 268. When the Hamilton county court was advised of that fact it should have declined to assume jurisdiction of that controversy. More than that, the Shawnee county court had issued an order, which had been served upon Bray, restraining and enjoining him from attempting to enforce the identical contract set up by him in the Hamilton county action. His pleading the contract and seeking damages for its breach was in contravention of that order. If he did not like that order the proper place for him to seek to have it set aside or modified was in the court where it was made. Appellee contends, otherwise and says Bray was 'not seeking to enforce the contract, but was seeking damages for its breach. This contention may be characterized as being more ingenious than sound, for to recover damages he necessarily would have to establish that the contract he pleaded was valid, that it was breached by plaintiff, and that he suffered damages by its breach. Certainly he is endeavoring to enforce legal rights predicated upon the validity of that contract —the very question wdiich is the subject matter of the action in Shawnee county. Appellee discusses several questions with respect to how the question was raised in the Hamilton county action. We shall not detail these. They are technical rather than substantial. It is clear the Hamilton county court was advised of the pending action in Shawnee county. Copies of pleadings, praecipes, summons and restraining order were presented to that court. No question is raised as to the accuracy of that showing. The motion challenged the court’s authority to hear the matter set up by Bray’s answer. When that is done in any appropriate manner the court should decline to proceed. ;
The judgment of the court below is reversed with directions to sustain the motion to strike the second defense and counterclaim from the answer of the defendant E. C. Bray.
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The opinion of the court was delivered by
Dawson, J.:
Arthur Ryan was convicted of manslaughter in the first degree, and appeals. The former conviction for the same homicide was set aside for prejudicial error. (State v. Ryan, 137 Kan. 733, 22 P. 2d 418.)
Defendant is a colored man, and prior to this homicide he had resided for some years in the three-room house of a colored woman, Lou Taylor, otherwise known as Lou Beck, in Atchison. They were not formally married to each other, and both had police-court records, he for petit larceny and vagrancy; she had been fined and jailed for some breach of the liquor law; and her house had been repeatedly raided by the police.
The foregoing preliminary statement may aid to 'an understanding of the background of the tragedy which occurred on September 2, 1931. On that evening defendant and Lou Beck were in their home, and another colored woman, Nora Belle Waterhouse, was with them. Three white men, Ernest Penny, Bob Wolters, and “Dr.” Gilmore, called at the house for the purpose of getting drinks of whisky. They were served in the kitchen by Lou Beck. From this point the record is so confused and contradictory that no narrative of the facts can be set down with complete assurance of its accuracy. It seems that some vulgar conversation ensued and some indecent proposals in unprintable language were made to the two women. Penny was a large man and- may. have been partly intoxicated. There was evidence that one or more of the trio of visitors laid hands on Lou Beck and that she 'and defendant pleaded with them to let her alone. Be that as it may, defendant, Penny and Wolters went into the front room. Gilmore temporarily had stepped outside. Penny and defendant got into an altercation, possibly because of the vulgarity of the white men and because of their refusal to leave the house. Defendant either had a revolver on his person or obtained one in the front room. Wolters laid hold of Penny and endeavored to persuade him to leave the house. Gilmore returned and he also put his hand on Penny’s shoulder and urged Penny to leave. Penny shoved Gilmore against the wall and the latter fell partly to the floor. About that time defendant shot Penny three times. He died in the hospital the same night.
Defendant left the city immediately in his automobile and drove toward Kansas City. En route he threw away his revolver, and abandoned his car, walked part way, caught a freight train and rode into Kansas City. He kept out of reach of the Atchison county authorities for about two months, and in the interim he married Lou Beck. Eventually he was arrested, bound over for trial, and convicted by a jury in the district court of the crime of murder in the second degree, but the judgment and sentence were set aside by this court. (State v. Ryan, supra.) In the new trial ordered, he has been convicted of manslaughter in the first degree and sentenced pursuant thereto.
On this latter judgment and sentence defendant comes before this court again, complaining of various errors which we will consider in the order in which they appear in the brief of his counsel.
1. Appellant raises an objection to the sufficiency of the information, but it has not been submitted for our inspection. The record does not disclose that its sufficiency was challenged in the district court, and the error now based thereon cannot be sustained.
2. It is next urged that appellant’s motion to discharge the jury should have been sustained on the ground that there were no colored men on the panel or venire. No showing was made that the jury lists were not fairly made, or that the panel was not fairly drawn. Indeed, we would have to consult statistics aliunde the record to be advised if there is any considerable number of colored people residing in that county or that those who may reside there are qualified for jury service under the statute. (R. S. 43-101 et seq.)
3. The next point mentioned in appellant’s brief pertains to a motion in arrest of judgment, but it does not appear in the record; the grounds upon which it was based are not shown, and no error in respect to it is made to appear.
4. The next error urged relates to the instructions given and refused. Those given have been examined, and particularly the one dealing with manslaughter in the first degree. As given it conformed to our statute (R. S. 21-407), and “murder at the common law” as used in the statute was defined and explained in accordance with the rule laid down in Craft v. State, 3 Kan. 450, as modified in State v. Rumble, 81 Kan. 16, 21, 105 Pac. 1. See, also, exhaustive discussion of this general subject in State v. Custer, 129 Kan. 381, 282 Pac. 1071, 67 A. L. R. 909; also, Pattison’s Instructions in Criminal Causes, sec. 657. Counsel for the state suggest that the instruction as given in appellant’s brief is typographically inaccurate. That is quite apparent. Moreover, the record does not contain the text of the court’s instruction and no error can be predicated on this point.
5. Error is next assigned on instruction 29, which explained the evidential significance which the jury might attach to the fact of defendant’s flight immediately after the homicide. The instruction given.was not erroneous, and conformed quite closely to the rule announced in State v. Ryan, supra.
6. Error is also urged on the trial court’s refusal to give nine specific instructions requested by defendant. Those have been examined. Seven of them were given in substance, and two, Nos. 7 and 12, were properly refused.
In defendant’s brief the following appears:
“The defendant further presents to the court in his argument and brief that the instructions of the court throughout the trial were misleading, vague and of a compromising nature, to be fumbled, and disconcert the jury in its deliberation, all to the detriment of this defendant. Great prejudice was shown all through the trial and in all the acts of the court herein. Continuous remarks were made that this was a white man killed by a Negro, and the Negro was an outlaw and bad character and the white man was of the-higher type of citizens of Atchison county, Kansas.” .
This criticism of the instructions is ill-founded. The statement that “great prejudice was shown” and that “continuous remarks” were made to incite and foster racial prejudice is wholly gratuitous on the part of the defendant and his counsel. The record reveals nothing of the sort. No such situation was called to the .court’s attention during the trial, nor when the motion for a new trial was presented. On this matter no error appears.
7. The next error pressed on our attention is more serious. In his closing argument to the jury the county attorney, over, repeated and timely objections of defendant’s counsel, traveled outside the record and transcended the limits of fair debate. The record recites:
(Counsel for Defendant) : “The defendant objects to the remarks of the county attorney in charging that this home of Arthur Ryan and Mrs. Ryan is a house of prostitution and that there were two women there who were prostitutes, . . .
.“Overruled.
“Defendant excepting.
(Counsel for the State) : “The county attorney did not say that the two women were prostitutes, he said that in pointing to the defendant and Lou Beck, that they were prostitutes.
(Counsel for Defendant) : “The defendant objects to that as there was not a word of testimony offered showing that this was a house of prostitution, and the defendant asks that the jury be discharged and the defendant dismissed from, further trial.
“Overruled.
“Defendant excepting.
“. . . Ryan is a perjurer and an outlaw and he has worked five days in five years, and what do you call him?
“A man selling whisky with this prostitute (Lou Beck) there, and that is what I call her. . . . •
“Lulu Beck, Lulu Deal, Lou Taylor, Lo.u Stone and now Lou Ryan, and I dared her to bring a marriage certificate up here . . . she was not married; that was a big stall. If they had been common-law man and wife they would not have needed to have been married; I do not think they were married. . . .
“In all my experience I have never heard so many lies from these defendants.
“You have heard the oratory of (counsel for defendant) and you know where such a phrase came from as was used by the defendant and Lou Beck or Ryan . . . it is an expression of prostitutes — home—what did these men go there for; it has been raided a number of times and they found a gallon of liquor, and why did they raid her; because people got drunk out there and they found liquor there at times; Gilmore knew it was there; ... he calls them rats; some are wet and some are dry; he calls them rats because they went there to get a drink, they knew it was there, and had been running there since 1927 when she was first arrested.
“It would be an outrage to set this man loose. A lot of people back there (indicating) tittered when this case was being argued. . . .
“He (Ryan) gets into his car and ditches it; he carried the gun in his hand for three miles, and it would not have made any difference who intercepted him, he would have killed whoever tried to stop him. . . . And he went to the lower yards and catches a train. A man is on the jury that I think knows where these trains are made up; . . .
“You cannot afford, in view of this evidence, to turn this man loose and probably do again what he has already done. . . .
“It is a dark spot on this community. It is going to remain like this until this man is sent to the — down there where he will be safe and where people will be safe. Safe for the people here and lives and same for those that titters.”
Defendant’s repeated and timely objections to the sort of argument just quoted were well taken. Indeed, it was the trial court’s duty on its own motion to interfere and put a stop to it and to admonish the jury that such vituperation and abuse of defendant and all matters not in evidence stated or implied in the address of counsel should be disregarded. (State v. Gutekunst, 24 Kan. 252; reprint and note.) In State v. Baker, 57 Kan. 541, 46 Pac. 947, it was said:
“Where the county attorney in his closing argument to the jury repeatedly uses abusive and improper language calculated to create prejudice against the defendant, and the court, after objection made, fails to check him or to instruct the jury to disregard his remarks, the defendant is entitled to a new trial.” (Syl. 114.)
In State v. Powell, 120 Kan. 772, 245 Pac. 128, a conviction for. felonious violation of the banking act was reversed, one of the grounds therefor being the “acrimonious harangue” and “licensed invective” of the prosecutor, which this court denounced as “derogatory to the dignity of the trial court, the decorum of the trial, and against the interest of truth and justice.”
See, also, State v. Netherton, 128 Kan. 564, 279 Pac. 19; 16 C. J. 890-900.
It need hardly be added that such a diatribe as that quoted above cannot be printed in our official reports and bear the seal of our judicial approval. Neither in the interest of simple justice to defendant can his complaint thereat be ignored. The court holds that the closing argument for the prosecution was prejudicial, and the failure ,of the trial.court to check it and to admonish the jury to disregard it renders it impossible for this court to affirm the judgment.
The judgment is therefore reversed, and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Harvey, J.:
Plaintiffs sued to enjoin the board of county commissioners from building a dam across what they alleged to be a natural watercourse on land owned by them. By amended pleadings the state board of health, certain property owners and the city of Silver Lake were made parties defendant. The state board of health and the county commissioners, constituting the local board of health, defended upon the grounds that plaintiffs had cut a ditch in the watercourse in such a way as to drain a natural lake stocked with fish, creating a health menace, a recurrence of which was- imminent. The property owners who owned the land on which the lake, or some part of it, was situated contended plaintiffs had drained a natural lake on their land, which they desired to keep, and by a mandatory injunction sought to require plaintiffs to fill the ditch they had cut, or deposit a specified sum with the court to be used for that purpose. The city of Silver Lake owned a part of the lake bed and joined with the landowners, and also joined with the health authorities, on the ground of a nuisance. After a full hearing and a view of the premises the trial court made exhaustive findings of fact, denied the injunction prayed for by plaintiffs and authorized defendants to build the dam to a height designated as an elevation of 76. Plaintiffs have appealed.
In the valley of the Kansas river, about ten miles west of Topeka and on the north side of the river, which there flows eastward near the south line of the valley, there is and has been for many years a body of water known as Silver Lake. It was there when the land originally was surveyed by the government in 1862. Presumably it is an old river bed. Its general outline is that of a horseshoe, with the round part to the north and the ends to the south toward the present thread of the river. On 'the whole it covers parts of four sections of land. The west end has been fairly well filled up. Part of it is cultivated for farm land, but part of it is wet and swampy, and cattails and slough grass grow. The north and northeast part consists of a large body of water, with well-defined banks, along which large trees have grown. That part of it is about a mile in length and perhaps a quarter of a mile wide at the widest place. Its area is' 118 acres. The water is from a few inches to about three feet deep. Formerly it was much deeper, but was partially filled by dirt washed in at the time of the 1908 flood, and perhaps to some extent at other times. The lake is fed by springs within the lake, by surface water, and by a draw from the west, along which there was constructed a few years ago what is known as the Rossville drainage ditch. A tile drain from a state highway also drains into it. The lake, when flooded from heavy rains, drains into the river through the east end. That, over the course of years, has been pretty well filled up, but a small natural ditch let the water drain off. If the lake became greatly flooded by heavy rains the water ran out over a wider area along the east end, and perhaps some of it along the west end, into the river. South of the lake proper, and between that and the river, a county road had been constructed. This was on a grade several feet higher than the land on each side. The road was high enough to act as a dike to prevent the waters of the river, in ordinarily high water, from overflowing, the lands north of it. At the place where this road crossed the east end of the lake there was a culvert. Along the south side of the culvert floodgates had been constructed, to be put in place when the river was up, to keep the water of the river from flowing back up into the lake, and to be opened at other times so that the water from the lake might flow to the river. The accompanying plat outlines the situation. While perhaps not accurate in all details, it is fairly so. The defendants, Nedeau, Williams, Henry, Lafrombois, and the city of Silver Lake, collectively, own most of the land upon which the lake proper is situated. Plaintiffs own the land marked in their names in sections 16 and 17 and south to the river. The county road is shown, together with the culvert and floodgate thereon; also is shown the city of Silver Lake, U. S. highway No. 40, and the railroad. For the purpose of running levels and contour lines the surveyors took the top of an iron
stake at the northwest corner of section 17 as a bench mark and gave to it the arbitrary figure of 100. Elevations mentioned refer to this bench mark. The north and east banks of the lake are higher than the south and west banks by perhaps ten to fourteen feet. The north bank is almost perpendicular, while that on the south slopes gradually to a few feet higher than the water of the lake. When heavy rains cause unusually high water in the lake some of the water spreads over part of the land to the south. At some time prior to the commencement of this action plaintiffs had built a levee near the north line of sections 16 and 17 to a height of 79.6 so as to keep the water of the lake off their lands from the north. There is evidence that the normal height of the water in the lake was 78. Perhaps at some times it was higher than that, at others lower, and upon three occasions in the last thirty-five or forty years the lake was dry, or nearly so. In the summer of 1931 plaintiffs caused a ditch to be dug in the east end of the lake from the culvert north, through what was perhaps a portion of the old river bed filled in years ago, for a distance of 1,600 or 1,700 feet, and into the body of the water of the lake itself as much as 400 feet. This ditch was dug with a steam shovel and is twenty feet wide at the bottom, forty feet wide at the top, and about seven and one-half feet deep, when measured from the east side near the culvert. The effect of this was to drain much of the water from the lake proper, resulting in a health menace because of dead and decaying fish, decaying vegetation and stagnant pools of water, which became breeding places for insects deleterious to health. The forestry, fish and game commission learned of this and attempted to take the fish out of the lake, and did succeed in taking out between twenty-five and thirty tons of edible fish, but were unable to get all of them, and five or six tons died in the lake. The attention of the state board of health was called to this health menace, and at its June meeting in 1932, having investigated the matter, and fearing a recurrence of the nuisance, passed a resolution recommending the board of commissioners of Shawnee county take action to prevent a recurrence of the nuisance either by completing drainage of the lake, or by maintaining sufficient water in the lake to support fish life. Prompted by this resolution the board of county commissioners on July 8, 1932, commenced the construction of a dam about five feet in height across the ditch leading from the south end of the lake to the culvert at a point about thirty feet north of the culvert in the county road and on land used for highway purposes. It was the construction of this dam plaintiffs sought to enjoin; their obvious purpose being to drain water from as much of their land as they could without regard to what effect their action would have upon fish in the lake, sanitary conditions of the people of the city of Silver Lake and vicinity, and without regard to the rights of other parties who, collectively, own the major portion of the lake.
Appellants complain of the form of the final judgment of the trial court in that it permits defendants to build the dam to a height of 76, but does not require them to do so, nor fix any penalty upon them if they fail to do it. We are unable to see why appellants should complain of that. They do not want any dam built, and contend they would be better off if it were not built. It is the building of the dam, not the failure to build it, of which they complain. If the decree is open to the objection they make it is one favorable to them rather than to their detriment, hence they cannot complain about it.
Appellants point out that the court did not order them to restore conditions by placing a dam in the stream as the defendant property owners by their mandatory injunction sought to have done. We think the court might very well have done that, but there is no cross-appeal by the property owners. This again is a matter of which appellants are in no position to complain. If these defendants are willing to permit the county to go to the expense of building the dam, or to build it themselves without asking appellants to build it or pay the cost thereof, the ruling is to that extent favorable to appellants and they cannot be heard to complain of it.
With respect to the action of the state board of health and of the board of county commissioners acting in this matter as the local board of health, appellants contend the injunction was not justified because there was no nuisance existing on July 8, 1932, at the time the construction of the dam was started; that the evidence of nuisance relates to the summer of 1931. It is argued that the health authorities were not authorized to attempt to abate a nuisance which did not exist. The evidence on this point was that the lake contained* fish; that the water in the lake was low; that it was the be- ■ ginning of the season of hot weather, at which time there is much evaporation of the water from the lake; that sometimes for several weeks in the summer there are no rains sufficient to cause water to run into the lake, and that a recurrence or repetition of the nuisance of 1931 was imminent. In such a situation we do not understand health authorities are compelled to wait until the actual evil is upon them and comfort and health have been destroyed before they act, but, on the other hand, that they are authorized to take prudent measures to prevent an imminent health menace. On this point the court found:
“27. There are now fish in Silver Lake. That in order to protect the fish life existing in said lake during the dry seasons of the year, taking into consideration the hot weather prevailing during the summer months, the periods of drought, and in order to prevent, if possible, a recurrence of the conditions existing in 1931 and consequent nuisance and menace to public health, the court finds that the elevation of the surface of the water in Silver Lake should be maintained at the point of 76; which, according to the evidence, will maintain the water in Silver Lake at a depth of twenty to forty inches, under ordinary conditions.
“28. That if the water in Silver Lake is allowed to drain out to the depth of the drainage ditch now constructed from the south end of the said lake to the Kaw river, very little, if any, water' will remain in said lake during the dry, hot seasons of the year; resulting in the death of fish in said lake and the decay of vegetable matter collecting therein, and thereby constitute a public nuisance and a menace to the health of the community.”
■ These findings are supported by the evidence, and justify the state and county boards of health in taking necessary and proper steps in the interest of the public health. The health authorities are not limited to punishing those who violate their orders, as provided in R. S. 65-159. Our statute (R. S. 65-101) grants quite extensive authority. This covers polluted waters (R. S. 65-161 to 65-171), including stream pollution found detrimental to public health, or to animal or aquatic life (R. S. 1933 Supp. 65-171a). They may take such action as may be necessary to secure the abatement of such conditions (R. S. 1933 Supp. 65-171d). They are not compelled to wait until the health menace — discomfort, ill health, and perhaps death — is actually present. To be of real value health authorities must have authority to take such action as is necessary to prevent a health menace which is reasonably likely to occur under the facts and circumstances applicable thereto. As tending to support these views, see: State, ex rel. Nowotny, v. Milwakee, 140 Wis. 38, 121 N. W. 658; State v. Laabs, 171 Wis. 557, 177 N. W. 916; Cardwell v. Austin, 168 S. W. 385 (Tex. Civ. App.); Barrett v. Mt. Greenwood Cem. Ass., 159 Ill. 385, 42 N. E. 891; People v. Truckee Lumber Co., 116 Cal. 397, 48 Pac. 374.
Appellants cite Freeman v. Scherer, 97 Kan. 184, 154 Pac. 1019, and authorities there cited, also decisions from other states, to the effect that ordinarily an injunction will not be allowed to prevent a condition which merely is anticipated. The principal case was to enjoin the maintenance of a ditch, plaintiff contending that his land was likely to be overflowed. The injunction was denied on the ground that there was no reasonable probability of the anticipated injury, nor any showing that it could not be compensated in damages should it occur. In the opinion it was said:
“Injunction is not used to prevent a prospective injury unless it appears that there is a reasonable probability of injury and that the law will not afford an adequate remedy.” (p. 188.)
Those conditions are met here. The facts and circumstances indicated a reasonable probability of health menace in 1932 like the one experienced in 1931, and it is not seriously contended if it occurred it could be compensated in damages. In State v. Lindsay, 85 Kan. 79, 83, 116 Pac. 207, it was said:
“Courts of equity are reluctant to use the process of injunction where the remedy by indictment or information is efficacious, but will not hesitate where the remedy is not adequate and it is necessary to protect the rights of the public or an individual. A court is not powerless to prevent the doing of an act merely because it is denounced as a public offense. (Citing authorities.)”
Another answer to this contention suggests itself. It is the plaintiffs in this case who were seeking an injunction rather than the boards of health. They were simply taking such measures as they thought proper to prevent a nuisance, the occurrence of which they reasonably believed to be imminent.
Appellants’ principal contention, however, is that under the evidence they were entitled to have an injunction preventing defendants from putting any dam in the ditch which they had dug. They argue that the lake, with the waters flowing into it and out of it to the river, constitutes a natural watercourse, and on that point the parties agree. They say they own this natural watercourse at the place where the ditch was dug. There is no controversy about that. They say they did not dig the ditch any deeper than the natural ditch which was already there, and complain that the court did not make a finding to that effect, although they requested one. The court was justified under the evidence in not making such a finding. At best the evidence on the point was conflicting. It is true witnesses called by plaintiffs testified the ditch was not dug any deeper than the old one was or than the old one had been at some prior time. This last thought is based on testimony that what was taken out of the ditch in excavating it with a steam shovel was silt which at some time had filled in. From all the evidence in the record, that might have filled in when the lake proper was forming. There is testimony that some forty years or more ago what is spoken of as the east end of this lake was wide, and that near the east side of it was a small, natural ditch or ravine from the lake toward the river; that this gradually filled up and one developed near the west side of the east end of the lake; that this was not very deep, not deep enough to bury a hoop net, the hoops of which were four feet in diameter; that perhaps it had been washed out -a little deepér, but it also had been filled up partially at one place by cattle crossing; that plaintiffs caused a ditch to be dug from a point about 400 feet north of the south end of the water in the lake some 1,600 or 1,700 feet south to the culvert in the county road and deep enough that water from the lake, as much as six inches deep,' followed the steam shovel all the way. The court was justified in refusing to find appellants had not deepened the outlet for this water. The eyidence was to the contrary. Certainly they had widened it from a narrow natural ditch to one that was twenty feet wide at the bottom. When this was done the' depth of the water in the lake was materially lessened.
Silver Lake, with the draw or ravine which has been converted into the Rossville drainage district coming into it from the west, and with its outlet through the east end of the lake to the river, con-' stitutes a natural watercourse. The parties agree on .this, and' the' court so found. Each of the individual defendants, Nedeau, Williams, Henry, Lafrombois,' and the' city of Silver Lake, owned a part of the bed of this natural watercourse.- The rights of -the individual owners above and below each other along this natural watercourse áre the same as those along any non-navigable natural watercourse or stream. Each of them owns a part of the bed of the stream — in this case a part of the lake. They' own the water in the stream or lake just as much and under the same rights as they own the bed of the stream,' or the banks, or the trees thereon. - The lower owners have' no right to ditch or dredge the stream ón' their land so as to take from the ownérs o'f the stream above them the. natural flow or accümulation of water on their lands. They'-might with equal -right' attempt to take the land itself. All of ■ this is settled law iii this state. (See Clark v. Allaman, 71 Kan. 206, 80 Pac. 571, citing earlier cases; also, Cities Service Gas Co. v. Riverside Drainage Dist., 137 Kan. 410, 413,-20'P: 2d 520, and cases cited, and United States v. Central Stockholders’ Corporation, 52 F. 2d 322, 328.) Counsel for' appellants recognize the force of -these au thorities, but contend they do not apply here, mainly for two reasons: (1) They contend appellants did not dig the ditch any deeper than the natural draw or outlet was from the lake proper to the river, and they complain the court did not make a finding to that effect, which they had requested. We have heretofore considered that question and conclude the court was justified in refusing to make such a finding for the reason there is much evidence— obviously the more persuasive evidence — to the contrary. (2) They contend the ditch was dug under some order or direction of and paid for by the state highway commission. That organization is not a party to this action and we do not attempt to determine any of its rights or liabilities in the matter. It is sufficient to say that' no one contends it would have any greater -right to drain this lake from the lands of the individual property owners than would the appellants have. The record, in so far as it is abstracted on this point, tends to show that when U. S. highway No. 40 was paved northwest of Silver Lake, an eighteen-inch tile was laid along one side of the pavement for some distance — how far is not disclosed— for the purpose of draining the highway. This drained some surface water into the lake. The appellants, or persons on their- behalf, complained to the state highway commission that this would increase the volume of water in the lake and cause it to have a tendency to overflow more of appellant’s land, to their damage, .and that in settlement of this claim for damages the state highway commission paid the appellants $750. Appellants then employed a contractor to construct the ditch previously mentioned. The work was paid for either by appellants from the moneys obtained from the state, highway commission, or that money was paid directly to the contractor. The record before us is not clear on that point. Without further comment on this point it is sufficient to say that we do not regard the transaction of appellants with the state highway commission, and anything it is shown by the record to have done in the matter, as having any bearing on the rights of the parties'to this fiction.
We find no error in the record of which appellants can complain.The judgment of the court below is affirmed: | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by the board of county commissioners of Cherokee county to recover from the surety on the bond of the county treasurer, who defaulted. The facts were agreed to. The court stated conclusions of law, and rendered judgment for plaintiff. Defendant appeals.
Homer L. Cline was county treasurer, and gave bond, signed by defendant as surety, conditioned as follows:
“Now, therefore, the condition of this obligation is such that, if the said Homer L. Cline, and his deputy, and all persons employed in his office, shall faithfully and promptly perform the duties of said office, and if the said Homer L. Cline and his deputies shall pay, according to law, all moneys which shall come to his hands as treasurer, and will render a just and true account thereof whenever required by said board of commissioners or by any provision of law, and shall deliver over to his successors in office or to any other person authorized by law to receive the same, all moneys, books, papers and other things appertaining thereto or belonging to his said office, then the above obligation to be void; otherwise to be in full force and effect.”
The bond is in the form prescribed by the Laws of 1868. After the year 1868 changes were made in the manner of handling public money. One of the changes was, adoption of the county depository system. The statutes were revised in 1923. The old form of bond was preserved in R. S. 19-502, and consequently was deemed by the legislature to apply to conduct of the county treasurer under the county depository system.
The county treasurer is required 'to keep a just and true account of receipts and expenditures of all moneys which come into his hands as county treasurer, and to make stated and other settlements with the county commissioners, at which he exhibits his books, moneys, accounts and vouchers.
The county commissioners designate banks in the county as county depositaries of funds which come into the hands of the county treasurer by virtue of his office. He is required to make daily deposit of such funds. The bank gives bond to pay the deposit promptly, upon check of the county treasurer.
The county clerk’s office is the general bookkeeping office of the county. The county clerk keeps accounts of receipts and expenditures of the county, and keeps accounts of the county with its various officers. There are special provisions relating to the account with the county treasurer. When the treasurer pays out money, he takes duplicate receipts, and gives one to the county clerk. When the treasurer makes a deposit in a bank, he gives a duplicate deposit slip to the county clerk.
The treasurer’s check on a depository bank must be countersigned by the county clerk.
A check must show the purpose for which it is drawn. In Cherokee county there were three county depositaries. One was the Baxter State Bank, of Baxter Springs. Checks would be drawn by the county treasurer to equalize deposits among banks. In such cases, the purpose for which the check was drawn would be indicated by the word “exchange,” or by the letters “ex” or “exchg” following the printed word “For.”
On June 30,1933, Homer L. Cline drew the following check:
The countersignature of the county clerk, H. Carter Brookhart, was by rubber stamp facsimile of that officer’s signature. The agreed statement of facts recites:
“That facsimile signature stamps had been used for the purpose of countersigning treasurer’s checks and other documents in the county clerk’s office by incumbents of the county clerk’s office for approximately five years. The facsimile signature stamp of H. Carter Brookhart, the present county clerk, had been in use by him for about eighteen months. It was kept locked in the vaults of the county clerk’s office whenever the office was closed. During business hours it was left out on the desks and counters in the county clerk’s office, where it was available for use by the county clerk and his deputies.”
Cline used this rubber stamp to forge the countersignature on check No. 499 B. S. B.
Cline indorsed the check and sent it to the Securities Corporation of America, at Kansas City, Mo. The indorsee put it in course of collection, and in due time the check was paid by the Baxter State Bank. The county had no business with the Securities Corporation of America, and by means of the check, Cline depleted, for his private purposes, his official account as county treasurer with the bank. The brief for defendant says Cline was trying to get rich quick.
The conduct with respect to check No. 499 B. S. B. is illustrative, and will serve as a basis for discussion of liability of the surety for the greater portion of the sum sued for, $70,710.78.
The answer pleaded the check was not a legal order which could be honored and paid by the bank, and charged against the county treasurer’s deposit in the bank. Specifications were the check was forged, the county clerk’s countersignature was forged, the check was not payable for any purpose authorized by law, and the check was not payable to any person authorized to receive money from the public treasury. Then the answer alleged the relation of the bank to the county was that of debtor and creditor, the deposits were property of the bank, the bank still owes the county, and the county has lost nothing.
The argument in support of defendant’s position is set forth in a brief of 147 pages, the lettered subdivisions of which exhausted the alphabet except the letters x, y and z, and one division contains six subdivisions. The court will not undertake to discuss these propositions one by one. All the court can do is to indicate two or three fundamental defects in defendant’s argument which are decisive of the controversy.
Some minor matters may be disposed of first. The funds the treasurer collects, deposits and pays out are public funds belonging to the county, but the treasurer is the public officer elected by the people and designated by law to receive, to deposit, and to pay out. The county treasurer does all this in his name and capacity as county treasurer.
Sometimes the depositary in which public funds are deposited has been spoken of in decisions of this court as an official agent or quasi public official. The- names are apt, but they change no relation of the bank to the county or to the county treasurer, the relation being just that established by law.
Defendant calls the county clerk the “control officer.” His official duties have been sufficiently described. With respect to checks drawn by the county treasurer, his function is to authenticate. He is purely a ministerial officer, with no discretion to refuse to authenticate a proper check.
The treasurer must deposit daily in a depositary bank. All that requirement does, is to substitute a bank for the treasurer’s pocket, or office till, or safe, or vault, or private bank. As an incidental consequence, the' bank holds a deposit, when made, the same as if it were a deposit by a private person, and the county receives interest on the deposit; but the treasurer’s power over public money is not otherwise increased nor diminished. He is still the public official who receives and deposits and pays.
■ Taking up matters of substance, a condition of the bond is that the county treasurer shall pay, according to law, all moneys which shall come to his hands as treasurer. A major premise of defendant’s argument is, the treasurer does this when he deposits the money with the designated bank. The premise is utterly unsound. The law does not require the treasurer to pay money to the bank. He. deposits the money in the bank, and when he makes the deposit he no more pays anything to anybody than an individual would do when he makes a deposit to his account in his bank. The power and the duty to pay according to law remain precisely as before the deposit was made.
The bond provided that Cline would render a just and true account of all moneys coming into his hands as treasurer. He could do that by showing he deposited the money, and that all the money, except that which was lawfully paid out, was still on deposit.
Defendant’s brief is dominated by the view that nothing was done at all, because what was done was illegally done — the apocryphal case of the man actually in jail who could not be put in .jail. The Securities Corporation of America got $8,000 in good money.to keep Cline’s margins good, or to buy more grain futures. The money came from Cline’s account as county treasurer in the Baxter State Bank, by virtue of his check, regular in every respect on its face, and drawn as if he were acting in his official capacity. When he was called on to account, deposit in the bank was as far as he could go. A just and. true account of the money would show he had on deposit in the bank $8,000 more than he had there. Just for fear his accounts might get in that condition, the bond was required and given.
The bond required Cline to deliver to his successor money, books, papers, and other things appertaining to or belonging to his office.
This action is a civil action on a ■ contract made by defendant for compensation, and the contract is to be interpreted as other simple contracts are interpreted. When 'news of Cline’s defalcation got abroad, what would one person ask another? The question would not be, “To what extent had Cline effected the relation of debtor and creditor between the bank and the county?” The question would be, “How much money did he have 'in the bank?” Money deposited is, for purpose of the bond, money on deposit deliverable by the universally recognized business method of check on the bank to the successor. The check would show purpose for which it was drawn. If the county clerk should balk, he could be compelled to perform the ministerial duty to authenticate. The new treasurer would deposit the check to his own account as county treasurer. In this instance, Cline could not make delivery of the money on deposit. He was short $8,000, which he sent to Kansas City for his personal disadvantage.
Whether the county has a remedy against the bank for paying out money on a forged check, is wholly immaterial in this action.
Defendant contends the $8,000 is still in the bank, because the check was forged, and could not be lawfully paid and charged against the county treasurer’s account. This simply denies appropriation of the money as an act in fact done, on the ground it would be unlawful to do such a thing. Defendant admits Cline took $1,-918.35 in cash from the cash drawer. But Cline could not do that. It would be unlawful. So, the money is still in the cash drawer.
The bond guaranteed faithful performance of duty by the county treasurer. A taxpayer gave Cline a check for $1,622.41, payable to “Cherokee County Treasurer,” in. payment of taxes. Cline converted the check, which was paid on presentation, to his own use, instead of depositing it in a depositary and applying it to the purpose for which it was given and received. The subject is sufficiently treated in the district court’s conclusion of law, which follows:
“6. One of the acts complained of in the plaintiff’s petition was the transaction concerning a certain check, payable to ‘Cherokee County Treasurer,’ given by the Federal Mining & Smelting Company, for taxes due the county (see Exhibit Check No. 9062). Upon receiving said check, the said Homer L. Cline, county treasurer, became accountable to Cherokee county for the amount of the check, since it is not denied that the check was good. When the said Homer L. Cline converted the said check to his own use and for a purpose other than that for which the check was intended, he breached the conditions of his bond, and his surety became liable for such breach; and it makes no difference whether such payment was a valid payment of taxes or not, because when the said Cline accepted the check, he owed the duty to the county to apply same to its intended use.”
There is nothing else in the case which would affect the result
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is a proceeding under what is known as the cash-basis law (Laws 1933, ch. 319, R. S. 1933 Supp. 10-1101 et seq.). The Giant Manufacturing Company of Council Bluffs, la., hereinafter called plaintiff, presented its claim to the governing body of the city of Wamego for $1,058.01, with six per cent interest since May 15,1933, being the balance due on the purchase price of certain floodlights sold the city in January, 1930. The city disallowed the claim. Plaintiff appealed to the district court, where the claim was allowed after a hearing. The city has appealed.
Briefly, the facts may be stated as follows: In November, 1929, the city of Wamego and the people of that vicinity were having a celebration on the occasion of the opening of a new bridge across the Kaw river at that point. Plaintiff manufactured and sold floodlights. Such lights and their use were then new. Plaintiff was 'anxious to have its lights used at this celebration for demonstration purposes, thereby advertising the lights and their use and with the hope that it might later sell them to the city of Wamego, or elsewhere. Plaintiff had a local agent, J. A. McMillen, at Wamego. He and a representative of plaintiff, from Council Bluffs, took the matter up with the city officials, specifically advising them that the use of the lights for that purpose would create no financial obligation on the city. The lights were sent to Wamego. The city had its own light plant and furnished the electricity. The lights were used on the occasion of the celebration. Plaintiff permitted them to remain there and they have been used at least a part of the time since then.
By a city ordinance the management and government of the city park was lodged in a board of trustees appointed by the mayor and confirmed by the council. This board was commonly spoken of as the park board, and at the time here important consisted of one member of the city council and three other persons not otherwise connected with the city government. The ordinance gave to the board the exclusive control of the expenditure of all moneys collected and placed to the credit of the park fund, the supervision, care and control of the park grounds and appurtenances, power to appoint necessary employees, fix their compensation and discharge them, and provided that all moneys received for the park in any year? except the amount necessary for operating, repairing, or building expenses, should be placed in a fund in one of the local banks, protected by a surety bond in favor of the city. The park fund was created by a tax levy for park purposes and moneys received from concessions at fairs, picnics, athletic meets, and a swimming pool. The ordinance did not give the park board authority to contract debts to be paid in future years for permanent improvements, and before any large amount of money was spent the park board received authority from the governing body of the city.
In January, 1930, plaintiff’s representative asked the city governing body to authorize the park board to buy these lights. The minutes of the meeting on that question read as follows:
“J. A. McMillen presented proposition for park board to acquire floodlights in the park, a permanent, improvement at a cost of $1,100, with 6% interest, deferred payments, with privilege of renewing at end of year at same interest. Matter discussed at length. Moved by Schmitz and seconded by Salter that the park board work up a contract and submit for approval or rejection. Carried.”
The park board did not work up a contract and submit it to the governing body of the city for approval or rejection, but on January 15, 1930, plaintiff and the park board entered into an agreement in writing by which the plaintiff sold to the park board, and it purchased, the floodlights above mentioned for the sum of $1,100, to be paid within three years, with interest (at what rate is not stated), with the privilege of paying any amount at any time. The evidence discloses this was signed by different members of the park board when they were not at a meeting.
It appears that- neither the mayor nor the members of the city council other than the one on the park board knew of this contract, and the matter was not suggested again to the city council until its October meeting in 1930. The minutes of that meeting read as follows:
“J. A. McMillen, C. G. Warner, C. J. Downer and C. C. Spangler discussed the mater of floodlights in the park; thought $200 could be raised from another celebration. Park board authorized to contract for lights, they to make contract with the school board who were to guarantee $250 and the city of Wamego to guarantee the last $300. Moved to adopt by Rheumann and seconded by Schmitz and carried.”
On October 30, 1930, the park board remitted $100 to plaintiff, and about a month later remitted $121.14. There is evidence that this money was received from concessions and not from taxes levied for park purposes.
About May 1, 1931, when a new mayor and council had been elected and taken office the ordinance for the management of the city parks by a board of trustees was repealed. Some money then in the park fund was turned over to the city treasurer. How much this fund was, or from what sources it had been accumulated, is not shown.
Aside from a futile effort by plaintiff to get the school board to pay something on this contract in December, 1931, nothing appears to have been done until after the passage of the cash-basis law in 1933, when plaintiff presented its bill to the city council for the balance claimed to be due.
The principal question argued here is whether plaintiff had a binding contract with the city for the sale and purchase of these lights. It is clear there was no such contract with the governing body of the city. Appellee contends the contract made by'plaintiff with the park board is in legal effect a contract with the city, and binding upon it. Passing the question whether the governing body of the city could delegate such authority to the park board as not being necessary to be decided here, there are two answers to this contention: (a) The ordinance creating the park board and defining its powers and duties gave it no authority to make expensive permanent improvements to be paid for in future years, and (b) the plaintiff knew that. When its representative was present at the city council meeting January 7, 1930, he was bound to know the park board’s authority respecting the purchase of the lights was limited to ascertaining the most advantageous terms on which the lights might be purchased and reporting to the governing body of the city for its approval or rejection. This never was done. In fact, it seems that the contract which plaintiff made with the park board purposely was kept away from the mayor and other members of the city council. As late as October of that year plaintiff still was negotiating with the governing body for the purchase of these lights just as though it had no contract with the park board. At that time the city agreed conditionally to pay the last $300 on the purchase price of the lights. This was on the theory or hope that the rest of the money could be raised in some other way. But this plan never was carried out. Plaintiff does not rely upon this as a purchase of the lights by the city, and, indeed, could not well do so. At no time thereafter does the record show plaintiff contended the city had purchased these lights until it filed its claim with the city in 1933 under the cash-basis law. It is clear plaintiff had no contract with the city binding it to purchase or pay for the lights.
Appellee contends that inasmuch as the lights have been in place and used since the fall of 1929 the city should be required to pay for them even though the contract for purchase was irregular or insufficient in itself. Cases are cited in which a city had the benefit of improvements, such as paving or city buildings, and it has been held liable on the theory of estoppel or ratification, although the contract made for the work was irregular or technically insufficient in some respects. That doctrine is not applicable here. Plaintiff solicited the opportunity to have these lights installed for its own benefit, urged they be kept there, invited their further use for the same purpose, and with the hope that it might be able to sell them. It has not been able to sell them. The simple fact that the city assisted plaintiff in advertising its products is insufficient to establish such estoppel or ratification as binds the city to pay.
The result is, there is no substantial evidence to sustain the judgment of the trial court, and it is reversed with directions to enter judgment for defendant. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action to'set aside a deed given by plaintiffs to defendant, to recover the rents and profits of the land in question for the year 1933 and to eject defendant, The Penn Mutual Life Insurance Company, from the possession of the land conveyed to it by the plaintiffs. The trial court made findings of fact and conclusions of law, and rendered judgment against defendant, from which it appeals.
The plaintiffs are father and daughter. The father had mortgaged the eighty-acre tract of land in question to the defendant insurance company for $2,000 when it was improved with buildings which have since been destroyed by fire and not replaced. He later conveyed the land to his daughter as a gift, and they lived together not on the land but in town. The mortgage became due June 1, 1932. Two other parties were named as defendants — one was a trust company which acted as agent for the insurance company, and the other was the party who rented the land from the defendant insurance company for the year 1933. The judgment did not especially affect either of them and they are not concerned in this appeal.
The amended petition alleged that the deed was procured from pláintiffs in favor of defendant mortgagee by fraudulent and unfair means, they being in ill health, untrained in business matters and wholly ignorant of the procedure and effect of lawsuits, and by being put in great fear of being disgraced in their community; such fear and apprehension being engendered in their minds, by the statements and conduct of the agent of the defendant, they executed and delivered such deed to the defendant mortgagee without receiving any consideration therefor, when their equity in, the land was $3,000. The second cause of action is for the fair and reasonable rent of the land for the year 1933, which was alleged to be $450. The third cause of action was in ejectment. A copy of the deed is attached to the petition as an exhibit.
The answer admitted defendant insurance company held the mortgage and admitted the execution of the deed and denied all other allegations, and especially denied the deed was obtained by fraud, unfair means or duress and without consideration.
The first six findings of fact give the history of the case, about which there is no contention, and conclude with the statement that the deed in question was executed by plaintiffs to the defendant insurance company on June 6, 1932, referring to a copy thereof attached to the amended petition. The following findings are particularly pertinent to the issues here involved:
“7. That no consideration of any kind or nature whatsoever was paid by said defendant, The Penn Mutual Life Insurance Company, to the plaintiffs, or either of them, for said warranty deed, except that plaintiffs were permitted to retain possession of said real estate until March 1, 1933, a period of eight months and twenty-four days.
“8. That at the time of the procuring of said warranty deed by the defendant, The Penn Mutual Life Insurance Company, to wit: on or about June 6, 1932, the plaintiff, A. F. Leaverton, was a man past eighty years of age, partially blind, feeble in mind and body and wholly incapable of making any business transaction. That on the same date, the plaintiff, Grace A. Leaverton, was a woman entirely without business experience and knew nothing concerning the laws of Kansas relating to mortgage foreclosures and the statutory period of redemption, and that the said Grace Leaverton had been worrying for some time over her inability to pay the interest or to make a new loan or to meet the taxes on said real estate.
“9. That said warranty deed was procured by said defendant, through and by its aforesaid agent, by unfair means in the following, to wit: (1) By failing and neglecting to explain to plaintiffs, or either of them, that they had and owned an equity of redemption to said real estate in case of foreclosure. (2) That the said Ralph Casebier, agent, as aforesaid stated and represented to the plaintiffs that in the event of foreclosure of said mortgage, the same would be given publicity and that the plaintiff would be humiliated thereby in the community in which she lived.”
“12. That upon the execution of the deed involved herein the mortgage on said real estate was released by the defendant, The Penn Mutual Life Insurance Company, and said note and mortgage canceled and returned to Grace Leaverton and are still in her possession.
“13. That neither of the plaintiffs since the execution of said deed has offered to the defendant, The Penn Mutual Life Insurance Company, any part of said original loan with interest and taxes.
“14. That on or about March 1, 1933, the defendant, The Penn Mutual Life Insurance Company, with the knowledge of the plaintiffs herein, entered into possession of said land and ever since has been and now is, in possession thereof; but that possession by said defendant was acquired under such circumstances that it ought not to be permitted to retain the same.
“15. That at the time of the execution of said deed the reasonable market value of said real estate was from thirty to thirty-five dollars per acre, and that the reasonable market value of the total tract was from $2,685 to $3,130.”
Finding No. 17 gives the rent for the year 1933 as $147, of which $20 has been paid to the defendant, and the balance is subject to the order of the court.
The first conclusion of law is that the deed should be canceled, set aside and held for naught. The second and third concern the payment of the two items of rent to the plaintiff, Grace Leaverton, and the following are the fourth and fifth conclusions of law:
“4. That the plaintiff, Grace Leaverton, is entitled to the immediate possession of said real estate and is entitled to the rents and profits arising from said real estate for the year 1934.
“5. That the note and mortgage held by the defendant, The Penn Mutual Life Insurance Company, and released and delivered as aforesaid, should be and the same is hereby reinstated and said note and mortgage with interest thereon, together with taxes paid by said defendant, constitute a first and prior lien upon the real estate involved herein.”
In connection with finding No. 7, above quoted, about want of consideration for the deed, it is proper to notice the consideration clause contained in the deed, which is as follows:
“This deed is an absolute conveyance of title, in effect as well as in form, and is not intended as a mortgage, trust conveyance, or security of any kind. The consideration therefor is full payment of all debts, obligations, costs and charges heretofore subsisting on account and by the terms of that certain mortgage heretofore existing on the property herein conveyed, executed by A. F. Leaverton, a widower, to The Central Trust Company, recorded in Book 149, page 30, of the official records of Jefferson county, Kansas, this conveyance completely satisfying said obligation and terminating said mortgage and any effect thereof in all respects.”
The Central Trust Company herein mentioned was one of the other two defendants and acted as the agent for the defendant insurance company. There is no controversy as to the conveyance reaching the mortgagee insurairce company.
The appellant seriously questions the last clause of finding No. 14 as to its being a fact found by the court, urging that it is more nearly a conclusion of law. It states a conclusion as to possession acquired “under such circumstances.” The only circumstances as to acquiring possession is in finding No. 7, where it is said plaintiffs were to retain possession until March 1, 1933, eight months and twenty-four days after the date of the deed to defendant. Besides, it states practically the same conclusion as in conclusion No. 4, that plaintiff is entitled to the immediate possession. We think there is merit in appellant’s contention that the last part of finding No. 14 is a conclusion of law rather than a finding of fact.
Appellant urges that finding No. 7, to the effect that there was no consideration for the deed except the permission to retain the possession of the land for eight months and twenty-four days, is necessarily contrary to the evidence, when the copy of the deed attached to the petition plainly showed the consideration to be the full payment and cancellation of the mortgage debt upon the land. It is difficult to understand how this written evidence could be wholly ignored in making finding No. 7, and if want of consideration was the only ground upon which plaintiffs based their right to set aside this deed, we might properly further consider this very apparent omission in the finding as to consideration, but even if there was this further consideration found, there remains the other feature of fraud, unfair means and duress which alone would be sufficient, if established and found, to sustain the finding that the deed was procured by unfair -means as found in finding No. 9. The evidence was conflicting concerning this matter, and there was sufficient evidence, if given credence, to support that finding. The rule is uniform that our duty in reviewing such findings ends where we find sufficient evidence to support the finding made by the trial court. The conclusion based upon such finding as to fraud and duress necessarily follows to the effect that the deed thus procured must be set aside.
There was no conflict as to the amount of rent for the year 1933, and with the deed set aside, the findings and conclusion as to the rent for that year must be sustained.
As to the matter of ejectment, we are left without any finding as to those circumstances to which reference is made in the closing part of finding No. 14, which it is there stated are such as ought not to permit the mortgagee to retain the possession. If it refers to constructive possession or the agreement to surrender possession, the approval of the trial court’s findings of duress and unfair means in procuring the deed would carry with it the right to possession. Possibly even the agreement to permit plaintiffs to hold possession for eight months and twenty-four days thereafter might suffer the same fate, but plaintiffs do not request that, but claim the daughter had the right to possession as a part of the eighteen-months period of redemption she could claim in a foreclosure proceeding.
The first part of finding No. 14 is that the mortgagee on March 1, 1933, with the knowledge of the plaintiffs entered into possession of the encumbered property. This surrendering of possession voluntarily nearly nine months after the execution of the deed, the execution of which was induced by duress and misrepresentations, is no part of that original transaction, however irregular it was, and there is no finding as to any undue influence, duress or fraud in acquiring this possession. _ Besides, we do not find any questionable conduct stated in the abstract or counter abstract as to the matter of acquiring this actual possession nearly nine months after the conduct of which complaint is made. The only circumstance mentioned in connection with the acquiring of this actual possession is that it was with the knowledge of the plaintiffs. There was no finding of fact which would support the conclusion of law No. 4, to the effect that Grace Leaverton was entitled to the immediate possession, nor the conclusion to the same effect attached to finding of fact No. 14.
In the case of Pearcy v. Bankers Mortgage Co., 129 Kan. 163, 281 Pac. 873, there was evidence of something being said about the legal possession of the property when the mortgagee, with the knowledge of the owner, took possession because of the failure of the rents to pay the taxes, interest and expenses, and it was said in the opinion—
“ ... it could not in any event govern the status of the parties for all time, and could' in no wise affect what was actually done by the parties with respect to possession later.” (p. 172.)
In Bankers Mortgage Co. v. O’Donovan, 137 Kan. 309, 20 P. 2d 809, it was held:
“A mortgagee in possession after condition broken is entitled to remain in possession until the mortgage debt is paid. . . .” (Syl. See, also, Capitol B. & L. Ass’n v. Dobson, 134 Kan. 518, 7 P. 2d 64.)
In the case of Sallee v. King, 128 Kan. 270, 277 Pac. 49, it was held:
“Under all the authorities a mortgagee in possession may remain in possession until the debt is paid, although foreclosure becomes barred by limitation.” (p. 272.)
In this connection Kelso v. Norton, 65 Kan. 778, 70 Pac. 896, and Stouffer v. Harlan, 68 Kan. 135, 74 Pac. 610, are mentioned. In each of these cases last cited there was a defect in the foreclosure proceedings, the defect in the latter case was in the omission by the district clerk to attach the seal of the court to the order of sale, and it was there held:
“A mortgagee of real property in possession of the mortgaged premises after condition broken may not be dispossessed without the payment of the mortgage debt, unless his possession was acquired under such circumstances that he ought not in equity to be permitted to retain it. . . . ” (Syl.)
It will be noted that the addition to finding of fact No. 14 is literally copied from this syllabus, and counsel for appellees relies largely upon the discussion in this opinion of possession obtained by fraud or duress being an exception to the general rule. There being no fraud whatever in that case, the reference to fraud and duress was merely noted as a possible exception to the general rule. Of course counsel for appellees applies this exception to the facts in this case found by the court with reference to the procuring of the deed nearly nine months before actual possession was obtained with the knowledge of the appellees, but as stated before, there are no findings of fraud, duress or unfair means as to the obtaining of the actual possession, and defendant is a mortgagee in possession, and ejectment cannot be maintained against a mortgagee in possession without a payment or tender of the full amount due on the mortgage indebtedness.
The judgment is affirmed as far as it relates to the setting aside of the deed and the recovery of the rent as found for the year 1933, but it is reversed in so far as it attempts to eject the defendant from the land. The trial court should modify the judgment of the court heretofore rendered by recognizing the- appellant as a mortgagee in possession and fix a reasonable time in which appellees, or either of them, may redeem the property from the mortgage indebtedness, or be forever barred.
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The opinion of the court was delivered by
Burch, J.:
The appeal is from an order of the district court correcting the record in an action for divorce and alimony, and from an order denying a motion to discharge the judgment.
Maurice M. Tincknell sued his wife, Effie, for divorce. She answered, and in a cross petition prayed for a divorce and for alimony. The answer and cross petition disclosed that when plaintiff and defendant were married she was a widow with four children and had a house and household goods in the state Oregon. Plaintiff induced defendant to sell the household goods, and they moved to Cherry-vale, Kan. There plaintiff provided no home, and plaintiff and defendant lived with plaintiff’s parents, against defendant’s wishes. The answer and cross petition contained the following:
“That during the year that the plaintiff and defendant lived at Cherryvale the plaintiff refused to work and that the defendant worked in the home of the plaintiff’s parents and kept house for plaintiff’s parents and was able to procure groceries and board by her work and labor for both the plaintiff and the defendant and that defendant used her money for the support of plaintiff and her children and that the plaintiff used certain money and property of the defendant.”
The prayer of the answer and cross petition contained the following:
“Wherefore, the defendant asks that she have an order allowing her a sum for temporary alimony and support and the sum of $50 for attorney’s fees and that she have in addition thereto permanent alimony, and that the court grant such other and further relief as may be just and right.”
On April 27, 1929, the court made an order allowing defendant an attorney fee, suit money and temporary alimony.
The case was heard and judgment was rendered on January 31, 1930. Plaintiff did not appear in person or by attorney. A form of journal entry of judgment was prepared by somebody, which was approved by an attorney for plaintiff and by defendant’s attorney, and which was signed by the judge of the district court. The document recited default in monthly payments of alimony, made a,statement concerning attorney fees, and contained the following:
“4. It appears further that the said defendant is entitled to a divorce on her cross petition and that she is without default on her part and that she is entitled to a decree of divorce, divorcing her of and from the said plaintiff and that she is entitled to a further judgment herein in the sum of $800 for money advanced by said defendant, which funds and money were her sole and separate property and were advanced to said plaintiff since the date „of her marriage with the said plaintiff.”
The document also contained the following:
“It is further ordered, adjudged and decreed by the court that the defendant be and she is hereby given judgment against the plaintiff in the sum of $800 and that the said defendant is entitled to a judgment . . . [for unpaid temporary alimony and for attorney fees].”
This document was filed as the journal entry in the case. The minutes on the court’s trial docket read:
“January 31. Defendant granted a divorce, absolute in six months. Judgment for $800, plaintiff’s cost, including $50 attorney fee, as per journal entry.”
On April 23, 1934, plaintiff made application to the court for discharge of the purported judgment for $800, pursuant to an adjudication in a voluntary proceeding in bankruptcy, instituted by plaintiff. Defendant moved to correct the record in the divorce action to show that the purported judgment for $800 was for permanent alimony. If judgment was rendered in the divorce action in favor of defendant for permanent alimony it was not discharged by the bankruptcy adjudication.
The two motions were heard together. Plaintiff’s schedule in bankruptcy was introduced in evidence, and contained the following:
“Effie Tincknell- — R. F. D. 6, Cherryvale, Kan., care of EdSchofel — Two judgments or decrees rendered in the case of Effie Tincknell v. Maurice Tincknell in the district court of Montgomery county, Kan., on Jan. 30, 1930; total amount about $1,000......$1,000.”
An affidavit of the attorney who approved the form of journal entry for plaintiff was introduced in evidence. The affidavit was to the effect that the form correctly recited the judgment rendered in the divorce action. An affidavit of defendant was introduced in evidence, which was to the effect judgment was rendered in her favor in the divorce action for $800 permanent alimony.
The court took the two motions under advisement and on September 7,1934, sustained the motion to correct the record in the divorce action. Pursuant to this order the record was corrected by striking out paragraph 4 of the former journal entry, and making the record read as follows:
“4. It appears further that said defendant is entitled to a divorce on her cross petition and that she is without fault on her part and that she is entitled to a decree of divorce, divorcing her of and from said plaintiff and that she is entitled to a further judgment herein in the sum of $800 permanent alimony against said plaintiff. . . .
“It is further ordered, adjudged and decreed by the court that the defendant be and she is hereby given judgment against the plaintiff in the sum of $800 as and for permanent alimony and that the defendant is entitled to a further judgment of- $25 per month as temporary alimony for the months of July, August, September, October, November and December of the year 1929, and for the month of January, 1930.”
The record having been corrected, the motion to discharge the judgment, pursuant to the adjudication in bankruptcy, was denied.
Defendant’s cross petition did not specify any sum of money derived from sale of defendant’s household goods. The amount of money belonging to her which she used to support herself and children was not specified. The amount of money and property belonging to her which plaintiff used was not specified. While the cross petition did say plaintiff used certain money and property of defendant, the statement was too indefinite to form the basis of a judgment for any amount. Defendant did not pray for any sum of money advanced by her to the plaintiff, and the petition merely disclosed a cause of action for divorce on the ground of gross neglect of duty, and for alimony.
What, if any, evidence was introduced at the trial of the divorce action, relating to advancement of money by defendant to plaintiff is not disclosed. The affidavit in opposition to the motion to correct the record throws no light on the subject. It deals merely in conclusions — that the original form of journal entry was correct, and was drawn without mistake or inadvertence. The affidavit in support of the motion to correct the record merely states that the court granted defendant a divorce and permanent alimony in the sum of $800. The purported judgment and the minutes on the trial docket did not state what the $800 allowance was for. The result is, the court was obliged to determine what the judgment was from the cross petition and from its own knowledge of the proceedings.
The attorney for plaintiff argues the case as if the court indubitably rendered a judgment as shown by the form of journal entry first filed, and then changed that judgment. Nothing of the kind occurred. A judgment is one thing. The record of a judgment is a different thing, and what purports to be the' record of a judg ment may or may not be correct. When the question of correctness of the record is raised, the court must determine the matter as any other question of fact, except that the court’s own knowledge of what the judgment was may be utilized and may be conclusive. In this instance this court cannot say the district court did not know what the judgment was, and the authority of the district court to make the record speak the truth by nunc pro tunc entry has been declared in so many cases that it is needless to cite them.
The judgments of the district court correcting the record and refusing to discharge the judgment are affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This appeal raises the question of the sufficiency of an amended petition in an action to foreclose a mortgage.
It appears from the amended petition, hereafter referred to as the petition, that defendants Frederick A. Cook and wife and George S. Jewell and wife mortgaged certain real estate to the International Mortgage Trust Company to secure their note for $26,000, dated May 1, 1931, the mortgage being duly recorded; and that thereafter the trust company “pledged, assigned, transferred and delivered” to the county treasurer of Shawnee county a five-thirteenths interest in the note and mortgage, and to evidence the same executed and delivered to the plaintiff two participating mortgage bonds, sometimes referred to as certificates, numbered 538 and 541, for $5,000 each, copies being attached to the petition; that the remaining eight-thirteenths of the note and mortgage was owned by other defendants, the extent of their interests being set out. It is further alleged that interest-paying dates were the first days of May and November of each year, and that the mortgagors failed to'pay the interest as it fell due; that taxes are due and unpaid; that the terms of the note and mortgage have been breached, and the whole sum of $26,000 is due and the mortgage subject to foreclosure, and there is due plaintiff $10,000 with interest from November 1, 1932; that‘defendants Edward S. Jewell, May H. Stone, Joe Longshore, assistant receiver, Charles W. Johnson, general receiver of the International Mortgage Trust Company and its unknown successors, trustees and assigns, J. A. Eddy and J. Glenn Davis, county treasurer of Shawnee county, claim some right in the note, mortgage and real estate, which is inferior to plaintiff’s rights, and that the defendants Perry, Blair, Gilchrist, the Allison estate, Heywood, Schone, Snyder, Davis, Hall and Robert Stone claim to own an eight-thirteenths interest in the note and mortgage, and their respective interests should be foreclosed and the share of each decreed. The prayer is for a judgment against the mortgagors for $10,000 and for foreclosure and sale of the property and the application of proceeds to the judgment, for a decree barring defendants alleged to have inferior interest, and that the other defendants be required to set up their interests and shares evidenced by their certificates of participation (bonds) issued to them by the trust company, and that the same be foreclosed and their respective interests in the real estate and proceeds of sale thereof be decreed to them. To this petition defendants Blair, Gilchrist, the Allison estate, Heywood, Schone, Snyder, Davis, Hall, Leila M. Cook, Frederick A. Cook, May H. Stone, Robert Stone and Perry, and Robert Stone, trustee, filed demurrers upon three grounds, namely, plaintiff has no legal capacity to sue, misjoinder of causes of action, and that the petition did not state facts sufficient to constitute a cause of action. The trial court overruled the demurrers, and the demurrants appeal.
With respect to the petition, we observe there is no allegation, except inferentially, of the date of default by the mortgagors, or that any default had been declared; that although it is alleged that Johnson is general receiver of the International Mortgage Trust Company and that Joe Longshore is assistant receiver thereof, there is no allegation of insolvency or other legal cause for the appointment of a receiver, neither is there any allegation as to whether plaintiff acquired his participating mortgage bonds before or after appointment of the receiver. Neither is there any allegation that the trust company had refused to bring any action on behalf of the holders of the participation mortgage bonds or, assuming that such refusal had been had, that the other holders had refused to join as plaintiffs.
With respect to the mortgage, it may be said to be of standard form direct to the trust company and containing no provisions for the issuance of debentures or participating certificates or mortgage bonds or of any-trust relationships of any kind whatever.
The two so-called participation mortgage bonds belonging to plaintiff are alike as to form. They certify that the trust companj" holds in trust the above-mentioned mortgage, fully describing it; that the principal and interest is payable at the office of the com pany which has issued this certificate evidencing an undivided pro rata interest in and to the mortgage and debt secured thereby in the owner of the certificate as shown on the company’s books, the certificate being controlled by the terms of the mortgage held in trust. Each is issued to the company or its order and each evidences a $5,000 interest in the principal of the mortgage and in the interest as evidenced by twenty attached interest coupons, each coupon representing a pro rata interest in “the original interest of the maturity date, said interest to be paid in accordance with the terms of said mortgage.” The final paragraph reads:
“The International Mortgage Trust Company is trustee and custodian of the mortgage securing this certificate. All payments of principal are to be indorsed hereon when paid by the mortgagors and upon presentation of this certificate at the office of the International Mortgage Trust Company and interest paid when same has been collected from the mortgagors and upon presentation of interest coupons.”
The participation mortgage bonds are executed thus:
“The International Mortgage Trust Company, Trustee,
(Corporate seal.) By M. L. Perry, President.”
Attached to each bond are twenty interest coupons, each stating that on the date named the bearer is entitled to payment at the office of the trust company of a stated amount “providing the interest on the original mortgage has been collected.” The coupon refers to the trust company as trastee holding the mortgage.
The mortgage bonds were delivered to the plaintiff with this indorsement:
“Pay to the order of Co. Treasurer, Shawnee Co.
The International Mortgage Trust Co.
By I. E. Henry.”
At no place in the certificate is there any use of the words “assign,” “assignment,” “transfer” or others of like import with respect to the note and mortgage.
Did the petition state a cause of action? Before discussing that matter, it is necessary to note a contention that after the demurrers were argued, the petition was further amended. As drawn, the petition alleged that certain named defendants owned an undivided eight-thirteenths interest in the mortgage, their names and amounts of interest being set forth. A calculation would show either some holders of mortgage participation bonds were omitted or the amounts attributed to named defendants were wrong. This seems to have been the state of the petition when the demurrer was argued. It appears the petition was sometime thereafter amended to correct amounts owned by named defendants and to allege that Sarah L. Doubt, who was not a defendant and against whom no process had "been asked or had, and who had not voluntarily appeared, owned a $400 interest. Plaintiff justifies the amendment under R. S. 60-756 which permits amendment without leave at any time before answer is filed. It provides, however, that notice of such amendment shall be served upon the defendant, and it is not claimed any such notice was given. Counsel should avoid such a situation. It is neither fair to the trial court nor to this court to let such a condition arise.
We shall first notice whether or not plaintiff and the defendants "holding participation mortgage bonds are assignees of the original ■note and mortgage. It has been noted that the bonds do not contain any words of assignment or transfer or of like import. Appellee directs our attention to authorities holding that assignments may be oral, that they need not be in any certain form, etc., but they are hardly applicable here. R. S. 67-304 provides for recording assignments, R. S. 67-318 provides that an assignment by a corporation shall be valid when executed by certain named officers and attested by the corporate seal, and R. S. 67-319 provides assignments shall be acknowledged in the manner therein set out. Except as the original bond was executed by the corporation, there was no compliance with any one of the above statutory provisions, .■and the title of the plaintiff to the bonds on which it bases its cause •of action rests only on a blank indorsement. It is true an assignment might be good between the parties without complying with the above statutes, and that our statutes do not define an assignment of a mortgage, but the failure to comply, and the failure to use any words appropriate to an assignment must be considered. As .•against the rights of third persons, the assignments would have to be made and recorded in compliance with the statute. Assuming plaintiff owned the entire interest in the mortgage, how would it release it of record if the mortgagors elected to pay in full? Without pursuing this matter further, we hold that the participation mortgage bonds were not assignments of the original note and mortgage, but simply evidenced an undivided pro rata interest in the proceeds of the principal and interest collected by the trust company as trustee, which will be discussed.
In Trees v. Johnson, 130 Kan. 681, 288 Pac. 587, a bank had taken a mortgage to secure a series of twelve notes, in which the names of "the payees were left blank. Later, as the notes were sold, the purchaser’s name was inserted as payee. The bank continued to hold the mortgage and paid to the holders the interest paid by the mortgagors. Later, through fraudulent dealings, officers of the bank became owners of the real estate, procured from the bank a release of the mortgage and conveyed the previously mortgaged real estate to innocent purchasers. Holders of the notes sued the bank, and it was held:
“The bank had authority to také mortgages on real estate (R. S. 9-101) and to deal in notes. The indebtedness was substantial in amount. The bank took a series of notes secured by the one mortgage. It sold these notes to various purchasers, retaining the mortgage as security for all of them, and thus became a trustee for the holders of the notes. As such trustee it was bound to the utmost good faith (Morrow v. Comm’rs of Saline Co., 21 Kan. 484) to keep the mortgaged security intact, and is liable in damages for its failure to do so. (7 C. J. 597; Bank v. Bank, 106 Kan. 303, 187 Pac. 697; Stone v. Bank, 107 Kan. 332, 190 Pac. 1094; Fulton v. Farmers Nat’l Bank, 122 Kan. 400, 252 Pac. 242, 123 Kan. 1, 253 Pac. 561; Bock v. First Nat’l Bank, 123 Kan. 304, 255 Pac. 68.)” (p. 684.)
And so here, the trust company, while not using very definite and complete language to that effect, executed to the purchasers thereof bonds which showed that the company was holding the mortgage for their benefit and was to collect the principal according to the terms of the bond and interest according to the terms of the bonds and the attached coupons, and pay the bondholders when the same has been collected from the mortgagors. We hold that the trust company was trustee for the holders of the participation bonds.
Appellee argues, however, that the company could not be trustee for itself. It was not; it was trustee for the holders of the bonds, and it is not decisive that for a time it owned two of them. There was no merger of the interests of the trustee of the beneficiaries in the county, and it could so act. (26 R. C. L. 1272; 65 C. J. 277, 572.)
Prior to the last amendment of the petition, it might have been argued that the allegation that, without regard to the erroneous amounts attributed to each, certain named defendants owned the eight-thirteenths of the participation mortgage bonds, in connection with the allegation of plaintiff’s ownership of five-thirteenths, showed all owners were parties to the action and in court. But the last amendment, which the trial court had no opportunity to consider, showed that was not true. The state of facts as to the original mortgage and the issuance of the participation mortgage bonds, as disclosed by the petition, shows that it was incumbent on the trustee, or its successor in trust, to declare the debt due and to institute foreclosure proceedings for the benefit of the holders of such bonds. Before a holder of one of such bonds could maintain an action in foreclosure, it was incumbent that he allege a proper demand was made upon the trustee to proceed and a refusal or failure by it to act. In such action all parties united in interest must be joined as plaintiffs or defendants, but if the consent of those who should have been joined as plaintiffs cannot be obtained, they may be made defendants, the reason therefor being stated in the petition. (R. S. 60-412; Thiessen v. Weber, 128 Kan. 556, 560, 278 Pac. 770; Price v. Carmean, 136 Kan. 744, 748, 18 P. 2d 197.)
We are of the opinion that the petition did not state facts sufficient to constitute a cause of action. It is not necessary that we discuss the other grounds of the demurrer nor refer more specifically to the many citations of authority bearing upon the entire matter.
The judgment of the trial court is reversed, and the cause remanded with instructions to sustain the demurrer, for the reason the petition does not state facts sufficient to constitute a cause of action. | [
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Per Curiam:
In the opinion heretofore rendered (Dyer v. Scott, 141 Kan. 463, 470, 41 P. 2d 993) it was stated correctness of the survey of 1932 was not disputed. In a petition for rehearing it is shown an appeal was taken from that survey, and the appeal is pending in the district court. This fact makes it necessary to modify the judgment -of this court with respect to the boundary between tracts I and J, and the judgment is modified to read as follows:
“The judgment with respect to boundary between tracts I and J is reversed. The cause is remanded with direction to render judgment that the true line between tracts I and J begins 15.64 chains south of the north line of section 5, township 20, range 23, in Linn county, measured on the line dividing tracts H and I, as shown on the plat in the case of Davis v. Pratt, and extends east to the bank oí the old north channel of the Marais des Cygnes river, as shown on such plat. The district court is further directed to establish such line by correct survey, appropriately marked on the ground, and to render judgment quieting title to tract I accordingly.”
The petition for rehearing is denied. | [
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The opinion of the court was delivered by ■
• Johnston, C. J.:
This was an action brought by F. D. Forsyth, who was a passenger in the taxicab of Oscar Owens, and who was injured in a collision with a vehicle driven by Dr. H. L. Church on the streets of Pittsburg. Plaintiff alleged that Doctor Church was carelessly and negligently driving his machine at a dangerous rate of speed and failed to keep a lookout for traffic. Defendant alleged in his answer a general denial and that'the taxicab was driven with negligence which contributed to the injury, if any was sustained by plaintiff and for which he sues. The jury returned a verdict awarding plaintiff $3,500 against the defendant, and he appeals.
Considerable testimony was offered. The collision, it appears, occurred at the intersection of Broadway, running north and south through the city, and Williams street running east and west, and ending at the intersection. The taxicab was traveling north om Broadway with Forsyth and Mary Smith as passengers. Mary Smith was in the front seat with Oscar Owens, the driver, and Forsyth was in the back seat. Owens testified that he didn’t see-Church’s car until he was struck by it, and that there was no light on the defendant’s car.
The jury found that defendant’s act causing the collision was driving without lights. Defendant’s testimony was that he had lights on his car and that the lights were on after the collision. There was some testimony that the doctor’s coat sleeves were stiff and that he may have turned the light off and on again, and much was made of this testimony. It was further found that he was driving at a speed of about thirty miles per hour, but this was not found to be excessive nor negligent. The plaintiff saw the defendant’s car when it was thirty or forty feet away and did not warn the driver of the approaching car. This was claimed to be contributory negligence.
In presenting the case to the jury a deposition of the plaintiff' was read, in which the witness was asked to state what he heard Doctor Church say at the time of the collision, and he said he-heard Doctor Church say “to take the car down to the garage, my insurance will take care of it.” Motion was made to strike the answer out, but it was overruled, and counsel for plaintiff was insistent on the question of insurance, and when another witness was-testifying he asked him what was said by the defendant at the timo of the collision, and he replied that he heard a conversation between Doctor Church and Oscar Owens, and the court then appeared to understand and appreciate the objectionable character of the evidence and ruled that it was objectionable and that the jury should not consider it.
When Mary Smith, a witness, was asked about the statement of' Doctor Church, she said, “I heard the doctor say, 'Take the car down to the garage, my insurance will take care of it.’ ” Motion to strikeout and disregard the testimony was overruled, and it was admitted.. Owens gave like testimony over objections, which was likewise ad-, mitted, thus admitting the force of the objection and having ruled it out on account of being prejudicial and objectionable, it was admitted and became a prominent factor in the case. This has been-determined to be reversible error, and, like in the case of Van Pelt. v. Richards Paint & Paper Co., 132 Kan. 581, 296 Pac. 737, the court first struck it out and afterwards admitted it in the testimony of several witnesses. Other cases which made- such testimony á ground of reversal are Holloway v. Telfer, 136 Kan. 80, 12 P. 2d 826; Coffman v. Shearer, 140 Kan. 176, 34 P. 2d 97, and a number of cases in other jurisdictions. These authorities require a reversal of the judgment.
There is an instruction that is claimed to’ be erroneous. Instruct tion twenty-three, said to be in error, is as follows:
“You are instructed that the evidence of the physicians and all other testimony is entirely for you, and the court will not say, as a matter of law, that they are not entitled to any greater weight, you may find it is entitled to no greater weight than any other evidence, or you may find that it is of greater weight. It is a question of fact for you to determine, and the jury has a right to disregard such evidence entirely, and you have a right to regard it.”
The court had previously submitted that the verdict should be determined by the testimony, and then in the later instruction advised the jury that they might disregard the'testimony of expert physicians entirely. While the jury might under some circumstances reject expert .testimony absolutely, depending upon the circumstances, and give it no consideration for one reason and another, but to disregard it entirely is different. In Webster’s New International Dictionary, the word “disregard” is defined as follows: “Not to regard; to pay no heed to; to fail to notice or observe; hence to slight as unworthy of regard or notice, as to disregard the admonition of conscience.” The advice that they might disregard it 'entirely therefore is an overstatement. If doctors well schooled and of im tegrity give an opinion with the scope of their studies and experience, should it be disregarded by a jury? We hold not.
There was a .conflict between the regular M. D.’s of the clinic of Pittsburg and the chiropractors as to the injury of plaintiff, and the jury may have shut out of consideration entirely the testimony of the regular physicians when it should have considered it with care. In A. T. & S. F. Rld. Co. v. Thul, 32 Kan. 255, 4 Pac. 352, the following instruction was.given, but it was held to be erroneous:
“There has been some evidence in the case, known as ‘expert testimony.’ In respect to such testimony I instruct you that its value depends upon the learning and skill of the expert witness, and on the nature of the subject of investigation. The value of such testimony varies with the circumstances of each case, and of these circumstances the jury must be the judges; and you must determine whether great or little weight is to be accorded to it. But in all cases such testimony should be received and weighed with caution.” (p. 259. See Courtright v. Cavert, 125 Kan. 66, 262 Pac. 587.)
In Lawson on Expert and Opinion Evidence, p. 282, he makes the following statement:
“The testimony of experts is entitled to the same credit, is to be tested by the same rules as are applied to the evidence of other witnesses, and should have weight with the jury according to their opportunities and qualifications; but it is not conclusive.”
The court remarked that this is a correct expression of the rule of expert testimony.
Another ground of error was the closing argument of counsel for appellee. He took a wide range, called witnesses liars, stating facts not in evidence, ridiculed witnesses, especially the regular physicians, and gave reasons why certain witnesses were not present to testify; that the witnesses belonged to the “damnable association,” the Pittsburg clinic. Facts not in evidence were stated; he said that he had more respect for the chiropractors’ testimony than he had “for some of the M. D.’s who are, I think, one of the most highly organized robbing gangs in the United States of America, and all belong to the famous American Medical Association — if you doubt it try to get one of them to testify against another doctor.”
These inflammatory appeals are not in keeping with the decorum that counsel should observe in a court that is settling the rights of parties, and it is condemned as erroneous. The court should exercise its authority and right uninfluenced by the appeals of counsel to passion and prejudice.
The judgment is reversed, and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Johnston, C. J.:
These are appeals in three tax cases in which plaintiffs ask for a temporary injunction, on petitions alleging that their property had been valued too high by the assessor. No restraining order was asked, but the application was submitted to the court on the verified petitions without the offer of any proof. They alleged overvaluations of their property by the assessor, which would require them to pay a tax that was arbitrary and capricious, and not due to mistake in judgment.
They appeared before the county board of equalization, but that body affirmed the valuation made by the county assessor and affirmed its judgment. They then appealed to the State Tax Commission where, after a hearing duly had, that body refused a reduction and affirmed the valuation of the assessor and of the county board of equalization. One plaintiff alleged that it had a capital stock in the sum of $50,000 and a surplus of a like amount; that the true value of plaintiff’s capital stock was $99,983.79; that the amount is deductible from the plaintiff’s stock, leaving no taxable value; that the assessment and levy made by the county assessor and county clerk is a violation of the United States and state constitutions; that it was arbitrarily made without regard to its true value, and a value far exceeding the true value was placed upon it by the assessor. The plaintiff further alleged that it had furniture and fixtures assessed at a value of $7,500 and a tax was levied thereon of $200.70, which amount plaintiff tendered to the county treasurer in full settlement of its taxes, which amount was refused. Notwithstanding the fact that the capital stock had no taxable value, the defendant, Rickerd, has issued a tax warrant and placed the same in the hands of the sheriff, who was threatening to levy upon and sell plaintiff’s property unless enjoined.
It is alleged that the assessor and county clerk, who' made the assessment, had on many occasions during the campaign to secure his election said that during his preliminary term of office he had added to the tax rolls of Lyon county more than a million dollars that had previously escaped taxation, and that in his zeal to make a record he overvalued plaintiff’s property.
Plaintiffs allege they have exhausted their administrative remedies, have no adequate remedy at law and therefore pray for an injunction. In the other cases the same things are said as to the assessment, differing only as to the amount and kinds of property assessed and valued by the assessor and clerk; that it was arbitrary, capricious, unconstitutional and illegal, and that they have no other adequate remedy and therefore asked for an injunction.
Were plaintiffs entitled to injunctions on the verified petitions without producing evidence other than as proved by the affidavit of the plaintiffs? In an early tax case, Olmstead v. Koester, Treasurer, 14 Kan. 463, there was an application for injunction presented and refused by the court. The court held the verified petition was made to subserve two purposes, that of a pleading and that of evidence, but when the answer day has not arrived, the petition, though verified, is to be construed as any affidavit or other verified pleading. The court held that a preliminary injunction is not a matter of right and that such orders have been refused by the court requiring them to wait until the final disposition of the case. This practice is approved even though the plaintiff had a preponderance of the evidence. The court held that a preliminary injunction, not being a matter of right, rests in the sound discretion of the judge or court, and before an injunction is allowed there should be such a showing of the facts that the court or judge acts with a full understanding of the nature of the controversy and the effect of the order, and authorities are cited.
The admissions of plaintiffs in their petitions furnish some reason against the granting of an injunction. They allege they appealed first to the county board of equalization, which necessarily had some knowledge of the values of property in the county, and the assessor’s valuation was affirmed. Then they appealed to the state tax commission which, after a hearing duly had, affirmed the valuation made by the assessor. The averments of wrong and fraud, as will be observed, are largely conclusions of law and fact on which they base their application for an injunction, and this is not accepted as proof on a disputed question of fact.
The averments in the petition are that said assessment and levy so made by the county assessor and county clerk are illegal and unlawful, and are so oppressive, arbitrary and capricious as to constitute a fraud upon the plaintiffs; that they were made with full knowledge that they were excessive, and that such assessment was an arbitrary act on the part of the county clerk and the county board of equalization to compel the plaintiffs to pay more than their just share of taxes for the year 1932, and was not due to mistake in judgment as to valuations.
Like averments were made in the several cases and it is evident that the statements are mere conclusions of law and of fact and could not properly be considered upon an application for a temporary injunction as testimony, and are insufficient under the rule laid down in Olmstead v. Koester, supra, which held that—
“When a verified petition is used as an affidavit, its allegations must be construed as those of an affidavit, and must be such statements of fact as would be proper in the oral testimony of a witness. Allegations which are simply conclusions of law, whether sufficient or not as matter of pleading, are incompetent as testimony.” (Syl. ffl.)
The fact that it was alleged to be contrary to the state and federal constitutions without more, was a conclusion of law on which an injunction could not be granted. Plaintiffs cite Mariner, Mayor, v. Mackey, 25 Kan. 669, which was brought to enjoin the collection of a judgment in which an execution had issued against the city. The execution had issued and had been placed in the hands of the sheriff, who was proceeding to levy upon the property of the city for purely public purposes. The prayer of the petition was simply to restrain proceedings under the execution, and the injunction granted was to that effect. The petition alleged that the property was exempt as held for purely public purposes. It also answered stating the nature of the judgment, that it was absolutely null and void, and that it was for witness fees for which the city was never liable. It stated no other facts tending to show the invalidity of the judgment. The sheriff did not appear and the court, finding that the facts and statements set forth in plaintiff’s petition were true, granted the injunction. No fact was alleged which showed that the judgment was a nullity, and the statement that it was void was a mere conclusion of law unwarranted by the facts stated.
In Bertenshaw v. Hargrove, Sheriff, 33 Kan. 668, 7 Pac. 270, a hearing was had before the court, both parties being present, and after the hearing the court refused to grant the injunction. The motion came on for hearing before the supreme court, not only on the motions but on the merits of the application in the court below for the temporary injunction, where they were thoroughly discussed, and the court being fully prepared to render a decision upon the question as to whether the temporary injunction should be granted held that it should have been granted.
There the hearing was had when the application for the temporary injunction was made, which was fully discussed, and apparently it was granted upon evidence. The court did not consider in either case the fact that the granting of the injunction was a matter of right and was within the judicial discretion of the judge.
The temporary restraining order that was issued when the case was brought here is set aside and the judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to have a certain deed executed by third parties declared to be a mortgage, to recover possession of the described real estate and damages for the detention thereof.
On October 25, 1928, one E. R. Hymer and wife had delivered to the Citizens State Bank of Belle Plaine their note for $2,000, secured by a mortgage on the real estate in controversy. Mrs. Hymer passed away before her husband, who died in April, 1931, at which time the taxes on the real estate were in arrears for the year 1929 and thereafter. Interest on the note had been paid to March 9, 1931. So far as the record shows, there were no probate proceedings on the estates of either Mr. or Mrs. Hymer, who left surviving them as heirs at law a son and two daughters. Mr. Hymer was indebted to the plaintiffs, and on June 20, 1931, the heirs gave to the plaintiffs a written document stating they were desirous of saving expenses of administration of their father’s estate, and promising to pay the debts due each of the two plaintiffs in an amount equal to the value of the estate and pledging “all property of said estate and their pro rata share thereof to the payment of said debts.” No property was specifically described. The document was not acknowledged before a notary and was never made a matter of record. On August 3, 1931, the mortgagee bank became insolvent and a receiver took charge. On August 24, 1931, the Hymer heirs deeded the property to the bank by a warranty deed, covenanting the property free and clear except the bank’s mortgage. On October 19, 1931, plaintiffs notified the bank they had the written document of June 20, 1931, and about that time they communicated with the bank, which was then in possession of the real estate. On December 16, 1931, the plaintiffs received from the Hymer heirs a quitclaim deed for the real estate. It is undisputed that plaintiffs had knowledge of the bank’s deed when they received their quitclaim deed. The bank’s deed was recorded December 26, 1931, and plaintiff’s deed was recorded November 15, 1932. The action was filed July 23, 1933. The trial resulted in a judgment that the deed of August 24, 1931, was a deed and not a mortgage, and that the bank was the owner of the real estate and entitled to the rents collected by it, and that the plaintiffs had no interest in the real estate or rents. Title was quieted in the bank. Plaintiffs appeal. Although a number of specifications of error are made, they are presented under two general heads, summarized thus: Did the evidence and pleadings compel a holding that the deed to the bank was a mortgage, and did they compel a holding that plaintiffs were entitled to recover rents collected?
Plaintiffs were not entitled to collect rents unless the bank’s deed was a mortgage and they were entitled to possession under their quitclaim deed, and we therefore consider only whether the trial court ruled correctly that the bank’s deed was a deed and not a mortgage. The trial court having found in favor of the bank, where there is any dispute in the facts or where implication therefrom may be resolved either in favor of plaintiffs or the bank, the dispute or implication must be resolved in favor of the bank. So considered, the evidence shows that at the time the deed to the bank was made the Hymer heirs were not indebted to the bank; that the mortgage note was past due as to principal and that interest was in arrears for almost six months; that the taxes were in arrears from 1929 on, and that the makers of the note were dead; the son, Doctor Hymer, testified that about a week before the deed was made an officer of the bank asked for a deed, as the bank had all (money) it wanted to put in the property; that the taxes would have to be paid; that the bank wanted its money; that it would not advance tax money unless it had a. deed; that witness told the bank’s agent he thought the property worth $3,500, and witness told him he would be willing to give the deed “if we could have the privilege of selling the place and having the difference to apply on other debts”; that later the deed was executed and delivered; that the bank paid nothing for the deed and did not return the father’s note and mortgage, nothing being said that that was to be done; that he and his sisters had done nothing toward selling the place; that he and his sisters were not indebted to the bank. On cross-examination he testified as follows:
“Q. I believe you stated in answer to a question of Mr. Wasson’s that you gave the deed to Mr. Scudder which named you and your two sisters as the grantors and the Citizens State Bank as grantee, with an oral agreement that you retained as grantors the privilege of selling the property and applying the difference between the bank’s mortgage and the taxes on the debts of others. A. Yes, sir.
“Q. That’s the title you retained when you gave the Citizens State Bank their deed, isn’t it? A. Yes, sir.
“Q. At the time you executed this deed on August 24, 1931, were you indebted to the Citizens State Bank of Belle Plaine? A. Myself, you mean.
“Q. Yes. A. No.
“Q. Do you know whether either of your sisters were indebted to the bank at that time? A. Not that I know of.
“Q. At the time you made the conveyance to the plaintiffs here, which has been marked as plaintiffs’ exhibit B, did you make any reference or did you tell the plaintiffs that you had previously executed this instrument, marked defendants’ exhibit 1? A. Yes.”
“A. It wasn’t my understanding the bank gave him (witness’ father, E. R. Hymer) money for taxes before his death.
“Q. Then, it was your understanding that the bank intended to pay the taxes after his death, on some real estate? A. Yes.
“Q. And you gave them this deed to secure whatever tax money they paid out? A. Yes, and in addition to the two thousand dollars.
“Q. Whatever tax money is paid, do you owe the bank any money for taxes? A. No, sir.
“Q. Had your father made a note to the bank for tax money? A. Not to my knowledge.
“Q. You knew the bank already held a mortgage on the premises, signed by your father and mother, when you. made the deed, didn’t you? A. Yes, sir.
“Q. Did you owe any part of that indebtedness that was evidenced by that securing of the mortgage? A. No, sir.
“Q. You never claimed to pay any part of it to the bank, did you? A. No.
“Q. Do you know whether or not your sisters claimed they owed any part of it to the bank? A. I don’t think so.”
From the above it appears that the heirs did not agree to pay the debt secured by the note and mortgage made by their parents, and neither did they consider themselves obligated to pay to the bank any moneys it advanced to pay taxes. Under the heirs’ version of the matter, they owed no debt to the bank. In Hoyt v. National Bank, 115 Kan. 167, 222 Pac. 127, it was said:
“The true test in determining whether or not the transaction between the parties constituted an absolute conveyance or a mortgage is whether, after the transaction, there existed, by virtue thereof, the relation of debtor and creditor. It is well settled that an instrument in form of a deed or an absolute conveyance may, under certain circumstances, be shown to have been given only as security for the payment of a debt or the performance of some act, in which case the instrument is in reality a mortgage.” (p. 172.)
And in Lincoln State Bank v. Breazier, 122 Kan. 423, 251 Pac. 1080, it was said:
“The test, repeatedly applied by this court, as to whether an instrument in the form of a deed is a conveyance or is intended as a security for a debt-, hence to be treated as a mortgage, is to be determined by whether there continues to be any debt for the instrument to secure.” (p.427.)
In both of the above cases Fabrique v. Mining Co., 69 Kan. 733, 77 Pac. 584, is cited. In that case Scheetz undertook to erect a building. He became involved and gave one of his creditors a mortgage which was assigned to the defendant. He later conveyed the property to defendant and took back an agreement to repurchase, the performance on his part being optional. He later conveyed to plaintiff, who sought to have the deed to defendant declared a mortgage. In disposing of his contention this court said:
“The test in determining whether an absolute conveyance with a separate agreement to reconvey, executed simultaneously, constitutes a mortgage is whether the relation of debtor and creditor continues to exist. . . Applying this test to the present transaction, it cannot be construed into a mortgage. Scheetz was not liable to the coal company for any of the debts assumed and paid by it. He did not agree to pay such debts nor did he agree to pay any of the expense of completing the building. An action could not have been maintained by the coal company against Scheetz to recover any of such amounts,” etc. (p. 737.)
The rule declared in the above decisions has been approved in subsequent cases. (Benson v. Rosebaugh, 128 Kan. 357, 278 Pac. 41; Hall v. Goldsworthy, 136 Kan. 247, 14 P. 2d 659; Lindberg v. Pence View Farming Co., 140 Kan. 138, 33 P. 2d 1102.) And see Handrub v. Griffin, 127 Kan. 732, 275 Pac. 196, where it was held there was an existing debt.
Applying the rule to the evidence mentioned above, it is held the trial court committed no error in holding that the warranty deed from the Hymer heirs to the bank was not a mortgage.
During the course of the trial there was some contention with reference to a claimed merger of title. In their opening statements plaintiffs made some assertions that led defendants to conclude plaintiffs claimed there was a merger of the bank’s title under the mortgage of 1928 and as owner under the warranty deed which plaintiffs claim is a mortgage. Some reference is made to the doctrine in appellants’ argument on the question of the deed being a mortgage. Very possibly this grows out of the fact the bank in its answer alleged there was no merger. It is not made to appear that whether or not there was a merger affected the final result. It was held in Stacey v. Tucker, 123 Kan. 137, 254 Pac. 339, where authorities in support are cited, that—
“Where a mortgagee of real estate acquires the legal title to the mortgaged property, the mortgage will become merged in the larger estate or not, as the mortgagee may desire or his interest require.” (Syl. If 2.)
The bank may have been apprehensive that a claim might be made that its deed was a mortgage and it would be advantageous that its mortgage of 1928 be kept separate and apart from the title it received under the warranty deed. As against the grantee' óf a quitclaim deed, who took with knowledge of the previously executed warranty deed, it does not seem to have been an unreasonable position to take. But in view of the trial court’s conclusion, whether or not there was merger does not affect the result. It may be remarked that it is undisputed the bank was in possession of the real estate, at least from the date of its warranty deed, and even though that deed were declared a mortgage, plaintiffs would not have been entitled to possession until plaintiffs had satisfied the claims of the mortgagee in possession. It may be further remarked that plaintiffs did not pursue their remedies in the probate court against the estate of the elder Hymer. Had they done so the deed of the heirs to the bank would not have availed to defeat their right to have the premises sold for the payment of debts.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
Two actions where plaintiffs and land involved are different but defendants are the same persons, were consolidated in the trial and are consolidated here for review'. They are actions to set aside tax deeds within five years after their issue, where the tax titles were quieted on service by publication, and the land conveyed by warranty deed six months after judgments quieting title were rendered. There are practically .no disputed facts, but on request the trial court made three findings of fact and a conclusion of law and rendered judgment for plaintiffs, holding the judgments quieting title were void for want of jurisdiction, and defendants appeal:
The tax deeds were issued to one Max Leon,' April 22, 1931. The plaintiff owners of these adjoining eighty-acre tracts of land had some time prior thereto become residents of another state and had neglected to pay their taxes. Max Leon immediately upon receiving and recording his tax deeds to these lands entered into possession thereof and remained in possession thereof by tenant until he sold them to defendants. On June 13, 1932, he commenced two separate actions to quiet title to’these lands, obtaining service upon the owners thereof by publication notices, and judgment was rendered in his favor in said actions quieting the titles to these lands against the owners thereof, the plaintiffs herein. On April 20, 1933, he conveyed these separate tracts by warranty deeds to the defendants herein for $2,450. In the fall of 1933 these plaintiffs brought these separate actions now before us to set aside the tax deeds.
The defendants answered by general denial and by pleading the quiet-title action of Max Leon and judgments rendered therein against the owners, and also pleading the purchase of the lands from Max Leon in good faith, paying the reasonable market value thereof, and receiving warranty deeds therefor, relying upon the judgments so rendered and that they entered immediately into possession of the land.
The reply alleged that such judgments were null and void and that the trial court had no jurisdiction of such actions • because Max Leon did not have possession of the land conveyed to him by tax deeds for five years prior to the commencement of the actions as required by R. S. 60-1804.
The defendants assumed the burden of proof and after the introduction of evidence, the filing of a short stipulation and the making of some oral admissions, the trial court made its findings and conclusion. The third finding of fact and the conclusion of law are as follows:
“3. That the defendants in these actions were not innocent purchasers and they had no right to rely on the judgments quieting title in favor of Max Leon, their grantor, and they took no better title than Max Leon had, as the law charges all persons with knowledge of its existence.
“conclusions op law
“The court is of the opinion that the plaintiffs in both these actions should prevail and that the deeds of the defendants should be canceled and held for naught, and that the plaintiffs should be allowed the possession of said premises on the payment of the taxes, together with interest and cost of recording the tax deeds, and that plaintiffs’ title should be quieted as against the said defendants and all persons claiming under them, and that they should recover their costs herein.”
Both parties admit that the only questions involved are the good faith of the defendants in making the purchase and the validity of the quiet-title judgments.
Appellants insist that they are purchasers in good faith by paying a fair and reasonable consideration as a purchase price and accepting warranty deeds executed more than six months after the rendition of the judgments, relying upon R. S. 60-2530, the pertinent portion of which is as follows:
“A party against whom a judgment or order has been rendered, without other service than publication’ in a newspaper, may, at any time within three years after the date of the judgment or order, have the same opened, and be let in to defend. . . . but the title to any property, the subject of the judgment or order sought to be opened, which by it, or in consequence of it, shall have passed to a purchaser in good faith, shall, after expiration of six months, not be affected by any proceedings under this section. . . .”
They also maintain the validity of the judgments as being based upon R. S. 60-1801, which is as follows: “An action may be brought by any person in possession by himself or tenant of real property, against any person who claims an estate or interest therein adverse to him, for the purpose of determining such adverse estate or interest,” citing Howard v. Entreken, 24 Kan. 428; Loan Co. v. Cable, 65 Kan. 306, 68 Pac. 1127; Comm’rs of Marion Co. v. Welch, 40 Kan. 767, 20 Pac. 483; Perkins v. Gregory, 87 Kan. 303, 124 Pac. 168; and Whiteman v. Cornwell, 100 Kan. 234, 164 Pac. 280. In none of which cases was the validity of the judgment called in question except the Welch case, which was commenced, tried and determined in the eighties, and long before the enactment of the statute here claimed by appellees to render the judgments void. All the other cases treat the judgment as valid. In some of them it had been set aside, but that was held not to affect the rights of the pur chaser in good faith who had purchased relying upon the judgment. All of these cases cited above, except the Perkins and Whiteman cases, were decided-prior to the enactment of R. S. 60-1804 in.1911, and the Whiteman case shows the judgment quieting title was not based upon a tax deed, but was in fact against the tax-deed holder. So this last-named statute was not involved, nor was the validity of the judgment questioned. The Perkins case was decided after the enactment of R. S. 60-1804, but the quiet-title action, as shown by the record, was commenced in 1904, seven years before the new law went into effect.
R. S. 60-1804 is as follows, being the third section of chapter 232 of the Laws of 1911:
“A tax deed of record for more than five years prior to the commencement of such action shall be a sufficient title upon which to maintain the action: Provided, That the plaintiff, or those through whom he derives title, shall have been in actual possession of the 'property covered by such tax deed for five years just prior to the commencement of such action.”
It is urged by appellants that R. S. 60-1802, 60-1803 and 60-1804 refer to actions by a mortgagor, and do not modify or change the force and effect of R. S. 60-1801. The first and second sections of chapter 232 of the Laws of 1911 refer to quiet-title actions brought by mortgagors after the mortgage has been in default or mature for more than fifteen years, and the third section, as copied above, provides that a tax deed shall be a sufficient title upon which to maintain an action to quiet title when it has been of record for more than five years prior to the commencement of the action, provided the plaintiff has been in possession of the property covered by the tax deed for five years. The title of the act is as follows: “An act providing for suits to quiet title to real estate in certain cases, and establishing a rule of evidence therein.” This is sufficiently comprehensive to include quiet-title actions based on tax titles as well as against mortgagees. Appellants criticise the term “such action,” found in the third section as necessarily limiting it to those against mortgagees. This would be too limited a construction when the whole act concerns “suits to quiet title to real estate.”
Appellants further urge that R. S. 60-1801 has not been repealed or amended, that it is complete in itself and sufficient to support an action to quiet title based on a tax deed.
These actions on the part of the owners are not to open up and set aside the judgment and be let in to defend, but they were in fact commenced under R. S. 79-2505, which is as follows:
“Any suit or proceeding against the tax purchaser, his heirs or assigns, for the recovery of land sold for taxes, or to defeat or avoid a sale or conveyance of lands for taxes, except in cases where the taxes have been paid or the land redeemed as provided by law, shall be commenced within five years from the time of recording the tax deed, and not thereafter.”
There is a consistency between this section and R. S. 60-1804 in that the landowner has five years in which to commence an action to set aside the tax deed on his land, and by the other statute the holder of the tax deed cannot commence his action to quiet his tax title before his tax deed has been on record for five years: If we recognize R. S. 60-1804 as having any force whatever, it is an additional requirement as to the age of the tax deed and the time of possession which did hot exist in the general provision of R. S. 60-1801. The rule is to construe both sections together and neither section should be ignored.
There is no reason why a judgment cannot be held invalid where the court did not have jurisdiction to hear and determine it or jurisdiction over the subject matter, even in a new and different action by way of collateral attack. (Mastin v. Gray, 19 Kan. 458.) In 15 R. C. L. 844 it is said:
“Jurisdiction of the subject is the power conferred upon courts by law to hear a particular class of cases, or to determine controversies of a specified character. This jurisdiction is indispensable to the validity of a judgment, and where a court has no jurisdiction of the subject matter the judgment is void.”
And again in the same volume, at page 854, it is said:
“A failure to comply with statutory requirements regulating the exercise of the jurisdiction of a court may be sufficient to deny to a judgment validity which will protect it from collateral attack.” (See, also, 34 C. J. 1089.)
The case of Morris v. Winderlin, 92 Kan. 935, 142 Pac. 940, is where an action was commenced to quiet title by the holder of a tax deed against nonresident owners in 1903, and judgment was rendered in his favor, but one of the parties was deceased at the time, and it was held:
“. . . The defendant in this action is protected in his title purchased in reliance upon the judgment that was afterwards set aside, only so far as the court had jurisdiction to proceed against the living party. . . .” (Syl. ff 1.)
Since that time the jurisdiction of the courts has been limited in such matters by R. S. 60-1804 to tax deeds being of record for at’ least five years. When the petition in the case at bar failed to show that allegation, made necessary by the statute, the court did not acquire jurisdiction of the subject matter of the action, and the judgment rendered is necessarily void.
We find no error in the holdings of the trial court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment in a workmen’s compensation case.
It appears that for more than ten years the claimant had been employed as an ice puller at the respondent’s packing plant in Topeka. On November 1, 1932, he was engaged in handling cakes of ice which weighed about 300 pounds. In the course of this work, according to his testimony, the ice tongs slipped and he nearly fell down, and in catching himself he received a severe jerk. When he straightened up he felt an awful pain in the region of the heart, and thereafter he had difficulty in breathing. On being taken to his home, he stopped en route at a doctor’s office. The doctor examined him and told claimant “about his blood pressure and his pulse and that his heart was out of kilter.”
Claimant never recovered his strength nor has he been able to return to work. In due time he filed a claim for compensation. The commissioner set a time for a hearing; expert medical and other testimony was adduced; and the commissioner found—
“That (claimant’s) disability is not due to injury by accident arising out of and in the course of his employment with respondent, wherefore award of compensation must be denied.”
From this disposition of the matter, claimant appealed to the district court where the court tried the proceeding upon the record in conformity with the statute, and concluded:
. “That the disability of the claimant is not due to injuries by accident arising out of and in the course of the claimant’s employment with the respondent, and that the claimant’s claim for compensation must, therefore, be disallowed and the award of .... (the) commissioner of workmen’s compensation . . . . be sustained.”
Judgment was entered accordingly, and the controversy is brought to this court on the assumption that we have jurisdiction to retry the issues of fact, and to reverse the decision of the district court and direct it to enter an award of compensation in behalf of the claimant.
This court has no such jurisdiction: In 1927 all appellate jurisdiction in workmen’s compensation cases was taken from this court. (Laws 1927, ch. 232; Norman v. Consolidated Cement Co., 127 Kan. 643, 274 Pac. 233.) At the next session of the legislature our appellate jurisdiction was restored in a very limited degree — on questions of law only. (Laws 1929, ch. 206; Corpora v. Kansas City Public Service Co., 129 Kan. 690, 693, 284 Pac. 818.) In Shay v. Hill, 133 Kan. 157, 299 Pac. 267, where an employer brought the transcript of the evidence in a compensation case to this court, complaining that the trial, court had awarded compensation to a claimant where the compensation commissioner had denied it — on the assumption that this court could review and adjudicate issues of fact, we said:
“This court may not review the evidence as the district court did, . . . The function of this court is limited to determining if there was evidence, whether opposed or not, warranting a reasonable inference, although a contrary inference might reasonably be drawn, to sustain the judgment of the district court.” (Syl. H 1.)
In the argument of counsel for claimant it is assumed that the facts of this accident are not in dispute — that they were uncontroverted. We could not assent to that contention if the issue were one within our limited jurisdiction. Moreover, uncontroverted evidence is not necessarily true. The commissioner and the trial court are not compelled to believe it. (Peoples National Bank v. Diven, 135 Kan. 400, 10 P. 2d 883.) Counsel cite compensation cases not materially different from the one at bar in which awards and judgments in favor of claimants have been upheld by this court. But in all these, since the statute of 1929 restoring our jurisdiction was enacted, it will be found that this court has gone no farther than to acquiesce in the findings of fact made by the trial court (Farmer v. Oklahoma Natural Gas Corp., 134 Kan. 629, 7 P. 2d 60; Little v. Wilson and Co., 137 Kan. 360, 20 P. 2d 498), except where it has been necessary to rule that its findings had not sufficient foundation in the evidence to justify an award. (Fair v. Golden Rule Refining Co., 134 Kan. 623, 7 P. 2d 70; Covert v. John Morrell & Co., 138 Kan. 592, 27 P. 2d 553.)
See, also, Orendoc v. Kaw Steel Construction Co., 131 Kan. 366, syl. ¶ 3, 291 Pac. 952; Cornell v. Cities Service Gas Co., 138 Kan. 607, syl. ¶ 3, 27 P. 2d 228.
In this case it must be held that the record presents no question of law for appellate review, and the appeal must therefore be dismissed. It is so ordered. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an appeal from an order overruling a demurrer.
Plaintiff’s petition alleged that the highway known as 50 N is a part of the state highway system, and that in May and June, 1933, the defendant made a survey of the highway east of Jetmore, and in so doing drove spikes or nails in said highway at intervals of one hundred feet for the purpose of marking points used in making such survey; that the defendant negligently failed to remove the spikes and nails from the highway, and that in the operation of the grader or maintainer on said highway by the highway patrolmen, the spikes and nails were bent and pulled out of the surface of the highway and left lying exposed in the traveled portion of the highway, constituting a defect in said highway and danger and menace to the traveling public thereon, and that the defendant through its patrolmen and employees had notice of the defective condition for more than five days prior to October 2, 1933; on which day plaintiff and his wife were on said highway in’an automobile driven by him, using due care for the safety of himself and his wife, and at a point not within an incorporated city but within that portion of the highway included in the aforesaid survey, the right rear tire of the automobile was “punctured by one of such nails or spikes carelessly and negligently left in said highway by defendant’s employees and patrolmen,” causing the automobile to overturn and injuring the plaintiff in the manner set forth, and claiming damages therefor, and that within ninety days after the accident plaintiff caused written notice to be served upon the director of highways of the date when and place where such damages were sustained, etc., as provided by law. In a second cause of action, recovery for damages to the automobile was sought. To this petition defendant filed a demurrer, on the ground that facts sufficient to constitute a cause of action were not stated. From an adverse ruling defendant appeals.
Although the petition charges that the defendant negligently failed to remove the nails or spikes driven into the highway, and that the automobile tire was punctured by one of such nails or spikes carelessly and negligently left in the highway by the defendant, the real question presented is not one of negligence. If the defendant is liable, it is by virtue of R. S. 1933 Supp. 68-419, which provides that any person who shall, without contributing negligence on his part, sustain damages by reason of any defect in a state highway, not within an incorporated city, may recover such damages from the state of Kansas. The liability is statutory, and does not depend on negligence. (See Payne v. State Highway Comm., 136 Kan. 561, 563, 16 P. 2d 509, and cases cited.)
The demurrer admits the defendant had notice of the existence of the nails or spikes on the highway, and the sole question, therefore, is whether a nail or spike left on the surface of the highway constituted a defect therein.
After the lower court ruled on the demurrer, this court decided Doherty v. State Highway Comm., 140 Kan. 686, 38 P. 2d 95, on December 8, 1934, in which- it was claimed that small pieces of stone placed on the shoulder of the highway next to the concrete pavement, and allowed to become scattered on the surface of the pavement, constituted defects in the highway, and it was held that:
“One, or a few, small pieces of broken stone, or gravel, on a paved highway, does not render it defective within the meaning of R. S. 1933 Supp. 68-419.” (Syl.)
Essentially, there is no difference between that case and the one now before us. We note plaintiff’s argument that whether the nails and spikes were a defect is a question of fact to be determined by the jury. There may be cases where the facts are disputed from which it is to be determined whether a defect exists (Collins v. State Highway Comm., 134 Kan. 278, 5 P. 2d 1106; Williams v. State Highway Comm., 134 Kan. 810, 8 P. 2d 946), but here there is no dispute. Under the circumstances, whether the alleged defect comes within the purview of the statute is a question of law. (Gorges v. State Highway Comm., 135 Kan. 371, 372, 10 P. 2d 834; Snyder v. State Highway Comm., 139 Kan. 150, 30 P. 2d 102.)
Under Doherty v. State Highway Comm., supra, it must be held the demurrer should have been sustained.
The judgment of the lower court is reversed and the cause remanded with instructions to sustain the demurrer. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action in replevin brought in Sedgwick county. From the petition it appears plaintiff is a foreign corporation; that in January, 1930, at Kansas City, Mo., it sold to Mrs. F. C. Baird a certain motor grader for which she gave notes for future payments; that by the written contract of sale title to the grader was retained by plaintiff until the notes were paid; that Mrs. Baird never had paid any of the notes, and that by reason thereof plaintiff is the owner and entitled to the possession of the grader; “that it has demanded the same of the defendants, which demand has been refused and that the defendant wrongfully detains the same.”
Mrs. Baird resides in Wyandotte county. A summons for her was sent to the sheriff of that county and served upon her. We are told that she entered her appearance in the action and gave a redelivery bond, but we are not concerned on this appeal with any question as between plaintiff and Mrs. Baird, or as between Mrs. Baird and the state highway commission.
Plaintiff attempted to get service on the state highway commission in two ways: (1) It caused summons to be issued in Sedgwick county and served by the sheriff of that county on a section man or section foreman employed by the state highway commission in Sedgwick county, where it had a warehouse and shops. (2) It caused a summons to be mailed to the sheriff of Shawnee county, where the headquarters of the state highway commission are, and this was served on the director of highways.
The state highway commission appeared specially and moved the court to quash the summons and the service thereof on the grounds that the action was not properly brought in Sedgwick county, and the attempted service in Shawnee county was of no effect. This motion was overruled. The state highway commission then demurred to the petition on the grounds that the court had no jurisdiction of the person or of the subject matter, and the further ground that the action is in substance and effect an action against the state, and as such the court had no jurisdiction thereof. This demurrer was overruled, and the state highway commission has appealed and argues: (1) The venue of the action was in Shawnee county; (2) that service of summons upon an employee of the commission is not sufficient; and (3) that a replevin action cannot be maintained against the state highway commission.
Unless a statute such as R. S. 1933 Supp. 68-419 provides otherwise, an action against the state highway commission should be brought in Shawnee county, where its principal office and place of business is situated. (State, ex rel., v. State Highway Comm., 133 Kan. 357, 358, 299 Pac. 955.)
We find no provision in the statute authorizing the service of a summons against the state highway commission upon some one of its many employees; hence, the service upon the section foreman in Sedgwick county was without effect. On this point appellees cite and rely upon R. S. 60-2518, but this statute applies to service upon corporations organized under the general corporation law for commercial or industrial purposes. The state highway commission is not such a corporation. It is an arm of the state created by the legislature to carry on the activities of the state in constructing and maintaining a system of state highways.
Appellant further contends that this replevin action is in effect a. suit against the state, and that the state never has consented that such a suit could be brought against it by an action against the state highway commission. The point is well taken. By creating the state highway commission to carry on the work of the state in constructing and maintaining a state system of highways, and by designating it as a body corporate with power to sue and be sued, the state did not consent to be sued for every purpose. (Payne v. State Highway Comm., 136 Kan. 561, 16 P. 2d 509; Barker v. Hufty Rock Asphalt Co., 136 Kan. 834, 18 P. 2d 568; State, ex rel., v. State Highway Comm., 138 Kan. 913, 917, 28 P. 2d 770.) In effect it has consented to be sued with respect to contracts the state highway commission is authorized to make, or was required to take over. (McCandliss Construction Co. v. Neosho County Comm’rs, 132 Kan. 651, 296 Pac. 720.) But this action is not predicated upon any contract with the state or its highway commission. The state also specifically has consented to be sued in an action against the state highway commission for damages resulting from defects in highways, but it is conceded this action is not within the purview of that statute. We feel compelled to hold this action cannot be maintained against the state highway commission.
The judgment of the court below is reversed, with directions to sustain the demurrer of the state highway commission to the petition. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an action in mandamus to compel the sheriff of Rush county to publish notices of sales of real estate in mortgage-foreclosure proceedings in a newspaper designated by the judgment creditor.
There is no dispute of fact. Publication notices in three different actions are involved, but, as the facts in each case are substantially alike in so far as the present question is concerned, only one case will be noticed.
The district court of Rush county on January 14, 1935, rendered judgment in favor of the John Hancock Mutual Life Insurance Company against Eliza Moore for a definite amount on a note and for foreclosure of a real-estate mortgage given to secure the note, and if she should fail for five days from rendition of the judgment to pay the amount due, an order of sale should issue to the sheriff commanding him to advertise and sell according to law the mortgaged real estate. There being a default, on January 21, 1935, the company, by its attorneys, filed a praecipe for an order of sale, the praecipe, as a part thereof, containing a direction that the notice of sale should be published in the La Crosse Republican, “which newspaper is hereby designated as provided by R. S. 60-3416,” etc. The order of sale was duly issued. The sheriff refused to publish the notice in the designated newspaper and commenced publication in a different paper, and this action followed.
Defendant answers that the notice was not published in the newspaper designated by the judgment creditor for the reason, (a) the judgment of the court did not make a designation; (5) the order of sale contained no designation nor did the plaintiff properly designate the newspaper; (c) that the statutory provision is directory and not mandatory; (d) that the sale in question is a judicial sale, while the statute refers only to execution sales; (e) that the sale in question is a judicial sale to be carried out by the sheriff under the court’s order; that he is an officer of the court, and alone responsible for giving notice, and that the person ordering the sale is the clerk of the court and not the judgment debtor.
As a further defense he alleges plaintiff has an adequate remedy at law; that the statute relied on by plaintiff applies only to execution sales, and that if it be held to apply to judicial sales, it is unconstitutional in that it interferes with the statutory duties of the sheriff in making sales, and would open the door to graft, vice and corruption. He further alleges that plaintiff will suffer no pecuniary loss because the notice may be published in a qualified newspaper other than the one designated by it.
The contention that plaintiff has a plain and adequate remedy at law and mandamus does not lie is not good. In Wolff v. Rife, 140 Kan. 584, 38 P. 2d 102, it was said:
“Appellee urges that plaintiff had a plain and adequate remedy at law, and that mandamus did not lie. In the case before us there was no dispute as to the facts, simply the question of the force and effect of certain statutes. The decision in this case is for the guidance of every board of county commissioners in this state, and the use of mandamus in such case has been sanctioned. (See State, ex rel., v. Williams, 139 Kan. 599, 602, 32 P. 2d 481, and cases cited.)”
The other contentions require an interpretation of certain provisions of the code of civil procedure. When the code was adopted in 1868 (G. S. 1868, ch. 80) it defined executions as process of the court, issued by the clerk directed to the sheriff (sec. 441), and of four kinds, against (a) property of the judgment debtor, (6) his person, (c) for delivery of possession of real and personal property, and (d) special cases (sec. 442). Under section 517, it was provided that in special cases not otherwise provided for, the execution should conform to the judgment or order of the court, etc., and that provision remains unchanged (R. S. 60-3469). Under section 457, it was provided that lands and tenements should not be sold until after public notice by advertisement in some newspaper, etc., there being no provision for designation of the newspaper. Under that state of the law, in Winton v. Wilson, 44 Kan. 146, 24 Pac. 91 (decided in 1890), a judgment creditor sought by mandamus to compel the sheriff to publish notice of sale in a certain newspaper, and it was held that the sheriff is an officer of the court, certain statutory duties are enjoined on him, the duty of making publication is cast on him, and that as such sheriff he is not alone the agent of the creditor but acts as an officer of the court for all interested in the sale. The syllabus of that case is:
“A sheriff holding an order for the sale of real estate cannot be required, by a writ of mandamus, to publish the notice of sale in a newspaper selected by the plaintiff.”
By chapter 77, Laws of 1891, the above section 457 was amended to read, so far as is here necessary to note, as follows, the changes being shown by italicized words:
“Lands and tenements taken on execution shall not be sold until the officer cause public notice of the time and place of sale to be given for at least thirty days before the day of sale by advertisement in some newspaper regularly printed and published and having a general circulation in the county, to be designated by the party ordering the sale, or in case no newspaper be printed in the county, in some newspaper in general circulation therein, and by putting up an advertisement on the courthouse door and in five other public places in the county, two of which shall be in the township where such lands and tenements lie.”
and it so remains (R. S. 60-3416).
The sheriff contends, however, that the above statute by reason of the words: “Lands and tenements taken on execution,” refers to execution sales and not to judicial sales, that there is an essential difference between the two; that the duties of the sheriff in an execution sale are ministerial; that in a judicial sale the special execution must conform to the order of the court, and that the legislature in passing the last-mentioned act took cognizance of the distinction and did not intend to give the judgment creditor the right to designate the newspaper in which the sheriff’s notice is published in judicial sales, but only in execution sales, and Norton v. Reardon, 67 Kan. 302, 72 Pac. 861, is cited in support. It may be remarked that that case was not decided until 1903, and it can hardly be argued that the legislature in 1891 considered the distinctions between judicial and execution sales made in that case. In that case, it was held that the execution for the sale of the property charged is special and must conform to the order of the court, and it was stated that all executions, general or special, must be issued by the clerk and directed to the sheriff, the sales must be made at the courthouse and confirmed by the court. Although perhaps dictum, the question of the court’s power to fix duration of notice is commented on and it is said:
“We do not think, however, that in any case the notice should be shortened by the court to less than thirty days before the day of sale, in view of the legislative policy to provide for thirty days’ notice in ordinary execution sales.”' (p. 309.)
In the case before us, the court rendered a personal judgment in< favor of plaintiff and against certain of the defendants, and foreclosed the mortgage, and ordered that if the judgment be not paid an order of sale issue to the sheriff commanding him to advertise and sell, according to law, the mortgaged real estate. The court made no attempt to ñx a different time or method of notice than that provided by law, so the question of such power is not before us. Neither may it be said that because it did not repeat the words of some statute with respect to giving notice, that none was required. It is now and always has been the practice in this state for the sheriff, in selling mortgaged real estate, to give public notice of sale consonant with General Statutes 1868, chapter 80, § 457, and as amended, now R. S. 60-3416. Failure to give such notice has been held to make the sale-invalid. (See Brown v. Williams, 127 Kan. 175, 272 Pac. 130, and cases cited.)
Notwithstanding the technical distinction that may be made between judicial and execution sales and notwithstanding the fact that, technically the expression “lands taken on execution” may refer only to sales on general execution and not to lands sold on special execution or order of sale, we have no hesitancy in saying that it is effective to prescribe, at least, a legislative declaration of a minimum of the quantity and quality of notice that must be given in a real-estate mortgage foreclosure sale.
And for another reason it must be held that the above statutory provision as to notice applies to real-estate mortgage foreclosure sales. The provision as to notice appeared in General Statutes 1889 as section 4555. It was preceded by sections pertaining to the following matters: 4550, appraisement of real estate; 4551, waiver of appraisement; 4552, return of appraisement; 4553, restriction by appraisement, and followed by sections 4556 and 4557 pertaining to confirmation of sale and issuance of sheriff’s deed. In 1893 the legislature enacted chapter 109, the title being:
“An act to regulate the sale of real estate under execution, order of sale, or other judicial process, and providing for the redemption of such real estate from sale, and the terms thereof, and repealing sections 4550, 4551, 4552, 4556 and 4557 of the General Statutes of 1889.”
And section 25 of the act (now R. S. 60-3462) states that- it applies to all sales under foreclosure of mortgage, trust deed, mechanic’s lien or other lien, whether special or general. The failure to repeal or change the provision as to notice (note it had been changed by Laws 1891, ch. 77, and by context it was in the middle of and an essential part of the sections changed and enlarged) leads only to the conclusion that it should be and was intended to be and is a part of the' statutes pertaining to foreclosure sales. Under the sheriff’s theory, G. S. 1889, section 4556 pertained only to confirmation of sales under general execution. Although it was the only section of the code pertaining to confirmation of sales, it was applied to foreclosure sales. See cases cited in statutes of 1889 in the annotations to the above section. The above section was repealed, and in its stead section 26 of chapter 109 of the Laws of 1893 was enacted. It now appears as R. S. 60-3463, and has-been supplemented by chapter 218, Laws of 1933 (R. S. 1933 Supp. 60-3463a). Since 1893 the statute has referred specifically to foreclosure sales, as well as to all other sales made by the sheriff on execution, or order of sale. (R. S. 60-3438, 60-3462.)
While the sheriff is an officer of the court for certain purposes in connection with the sale of real estate in foreclosure, his duties are ministerial, he obeys the orders of the court and the statutory provisions applicable, and he is powerless to add to or subtract from such duties, orders and provisions.
While situations may arise which will warrant the court in the sound exercise of its equitable powers, in requiring a notice of longer duration and of wider publication than that prescribed by R. S. 60-3416, in any event the minimum of notice required is that prescribed by that statute, and where, as in this case, the court merely orders the real property sold according to law, the party ordering the sale has the right to designate the newspaper where publication shall be made, it being understood that the newspaper is legally qualified to make such publication. And so far as the sheriff is concerned, the provision is mandatory and not merely directory. Neither does the statute require that the direction be contained in the order of sale, although if that should be true, plaintiff’s praecipe for the .order of sale contained an appropriate request. It is not contended here that the sheriff was ignorant of plaintiff’s request but only that he was not notified in some way which he conceived to be legally binding upon him.
The sheriff's contention that the application of the above statute to judicial sales makes it unconstitutional needs little attention. It does not interfere with his statutory duties, it prescribes them, and that the legislature has power to do. Nor does it open the door to graft, vice and corruption. It requires no great imagination to conjure up circumstances and situations where such results are as likely to follow where the sheriff designates the newspaper as where it is designated by the party ordering the sale.
The plaintiff had the right to designate the newspaper in which the notices of sales of real estate by the sheriff should be published, and a peremptory writ of mandamus to the sheriff to publish such notices in the designated newspaper is allowed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This was a compensation case where the point involved is the power and right of the compensation commissioner to reapportion an award. The case was here before, and the decision rendered therein is reported in 139 Kan. 443, 32 P. 2d 451.
The compensation commissioner had made an award of $4,000 for the death of the workman, and had apportioned it equally between the wholly dependent widow and the wholly dependent minor child, $2,000 each. The respondent appealed to the district court where the award and apportionment were affirmed, from which judgment the defendant railroad company appealed to this court where, as shown by the opinion, the judgment was affirmed as to the minor child but reversed as to the widow because of her failure to make the required claim in writing within the time prescribed by statute. After the mandate had been spread of record in the district court, the widow, as guardian for the minor child, filed with the compensation commissioner a motion to reapportion the award, claiming that the minor child was entitled to the full amount of the $4,000 award instead of the $2,000 apportioned to it theretofore. The respondent filed with the compensation commissioner a motion to dismiss the motion of the guardian to reapportion the award because the commissioner was without jurisdiction to make reapportionment, and because the decision of this court in affirming the judgment of award and allowance to the minor was final. The compensation commissioner overruled the motion to dismiss the motion to reappor t-ion the award and did reapportion’the award by apportioning all of it, or $4,000, to the minor child. The respondent appealed from this ruling of the commissioner to the district court where the ruling of the commissioner was affirmed, and the defendant is now appealing to this court from that judgment on two grounds, above stated as being in its motion to dismiss the motion to reapportion the award.
The appellee, in support of the rulings of the compensation commissioner and the district court, relies largely upon R. S. 1933 Supp. 44-513 and 44-528 and the decision of this court in the case of McCormick et al. v. Coal & Coke Co., 117 Kan. 686, 232 Pac. 1071. The statute first above cited is as follows:
“Where death results from the injury and the dependents of the deceased workman, as herein defined, have agreed to accept compensation, and the amount of such compensation and the apportionment thereof between them has been agreed to or otherwise determined, the employer may pay such compensation to them accordingly (or to an administrator if one be appointed) or into any district court having jurisdiction and thereupon be discharged from all further liability for the injury. Where only the apportionment of the agreed compensation between the dependents is not agreed to, the employer may pay the amount into the commission, or to the administrator of the deceased workman, or into any district court having jurisdiction with the same effect. Where the compensation has been so paid the commission, or such court upon the application of such administrator or any of such dependents, and upon such notice and proof as it may order shall determine the distribution thereof among such dependents. Where there are no dependents, medical and funeral expenses may be paid and distributed in like manner.”
The award would seem to be $4,000 rather than either apportionment of it originally, being the maximum amount allowable to wholly dependents under subdivision (2) of R. S. 1933 Supp. 44-510 in case of the death of the workman.
Appellee urges that the wrong apportionment of the award, giving part of it to the widow when she had not made any claim in writing as required by statute, was equivalent to no apportionment whatever, and therefore would come under the provisions of the statute above quoted authorizing the commissioner to make such reapportionment, which would give the commissioner authority to complete the unfinished part of his duty by apportioning the award already made.
Appellee urges that this is also an implied duty of the commissioner, if for any reason the statutory provisions are not suf ficiently 'definite and specific, as was held with reference to setting-aside a release improperly obtained in the case of Walker v. Kansas Gasoline Co., 130 Kan. 576, 287 Pac. 235, in the following language:
“Defendants argue that no procedure is provided for setting aside the release and therefore the commission was without authority to take such action. The fact that a detailed procedure is not stated, is no reason why the relief provided for may not be granted. The act fairly implies that agreements and releases may be set aside if grounds therefor are shown. . . .
“The ordinary procedure for hearings before the commission may be used and its findings and decisions made.without regard to technical rales of procedure. The fair implication of the act is that any procedure which is appropriate and not prohibited may be employed.” (p. 581.)
The second and third paragraphs of the syllabus in the McCormick case, supra, are as follows:
“The obligation of the employer to pay compensation, the amount to be paid, and of the dependents, considered jointly, to receive it, is fixed by the injury and death of the workman, but apportionment of compensation among the dependents, if made, may be modified when changed conditions require it.
“The employer is not concerned with the question of the apportionment of compensation among dependents wholly dependent.”
The only differences between the McCormick case and the case at bar are that the award of $15 per week for the widow and two minor children was there reached by agreement instead of being fixed by the commissioner, and the matter therefore came before the commissioner for the first time when the minors asked the commission for an apportionment when the employer ceased making payments. And the widow in that case remarried, which lost her interest in the award, while in this case the widow never had a legal interest in the award because of her failure to make a proper claim therefor.
Appellee also claims a right to reapportionment by reason of R. S. 1933 Supp. 44-528, called the review and modification section. Now the question is, does this situation as to facts and proceedings, under these statutes and authorities, give the commission jurisdiction to make a reapportionment and not be bound by the finality of the judgment of the district court as to the minor’s share and interest as affirmed by this court?
Appellant maintains that the judgment of the district court in favor of the minor for $2,000, from which no appeal was taken by the minor, became final when affirmed by this court, and cites in support of that view Lenon v. Standard Oil Co., 134 Kan. 289, 5 P. 2d 853; Hurst v. Independent Construction Co., 136 Kan. 583, 16 P. 2d 540, and other cases. Both these cases, above cited, are definite along the line urged, but both are cases where review and modification was directly involved, which is quite a different matter from reapportionment. If there is any statutory right of reapportionment of an award, the judgment theretofore rendered cannot in such cases be final. So the matter necessarily goes back to the question of whether under our statutes the right of reapportionment exists.
It might be a strained construction to hold that the statute on review and modification is applicable to the situation here under consideration, but it is quite different with R. S. 1933 Supp. 44-513, above quoted. While that section stresses the payment into court or to the commission of the award agreed upon or found, yet if all the other provisions of the statute apply to the facts in the case at bar, that provision not being repugnant nor inconsistent would not necessarily render it inapplicable, and then there could be no want of jurisdiction in the commissioner to proceed with a reapportionment if the statute really authorized it.
The provision in R. S. 44-510 with reference to the marriage of a dependent not affecting the compensation allowed other dependents, and the construction placed upon that provision in the opinion in the McCormick case, supra, are illucidating and helpful here in the matter of reapportioning the entire award, particularly the following portion of the opinion from pages 693 and 694:
“But appellant calls our special attention to the wording of the amendment in R. S. 44-510, ‘marriage of any dependent shall terminate all compensation to such dependent, but shall not affect the compensation allowed other dependents.’ And it is argued that the word ‘affect’ means change, to increase or •diminish; hence the phrase means that the marriage of any dependent shall not increase or diminish the compensation to be paid other dependents, and therefore the employer may retain what would have been paid to the dependents who married had the marriage not taken place. By this reasoning the employer becomes the financial beneficiary of the married dependent, and the •industry is relieved of a part of its obligation, under its statutory contract with the workman, to those wholly dependent upon him, though there are still persons in that class of wholly dependents. The ordinary meaning of ‘affect’ is to change, increase or diminish; but in a statutory enactment containing a provision that it ‘shall not affect’ a certain class of persons, it is held to mean that the enactment shall not affect the designated class injuriously. (Ryan et al. v. Carter et al., 93 U. S. 78; Baird v. St. Louis Hospital Ass’n, 116 Mo. 419, 427.) That is the sense in which it is used here, though perhaps either meaning will produce the same result. Now let us consider the application of this amendment to the plaintiffs in this case. They are two minor children of the deceased workman, and were wholly dependent upon him at the time of his accidental death. That is agreed. They were, and still are, members of that class of persons entitled to receive under the law the full amount of compensation, and they were entitled to receive the full compensation, if they were the only persons wholly dependent. That right is not affected by the marriage of some other dependent, or at any rate not injuriously affected.”
In 2 Schneider’s Workmen’s Compensation (2d ed.), page 1309, it is said:
“When deceased employee left surviving a widow and several children, on •the remarriage of the widow and on some of the children passing the age of eighteen, the remaining dependents were entitled to the benefit of the full award.”
Many decisions are cited by appellant as to the workmen’s compensation act prescribing its own procedure rather than the rules prescribed in the civil code and the limitation of procedure and jurisdiction thereunder, but if the special statute provides for a reapportionment there could be no want of jurisdiction in the compensation commissioner to proceed to make such, and the apparent finality of a former judgment would not prevent such procedure.
We find no error in the ruling of the district court affirming the ruling of the compensation commissioner in reapportioning the $4,000 award and giving all of it to the minor child instead of $2,000 theretofore given such minor.
The judgment is affirmed.
Burch, Hutchison and Thiele, JJ., dissenting. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is a workmen’s compensation case in which the appeal to this court is taken by the claimant from the judgment of the district court dismissing the action for failure of the claimant to make the written claim for compensation within ninety days after the date of the accident, or within ninety days after the date of the last payment of compensation, as required by R. S. 1933 Supp. 44-520a.
Practically all the other matters usually involved in compensation cases were stipulated before the compensation commissioner, and findings and an award were there made, from which both claimant and respondent appealed to the district court, where the evidence was reviewed and the following findings (omitting the first) were made:
“2. That on March 6, 1930, the claimant sustained a personal injury, by accident, which arose out of and in the course of his employment, at which time he was an employee of H. M. Lux, subcontractor under the respondent, Underhill Construction Company, all of which parties were subject to the workmen’s compensation law of the state of Kansas;
“3. That on March 6, 1930, the claimant sustained a personal injury by accident by which he lost the sight of his right eye. Claimant had lost the sight of his left eye about forty (40) years prior thereto, and the loss of the sight of his right eye, together with his prior injury, made him permanently and totally disabled;
“4. The respondent, Underhill Construction Company, had actual notice of the accidental injury on or about March 6, 1930, the date of the accident;
“5. The only written claim for compensation which claimant contends was served upon the respondent, Underhill Construction Company, within ninety (90) days of the accident was a letter dated April 14, 1930, addressed to the Underhill Construction Company and signed by Marie Brindell, secretary of the Workmen’s Compensation Commission, which letter is as follows:
‘April 14, 1930 — In re: J. F. Flanigan v. Harry M. Lux (Underhill Const. Co.)
Liberal, Kansas.
‘The Underhill Construction Company:
‘Gentlemen — We have been asked by Dr. Emery Trekell, of Liberal, Kansas, to assist in getting payment for his bill for medical services rendered the above workman who was injured while working on the Hotel Warren in Liberal, Kansas.
‘We understand you were engaged in the construction of this new hotel and request that you file with us the accident report for the above accident.
‘Kindly inform us also as to the name and address of your insurance carrier in order that we ma}'' take up with them the -question of the medical expense.
‘Very truly yours,
‘Secretary of Workmen’s Compensation — M. B.’
“6. Said letter of April 14, 1930, was received by the Underhill Construction Company and by it referred to the attorneys for the insurance carrier of the subcontractor. The Underhill Construction Company had a contract with H. M. Lux, the subcontractor, requiring him to carry workmen’s compensation insurance on his employees;
“7. The attorneys for the subcontractors’ insurance carrier wrote the Commissioner of Workmen’s Compensation acknowledging receipt of the letter of April 14, 1930, and shortly thereafter claimant began to receive compensation from the Federal Surety Company, the insurance carrier for the subcontractor. Medical expense incurred by Flanagan was thereafter paid by the Federal Surety Company.
“8. Payments of compensation were made to the claimant by the Federal Surety Company, the insurance carrier of H. M. Lux, in the amount of $1,386, as weekly compensation, and $738 for medical expenses. The last compensation payment made was received by claimant on September 3, 1931, covering the compensation for the week of September 3 to 10, 1931. The Federal Surety Company was placed in receivership on September 25, 1931. On or about October 11, 1931, the claimant received a copy of a letter addressed to H. M. Lux, the subcontractor, stating that the Federal Surety Company had been placed in receivership and the receiver had determined that the receivership could not continue with payment of claims.
“9. That on December 31, 1931, claimant filed in the office of the Commissioner of Workmen’s Compensation an employee’s claim for compensation, in writing, dated December 26, 1931, a copy of which was forwarded to respondent on January 7, 1932;
“10. The court finds that there was no evidence that claimant knew of Doctor Trekell’s having asked for assistance in getting payment of his bill or that the claimant knew of the secretary of workmen’s compensation having written this letter of April 14, 1930;
“11. That at the hearing before the commissioner of workmen’s compensation claimant offered in evidence the letter of April 14, 1930, as a claim for compensation upon his behalf;
“12. The court finds that the claimant did not serve a written claim upon the Underhill Construction Company within ninety (90) days after said accident;
“13. The court finds that payments of compensation were, suspended and that claimant did not serve a written claim for compensation upon the Underhill Construction Company within ninety (90) days after the last date of payment of compensation.”
There was sufficient evidence to support these findings.
It has been held that there is no necessity for the making of a second written claim after' one has been made fully complying with this requirement, if the action is commenced within a reasonable time. (Lenon v. Standard Oil. Co., 134 Kan. 289, 5 P. 2d 853.) So that if either one of these two efforts fully met the requirements of the law as to making and serving claims, the claimant would be entitled to maintain compensation proceedings.
Again, it is shown’ in the findings that there was a contractor and a subcontractor, and each had insurance carriers, and that the subcontractor took bankruptcy proceedings and his insurance carrier went into the hands of a receiver after having paid compensation to this claimant without any action, award or judgment for seventy-seven weeks. It has been held in effect that if the subcontractor is bound, the contractor is likewise ordinarily bound. (Williams v. Cities Service Gas Co., 139 Kan. 166, 30 P. 2d 97, and R. S. 1933 Supp. 44-503.) And even if payments were made by agreement with the subcontractor without an action, as in this case, and such payments then ceased, it has been held that the principal contractor would be liable, if written claim should be made on him within ninety days after the date of the last payment made by the subcontractor. (Pribbenow v. Meeker, 139 Kan. 325, 31 P. 2d 15.) So the controversy here involved is reduced to one question only, viz., Did either one of the two claims urged by the claimant fully and completely comply with the statutory requirement, not as a notice of an injury, but as a written claim for compensation, which is a prerequisite to the right to maintain compensation proceedings?
Considerable is said in the briefs in this case about the entire compensation act, including this provision as to the making of a written claim, being entitled to liberal construction. In the case of Suttle v. Marble Produce Co., 140 Kan. 13, 34 P. 2d 116, that feature was under consideration, and a distinction was there made as to the legislative intent of this requirement in the following language:
“A reference to the statute on another preliminary matter'shows plainly a widely different view of the legislature as to the importance of two preliminary matters as to being liberally or strictly construed. The section here under consideration begins as follows: ‘No proceedings for compensation shall be maintained hereunder unless,’ etc. The next preceding section, which provides for the giving of a notice of the injury, concludes as follows: ‘Provided further, That want of notice or any defect therein shall not be a bar unless the employer prove that he has been prejudiced thereby.’ ” (p. 16.)
Until 1927 the two preliminary requirements above mentioned were in the same section of the statute, the first, a notice to be given concerning the injury within ten days after the accident; the other, a written claim for compensation within ninety days after the accident, or within ninety days after the last payment of compensation. In 1927 these two preliminary requirements were separated. The former is now R. S. 1933 Supp. 44-520, and the latter is R. S. 1933 Supp. 44-520a, so that many of the earlier decisions on this question were construing the old law where the two provisions were grouped in one section. The earlier statute did not require the claim to be in writing, but did require the ten-day notice of injury to be in writing. It did, however, provide that the failure to make a claim within three months should be a bar to any action for compensation. The new enactment of this requirement, being section 20 of chapter 232 of the Laws of 1927, or R. S. 1933 Supp. 44-520a, omitting the portion as to disabilities, is as follows:
“No proceeding for compensation shall be maintainable hereunder unless a written claim for compensation shall be served upon the employer by delivering such written claim to him or to his duly authorized agent, or by delivering such written claim to him by registered mail within ninety (90) days after the accident, or in cases where compensation payments have been suspended within ninety (90) days after the date of the last payment of compensation.”
The injured party is generally referred to in the compensation act as the claimant, and, as the word indicates, he is naturally the one expected to make the claim, although that part of the statute above quoted does not so state, but in the concluding part of said section it is specifically stated that if the claimant has been under disability, the time shall not begin to run until the removal of such disability.
The accident in this case, as shown by the findings, was on March 6, 1930. The letter relied upon as a written claim was written by the secretary of the compensation commission on April 14, 1930, to the contractor, the Underhill Construction Company, stating that a doctor had asked the commission to assist him in getting payment for his professional services, asking the construction company for the name and address of the insurance carrier “in order that we may take up with them the question of medical expense.” This letter was forwarded by the construction company to the attorneys for the insurance carrier for the subcontractor, by whom claimant was employed. The claimant did not know of the doctor’s writing the compensation commission, nor of the commission writing the letter to the construction company. As far as the first written claim is concerned, the claimant did not have anything to do with it or any knowledge of a claim being made. The doctor asked the compensation commission to assist in getting payment of his bill for medical services.
The contention of the claimant is that the letter of April 14, 1930, written by the compensation commission, was sufficient to apprise the construction company that compensation in the way of medical expenses of the injured party was being demanded, and that it was treated by the construction company as a demand for compensation.
Counsel for claimant cite many cases where it has been held that a formal claim is not required, as Klein v. McCullough, 135 Kan. 593, 597, 11 P. 2d 983, and in Eckl v. Sinclair Refining Co., 133 Kan. 285, 299 Pac. 588, where the injured employee wrote the first letter and signed it himself and his wife wrote the next one in his behalf, speaking of needing money to pay a substitute while he was unable to work on account of the injury, and it was held “it is sufficient if it advises the employer that the injured employee is claiming that he should be paid something as a result of the injury;” (syl. ¶ 1) and, as in Richardson v. National Refining Co., 136 Kan. 724, 18 P. 2d 131, where it was said:
“It would be manifestly unfair to hold an injured employee to any particular form of claim, or to hold that he should be required to make a claim in a form that would satisfy a lawyer if he were preparing it.” (p. 727.)
Also, in Weaver v. Shanklin Walnut Co., 131 Kan. 771, 293 Pac. 950, where the letter from Weaver, the injured employee, was called in question, it was said in the opinion concerning it:
“The reasonable interpretation to be placed on the letter from Weaver is that he was then asking for compensation under the workmen’s compensation law. A reasonable interpretation to be placed on the answer of the company to that letter is that the company understood that Weaver was claiming compensation.” (p. 773.)
In every one of these cases cited as to no formality of the claim being required, only such as would advise the employer that the injured employee was claiming compensation for the injury, the letters or claims were written by the injured party, except in one case a second letter was written by the wife of the injured party for him and in his behalf, after he had written the first one. We are not advised of any provision in the compensation law whereby a creditor of the claimant may cause to be made the written claim or demand for compensation, nor are we directed to any provision in the compensation law which makes the compensation commission the agent of the injured employee without his knowledge or consent or indirectly the collector of medical bills for his creditors without his knowledge or consent. If such is the authorized business of the compensation commission, with its recognized efficiency, there should be no excuse needed nor apology made for its failure to prepare and have in readiness for use a form of written claim with sufficient formality to “satisfy even a lawyer,” as was stated in the Richardson case, supra.
The case of Honn v. Elliott, 132 Kan. 454, 295 Pac. 719, is cited, in which the court held that a copy of a verified and detailed claim for compensation made by the injured employee, and filed with the compensation commission, when forwarded by the commission to the contractor was a compliance with the statutory requirement as to the making and serving of a written claim.
In the case of Suttle v. Marble Produce Co., 140 Kan. 13, 34 P. 2d 116, a written claim was held to be insufficient. It was a letter to the insurance carrier written by the insurance agent at the joint request of the widow of the deceased employee and the employer, and because it was more in the nature of an inquiry as to liability it was held to be widely different from a claim for compensation. The following cases were cited in connection with that conclusion: Weaver v. Shanklin Walnut Co., 131 Kan. 771, 293 Pac. 950, Eckl v. Sinclair Refining Co., 133 Kan. 285, 299 Pac. 588; and Klein v. McCullough, 135 Kan. 593, 11 P. 2d 983. In the latter case the injured workman and the employer together had a clerk fill out a blank furnished by the compensation commission and sent it in, and it was in fact only a report of the accident, although the commission held it to be sufficient for a demand and waiver, but in this court it was held to be neither.
In the case of Murphy v. Cook Construction Co., 130 Kan. 200, 285 Pac. 604, a formal claim had been filed for the loss of the right eye and an award obtained. Later, and more than ninety days after the accident, another claim was made by the injured employee for the loss of the other eye as a result of the same accident, and it was held the belated claim was properly denied. See, also, the result in the case of Harrigan v. Western Coal and Min. Co., 133 Kan. 573, 300 Pac. 1115.
The demand in the case of Williams v. Cities Service Gas Co., 139 Kan. 166, 30 P. 2d 97, was written for the claimant by his attorney, and concluded as follows: “I am handing you herewith notice of demand for compensation.”
In the case of Sayers v. Colgate-Palmolive-Peet Co., 134 Kan. 872, 8 P. 2d 383, the injured employee was taken by the respondent to the hospital immediately after the accident and obtained from him shortly after the accident a written statement of the accident and injury, and in the furnishing of the evidence for such statement the question of getting compensation was freely mentioned, and the court held this was not a claim for compensation, referring to the imperative requirement since the change in the law in 1927.
In the case of Baxter v. Chicago, R. I. & P. Rly. Co., 139 Kan. 443, 32 P. 2d 451, the widow of the deceased workman furnished the agent of the respondent the information concerning the accident to, and the illness and death of her husband. She gave him the funeral and other expenses and spoke of the responsibility of the respondent for his death, and the agent told her at that time that she “would get funeral expenses anyway and maybe a little bit besides,” and the court held: ' .
“While the statement made and relied on by the claimant was in writing and , pertained to the death and compensation, it does not contain the semblance of a demand or claim for compensation . . .” (p. 448.)
The court further states in the opinion in this case on pages 447 and 448:
“The question whether the statement so made is a compliance with the statute is one of consequence. There had been a number of cases where demands were claimed that were in ambiguous and doubtful terms, and waivers of the demands were insisted on. In the amended act of 1927 the legislature apparently undertook to meet the situation by prescribing in definite terms some protection to the employer by stating that no proceeding for compensation could be maintained unless the claimant shall within ninety days deliver to the employer or his agent a claim for compensation, or within six months in case of death. The. evident purpose of the legislature was that the employer might have opportunity to test the validity of the claim while the facts were fresh as to the accident and when he might learn whether there was a real liability on his part under the statute. It provided that the claim should be written, should be delivered to the employer or his agent, that it should be personally delivered or sent by registered mail, and that this should be done within the prescribed time of ninety days after the accident unless the claimant was under certain specified disabilities, and there is no claim that Arvilla Baxter was under any of these. In Sayers v. Colgate-Palmolive-Peet Co., supra, it was held that stricter compliance with the statute had become essential, that the legislature had stripped away the confusing refinements of the old statute and that the court cannot now sanction a rule which would revive the confusion concerning this phase of compensation as to demand from which the legislature had extricated the bench and bar.”
Counsel for claimant cite cases from other states where the written claims were made by attorneys for the claimant, and one case where it was made- by a brother of the injured employee, but they were always for and on behalf of the injured workman, and with his knowledge or consent, but never for and on behalf of one trying to collect a claim for medical services rendered the injured employee.
It is said in Norman v. Consolidated Cement Co., 127 Kan. 643, 274 Pac. 233, that—
“This summary of the compensation act shows that the functions of the commission to which is committed the carrying of the provisions of the act into effect, are those of an administrative body vested,' it is true, with some powers that are quasi judicial.” (p. 647.)
If it is the legislative intention that the compensation commission is duly authorized to make such written claims, it would be most embarrassing indeed, and in fact disqualifying in the exercise of its quasi-judicial powers, when it would be confronted at the very beginning of the hearing with the question of the legality of the written claim made by the commission itself. We think such was not the intention of the legislature. Most surely the statute requires that the written claim be made by the claimant himself, or at least by some one for him and in his behalf and with his knowledge and consent. Besides, the validity of the written claim does not wholly depend upon what the respondent understood it to mean. We have no finding here as to how it was understood except the findings are that shortly thereafter the insurance carrier commenced paying compensation, including the medical bills. We conclude that the first written claim for compensation was not within the requirements of 'the statute.
As to the second written claim which was made by the claimant and filed with the compensation commissioner on December 31, 1931, and a copy of it sent to the respondent on January 7, 1932, the attorneys for claimant urge that it is within the ninety-day rule because it was less than ninety days from the time claimant received a cai'bon copy of a letter written by the receiver of the insurance carrier of the subcontractor to the effect that the company would not be able to pay further claims. The findings show that the insurance carrier of the subcontractor, did pay claimant a compensation until September 3, 1931, which covered the week of September 3d to" 10th, 1931. We have no quarrel with the theory or reasoning of counsel for claimant about the propriety of making the written claim within ninety days after receiving information that further payments could not be made, but that differs materially from the statutory requirement that “a written claim for compensation shall be served upon the employer ... in cases where compensation payments have been suspended within ninety (90) days after the date of the last payment of compensation.” Unless under the findings this written claim was made within ninety days after September 10, 1931, the date of the last payment, it cannot be a valid written claim, and the proceedings for compensation are thereby necessarily barred. As stated above, this second claim only needs to be considered because we concluded, as the trial court did, that the first written claim was not such as was required by statute.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to quiet title to certain oil and gas leases in the city of Chase, in Rice county, where oil development has been active in recent years.
Before stating the facts upon which the rival claims of the litigants were founded, it seems expedient to summarize the provisions of a city ordinance regulating the drilling, of oil and gas wells within the city of Chase. Omitting many details of no present concern, the ordinance provided that only one well could be drilled in any one city block; that a permit issued by the city was requisite before drilling could be commenced; that any and all owners of leases within the block might share in the expenses and benefits of such well drilling if they elected to do so within ten days after the drilling permit was issued. The royalty interests of lot owners within the block, as well as those of leaseholders who did not choose to join in the expense of drilling, were defined by the ordinance on a basis of which there is no complaint. Whatever features of the ordinance may require more critical attention will be stated as we proceed.
It appears that in the city of Chase there is a block numbered 4, which is bounded on the south by a railway right of way 300 feet wide and running east and west. .
On and prior to June 9, 1933, the plaintiff had acquired oil and gas leases on eleven lots in block 4, two of which, lots 14 and 15, it had leased from the owner, H. W. Hedges, who chanced to be the city clerk.
On June 9 plaintiff made formal application to the city government for a permit to drill in block 4, and specified the particular lot, No. 15, on which it proposed to commence operations. The same day the application was granted and the permit issued— “such well to be located on lot 15, block 4.” It recited that it was issued under the provisions of the pertinent ordinance, dated June 9, 1933, and bore the signature:
“The City of Chase, Kansas.
“By H. W. Hedges, Its City Clerk.”
About the time these preliminaries for drilling were arranged, the defendant in this action, E. Frank Jones, who held an oil and gas lease on a 10-acre tract of land immediately south of the railway right of way, was engaged in drilling thereon. He finished this work on June 28, and his well was brought in as a producer. It was located 380 feet south of block 4. On the following day, June 29, for the ostensible purpose of avoiding the demolition of some buildings on lot 15, plaintiff informally asked of Hedges, owner of lots 15 and 14 and who was also city clerk, for his consent to change the location of the drilling permit from lot 15 to lot 14. This consent was informally given and later Hedges, as city clerk, advised the mayor and council of the incident and they made no objection. Hedges changed the number of the lot specified in plaintiff’s application of June 9, and plaintiff itself changed the number specified in its permit from lot 15 to lot 14. Although the avowed reason for changing the location of the proposed well from lot 15 to 14 was to avoid the demolition of certain buildings, the circumstances might warrant an inference that it was done to put the well in block 4 considerably closer to defendant’s new producing well just south of the railroad right of way.
On July 7 defendant obtained a lease from the owner of three lots in block 4 and a lease of three other lots from another owner. He then filed a formal written notice with the city clerk that he elected to participate in the well-drilling project set on foot by plaintiff. This notice reads:
“Chase, Kan., July 8, 1933.
“Mr. Wallace Hedges, City Clerk:
“This will advise you that I am the owner of oil and gas leases covering all of lots 5, 6, 7, 11, 12, and the east half of 10 and all of lot 13 in block 4, city of Chase, Kan.
“I hereby agree to pay my proportionate share in the actual total cost and expense of completing and operating this well.
“E. Frank Jones.”
Plaintiff ignored this claim of defendant to participate in the drilling of the well in block 4, and it was completed as a producer on August 31. Thereafter plaintiff brought this action setting up its leasehold titles, its development of the oil well thereon, and its exclusive ownership thereof. It prayed that defendant’s claim of right based upon its notice of July 7 be adjudged null and void.
Defendant’s answer supplied additional facts, particularly in respect to the granting of the original permit to plaintiff on June 9 to drill on lot 15, and the subsequent change on the lot number from 15 to 14 — -the next day after defendant’s producing well south of the railroad right of way had been successfully completed — and alleged that the change had been made to bring plaintiff’s proposed well closer to the point where he had just struck oil.
Defendant also pleaded his acquisition of leases in block 4 on July 7, and his formal election on July 8 to share in the development of plaintiff’s well; the giving of due notice thereof to plaintiff; his repeated offers to pay his proportionate share of the drilling and operation of the well; and that he was ready, able and willing to conform to the requirements of the ordinance in respect thereto.
Defendant concluded with a prayer for equitable relief, an accounting of the costs of drilling and operation, and for a decree fixing his proportionate share of the net proceeds of the oil well.
The issues developed no material dispute of fact. After some colloquy between counsel for the parties touching the validity of plaintiff’s permit originally dated June 9 and informally redated June 29, the record reads:
[Counsel for Plaintiff] : “If the court please, at this time we move the court for an order requiring the defendant to elect whether he will stand upon the ground that we have a permit or that we have no permit, and are without a permit.
“The Court: Is it your contention that their permit is not valid?
[Counsel for Defendant] : “It is our contention that the city clerk issued a permit. The court can pass on whether or not that permit is valid.
“The Court: Are you contending that their permit is illegal or invalid?
[Counsel for Defendant] : “We are simply speaking of what the facts are; whether or not it is legal is a legal question in the case.
“The Court: Well, I think I will sustain their motion. I want to know whether you are contending that it is a valid or invalid permit?
[Counsel for Defendant] : “In compliance with the court’s order, then, we will make no further contest as to the validity of the original permit, but we of course contend that the change of that permit later by the city clerk constituted a new permit so as to extend the ten-day period.”
Judgment was rendered for plaintiff, and defendant appeals.
The propriety of the trial court’s decision turns on the proper significance to be given to the provision of the ordinance which declared :
“Any person or corporation, other than the permittee, holding oil and gas leases on land in the block, shall have the right to share in the ownership and benefits of such oil or gas well in the proportion that the area of his or its land or lease bears to the area of the block, exclusive of streets and alleys, provided that within ten days from the date of the issuance of such permit, he or it shall file with the city clerk his or its election in writing to pay to the holder of the permit, or his or its assigns, a like proportion of the total cost and expense of completing and operating the well.”
Defendant conceded that plaintiff’s permit was valid as of the date of June 29. On the issuance of the permit as of that date (unless the earlier date of June 9 was valid) the rights of all leaseholders in block 4 were crystallized, and so, too, were the rights of lot owners. Defendant was not a leaseholder in block 4 on June 29, consequently he was not entitled to ten days or any other period in which to elect to share in the costs and benefits of the well as a proportionate owner. When plaintiff took out a permit to drill a well in block 4, it was bound to take into account the possibility that any or all other persons or corporations then holding valid leases in block 4 had a right, if timely claimed, to participate in the adventure, but it was not bound to give any concern to the possibility that other leases might be made and executed later whose holders might desire to participate in the drilling venture. The ordinance did not require or provide for such a possibility.
The plain letter of the city ordinance was the law of this case; and there is not the slightest reason disclosed in this record why a court of justice should be otherwise concerned about a lawsuit of this character.
The judgment is affirmed. | [
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Per Curiam:
Further argument was ordered in this cause to advise the court touching what ought to be incorporated in our mandate, in view of this court’s construction of the antenuptial contract.
Counsel for plaintiff suggest that an appraisement of the value of the estate of Hilbert Kaufman as of the date of his death, March 8, 1929, and as the antenuptial contract specified and directed, should now be made. But since such a valuation of the estate was dispensed with by the express or implied consent of all concerned in 1929, and property values to-day have no determinable relationship to the values of 1929, an appraisement of Kaufman’s estate as of March, 1929, would not only be impracticable to make, but if made would contribute nothing towards a determination of the present existing rights of these litigants.
Counsel for defendants suggest that the unpaid portions of the awards yet due to the three children (about $46,200) less debts, if any, owing to the estate by the children, respectively, should be made a lien on the assets of the estate, subject to the unpaid debts, encumbrances and lawful administrative charges; and that such portions yet unpaid bear interest from this date. We shall make no such order because it cannot be fairly implied in the terms of th^e antenuptial contract. Strictly speaking, these awards are not debts due from the estate so as to justify the addition of interest. The snarl into which this estate has become entangled is already sufficiently confused without giving our sanction to any further com plexity, and in our opinion apportionment between these litigants should be made without allowance of interest. Indeed, it is not clear that any apportionment between these litigants can be made in money if this estate is to be wound up within any reasonable time. It may have to be divided between the litigants in proportionate shares without any more regard to its valuation now than was given it in 1929.
The order of the court will be:
(1) That the judgment be reversed and the cause remanded with instructions to direct the administrator to pay all demands against the estate in the order of priority prescribed by R. S. 1933 Supp. 22-701.
(2) When the claims of the state, the United States, and those of all other lawful claimants are satisfied, the balances out of the first $85,000 still due the three children (about $46,200) shall be paid to them without interest, less debts, if any, owing to the estate by the children, respectively.
(3) The total amount heretofore paid to plaintiff in monthly or other installments (exclusive of the $10,000) shall be ascertained (about $7,200), and if there are enough cash assets remaining in the hands of the administrator to adjust this item by paying a similar amount to the three children collectively, such payment should be made to them by the administrator. If not, the amount thus heretofore received by plaintiff should be regarded as an advancement to her and taken into account in any division or partition of the mortgaged real estate.
(4) Any remaining personal assets should be divided among the litigants thus: Half to the widow and one-sixth to each of the three children.
If the liquid assets of the estate are insufficient to pay all the foregoing in order, the real estate should be sold, subject to its encumbrance, to satisfy them. If the sale of the real estate is not required to satisfy the foregoing charges in order, it should be delivered to its owners, to wit, plaintiff as owner of an undivided half of it, and to the three children, each of whom is the owner of an undivided one-sixth of it.
The costs of this case in this court and those already incurred below should be regarded as a proper charge upon the general estate and paid by the administrator. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Betty McGinley, about twelve years old, was riding in an automobile driven by her father, and the superintendent of the city waterworks, Guy Baker, driving at high speed, struck the automobile in which the plaintiff was riding, and as a result her leg had to be amputated below the knee. She obtained a judgment for $15,000, which was reduced by the district court to $12,000. The city appeals.
Betty McGinley had been assisting her father, brother and sister to drive calves to a pasture a short distance from home. Her mother came in a model “T” Ford coupé to take them home. The father was sitting at the left, driving, the mother sat in the middle holding a two-year-old baby on her lap; a sister, Frances, sat between the mother and the right-hand door; a brother, Frank, aged ten, stood on the left running board, and the plaintiff stood on the right running board. The car was being driven on a north-and-south road at a speed of fifteen miles an hour on a well-traveled gravel road and where it intersected another gravel road running east and west. It appeared that the father started to cross the intersection, looked for approaching cars, and, seeing none, drove slowly into the intersection, and when he got to thg middle he saw a Ford truck approaching about 120 feet away. He then put his car into high, but the truck crashed into his car before he could escape.
It appears that the truck was driven by Guy Baker, the waterworks superintendent of the city of Cherryvale, who was going to the pumping station of the city located about one mile farther west on the Verdigris river. He was driving a truck owned by the city and was going out to look at and repair the pumps of the station which supplied the city with water, owned and operated by the city. The front end of the truck struck the right rear side of the coupé, crushing the right rear wheel and crushing the plaintiff’s leg so that is was necessary to have it amputated.
It was admitted that Baker was the city’s water superintendent, that the station on the Verdigris river was a part of the plant, and was also operated by Baker, who, at the time stated, was on his way to the pumping station to care for it.
It is claimed that the award was excessive. It was $15,000 and the court after Consideration reduced it to $12,000. There is a claim that riding on the running board was contributory negligence. It would be a question for the jury to decide whether it was negligence to ride there.
The first question, Was the city liable for an accident involving negligence which occurred on the highway between the plant in the city and the river, which was several miles away? The power to operate a waterworks system outside of the city limits is expressly given by statute, carries with it the power to send employees out over regularly used highways to build, repair and operate it. It was unnecessary to buy and make a highway parallel with the public highway to be used by the city. The city had power to control the superintendent’s acts while going out to and performing the functions at the pump house. The jury said that the superintendent was negligent in that he was not watching the road when and where the accident occurred.
The appellant contends that the city was not liable for injuries occurring outside the limits of the city, or when carrying out one of its authorized functions the agent exceeds his authority. Cherry-vale is a city of the second class and may act in its private proprietary capacity, and also in its governmental capacity. Good water cannot always be obtained within a city’s corporate limits and many have to go outside of the corporation to secure it, and authority is given to a city to go beyond the city limits for it. (R. S. 12-842. See, also, Evel v. City of Utica, 103 Kan. 567, 175 Pac. 635.)
Cases are cited to show that steps taken by a municipality without authority, or which were ultra vires, are open to challenge, but the authority being given, these authorities are not applicable here or controlling. When the city found water near the Verdigris river about five miles from the city and laid pipes through which water was forced into the city, a pumping station was erected there and the station was under 'the supervision of Guy Baker, the superintendent of the entire plant, inside and outside of the corporate limits. He admitted that he was going to the pumping station to care for it just as he would have done had it been in the city limits.
In 64 A. L. R. 1545 there is an annotation in which the rule of recovery is well stated:
“The general rule is that where a municipal corporation is performing a public or governmental function, from which it derives no profit or advantage, it is not responsible for the negligence pf its officers in respect to this function (19 R. C. L. 1108); but that, where it is functioning in its private or proprietary capacity for the profit, benefit, or advantage of the corpoz'ation or the people who compose it, rather than for the public at large, it is liable for the negligence of its employees to the same extent and under the same conditions as a private corporation. (19 R. C. L. 1109.)” ,
This rule has been practically adopted and applied in Kansas. In Freeman v. Chanute, 63 Kan. 573, 66 Pac. 647, it was said:
“There are two kinds of duties which are imposed on a municipal corporation — one arising from the grant of a special power, in the exercise of which the municipality is a legal individual; the other arising from the use of political rights under the general law, in the exercise of which it is a sovereign. The former power is quasi-private and is used for private purposes; the latter is public and used for public purposes. ... In building its waterworks, gas, electric-light plants, sewers, and other internal improvements which are for the exclusive benefit of the corporation, it is in the exercise of its quasi-private power and is liable to the same extent as are private corporations.” (p. 577.)
In the case of City of Wichita v. Railroad & Light Co., 96 Kan. 606, 152 Pac. 768, it was said:
“It is well recognized that every municipal corporation exercises dual functions: One in its capacity as a governmental body; the other in its proprietary capacity. Plaintiff’s right under the ordinance and laws to be paid a percentage of the defendant’s receipts is a proprietary right and not one inhering in the exercise of governmental power. In this respect its rights are governed by the same rules that apply to contracts made by an individual or a private corporation.” (p. 608.)
In McCormick v. Kansas City, 127 Kan. 255, 273 Pac. 471, the rule is recognized and it was held that the city was conducting a business or trade for gain and that although employment was also related to a portion of the city’s business which was governmental, the rule of liability was applied.
The court has held in State v. Water Co., 61 Kan. 547, 60 Pac. 337, that—
“Corporations cannot sell or mortgage those franchises received from the state which confer power upon them to exist as artificial bodies; but those franchises denominated as secondary, which include the privileges granted by a city to a water company, with the right to take tolls, etc., may, under our statute, be lawfully alienated or encumbered.” (Syl. ([ 2.)
This view is supported by most of the authorities where the rule is mentioned or has been approved. In every case the rule is applied that a municipality is liable the same as private parties where it engaged in supplying its citizens with water for which it collects from the users the value of the same. The profit, benefits and advantages which it takes from its citizens mark it as being done in a proprietary capacity, and it is then liable for the negligence of its employees to the same extent as a private corporation.
It is contended that Guy Baker, in driving to the pump station, was not acting within the scope of his authority when the collision occurred. The petition alleged that Baker was the city superintendent in charge of the pumping plant, that it is necessary for a skillful employee to visit the plant as often occasionally as once a day, and it was the duty of Baker to see that the pumps were oiled and in good working condition. That he used a Ford truck owned by the city, going to and from the plant. It is alleged that on the 11th of May, 1933, when the McGinleys had finished placing the calves in the pasture and were returning home at a moderate rate of speed, the plaintiff did not see the defendant’s car when they entered the intersection. They looked for it, but it was not to be seen and was not seen until they reached- the center of the intersection,- when the plaintiff noticed the car and waved to the driver, but he paid no heed to her or was not watching the road and did not see her motion. The petition alleged that there was ample room to have passed south of the McGinley car without striking it; that there was room by turning to the north to have passed down near the center and have avoided the collision.
Baker admitted that he was on his way to the pumping station, admitted that the accident was the result of his own negligence, and about a month afterwárds he told Mr. McGinley that—
“Well, he told me that he was going to the pumps, that they had been giving him trouble, he said he had been working overtime, day and night, and his mind was not really on his driving when they approached that comer, but it was on his work, and he said when he looked up he done just what he hadn’t ought to have done.”
This question was answered without objection. Near that time he came up where Mrs. McGinley was and he said:
“I don’t know how sorry I am about this accident, he said whatever made me turn into that child, I don’t know, he said I had the whole road, it could have been avoided altogether, he said I just lost my head, I didn’t see you at all, I just lost my head and turned into you.”
Some objection was made after this conversation was received, but the court overruled it. The objection was that he couldn’t prove agency by the testimony of the agent. That, however, was an admitted fact and was not offered for the purpose of showing agency.
There were several special questions asked and among them the thirteenth, which is as follows: “If you find for the plaintiff, in what respect do you find the defendant, its agents or servants, negligent?” And the answer was, “Not watching the road.” If he had been watching the road he could have avoided the collision. The question was proper and might have been answered in more detail, stating the particular acts of negligence which resulted from not watching the road.
In Hancock v. Bevins, 135 Kan. 195, 9 P. 2d 634, it was held that under the allegations the negligence could consist of too great a speed at a crossing, failing to look ahead and observe the condition of the highway at the crossing, and to have the taxicab under control by the use of brakes, all of which the jury summed up in the expression “careless driving.” The finding of course should properly have named one or more of the items as alleged, if supported by the evidence, but the court observed that by applying to these two words their everyday significance, they convey to us a plain and unmistakable intention to embody the elements of speed in driving without looking ahead to observe the dangers. The finding is in accord with the general verdict and is not inconsistent with it and hence it was at least not prejudicial error.
In Leinbach v. Pickwick-Greyhound Lines, 138 Kan. 50, 23 P. 2d 449, it was said:
“It is the duty of the court to read special findings together, and to interpret them in such a way they may be harmonized, when that can be done. Likewise it is the duty of the court to harmonize special findings with the general verdict, when that can be done. Construed as indicated, there is no conflict between the special findings.” (p. 58.)
Here there was no inconsistency in the findings with the general verdict. See, also, Coffman v. Shearer, 140 Kan. 176, 34 P. 2d 97.
The claim that the agent was not acting within the scope of his authority is without merit. All of his pertinent duties were admitted. He was traveling by the usual and direct route from the city to the pumps and there was no occasion to question by what right he was on his way to the pumps, going by the most direct route, a public highway. The highway was for the use of all the public. It was unnecessary for the city to build and own a parallel road along the side of the public highway which its agent was entitled to use to reach the pump part of the plant.
Another ground of complaint is that the award is excessive. The jury found that plaintiff was entitled to $15,000 damages. This was deemed excessive by the district court, who reduced it to $12,000. Our view of the circumstances in the record and the conditions prevailing, is that that amount is still excessive, and while no error is otherwise committed, we find the judgment will be reversed unless the plaintiff is willing to accept $9,000 as damages, and if accepted it will be affirmed. If not accepted the judgment will be reversed and a new trial had on the amount of damages only.
It is so ordered. | [
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The opinion of the court was delivered by
Thiele, J.:
This appeal is to determine whether an oral contract for the rescission of a written contract for the sale of land is within the statute of frauds.
On September 9, 1929, the appellant entered into a written contract with appellee under which it was agreed that if appellee would pay $5,454.40 in the time and manner specified, it would, upon his request and upon surrender by him of the contract, convey to him by warranty deed a certain described tract of land. There is no obligation in the contract requiring appellee to purchase. Time was of the essence of the contract, and, in event of appellee’s default, appellant had the right to declare the contract null and void, and in such event all appellee’s rights ceased and determined and possession of the premises revested in appellant as fully as if the contract had never been made, and payments made and improvements were to be accepted by appellant as full value for the use of the property. It was further provided that default worked a forfeiture of appellee’s rights, and appellant, if it so elected, could treat appellee as a tenant holding over and at sufferance, and proceed against him by summary action of forcible entry and detainer to recover possession. On behalf of appellant, this contract was negotiated by one Noah. In 1930 appellee wrote a letter to one Guy E. Stanley, general manager of appellant corporation at Kansas City, which showed he was in arrears and asked that the tract be taken off his hands for the exact principal amount he had in it. Stanley replied by letter that he was referring the matter to Noah with a request that he report bade what could be done. Thereafter Noah and appellee had some correspondence and personal interviews concerning the matter, ending in an oral agreement that if appellee would surrender his contract, appellant would refund to him $600 cash which he had paid and return to him a note for $300 which he had given as part of the original payment, and on June 29, 1931, Noah, on stationery of appellant which named him as sales manager, wrote appellee a letter acknowledging receipt of the contract and concluding:
“I will ask our Lincoln office to immediately return your equity in this contract. Veiy truly yours,
Woods Brothers Industrial Corp.
By (Signed) F. A. Noah,
General Sales Manager.”
Payment not being made, appellee brought suit to recover the $600 and to have the note canceled and surrendered, alleging the oral contract heretofore outlined. Appellant’s answer was a general denial and allegations that the agreement sued on was not to be performed within one year and that there was no agreement, note or memorandum in writing signed by defendant or its authorized agent; that if Noah made any such oral contract it was beyond the scope of his authority and never ratified by defendant, that Noah had no authority to make any such contract. By cross petition appellant alleged it was ready, able and willing to perform the contract, and it sought in two causes of action to recover the unpaid purchase price not evidenced by the note and the amount due on the note. Appellee’s reply denied that the contract was not to be performed within one year, that he had fully performed his part and had demanded performance by appellant. He also alleged that Noah acted with authority and the company had ratified his act. It is not necessary to note his answer to the cross petition.
The case was tried by the court. After appellee had made his opening statement appellant moved for judgment on the pleadings and opening statement. The court denied the motion, and error is assigned. Appellant has not included in its abstract the opening statement of appellee, and we are therefore not in position to consider the correctness of the court’s ruling, except possibly as to whether the petition states a cause of action. What is said later pertains to that phase of the case. At the conclusion of appellee’s testimony appellant demurred on the ground that no cause of action had been proved. The court overruled the demurrer, and appellant electing to stand on the demurrer, judgment was rendered for appellee, and this appeal followed:
Three propositions are presented by the appellant: (a) an agreement for rescission of a written contract for the sale of real property is within the statute of frauds and unenforceable unless in writing; (b) that there is not sufficient proof of Noah’s authority; (c) there was no consideration for the alleged oral promise.
Appellant concedes that in Ely v. Jones, 101 Kan. 572, 168 Pac. 1102, this court held against its contention, but it seeks to distinguish that case from this one under consideration, the claimed difference being that in that case there was consideration for the rescission and that plaintiff treated the contract as rescinded, while here there was no consideration and the seller was seeking enforcement of its contract. The matter of sufficiency of consideration will be treated later. Assuming there was consideration in the present case, there would be no distinction on this account. The other contention is not good. To recover damages for breach of a contract requires an affirmance of it. What the plaintiff in the Jones case alleged was that defendant breached the contract and he sought to recover damages. The defense was that the contract had been rescinded. It was held that: i
“An agreement to rescind an executory contract for the sale of lands is not within the statute of frauds, and may be proved as any other simple contract.
“When the contract rests only in parol, partial or full performance is necessary to its validity.” (Syl. Iff 2,3.)
And, in the opinion, after discussing the authorities, it was said:
“ . . . and we hold with what we consider to be the weight of authority and sound reasoning that such a contract is not required to be in writing, and may be established by the same kind of proof as other simple contracts.” (p. 578.)
The same section of the statute of frauds relied upon (R. S. 33-106) includes agreements made upon consideration of marriage, and this feature was under discussion in Hoard v. Jones, 119 Kan. 138, 237 Pac. 888, where it was held:
“The statute of frauds deals with the making of contracts rather than with their revocation; hence, though a contract is one which, by the statute of frauds, must be in writing to support an action, it may be revoked by parol.” (Syl. f 4.)
And see Pattison v. Pattison, 129 Kan. 558, 293 Pac. 483, holding to the same effect.
Appellant contends that a contrary conclusion was reached in Brown v. Pryor, 133 Kan. 129, 293 Pac. 747, where an attempt was made to show as defense to a note that it was orally agreed that upon a certain contingency the payee would take a mortgaged farm in payment. That case may be distinguished. The oral agreement was contemporaneous with the execution of the note, inconsistent with its terms, and was inadmissible to enlarge the scope or alter or add to the terms of the note. Also, the oral agreement claimed was that he would transfer lands, and such an agreement was no part of the case before us.
It may here be noted that the contract in the present case was unilateral, and that by its terms the purchaser had only a right to acquire the tract, the seller could not force him to buy it. While it might be said the purchaser acquired an equitable interest in the lands, the seller had a contract right, which, if properly followed out, precluded the purchaser from enforcing it or acquiring the legal title except upon full compliance on his part.
It was noted in Ely v. Jones, supra, that the courts are not of one opinion as to the enforceability of an oral contract for the sale of real estate. An annotation on the subject will be found in 38 A. L. R. 294. And the matter is discussed in 25 R. C. L. 539 (Statute of Frauds, § 129); 27 R. C. L. 639 (Vendor and Purchaser, § 397) and 27 C. J. 201 (Frauds, Statute of, § 150).
It is urged, however, that because of the division of authority we should reexamine the subject and follow certain expressions quoted from Restatement of Contracts by the American Law Institute. It would extend this opinion to too great length to review and comment on all sections noted.
Section 222 recites:
“A contract within the statute, whether or not made enforceable by satisfaction of its requirements, may be orally rescinded, unless the prior contract is enforceable and the contract to rescind involves the retransfer of some subject matter which is within the statute.”
In the case before us the original contract was only enforceable against the purchaser in that he might be forcibly removed from the premises, and the contract of rescission involved no retransfer of some subject matter. The purchaser surrendered only his right to purchase; he could not reconvey the lands, for he had no title thereto.
Section 407 of the above work reads:
“The fact that an agreement to rescind or modify a prior contract is oral does not render it inoperative except in the cases and to the extent that a statute of frauds requires, under the rules stated in §§ 222-224, whether the prior contract is oral or is in a sealed or unsealed writing.”
And section 432 states:
“(1) A contractual duty that arises under a formal unilateral contract is discharged (a) by the destruction or cancellation of the document embodying the contract, or (b) by its surrender to the party subject to the duty or to some one on his behalf, by the party having the right, with the intent to discharge the duty.”
In this case the evidence showed surrender of the written contract to the party subject to be charged thereunder.
We are not convinced that the rule of Ely v. Jones, supra, is either against the weight of authority or contrary to the Restatement of Contracts, and adhere to it.
The principal argument as to Noah’s authority is that it was not in writing. Under the statute of frauds where the contract sought to be enforced is for the sale of lands, the note or memorandum must be in writing and signed by the party to be charged therewith or some other person thereunto by him or her lawfully authorized in writing. It having been determined that rescission can be made by oral agreement, it follows that the authority of an agent to make the agreement need not be in writing; if the statute does not apply in the one case, it should not in the other.
The negotiations to rescind the written contract started in August, 1930, and terminated on June 29,1931, when the letter quoted above was written by Mr. Noah. From that time on the appellant kept the contract surrendered by the appellee, and so far as the record shows made no effort to return it, or to enforce it or to do anything else until it filed its cross petition on October 27, 1933. It might be said with justification that this long retention without affirmative action tended to show a ratification of Noah’s act by the appellant.
The last point urged is there was no consideration for the oral contract — this being based on the proposition that appellee had no right under the contract and when he surrendered the contract he surrendered nothing. We do not agree. He had an option to purchase the lot, and until that was terminated as provided in the contract, he had a right to make his payments and ultimately receive title. The fact he may have been in default, or may not have been financially able to carry on, of itself made no difference, for with this knowledge at hand the appellant took no steps to cancel the contract; instead, it made the oral agreement of which it now complains.
In Ely v. Jones, supra, the question of consideration was disposed of in the following language:
“Where it is shown that the purchaser surrenders the contract and possession, in consideration of the vendor’s agreement to rescind and waive the payment of that which remains due, we think a sufficient consideration is shown to support an oral agreement. The promise to surrender the contract and possession, and to relieve the plaintiff of his obligation to convey the propérty by deed, would furnish consideration for the agreement on his part.” (p. 579.)
And in Restatement, Contracts § 75, comment d, it is said:
“In unilateral contracts the consideration is something other than a promise. It may be a specified act or forbearance, or any one of several specified acts or forbearances of which the offeree is given the choice, or such conduct as will produce a specified result. The offeror may also offer or request as consideration the creation, modification or destruction of a purely intangible legal relation. Not infrequently the consideration bargained for is an act with the added requirement that a certain legal result shall be produced.”
The effect of the contract of rescission was to relieve the appellant of his duty to convey the property, and under the above authorities it was a sufficient consideration.
The court committed no error in finding for appellee against appellant, and its judgment is affirmed. | [
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The opinion of the court was delivered by
Bxjrch, J.:
The action was one by the State Highway Commission to recover damages from the Empire Oil and Refining Company, resulting from the burning of a state highway bridge across a watercourse. Plaintiff recovered, and defendant appeals.
Defendant had oil wells in a watershed east of highway 77, drained by a watercourse. A cement bridge was erected on the highway over the watercourse. Defendant permitted oil and refuse to escape from its wells, flow down the watercourse, and accumulate under and below the bridge. Whether this was the result of negligence is not involved, the petition having been amended to eliminate charge of negligence. The watercourse was dry at the time of the fire.
The highway commission was authorized by statute to destroy weeds on the highway, and the usual method was by burning. Two employees of plaintiff, Ryan and Carter, went to the vicinity of the bridge to burn weeds and grass on the highway, south of the bridge. A small unused tract of land adjoining the highway, belonging to Waldon, who lived a little way north of the bridge, was covered with weeds. Farmers along the highway would want their weeds burned. Highway employees would obtain permission to do this. Carter was not a witness, but the testimony indicated that Ryan was warranted in believing he and Carter had permission to start their fire on the Waldon land. The matter of obtaining permission is not material, and the testimony will not be reproduced further than this: While Mrs. Waldon testified she gave no consent, she testified she told Carter if they did set out a fire to be careful.
The fire was set 60 feet from the highway, found its way to the watercourse, the oil and refuse were ignited, and the intense heat destroyed the bridge.
The conditions at the bridge were described by Waldon, a witness for defendant, in a statement he made, which was admitted without objection, on his cross-examination;
“I put in a gas line about one hundred feet west of the bridge. The ditch tapered and formed a dam at that point. I cut the pipe line in two, so in high water the dam could wash out. This was better than two years ago when I cut the line. At the time of the fire, brush and tumbleweeds had added to the dam and the ditch had lots of oil in it. There has been oil in that slough mighty near all the time since the ditch was dug. This oil comes from the wells on the east side of the road, and hundreds of barrels of oil have been permitted to run down that slough. Luke McLain, the Empire head roustabout, had instructions to clear out this slough just before they started to rebuild the bridge. When the fire started, most of the oil was below the bridge, west and under the bridge. It was mostly dirt and settlings soaked with base sediment and oil.
'“I have lived on this place twenty-six years the first day of January of this year, and have had always more or less argument with the Empire folks on account of the fact they have always let oil get loose and run all over the land. The fire destroyed the bridge, and there was nothing to do but put in a new bridge.”
Defendant contends Ryan and Carter were guilty of contributory negligence, which prevented recovery by their superior, the plaintiff. Contributory negligence was submitted by the court to the jury as a defense to the action. All the conditions and circumstances of the fire, including knowledge of Ryan and Carter of existence of oil refuse in the bed of the creek, were fully described in the testimony. The question whether they were guilty of contributory negligence in starting the fire was submitted to the jury by a special interrogatory. The jury answered, the employees were not guilty of contributory negligence. The finding expressed a fair inference from the testimony, and that closes discussion of the question of fact. It may be added, however, that inasmuch as the action was not based on negligence, contributory negligence, in the sense of an antidote to liability for negligence, was not a defense.
Defendant permitted its oil and inflammable refuse to make their way down the creek from defendant’s land, and to accumulate below and at the bridge. The jury found specially the bridge was destroyed by the intense heat from burning oil and refuse. The court instructed the jury regarding the statutory duty of defendant to keep its oil and refuse at home. The statute reads:
“It shall be unlawful for any person, having possession or control of any well drilled, or being drilled for oil or gas, either as contractor, owner, lessee, agent or manager, or in any other capacity, to permit salt water, oil or refuse from any such well, to escape upon the ground and flow awajr from the immediate vicinity of such well, and it shall be the duty of any such person to keep such salt water, oil or refuse safely confined in tanks, pipe lines or ponds, so as to prevent the escape thereof: Provided, however, That this act shall not be construed to apply to the escape of salt water, oil or refuse be cause of circumstances beyond the control of the person in the possession or control of such- well and under circumstances which could not have been reasonably anticipated and guarded against.” (R. S. 55-121.)
By special findings, based on ample evidence, the jury found defendant permitted oil refuse to escape and flow away, and found the escape and flowing away were not because of circumstances beyond defendant’s control or circumstances which could not be reasonably anticipated and guarded against.
The statute was enácted because of the vagrant character of unconfined salt water, oil and refuse, and their inherent quality of destructiveness. They destroy vegetation, pollute streams, foul wells, and oil and oil refuse create fire hazard. The statute deals specifically with confinement, and confinement is at the peril of the person whose duty it is to confine, subject only to vis major and some other exceptions not material here.
Aside from the statute, as long ago as 1917 this court adopted the general principle of liability without fault, as stated by Lord Blackburn in Fletcher v. Rylands, L. R. I. Exch. 263 (1866). The court adheres to the principle. (Berry v. Shell Petroleum Co., 140 Kan. 94, 33 P. 2d 953.) It is not necessary to trace the history of that celebrated case in England and in the United States. At first the doctrine was received with disfavor in this country, and it is still in disfavor in some jurisdictions. The doctrine was accepted by other American courts, and the tendency now is toward recognition of the doctrine as finally developed in England. Indeed, some American courts have extended it. (Green v. General Petroleum Corp. [1928], 205 Cal. 328.) There is a carefully considered discussion of the subject in Harper on Torts, §§ 156-164, “The Rule in Rylands v. Fletcher.” (See particularly § 160.)
In an article in 48 Harvard Law Review, 216 (December, 1934), “Aviation Under the Common Law,” Francis H. Bohlen discusses the opinion in a recent case involving collision of an airplane with a transmission tower. The judge overruled a demurrer to a count of a declaration. The article proceeds:
“In doing so he followed the precedent set by the English cases which have interpreted the doctrine of Rylands v. Fletcher and by a number of recent . American decisions. These authorities recognize that certain activities, though involving in their very nature a risk of serious injury to others which cannot be eliminated by any practicable precautions, still have such social value that it is impossible to regard the pursuit of them as either negligence or a nuisance. Consequently where some purpose is served peculiar to those in charge rather than common to the great mass of mankind, it is held that these ventures must be carried on at the risk of those interested in them and not at the risk of those without such interest but whose bad luck it is to be or to possess property in the neighborhood of their prosecution. Of some curiosity is the fact that these cases apply the effect, not perhaps of Rylands v. Fletcher itself, but of the law which has- developed out of that case in Great Britain. It is significant that this tendency to bring American law into accord with the British law synchronizes with the realization that America is no longer a frontier country. . . .”
The statute deals primarily with the subject of confinement. Should salt water or oil or refuse escape, for what subsequent harmful consequences must the producer respond in damages?
That escape of the oil and refuse, and their flowing down to the bridge, were causes in fact of destruction of the bridge is undeniable. Defendant contends, however, the inflammable material, waiting only for flame to ignite it to destroy the bridge, was not the “proximate cause” of the burning of the bridge, and contends the fire which was started by Ryan and Carter, was an independent, unrelated cause, and the proximate cause of destruction of the bridge.
An examination of published volumes 1 and 2 of the Restatement of the Law of Torts will disclose that the term “proximate cause” has been discarded, and the term “legal cause” has been adopted. The change not only makes a scientific statement of the causation factor of tort liability possible, but should be practically helpful to trial courts in frajning instructions to juries, since the courts are relieved of explaining the unexplainable fact that while consequences must be proximate, they may be remote. The term “legal cause” will be used here.
Legal cause is defined by section 9 of the Torts Restatement as follows:
“The words ‘legal cause’ are used throughout the Restatement of this subject to denote the fact that the manner in which the actor’s tortious conduct has resulted in an invasion of some legally protected interest of another is such that the law regards it just to hold the actor responsible for such harm.”
This is not a section to be embodied in instructions to juries. It is a discrimination, for purpose of the Restatement, of the cause factor in tort liability. While, as indicated in Comment b on the section, the act or omission must be a substantial factor in bringing about the harm (see § 431), the principles and rules which determine whether a particular act or omission is legal cause of a particular result, are stated later. The question now before the court is, there-' fore, whether unlawful escape of oil and refuse from defendant’s premises constituted legal cause of the burning of the bridge.
In the portion of the opinion in Fletcher v. Rylands, quoted in Helms v. Oil Co., 102 Kan. 164, 169 Pac. 208, appears the following:
“But for his act in bringing it there no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrue, or answer for the natural and anticipated consequences.” (p. 169.)
So far as known, no dissentient from the doctrine' of liability without fault has complained about this tacit limitation on liability after escape has occurred. Without expressing opinion that in every kind of case liability extends only to natural and anticipated consequences, legal cause may be determined in this case as if that were the extent of liability.
The legislature foresaw disaster if salt water and oil and refuse were not confined. Defendant is held to have foreseen disaster would follow as consequence of escape, and some of these consequences would inevitably involve the contributing factor of human intervention. The wandering substances threatening calamity wherever they may go, constitute a common enemy, and a perfectly natural and foreseeable consequence is that methods of protection will be taken to avert threatened danger. The Squibb case illustrates the principle.
At Wichita, escape of salt water from an oil field portended destruction of the city’s principal park system and the city’s water supply. By correspondence and by conference between city officials and oil producers, an agreement was reached which was evidenced by a city ordinance granting revocable permission to connect a pipe line, extending from the oil field, with the city’s sewer system. The pipe line was constructed and connected. There were subsequent changes in the city’s sewer and drainage systems. In a district of the city in which the inhabitants depended on wells, their water supply was ruined by the salt water. (Berry v. Shell Petroleum Co., 140 Kan. 94, 33 P. 2d 953.)
The producers having created the condition which made harm imminent, municipal action of some kind was natural and foreseeable, and the particular action taken bore no resemblance to an independent, unrelated, intervening and superseding cause within the decision in Railway Co. v. Columbia, 65 Kan. 390, 69 Pac. 338.
Instead of permitting salt water to escape at their own premises, the producers took it by pipe line to the sewer and released it there. The salt water possessed the same potency for harm at the sewer connection, and below, which it possessed before it entered the pipe line, and the statutory duty to confine at the producers’ peril was not discharged and was not shifted. Neither the producers nor the city, nor both acting in concert, could nullify or minimize the obligation imposed on the producers by the statute. The city’s facilities became the producers’ facilities for disposing of the salt water, and whether the city’s facilities were adequate or inadequate, efficient or inefficient, carefully managed or negligently managed, the same duty to prevent harm rested on the producers while the salt water was in the city’s sewer and drainage systems, which rested on them at the oil field. At the origin of the pipe line in the oil field, nothing but intervention of act of God, unexpectable act of some intruder, or other external, disconnected and unrelated cause of escape, could exculpate.
While in the present case Carter and Ryan set the fire which ignited the refuse in the watercourse, the conduct of defendant in releasing the refuse constituted legal cause of destruction of the bridge, because ignition by fire was natural and foreseeable.
It is a matter of common knowledge that in this- state cattle ranges are burned. Farmers burn their cornstalks and straw stacks, and burn their weeds, both on waste and cultivated land. The highway commission is required, at least once a year, to cause to be removed from public highways “all cockleburs, Rocky Mountain sand burrs, burdocks, sunflowers, Johnson grass, and all such other obnoxious weeds as may be injurious to the highways or the best interests of the farming community.” (R. S. 68-546.) The effective and the common method employed to execute this statute is by burning the vegetation. Ryan testified farmers along the highways would want their weeds burned, and the fire which destroyed the bridge was set in connection with discharge of statutory duty. It was perfectly natural and to be anticipated that the inflammable substances, flowing and accumulating as gravity willed, in territory where fire was likely, and across the highway where fire was certain, might be ignited, and if ignited, would destroy anything within reach destroyable by heat.
The court sufficiently instructed the jury on the subject of the act of Ryan and Carter as an independent agency, and sufficiently instructed the jury on the subject of “proximate cause.”
There is nothing else of importance in the case.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The appeal is from a judgment transferring a lien for alimony from one piece of property to another after expiration of the term' at which the original lien was created. .
In an action for divorce commenced by plaintiff,-Frank Drury, against his wife, Leota Drury, a divorce was granted to defendant. Defendant-was awarded alimony and an attorney, fee in .the sum of $1,050.- Plaintiff was the owner of lots on Holyoke avenue, in the city of Wichita. The award of alimony and attorney fee was- made a lien on those lots, which were adjudged to bé plaintiff’s solé and separate property, subject to the lien. Plaintiff was also the owner of lots on south Market street, and lots on Lawrence avenue. Those lots were adjudged to be the sole and separate property of plaintiff, free from any right or interest of defendant.
Defendant undertook to enforce her lien on the Holyoke avenue lots and, pursuant to order of sale, the lots were sold for $750. Defendant was the purchaser. The lots were mortgaged, the costs-which defendant would be obliged to pay were $150, she had no* ■ money, she could not borrow money, and she could not make her bid good. The sheriff made return of no sale.
The judgment for alimony and for lien on the Holyoke avenue lots was rendered on April 11, 1933, at the April term of the district court. The term expired on October 2, 1933. On August 11, defendant filed a motion describing her plight, and praying that her position be strengthened by giving her a lien on lots other than the Holyoke avenue lots. The motion was not disposed of at the April term. On January 3, 1934, the court modified the judgment by transferring the alimony lien to the south Market street lots.
The judgment of January 3, 1934, was void. (J. B. Colt Co. v. Clark, 125 Kan. 722, 266 Pac. 41.) A contention the subject has become moot is without merit.
The judgment of the district court is reversed, and the cause is remanded with direction to set aside the judgment. | [
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The opinion of the court was délivered by
Dawson, J.:
This proceeding was begun in the district court'to determine who is entitled to reimbursement from the funds of thfe state highway commission for certain taxes paid for improved roads prior to the time they were taken over by the state at large. -' ■ ’
It appears that in 1905 one Nannie R. Taylor, owner in fee of “a quarter-section farm in Bourbon county, died testate. She devised a life estate in that farm to her niece, May Hutton Milligan, with remainder to her surviving children. The devise provided that the life tenant should pay the taxes out of the rents and profits of the land. ,
At some time not disclosed by the record, Arthur Beth becam# tenant of the farm, 'and as such he held possession of it for some unstated number of years. When the construction • of áll-weáth'éí' roads was undertaken in Bourbon county under road-benefit-distrifct statutes, now repealed, the taxes on this farm mounted to figures which the rents and profits would not meet. The taxes for 1923 and for some later years were not paid; and on September 6, 1927, the farm tenant, Arthur Beth, obtained a tax deed to the property. 'To raise funds for that purpose Beth borrowed $3,060 from the Bank of Eulton and executed a mortgage on the farm to secure its payment.
Some time later, the life tenant and her children brought suit in the United States district court to have-the tax deed judicially ari^nulled and the mortgage canceled. That court held the tax deed void and quieted plaintiffs’ title, but also decreed that Beth should be reimbursed in the sum of $54.55 for certain improvements, and that the Bank of Fulton should likewise be reimbursed for the money it had loaned to Beth to obtain the tax deed and to pay subsequent taxes on the property. By order of the federal court, Douglas Hudson, of Fort Scott, was appointed trustee to protect the interests of the life tenant and remaindermen. A special master, James G. Sheppard, was appointed to sell the property and to devote the proceeds to satisfy all proper claims against the property. This was effected; and a net balance of cash, amount undisclosed, was delivered to Douglas Hudson, trustee for the life tenant and remaindermen.
For some time past the state highway commission has been distributing a portion of its funds to reimburse taxpayers who were out of pocket for the construction of good roads before they were taken over as a part of the state’s highway system. The statutory authority for such distribution reads :
“There shall be the sum of $250,000 transferred quarterly by the state treasurer from the highway fund into a fund known as the ‘state highway benefit-district fund.’ The fund thus created shall be used for the payment and reimbursement of benefit-district costs and assessments for such benefit districts that have been and may hereafter be constructed as a part of the highway system.” (R. S. 1933 Supp. 68-416, subdiv. 3.)
So far as here pertinent the next statutory provision reads:
“The state highway commission shall apply the funds provided for by subdivision 3 of section 1 of this act to payments and reimbursements in benefit districts where roads constructed under the benefit-district plan are a part of the state highway system, as follows: ... to the reimbursement annually to the taxpayers of one assessment, including principal and interest, made and collected on such lands and improvements; . . . (R. S. 1933 Supp. 68-417.)
Another pertinent section, in part, reads:
“. . . The right to reimbursement under this act shall not be assignable separate from the sale of the land, and no reimbursement in any amount shall be made or paid to any person who has acquired the claim for reimbursement separate and apart from the real property.” (R. S. 1933 Supp. 68-417a.)
Pursuant to these statutory provisions, in 1932 the state highway commission made a refund of $113.61 to Douglas Hudson, trustee for Mrs. Milligan and her children, for road taxes imposed on their farm in 1923. It was the original default in payment of the tax for that year which eventually culminated in the issue of a tax deed to Beth, the farm tenant.
In 1933, when the state highway commission was ready to make reimbursement for the road taxes on the farm for 1924, Beth brought this action against the state highway commission claiming that the reimbursements should be made to him. The commission answered at length, alleging the historical facts, and praying that Douglas Hudson, trustee for the Milligans, be impleaded, and for an adjudication of the rival claims of Beth and the trustee to the moneys the commission had in its hands and which it was willing to pay as the court should direct.
Hudson, as trustee, filed an intervening petition laying claim in behalf of his cestuis que trustent to the moneys to be refunded. Beth’s reply joined issues of law. The pertinent facts were stipulated, and the trial court reached certain conclusions of law, one of which reads:
“There is no rule of equity or statutory provision which exactly determines the controversy in this action, conceding that Arthur Beth had a right to take title to the land by the tax deed, when the life tenant allowed said land to become delinquent.”
Following this singular conclusion, judgment was entered as follows:
“. . . Douglas Hudson, as trustee, shall receive from the state highway commission and receipt therefor, all of the refund of taxes involved in this action for the years 1923, 1924, 1925, 1926, and 1927, as and when said refunds of road taxes shall become due and payable, and out of the amounts received shall pay the costs of this action, and all refunds, above the costs of this action, whether paid or to be paid in the future, one-half shall be paid to Arthur Beth and the other one-half retained by Douglas Hudson, as trustee for May H. Milligan and her children.”
The trustee appeals, and plaintiff does likewise.
Considering first the plaintiff’s appeal, it is argued on his behalf that since he paid the taxes for 1923, and for several subsequent years, he is the “taxpayer” to whom reimbursement is due under the statutory provisions set out above. We think not. His tax deed was a nullity, although the generosity of Kansas law towards investors in void tax titles is such that their investments are protected by a sort of lien which entitles them to a return of the amounts they have paid together with a very liberal rate of interest thereon. The payment of taxes on land is primarily a liability on the land itself, and consequently the taxpayer contemplated by the statute quoted above is the owner of the land — who ought to be the taxpayer. And he is none the less the taxpayer although the tax is paid through statutory processes to enforce its collection — one of which includes the sale of the land for delinquent taxes, the eventual issue of a tax deed thereon which has to be gotten rid of at the expense of the landowner, with the alternative of the'irrevocable loss of the property. The argument that the tax deed holder was the “taxpayer” in contemplation of the statute could as plausibly'be made in'favor of the Bank of Fulton which provided the money for Beth to obtain the tax deed. And just as plausibly could it bé argued that any real-estate agent who pays faxes on real property with the rent moneys he collects therefrom, in his principal’s behalf, is likewise a “taxpayer”; but we have no hesitancy in holding that neither the holder of a void tax deed, nor a' bank which furnished the money to procure that tax deed, nor the agent of a landowner who pays taxes with the rents he has collected on the, property of his principal can qualify as the “taxpayer” contemplated by the statutory provisions above quoted.
On the other hand, we think it too clear .for cavilling that Mrs. Milligan and her children were the owners of the property and that not only were they the taxpayers contemplated by the statute, but that by statutory processes in invitum they were compelled to and did pay the taxes which the state highway commission is to reimburse. Indeed, Mrs. Milligan and her children have had to sacrifice their farm- in order to pay those taxes. And it is both legal and equitable, in our opinion, that the reimbursement should be made to their trustee; and that the erstwhile holder of the void tax deed, plaintiff herein, has no interest whatever in the moneys to be disbursed by the highway commission.
The result is that so much of the judgment as requires the intervening trustee to pay any costs in this action, and so much of the judgment as 'awards to plaintiff one-half of any moneys which may yet be refunded by the state highway commission in relation to the-road taxes heretofore imposed and collected on the Milligan farm, are erroneous and must be set aside.
The judgment of the district court is reversed, and the cause-remanded with instructions to enter judgment in favor of the intervening trustee, and that the plaintiff be adjudged to pay the costs, of this action. | [
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The opinion of the court was delivered by
■ Smith, J.:
This is an action for damages for breach of a' contract in one cause of action, and for an order directing the conveyance to plaintiff of a tract of real estate in the second cause of action. Judgment was for defendants. Plaintiff appeals.
The case is here on an appeal from an order sustaining a demurrer to the petition. The petition contained allegations with reference to three lawsuits in which plaintiff has been involved. The pleadings, exhibits and journal entries of these actions are referred to in the petition, or attached to it. A statement of the history of this litigation is necessary to an understanding of the case and will be given here.
The first case was that of Good v. Brotton, No. 62,734, in the district court of Sedgwick county. It was a suit -to foreclose a mortgage on certain real estate in Sedgwick county. The tract, conveyance of which is sought, is a part of the real estate covered by this mortgage. The entire tract will be spoken of as the Brotton Terrace property. The specific tract involved here is lot No. 17. This case went to judgment, and the real estate was bought on August 20, 1927, by Good, the plaintiff in that action.
In January, 1928, the wife of plaintiff brought suit for divorce against him in the district court of Sedgwick county. This was case No. 54,725. Several orders were entered in this case and the record shows Brotton was present at the time of the entry of all of them. A decree of divorce was granted the wife of plaintiff. On account of the foreclosure suit a receiver was appointed in the divorce action for the property in question. On March 18, 1929, the real estate in question was sold under order of the court by the receiver. The sale was confirmed on the same day. The purchase price was paid into court. After the payment of certain sums ordered paid by the court the balance of the purchase price in the amount of $4,584.58 was, under order of the court, paid to Brotton. Pursuant to an order of the court at the time the sale was confirmed Brotton executed and delivered a quit-claim deed to the property in question to the purchaser, J. B. Bradford, on'e of the defendants in this action. It appears from the record that Bradford paid Good for his interest in. the property and obtained a sheriff’s deed in the case of Good v. Brotton at the termination of the period of redemption.
While the divorce action was pending and on January 16, 1929, Brotton, the plaintiff in this action, and one F. M. Luther, entered into the contract, which is the basis of this action. It is as follows:
“This agreement entered into this 16th day of January, 1929, between L. A. Brotton, first party, and F. M. Luther, Jr., second party, both of the county of Sedgwick and state of Kansas.
“Witnesseth: Party of the first part has an equity in and to lots one (1) to nineteen (19), inclusive, in Brotton’s Terrace in Sedgwick county, Kansas, being a part of the northwest quarter of section 25, township 27, range 1 east, containing 60 acres more or less. W. R. Good has foreclosed a mortgage on. said land and the title to this land is clouded by an action in the district court of Sedgwick county, Kansas, wherein Adda B. Coopage, formerly Mrs-L. A. Brotton, has been allowed a claim against said land for a certain, amount now listed in said court.
“Party of the second part is desirous of purchasing the equity of said first party in said tract of land and agrees to pay therefor the following consideration: The parties hereto shall make an effort to settle the claims of Adda B. Coopage and her attorneys, also all court costs in this case and also the attorney fees of George McGill, Ray Tinder and Clarence Sowers for services* rendered to the party of the first part in this case, for the sum of $3,000, and it is agreed that should they be not able to make settlement for said sum then the second party may elect to pay the amount necessary for settlement; should second party not be willing to pay the amount necessary to make settlement of the above claims then this agreement shall be null and void, but should this consideration be fulfilled then second party further agrees to pay to first party the sum of $3,300, ten dollars of which has been paid, and receipt of which is hereby acknowledged; second party further agrees to deliver to first party, after this agreement is fulfilled as to the performance of items other than this, to deliver to first party a deed conveying back to first party lot seventeen (17) as described above, free and clear of encumbrance.
“It is agreed by the parties hereto that the matters of court costs, attorney fees and Adda B. Coopage settlement be taken care of on or before January 19, 1929, or this contract shall be null and void.
“Signed and delivered in duplicate the day and year first above written.”
On January 19, 1929, the following was indorsed on the contract:
“The time of closing this agreement is hereby extended until such time as settlement with Adda B. Coopage can be made. Such time to be reasonable.”
On August 9, 1929, Mr. Brotton filed the above contract for record with the register of deeds. On the same date he filed with the register of deeds an affidavit which he called “Declaration of Interest.” It was addressed “To Whom It May Concern.” It notified any person reading it that he was the owner of lot No. 19 [17] of the premises described. He claimed in this notice to have acquired lot No. 19, [17] pursuant to the contract with F. M. Luther, set out above. He added the following:
“I further notify you that on or about March 16, 1929, one J. B. Bradford purchased this property at a receiver’s sale for F. M. Luther, Jr., and that while the property stands in the name of J. B. Bradford, it actually belongs to and is the property of F. M. Luther, Jr., and J. B. Bradford.”
It will be remembered that these documents were filed nearly six months after Brotton had given Bradford a deed to the property in question, which included lot No. 17, and had received the $4,534.58 as part of the proceeds of the sale of the property.
After the filing of these two documents and in September, 1929, Bradford brought suit against Brotton to cancel them as a cloud upon his title. This suit is No. 70,713 in the district court of Sedgwick county. In that suit Bradford alleged that he was the sole owner of the property; that Brotton had no interest therein; that it was not purchased pursuant to any agreement with F. M. Luther, but at a receiver’s sale, and that he held title by means of a sheriff’s deed and a quitclaim deed from Brotton. The petition further alleged that F. M. Luther never attempted to carry out the terms of the contract heretofore set out and that it became null and void. Brotton filed an answer denying generally all the allegations of the’ petition, and setting up specifically that Brotton was the owner of the land in question. The answer attacked specifically, the various orders in case No. 64,725, the divorce case. The answer further tendered into court the amount of the mortgage indebtedness and attached copies of the various documents in case No. 64,725. Case No. 70,713 was tried and judgment was entered on November 12, 1929. The court found generally for the plaintiff. The court specifically canceled the affidavit of August 9,1929, filed by Brotton, and the agreement of sale between Brotton- and F. M. Luther,- and held it for naught and enjoined Brotton from making any claim to the premises. Brotton filed a motion for a new trial and this was overruled. An appeal was taken to this court. This appeal was dismissed for lack of prosecution. A petition for rehearing was filed and denied. Subsequently a motion to set aside the judgment, rendered on August 12, 1929, and the order overruling the motion for rehearing, were filed and denied. From this order -an appeal was taken to this court and the’ appeal was dismissed.
The facts-just stated are mainly matters of record and do not appear to be disputed, although the legal effect of them is in dispute.
At first sight, it appears that the demurrer to the petition was properly sustained in view of the fact that the action is based on the contract of January 16 and the pleadings and exhibits plainly show that it was a contract to settle a lawsuit, provided it could be settled on certain terms; and that if it could not be settled on those terms the contract was void and that the case was not settled on any terms, but went to judgment in the regular way. Clearly the force of the contract spent itself before Bradford acquired the property. In view, however, of some allegations contained in the petition, it will be necessary to examine it at length. It will be noted that the action is against F. M. Luther, J. B. Bradford and George W. Hermann.
The' petition alleges the facts about the different lawsuits against the plaintiff. It then alleges the execution of the contract heretofore set out. It should be noted that plaintiff describes the contract as-though it had been executed by all three of the defendants on one side and Brotton on the other, while the contract speaks for itself and is between F. M. Luther and Brotton, with no reference to any other person.
The petition then alleges that by the terms of the contract F. M. Luther, acting for the defendants, was to pay the plaintiff $3,300 and to settle all claims of Mrs. Brotton for $3,000 or to pay more to Mrs. Brotton, if they should so elect, but regardless of what was paid Mrs. Brotton defendants were to pay Brotton $3,300 and convey to him lot No. 17. The petition alleges that Luther elected to do the latter at the receiver’s sale by the purchase of the property in the name of J. B. Bradford and that the contract was made in contemplation of the receiver’s sale. The items covered by the judgment in the divorce case are set out, and it is alleged Luther elected to pay that amount to Mrs. Brotton. It is alleged that Bradford and Hermann were at all times either co-obligors with Luther on the contract or they were his partners at all times. The petition sets out the cases heretofore described and states that defendants knowing of these cases deliberately broke the contract, to the great disadvantage of the plaintiff. The petition then alleges that defendants breached their contract with plaintiff with the intent to stifle competition in the sale of the property in question; that to effectuate this purpose they caused the action heretofore spoken of, No. 70,713, this being the action wherein the contract sued on was set aside, to be filed; that they so involved plaintiff in litigation as to cause plaintiff to lose his right to sell the property; that when F. M. Luther bought the land at the receiver’s sale he really settled the case with Mrs. Brotton, in pursuance of the contract sued upon; that thereafter Brotton was compelled to sign a quitclaim deed to the property to Bradford, in violation of the contract, and that he was given in return for the deed the check of the receiver for $4,534.58; that he accepted the check under protest only because of the order of the court, and thereby all the right plaintiff has ever had in Brotton Terrace was taken from him, and property of an actual and probable market value of $60,000 was taken for $4,-534.58; that instead of living up to their contract and protecting the interests of plaintiff, defendants did what they could to prevent a settlement with Mrs. Brotton and maneuvered the various lawsuits against plaintiff in order to convert Brotton Terrace to their own use.
The petition then alleges twenty-one specific things which defendants did to prevent a fair sale of Brotton Terrace.
Charge 1 is that defendants forced the closing of the Wm. Merrit Brotton estate on July 11, 1930, in order to clear the title and clear the way for the manipulation of other suits mentioned. It should be noted here that all the cases spoken of had been closed before July 4, 1930.
The second specific instance is that on March 23, 1929, defendants procured allowances of exorbitant alimony, expenses and attorney's fees in the divorce case and the suit to quiet title. It should be noted here that on March 23, 1929, the injunction suit had not been filed and the divorce suit was closed on the day the allowances were made. Furthermore, defendants were not parties to that suit, the awards were not objected to when made, and what is attempted by plaintiff is to attack in a collateral proceeding a judgment in another case.
The next specific act, No. 3, charged to have been performed by defendants, is the procuring of the appointment of a receiver in the divorce case. It should be noted here that defendants were not parties to the divorce case, and furthermore what was said about instance No. 2, as to the collateral attack, might very well be said here. .
Specific charge No. 4 is that defendants intimidated plaintiff by procuring orders charging him with contempt in order to prevent his acting as broker of his own property in the divorce case and the suit to quiet title. In connection with that charge it should be noted that defendants were not parties to the divorce case, and at the time the property was sold by the receiver the suit to quiet title had not been filed.
Specific charge No. 5 is that defendants procured superfluous orders in the two cases in attempts to hinder plaintiff in settling his divorce case. What has been said with reference to charge No. 1 might very well be said to this charge.
Specific charge No. 6 states the bringing of the suit to quiet title. This charge is nothing more than a collateral attack on a judgment in another case.
Charge No. 7 alleges that defendants, through some scheme, caused a petition for rehearing to be denied upon illegal and improper grounds in the suit to quiet title without notice to plaintiff and afterwards induced the attorney for plaintiff to depart to some unknown address. The journal entry in that case recites that the attorney of plaintiff was present. In any event, any irregularity in the orders made in that case could have been raised and settled in that case. Indeed, the record shows that this question was raised and presented to the court and relief was denied plaintiff. In view of that situation, such matters have no weight in the petition in this case.
Charge No. 8 is that about July 2, 1933, defendants through their attorney refused a correction of a journal entry in the suit to quiet title and thereby cut off the right of plaintiff to appeal. He charges that this conduct constitutes fraud on the part of defendants. The conduct described does not render the judgment void, only voidable if true. It was raised in the attempt to have a review of the case in which it is alleged to have occurred. No reason appears why it would render the judgment subject to a collateral attack, as is attempted here.
The petition then sets out thirteen additional specific instances of conduct on the part of defendants of which they sought to prevent a settlement of the divorce case. It would add nothing to this opinion to set them out here. They have all been examined and it is plain that they are all attempts to raise in this case, by means of a collateral attack, questions that were raised and passed on in one or the other of the three cases that have gone before.
The petition then alleges that in the divorce case Mr. and Mrs. Brotton agreed that the real estate in question was worth $60,000; that defendants secured it at the receiver’s sale for $20,399; that the illegal profit to defendants is the difference in these two amounts, or $39,601. It may be said here that the above is the only allegation as to value of the real estate in question. As a matter of fact, it is no allegation of value at all, but simply an allegation of what plaintiff and his wife agreed the property was worth. Hence, there is no measure of damages in the petition. The petition then states generally what has already been stated, and that plaintiff was caused' by acts of defendants to spend four months in the hospital and that on this account he is entitled to $10,000 exemplary damages from defendants. This makes $49,601, for which plaintiff asks damages in the first cause of action.
In the second cause of action, plaintiff makes all the paragraphs of the first a part and states that if defendants still hold the title to the property they hold it in trust for plaintiff; that he has no adequate remedy at law on account of the insolvency of defendants. Plaintiff prays in the second cause of action that defendants be ordered to convey to him lot No. 17 in the Brotton Terrace property.
Shorn of unnecessary verbiage, the petition states that defendants and plaintiff entered into a contract whereby the defendants were to settle the divorce suit of plaintiff and that instead of settling the suit defendants breached the contract and took advantage of plaintiff. The story of plaintiff, as related in this petition, is one of fraud and misconduct on the part of lawyers as well as parties.
It will be remembered that when the divorce suit was finally adjudicated the real estate of plaintiff was ordered sold by the court and the proceeds distributed. Mr. Bradford, one of the defendants, bought the property. The contract, which is the subject of this suit, was between plaintiff and Mr. Luther. It would appear from this that the divorce suit went to final judgment and was not settled as a result of the contract. Plaintiff attempts to meet this situation by allegations that defendants were in collusion to ruin him and really acted in concert. The record shows that after Bradford had bought the property at the receiver’s sale and the court distributed the proceeds Brotton received $4,534.58. He gave Bradford a quitclaim deed to the whole tract, which included the property he is now claiming. It will be remembered that by the terms of the contract, sought to be enforced here, Brotton was to receive $3,300 and lot No. 17. By the terms of the distribution that was finally made he received $1,234.58 more than the amount he was to have received under the contract. He, of course, did not receive the conveyance of lot No. 17. It would appear that the acceptance of the money paid him as his share of the purchase price of the real estate and his giving the deed would preclude his afterwards setting up any claim to lot No. 17. He attempts to get around this situation by alleging that he was compelled to make the deed and take the check by a court order.
At this point the weakness of the case of plaintiff becomes apparent. The record shows that no appeal was taken from the judgment and orders of the court in the divorce case. If the judgment disposing of the proceeds of the property was erroneous, the proper action in which to have that corrected was the case that had been decided. The present action is a collateral attack on the judgment in the divorce case. (See Goodman v. Cretcher, 132 Kan. 142, 294 Pac. 868.) A party cannot allow a case to go to final judgment and then question the correctness of that judgment in another action unless the judgment questioned is void. (See Morris v. Sadler, 74 Kan. 892, 88 Pac. 69; also Morris v. Robbins, 83 Kan. 335, 111 Pac. 470.) There is no claim that the judgment was void. Much more is said in the briefs of parties and more might be said here, but we doubt if much could be added to what has been said on the subject.
The judgment of the trial court is affirmed. • : | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action brought by Harrison Lamp-kin against the Chicago Great Western Railroad Company, for the recovery of damages for unlawfully shooting him while he was upon one of defendant’s trains, riding there without paying fare.
It was alleged that Arthur Sabatke, an employee of the company, whose business it was to expel from the train people who had not paid fare, fired a pistol and shot plaintiff through the right arm, just below the shoulder, and at that time Arthur Sabatke was the employee of the defendant. Judgment was for $1,500, and defendant appeals.
While it is conceded that the plaintiff was a trespasser attempting to ride the train a short distance to his home without paying fare and, in the circumstances, defendant owed the trespasser no duty to provide a safe passage for him, it had no right to put him off the train by shooting him. Defendant could put him off the train at some suitable place but could not willfully or maliciously attack him. (K. P. Rly. Co. v. Kessler, 18 Kan. 523; K. C. Ft. S. & G. Rld. Co. v. Kelly, 36 Kan. 655, 14 Pac. 172; A. T. & S. F. Rld. Co. v. Gants, 38 Kan. 608, 17 Pac. 54.) There was proof that the train from which he was expelled was one of the Chicago Great Western Railroad Company; that the plaintiff was upon that train and while getting off the train he was shot by Sabatke; that Sabatke is an employee of the company who was identified as the employee who did the shooting. The plaintiff riding without paying his fare was a trespasser, but the railroad company had no right to inflict injury upon him because of his trespassing. He could be put off the train at some convenient place, but could not be wantonly assailed without subjecting the company to damages. He was not necessarily an outlaw as to his property, and still less as to his person.
There is no claim that the defendant or its agent, if they shot him, were justified. If the testimony of witnesses may be believed there was sufficient evidence that Sabatke shot him. It was a part of Sabatke’s duty to clear the trains of trespassers, and it seems he took an unjustifiable method of doing it. An effort was made to show that he was not on the train and therefore could not have done the shooting. He stated that he was not on the train and never shot the plaintiff, that he had not used pistols, but on cross-examination it was developed that he had had trouble in that section of the yard, and that he had a pistol, and that he had used it on a number of occasions. The demurrer was rightly refused.
There is a contention of the appellant that the court erred in admission of testimony offered by the appellee and the refusal to admit competent evidence offered by the appellant. A witness, Mr. Mosher, was called by the plaintiff to testify. He was asked several questions of a formal character which included reference to the taking of testimony by Mosher in this case. That he, himself, was assistant claim agent and that he knew Arthur Sabatke. Mosher was asked a few questions identifying himself with the railroad company as a special agent, and stated that he came there to take the testimony of Roy Jones, Stephen Jones and F. L. Stanford; that he also took the statement of Lampkin, and that he knew Arthur Sabatke. Counsel for the railroad company sought to extend the cross-examination into the matter of who was present when the statement was taken, and an objection was sustained. Appellant claims that it was denied an opportunity to cross-examine Mosher. The questions asked Mosher would hardly admit of a wide range of questions as to who else was present and other matters affecting the case. The questions asked were not very important and really were not competent.
Misconduct of counsel was alleged and plaintiff was permitted to ask whether Sabatke was in court where he could get hold of him. Attention is called to a statement made by counsel as misconduct when a witness named Johnson was being examined. Mr. Carson said:
“Wait till I object, Mr. Berger. It appears to be now the — an offer of testimony of the interior procedure of this company; not required by any law or statute to be made by them; and, therefore', it is in the same category as if I write letters to myself.
Mr. Berger: “Well, a letter or what he wrote March first would be pretty good proof what he did. This is the rule of the company.
Mr. Carson: “Well, if this happened, the account could be all made up. And if a man can write letters to himself—
Mr. Berger: “We object to that as an insinuation that we are making evidence.
Mr. Carson : “I didn’t say anything of the kind. I said it is possible for it to be made up that way.
The Court: “Lots of things are possible.
Mr. Carson: “I object to it for the reason—
The Court (interrupting): “The question was raised whether or not it is an original.
Mr. Carson: “I also object to it for the reason it is a self-serving declaration.
The Court: “I know.
“Q. Is this the original that was sent to you? A. Yes, sir.”
There is not much in the claim that Mr. Carson was guilty of misconduct in the statement that the defendant was making evidence. The court overruled the objection and admitted the testimony. There was no prejudice to permit counsel to ask if Sabatke would be present and where he could be had, as counsel had agreed that Sabatke would be present.
The next complaint is that the court’s instructions given on its own motion were prejudicial error, and the refusal to give the instructions requested was a continuation of the error. If the instructions about which appellant complains — one of which was prepared and presented by the appellant itself — were error appellant is barred by the fact that he attempted to lead the court into that error and cannot now complain.
There is nothing to show that the principles of law in the requested instructions were not given in the general charge of the court. It is incumbent on a party showing that a requested instruction had been refused, to make it appear that an instruction was not given on the subject. If all the record does not disclose that the requested instructions were not given by the court, the point is not available.
We find no material error in the record, and therefore the judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This was an action by a farmer and dairyman to recover damages from the defendant pipe line company for the loss of cream, injury to cows, loss of calves and a heifer and loss in valuation of land by reason of overflow from septic tanks and leakage of gasoline through earthen banks, and one particular leakage from a large gasoline tank which permeated the soil, ran down the draw from which his cattle drank water, filled his well and cistern and greatly reduced the value of his land, for which he claimed damages in the total sum of $2,046.50. The jury found in favor of the plaintiff in the sum of $750, and answered four special questions, and the trial court rendered judgment on the general verdict against the defendant for $750, from which defendant appeals.
The farm of the plaintiff consisted of 160 acres, through which the pipe line of the defendant company ran. The land sloped from the northeast to the southwest, and a draw ran through it in that direction, in which there was water during nearly all the year. In 1930 the defendant purchased from plaintiff thirty-five and one-half acres in the upper or northeast corner of plaintiff’s farm, and in May, 1931, it constructed thereon two large gasoline tanks in connection with a pumping station and necessary kindred equipment. In 1932 there were some breaks in some of the earthen dikes, which released some gasoline into the drainage ditch or draw, and on November 19, 1932, a serious break occurred in one of the large gasoline tanks, permitting a very large quantity of gasoline to run down the drainage ditch which ran through plaintiff’s farm.
The first assignment of error is in the admission of incompetent evidence given by two veterinary surgeons as to the effect on cattle drinking water having gasoline in it or on it. These witnesses stated they were treating it as similar in effect to that produced by crude oil, with which they admitted being more familiar. This matter of limited experience had only to do with the comparative weight of their testimony, but did not in any wise make their testimony incompetent.
Our attention is next directed to an apparent discrepancy in the date of loss of milk supply, a difference of about a month and a half where plaintiff alleges the loss at a specific sum per week, but the answer to a special question shows the jury did not allow plaintiff the full amount claimed therefor, which result might readily be reached by reducing the number of weeks or the- rate of loss per week, or both, and therefore it is not a reversible,error.
The next assignment of error concerns the element of damage to the real estate and as to its being permanent or temporary damage, and this assignment of error concerns the introduction of testimony as to such damage, the giving of instructions on this question, the overruling of the motion for judgment on the answers to the special questions notwithstanding the general verdict, and the overruling of the motion for a new trial.
It was said in the opinion in Dye v. Rule, 138 Kan. 808, 28 P. 2d 758, with reference to the determination of the motion for judgment on the answers to the special questions, that we must look to the pleadings, the special questions with their answers and the general verdict.
The petition states that the value of plaintiff’s land before the acts described as contaminating the water thereon and rendering the land of practically no value for farming purposes was a certain amount per acre for each of the two portions of it — forty-four and one-half acres in the northern portion, and eighty acres in the southern portion, and that the same was worth a certain amount per acre at the time of filing this action, making a difference of $20 per acre for the northern portion and $10 per acre for the southern portion. The petition contains a second cause of action for an injunction against the continuance of the leakage and drainage heretofore described. This second cause of action is not here for review, save and except as- it may serve to show the theory of the plaintiff as to the damages being of a permanent or temporary character.
The answer of defendant, after certain admissions and a general denial, alleges that it purchased these thirty-five and one-half acres of the plaintiff with his full knowledge of the intended use thereof, paying a price therefor far in excess of the market value thereof, with his knowledge also of the slope and drainage of the land and the natural rights of an owner of upper land as to drainage. The answer also pleads estoppel. The reply is a general denial.
There can be no doubt about the petition pleading permanent damages and justifying the admission of testimony along that line, and because in pleading, as in many other matters, the greater generally includes the lesser, it would be rather harsh to say that such allegations of permanent damages would not include sufficient for temporary damages.
It certainly was not error to overrule the objections of the defendant to questions of plaintiff asking for the market value of the land before and after the alleged pollution by reason of the leakage.
The trial court, in its instructions, defined both permanent and temporary damages to land, and even if otherwise objectionable, the giving of such distinction in damages was justified by the very fact of a question being asked as to which it was in this case. Besides, the cross-examination of plaintiff showed that the productivity of the farm had not been lessened, and that he did not lose the use of the pasture except for a few weeks following November, 1932. Other witnesses were asked on cross-examination whether they regarded the damages as permanent or temporary. Our attention is not directed to any error in the language used by the court in making this distinction.
In the case of Hall v. Galey, 126 Kan. 699, 271 Pac. 319, it was held:
“An instruction to the jury that if the evidence sufficiently established that the damage to plaintiff’s farm was permanent, the measure of damage would be the difference in the fair market value of the farm prior and subsequent to the ruination of the well, was a correct statement of pertinent law.” (Syl. If 3.)
All of the plaintiff’s evidence in the case at bar on the question of the amount of damages was the fair market value prior and subsequent to the leakage. No other figures were given as to any other or different kind of damages. The defendant introduced no- evidence whatever as to the amount of damages of either kind to the real estate.
8 R. C. L. 483 defines temporary damages in substance as the reasonable cost of repairing the property, with interest, which may include the value of the use thereof during the period covered by the suit, or it-may be the diminution in the rental value of the property, together with such special damages to crops, improvements, etc.
Now the most serious matter here is that the jury, in answer to one of the special questions, found that the damage to the land was only temporary. There was sufficient evidence to support such a finding, but there is not a figure or estimate in all the testimony to show how much such damage was. There is no proportionate rule by which it can be ascertained from the permanent damage by reduction thereof or otherwise. So we have a general verdict based upon testimony as to permanent damage to the land and a finding that the real-estate damages are not permanent but temporary, which makes a case of inconsistency between the general verdict and the answers to the special questions in which situation the latter must control. (R. S. 60-2918; Carlgren v. Saindon, 129 Kan. 475, 283 Pac. 620; and Clark v. Missouri Pac. Rld. Co., 134 Kan. 769, 8 P. 2d 359.) In the latter case the answers required a larger verdict than the jury found in its general verdict.
The following are the special questions and answers thereto :
“1. If you find for the plaintiff in this action, you will please itemize the amount and items of damage sustained by him.
“A. Loss of cream income 1 year-........................ $78.00
Loss of cream income 8 months.......................... 32.00
Loss of G. & J. heifer.....'............................... 25.00
Damages of 3 cows...................................... 38.25
Loss of 2 calves......................................... 10.00
Loss in valuation of 44% A.............................. 486.75
Loss in valuation of 80 A................................. 80.00
Total ......................-..........................$750.00
“2. If you find that the plaintiff suffered any damage to his real estate, do you find that that damage was temporary? A. Yes.
“3. Do you find that the plaintiff’s stock were injured by drinking water from the ditch on his premises? A. Yes.
“4. If you answer the above question in the affirmative, then state whether or not the plaintiff, by the exercise of ordinary care, could have averted that damage to his stock. A. No.”
The answers to the special questions are consistent with themselves, although the answer to the second question eliminates the last two items shown in answer to the first question as being included in the general verdict of $750. The answer to the first question is informative of the items and amounts contained in the general verdict, rather than a separate and distinct finding of fact.
We find no errors as to any of the items of damage mentioned in the answer to the first question except the two items concerning real estate, and judgment should be rendered on the answers to the special questions, notwithstanding the general verdict, which erroneously included two items of permanent damage to real estate.
The judgment is modified to that extent and otherwise affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was a civil action for damages. Defendant shot the plaintiff, inflicting wounds and injuries from which he will never recover.
Plaintiff is a man of 48 years. In August, 1928, he obtained a written lease on a ranch of 600 acres known as the Lota McKeever ranch, in Harper county. The term was for three years, but plaintiff was permitted to overstay his term, and he was still in possession of the property on April 13, 1932, when the shooting occurred which gave rise to this lawsuit.
Defendant, K. K. McKeever, 62 years old, resided on a large ranch not far from the one leased and occupied by plaintiff. Defendant was one of two trustees appointed by the probate court to lease the Lota McKeever ranch. In March, 1932, defendant placed some cattle in plaintiff’s pasture under some arrangement of no present importance. Later some other parties sought to put some of their cattle into the plaintiff’s pasture. This led to some wordy dispute between plaintiff and defendant. The latter reminded plaintiff of some delinquency in his payments of rent and declared he would take the pasture away from plaintiff. Shortly after noon on April 13, 1932, plaintiff went to the pasture for the avowed purpose of turning defendant’s cattle out of it. Defendant appeared on horseback armed with a revolver. He was accustomed to carry such a weapon attached to his saddle. Plaintiff rounded up some of defendant’s cattle to drive out of the pasture. Defendant placed himself and his horse at the gateway to head them off. This led to bitter words. Plaintiff reviled defendant as a coward for coming armed with a gun. Defendant drew his revolver and shot the plaintiff. The bullet shattered the breast bone, penetrated the lung and then passed through the left arm. Plaintiff fell from his horse. Defendant’s testimony concerning this incident was that antecedent thereto he had urged plaintiff to let the law settle their dispute; that plaintiff had said he didn’t need any law—
“When we got down in the corner of the pasture, where the cattle were, Wood started to ride on ahead as though he was going to open the gate, and I headed him off. . . . After we had got up to the cattle, he made the turn around behind me, as though he aimed to run the cattle through the gate. I told my dog to turn the cattle back, and the dog went behind and turned them east. ... I said to him, ‘Let these cattle alone.’ He said, ‘These cattle are going out.' Wood then reached around in front of him like he was after a gun. I did not see anything in his hand, but thought he was reaching for a gun. I reached into my saddle pocket and got my six shooter. I thought he had something in his hand, but didn’t take time to look to see what he had. When I shot him, I thought it was necessary for my own safety. . . . Wood partly fell and partly got off of his horse on the left-hand side.”
Defendant also testified that after plaintiff was shot he “made a run at defendant” with a hammer in his hand and threw it at defendant.
In a criminal prosecution which followed the foregoing incident, defendant was convicted of the crime of felonious assault under the crimes act (R. S. 21-434).
Plaintiff instituted this civil action for damages, pleading the material facts. Defendant’s answer included a general denial and an allegation that plaintiff’s injuries were augmented by his failure to care for them prudently.
Jury trial; evidence adduced at length; verdict and judgment for defendant; appeal.
The first matter urged in plaintiff’s brief is a dissertation on the point that the evidence on behalf of defendant, if accepted as true, shows that plaintiff and defendant were engaged in mutual combat, the legal consequence of which would be to render defendant liable for any damages sustained by plaintiff. The case of McCulloch v. Goodrich, 105 Kan. 1, 181 Pac. 556, and earlier cases support the rule that persons consenting to and engaging in a mutual combat are liable reciprocally for injuries they may inflict on each other. Such was formerly the general rule of law, but present-day legal opinion has largely discarded it. (Restatement, Torts § 60, comment and illustrations.) However that may be, the matter is unimportant here, since no feature of the evidence tended to prove that the shooting and wounding of plaintiff occurred in or was the result of a mutual combat.
Appellant’s next grievance is partly directed at the jury’s disregard of what he considers the “clear and convincing” evidence. This point, however, presents nothing for appellate review. Included-in this assignment is a complaint touching the trial court’s refusal to set aside the verdict and grant a new trial; but this phase of the appeal can be dealt with more logically after some other errors urged on our attention are considered. One of these is based on the exclusion of-evidence offered by plaintiff to rebut defendant’s evidence in respect to the right of possession of the pasture at the time defendant shot the plaintiff. In his case in chief plaintiff had introduced his written lease of the pasture, which terminated August 1, 1931. He then attempted to show by oral testimony that he had been permitted to remain in possession for another year. This was excluded on defendant’s objection thereto. The court’s ruling reads:
“Objection sustained. I don’t see that it cuts any figure if he was occupying it at the time.”
Passing the question whether this ruling was correct or not, defendant was permitted to adduce evidence tending to show that plaintiff’s right of occupancy of the pasture had terminated. The record reads:
Defendant testifying on direct examination:
“I had a conversation with Wood about March 14th [a month before the shooting]. He ‘said he had decided to turn the pasture back to me.’ . . .
“Wood came to my place about noon on April 13th. The first thing he said was, ‘How about the pasture?' ... I said, ‘Wood, you know the pasture is not for rent, and that you have turned it back to me.’ He said, ‘You want the pasture?’ I said, ‘Under our agreement you turned the pasture back, and I expect to keep the pasture.' ”
Cross-examination:
“When the three-year lease on this Lota McKeever land was up in August, 1931, I asked Wood if he intended to hold it for another year, and he did not say anything.”
On rebuttal, plaintiff tendered in evidence a letter from the co-trustee of the pasture, addressed to plaintiff’s wife six days after the shooting, containing a statement of account against plaintiff, which among other matters read:
“He [plaintiff] has had the use of the pasture for four years, having taken over the pasture in 1928. This makes a total of $990, so deducting from this, the total payments made, or $564.25, there shows an unpaid balance of $425.75 still due.” [Italics ours.]
This evidence was objected to by counsel for defendant on the ground that—
“It hasn’t a thing to do with the issues in this case.
“By the Coxjet : What is the purpose of this?
[Counsel foe Plaintiff] : “The purpose of this is to show that he had this property leased at the time of this shooting, and up to August 1, 1932, according to the lease, and that there was no such arrangement as is claimed here by McKeever. The statement covers that period of time up to August 1, 1932. Covers the pasture.
“By the Court: Objection sustained.”
Counsel for plaintiff concede that the trial court’s first ruling on the proffered evidence of plaintiff’s right of possession of the pasture may have been correct — on the theory that at that stage of the trial his right thereto had not been controverted. But when defendant testified that plaintiff had renounced his right to the pasture, the rebuttal evidence inherent in the contents of the letter of the co-trustee which conceded that plaintiff was in possession of the.pasture and was being charged therefor, was both pertinent and material, both in respect to plaintiff’s possession and to his right of possession at the time he was shot by defendant. It is rather obvious, we think, that plaintiff’s right of possession of the pasture and his consequent right to turn defendant’s cattle out of it had an important bearing on the material issues of this case. Its significance on the question of defendant’s alleged wrongdoing can hardly be controverted. While the trial court ruled in the first instance that plaintiff’s possession or right of possession “cuts no figure” in the case, defendant adduced evidence on the same subject, therefore plaintiff’s rebuttal evidence which would have clinched his right of occupancy should not have been excluded. The fact that the cotrustee’s letter was addressed to plaintiff’s wife is unimportant. It was written six days after plaintiff was shot. Any correspondence relating to plaintiff’s business affairs could not then receive his personal attention; and quite naturally the statement of account touching the rent due and related matters was addressed and submitted to Mrs. Wood. It seems to this court that the exclusion of this rebuttal evidence was erroneous and prejudicial. Indeed, the trial court, in our opinion, might quite properly have made short work of the question of possession by a ruling that plaintiff was in possession and had the lawful right of possession of the pasture as a tenant from year to year and also by acquiescence of the lessors of the property who had taken no lawful means to remove him.
Error is next assigned on the restrictions placed on the cross-examination) of defendant to show a discrepancy between his testimony at his criminal trial and in this civil action. In this case defendant testified that just before he shot plaintiff that “Wood reached around in front of him like he was after a gun.” In the criminal case he had testified:
“Q. Did he, Wood, seem to have something in his hand? A. I did not take time to look.”
While the extent of the cross-examination of witnesses is largely governed by the discretion of the trial court, a more searching cross-examination of a witness who is a party principal in the litigation is usually permitted; and in the instant case the plaintiff’s complaint touching the restriction of the cross-examination seems well-founded. (Brown v. Meyer, 137 Kan. 553, 561, 21 P. 2d 368.) In Tawzer v. McAdam, 134 Kan. 596, 603, 7 P. 2d 516, it was said:
“Where determination of the main issue of fact must largely depend upon the credence to be accorded to the testimony of a litigant who is the principal witness in his own behalf, a wider range of cross-examination should be allowed than is commonly permitted in the cross-examination of witnesses in general.” (Syl. 12.)
Another error is based on the overruling of plaintiff’s objection to the cross-examination of a witness for plaintiff. Defendant had produced evidence tending to show that plaintiff had the reputation of being a violent, turbulent and vindictive person. Plaintiff produced witnesses in rebuttal who testified that his reputation as a peaceable law-abiding citizen was good. On cross-examination of one of these, John Latta, the record reads:
[Counsel for defendant] : “You said they were telling what a fine fellow he was. Were they standing around on the street corner and announcing it from the housetops so that everybody could hear it?
[Counsel for plaintiff] : “We object to that as improper cross-examination.
“By the Court : Overruled.”
While plaintiff’s objection might quite properly have been sustained, it can hardly be held that the ruling constituted prejudicial error.
Another error urged relates to the court’s refusal to permit the plaintiff to bare his chest and arm before the jury so the doctor who attended to the wounds of plaintiff could more clearly describe the course and direction of the bullet. We discern nothing prejudicial under this assignment. A more debatable ruling was made when the ■court sustained defendant’s objection to a question propounded to •the doctor touching the painful character of a nerve injury such as ’«the bullet wound had caused in plaintiff’s arm. The objection was that the question was irrelevant and “that the witness hasn’t shown himself qualified to answer.” Both objections were bad. We do not find, however, that this erroneous ruling was reserved for presentation on the motion for a new trial as the code requires. (Hunter v. Greer, 137 Kan. 772, 22 P. 2d 489.)
Yet another complaint relates to alleged misconduct of certain jurors and of alleged tampering with the jury. On the motion for a new trial, testimony of two witnesses was offered which tended to show that while the trial was pending one of the jurors, during some intermission, discussed the case with persons in a store in the town of Crystal and expressed his opinion on the credence he would attach to certain testimony and withhold as to other testimony. Eventually this juror was reminded by a bystander that he should not talk about the case. Another instance of misconduct was testified to, which tended to show that during intermissions of court one of defendant’s witnesses was repeatedly seen in conversation with a juror in this case, and whenever the witness to such misconduct attempted to get close enough to hear their conversation it ceased. Whether these irregular incidents would be sufficient in themselves to reverse this judgment need not be determined. It is almost superfluous to add that if clearly established the recalcitrant jurors should be severely dealt with, and the officious witness who was repeatedly seen in private conversation with one of them should likewise be made an example of.
The foregoing disposes of the principal matters urged upon our attention. As we have shown, some of plaintiff’s assignments of error have not been sustained or have been regarded as nonprejudicial. But the exclusion of the rebuttal testimony which would have established plaintiff’s right of possession of the pasture, we regard as prejudicial error. And as we have seen, there were other untoward incidents in this lawsuit which may explain how it happened that plaintiff came out of it empty-handed, notwithstanding the severe and lasting injuries he sustained through the violence of defendant. We readily concede, of course, that whether that violence was justified or not is not primarily our concern; but the trial errors we have noted argue too potently that justice may have miscarried, and that a new trial should be awarded.
The judgment of the district court is reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in this case is by two of six children and heirs of mortgagors, now deceased, in a mortgage foreclosure action in which they, as defendants, were served only by publication in a newspaper, and whose application to open up and set aside the judgment rendered against them was denied. The trial court heard evidence on the question of these defendants not having actual notice of the pendency of the action in time to appear in court and make a defense, and also heard and sustained the demurrer of plaintiff to the sufficiency of the answer presented by the defendants in connection with their application, from which ruling these defendants appeal.
The application to open up and set aside the judgment rendered against them on publication service was made under the provisions of R. S. 60-2530, which requires among other things that they “shall file a full answer to the petition.”
The answer is denominated an answer and cross petition. At considerable length it sets out their ownership of a two-sixths interest in the property involved on which their parents gave the mortgage which had been foreclosed; their absence from the- state of Kansas; the possession of the property by the other children of the deceased mortgagors; description of the mortgage given by their parents as being for $2,600, dated December 8, 1925, and given for five years, and further alleges:
“That large payments were made by said M. G. Bolin and his wife during their lifetime. The dates of said payments and the amounts thereof are to these defendants unknown, but plaintiff admits payments in and by the petition amounting to one thousand six hundred eighty (1,680) dollars on principal and interest. That besides said payments said M. G. Bolin and wife had paid all coupons attached to said note. That these defendants believe and allege that other payments were made by said M. G. Bolin and wife in their lifetime. The dates and amounts of which payments are to these defendants unknown.”
The pleading then asks for an accounting with .the mortgagee and a determination of the amount due plaintiff, if any, from these two defendants on account of their claim of ownership of an undivided two-sixths interest in the mortgaged land, for proper equitable relief against their codefendants, and for partition of the land involved between these defendants and others interested therein. In the prayer of the petition is the following:
“. . . for an accounting of the amount due, if any, to said plaintiff, and leave to redeem and free the two-sixths interest in said real estate owned and set apart to these defendants from any lien found to said plaintiff herein.” <
The two parts of the answer here quoted are those which would most nearly constitute the defense of these two defendants to the plaintiff’s petition to foreclose the mortgage.
The counter abstract sets out some of the defaults of the defendants as alleged in the petition as follows: failure in payment of interest, maturity of note a year and a half before the filing of the petition, failure to pay taxes of the years 1929, 1930 and 1931, failure to make needed repairs and committing waste.
Is the answer a full defense to such a petition? Appellants cite Williams v. Kiowa County, 74 Kan. 693, 88 Pac. 70, to show that a full defense need not be coextensive with the entire demand or with every demand of the petition, but in that connection it is further said in the syllabus:,
“. . . but whatever defense it proposes must be complete and perfect in the sense of fully overcoming the portions of the plaintiff’s claim against which it is directed; and it must subvert sufficient of the cause of action set forth in the petition to make it worthy of consideration in the doing of substantial justice between the parties.” (Syl. ¶ 1.)
Appellants also cite Wyatt v. Collins, 105 Kan. 182, 180 Pac. 789, where it was held:
“An answer filed with an application to open a judgment in a suit to quiet title, which expressly denies the facts pleaded in the petition, is a ‘full answer’ within the meaning of the provisions of section 83 of the civil code.” (Syl. If 2.)
This was where the answer contained a general denial of the allegations of the petition and later an amended answer was filed alleging fraud on which the defense largely relied.
Appellants also cite Cox v. Anderson, 115 Kan. 709, 224 Pac. 908, and the rehearing thereof in 116 Kan. 213, 225 Pac. 1044, in the latter of which it was stated in the opinion that the answer must state a defense to the whole or at least a part of the cause of action. Albright v. Warkentin, 31 Kan. 442, 2 Pac. 614, is also cited as to one not being deprived on technical grounds of the privilege of making a defense.
Of course the answer must be liberally construed as to its being a defense or partial defense, if its language justifies it. In answer to one of the cases above cited it may be said that our attention has not been called to any general denial in the answer in this case or to any special denial of the allegations of the petition unless the parts above quoted therefrom are such. The statements in the answer about large payments having been made by the mortgagors in their lifetime, and that defendants believe and allege that other payments were made by the mortgagors than those acknowledged in the petition, but the dates and amounts of such payments are unknown to the defendants, may be good allegations in an action for an accounting, but they do not meet the allegations of the petition as to default of principal and interest and the failure to pay taxes. The portion above quoted from the prayer of the answer practically admits a balance due the plaintiff and more nearly indicates that the purpose of the pleading is for an accounting, redemption and partition.
In the case of Pilsen State Bank v. Riffel, 137 Kan. 678, 21 P. 2d 348, outside matters were alleged in the answer concerning the failure to record assignments of the mortgage and as to the defendants being uninformed as to certain matters, and these were by the court held not to be any defense to a mortgage foreclosure petition.
In Durham v. Moore, 48 Kan. 135, 29 Pac. 472, the answer in a similar kind of an action contained conditional denials, and set forth many figures from which a conclusion is attempted to be drawn, and then the answer bases a denial upon such conclusion, and in denying the application to set aside the judgment the court said:
“Where a defendant applies, under section 77 of the code, to have a judgment rendered upon service by publication opened up, and asks to be let in to defend, he must bring himself clearly within the provisions of the statute. If the answer filed fails to show a meritorious defense, it is not error for the court to overrule such application.” (Syl.)
In the case of Withers v. Miller, 140 Kan. 123, 34 P. 2d 110, the requirements of such an application were set out specifically in the form of questions, one of which was “Has he filed an answer stating a defense?” (See, also, Chambers v. Rose, 111 Kan. 22, 206 Pac. 336, and Wyandotte County v. Kerr, 112 Kan. 463, 211 Pac. 128.)
We conclude that the answer filed in this case did not state a defense to the petition and that the demurrer thereto was properly sustained, and therefore the application to open up and set aside the judgment theretofore rendered was properly denied.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover for injuries sustained by plaintiff while driving upon the streets of Wichita, and from a judgment in his favor the city appeals, urging that the evidence and special findings (a) showed plaintiff was guilty of contributory negligence which barred his recovery, and (b) failed to show the city had notice of the defect for a sufficient time to have remedied such condition.
Briefly stated, the evidence showed at a certain point in the street the city had a manhole over a storm sewer; that in times of heavy rains the water would come up through the manhole and displace the cover; that sometime before the injury complained of the city took away the existing cast-iron manhole cover and put in its place another iron cover which was filled in and covered over with asphalt. On the day of the injury, and during a heavy rainstorm, plaintiff drove a model T Ford down the street and ran into the manhole, the cover of which had been displaced by the water escaping from the storm sewer. The jury, in addition to its general verdict, answered special questions as follows:
“1. Do you find from the evidence that on September 21, 1932, the manhole cover in question was displaced prior to the time plaintiff ran into it? A. Yes.
“2. If you answer the preceding question in the affirmative, state:
(а) How long said manhole cover was displaced prior to the time plaintiff ran into same. A. 30 minutes.
(б) What caused said manhole cover to be displaced at said time? A. Heavy rain.
“3. Was the water from said manhole shooting up above the street level immediately prior to and at the time plaintiff ran into same? A. Yes.
“4. If you answer the preceding question in the affirmative, state how high said water was shooting above the street level at said time. A. 2 feet.
“5. If you answer question 3 in the affirmative, state how far said water shooting up from said manhole was visible immediately prior to the time plaintiff ran into same. A. 75 feet to person not out in rain.
“6. State whether plaintiff could have seen said water shooting up from said manhole in time to have avoided same. A. No.
“7. State whether or not there was room for plaintiff to have gone north or south and avoided running into said manhole. A. Yes.
“8. At what rate of speed was plaintiff proceeding immediately before he reached the manhole cover? A. 20 miles.”
The city filed no motion to set aside any answer as not sustained by the evidence, nor as contrary to the evidence, but did file its motion for judgment notwithstanding the verdict on the ground that the special answers showed plaintiff guilty of contributory negligence; that the city had no actual notice of any defect existing at the time of the injury; that the defect found did not exist for such length of time that the city, by exercise of reasonable care, would have knowledge of the existence of the defect, and that the answers show defendant is entitled to judgment. This motion, as well as the city’s motion for a new trial, was denied.
Appellant’s first contention amounts to this: Appellee was guilty of contributory negligence as a matter of law.
The jury’s findings and the evidence showed that the manhole cover had been displaced by the heavy rain and that water was shooting up about two feet above the pavement at the time of the accident; that plaintiff was driving his model T Ford, which was equipped with lights with which he could see about a block ahead when it was not raining, but with which at the particular time he could see about eight feet ahead; that it was raining hard; that he could see red lights on a car half a block ahead; that the pavement was covered with water and he could not tell how deep it was, and while driving along he ran into the manhole. The jury found he could not have seen the water shooting up from the manhole in time to have avoided it.
Appellant’s argument is based on the holding of some of our decisions that it is negligence as a matter of law to drive an automobile along a highway on a dark night at such speed that it cannot be stopped within the distance that objects can be seen. The question whether there was a defect which could be seen within the range of the headlights was resolved against appellant’s contention by the jury; it is true witnesses who were on porches near the street said they could see the water spouting up. The jury had to consider whether the driver of a car who had to watch the road ahead of him for other cars and traffic, during the continuance of a hard rain, was bound to see the spouting water where the whole pavement was covered with water. It might well be that a person sitting on a porch, protected from the storm, and watching a limited field, could observe things not discernible to a driver passing down the street in an automobile. If reasonable minds might come to different conclusions from the facts, the question was for the jury.
The same contention was made in Sponable v. Thomas, 139 Kan. 710, 719, 33 P. 2d 721, where a somewhat similar situation obtained. In that case decisions of the court, relied on here, were cited and distinguished. While the plaintiff was not warranted in blindly driving down the street without paying any attention to the condition of the street, he did have the right to assume that the street itself was reasonably safe and did not have pitfalls and open manholes therein. Had the night been clear and had there been water gushing up from the manhole, a different situation would have been presented. Because it was raining hard and travel was difficult did not mean that plaintiff proceeded down the street at his peril. Under all the circumstances, we are of the opinion that it was a question of fact whether or not plaintiff was guilty of negligence that contributed to his injury, and that it cannot be said as a matter of law that he was so guilty.
Appellant’s second contention is that the city had neither actual nor constructive notice of the defect. This argument is predicated on the answer of the jury that the manhole cover was off only thirty minutes prior to the injury. The appellee’s evidence showed that originally the manhole was covered with a cast-iron cover; that it had a tendency to rattle off and to come off during hard rains; that the city was notified and the first cover was replaced by another cast-iron cover which was filled in with asphalt. It is not clear from the evidence just when the second cover was put on but apparently it was about three years before the injury. About three or four months before the injury a man living near the place called and told the street and alley department of the city that whenever there was a heavy rain there was a tendency to blow off the manhole cover. Witnesses who were employees of the city’s street department testified that complaints were made, but put the time two or three years before the accident. It was shown by the city that after the injury it had replaced the asphalt cover by putting down an open grate covering, which was bolted down.
The city relies on Seymour v. Kelso, 136 Kan. 543, 16 P. 2d 958, in support of its contention that the city had no notice. It does not support the contention, for in that case a hayrack was permitted to fall into a street and cause injury. Here the defective condition was caused by the city’s own construction.
An exhaustive annotation on liability of a municipal corporation for defects or obstructions in streets will be found in 20 L. R. A., n. s., 513. On the question of notice, see page 701 as to where the obstruction is created by the city, page 717 as to general defectiveness as affecting particular defect, and page 725 as to city’s duty to inspect.
In City of Abilene v. Cowperthwait, 52 Kan. 324, 34 Pac. 795, the city had permitted an owner to make an excavation in the sidewalk and street in front of his house, the opening not being securely guarded or covered. Cowperthwait walked on the covering and it collapsed and he was injured in falling into the excavation. The city defended on the ground it had no notice. There was dispute in the evidence as to the sufficiency of the covering, whether it was properly constructed, etc. It was held to be the duty of the city to exercise a reasonable supervision, and had it done so the perilous character would have been apparent, and under the circumstances it could not be said the city was without notice. In the case before us, however, the city had replaced a concededly insufficient cover with the asphalt cover, and complaint had been made as to it. While there was dispute in the evidence, the jury was warranted in believing the testimony that within a few months of the injury specific complaint that heavy rains were displacing the cover was made to the city. (See White on Negligence of Municipal Corporations, § 270, page 336.) Under such circumstances it cannot- be said that the city was without notice, neither can it be said because that cover was replaced that no defect then existed until the cover was again displaced, and that the displacement having existed only thirty minutes before the injury, that the city had no actual notice and the defect had not continued for a sufficient length of time for it to have constructive notice. It is apparent that the city knew the first cover was insufficient, and when it repaired it, it was obliged to make a repair that remedied the defect; it made a repair and was notified the defect was not eliminated. Under the evidence, which the jury evidently believed, it must be held the city had notice.
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to recover on two promissory notes executed by Harry R. Sullivan and his wife and to foreclose a mortgage given to secure their payment. The money was loaned by Dwyer to Sullivan and the notes were payable to James Dwyer, who is now deceased.
Dwyer owned a farm in Leavenworth county and was engaged in carrying it on. The Sullivans lived some distance away and had served him, it is said, for about eight years, going out to the James Dwyer farm to make settlements with tenants and make a division of the products of the'farm. James Dwyer had agreed that the notes would not be enforced against him by reason of the services he had rendered. When the suit was brought against the defendants they alleged that the services were performed before and after the execution of the notes and mortgage; that they accepted the offer of James Dwyer and continued to serve him, going out to the farm to help him settle disagreements with the tenant and keep accounts against the tenant, going out there about twenty-five times each year. James Dwyer ultimately moved to Lawrence, where he died. But Sullivan had continued to do this work for Dwyer until his death.
The tenant on the farm of the deceased James Dwyer was a brother of the defendant. The renting arrangement between them was not definitely shown, but the settlements indicated that the rent was settled on the halves. They had corn, wheat, oats and milk, and the eggs were divided and settled for frequently, and this was done by Sullivan, it seems, for about four or five years. He says it was done on the promise that the notes should be surrendered and not enforced against him. When James Dwyer died John Dwyer was named as executor of his will, and the notes and mortgages were found among the papers. The will disposed of the property, giving it to nephews and nieces of the deceased. The power and authority of the executor is not in dispute and there is no dispute that th£ notes and mortgages were written and signed by Sullivan and his wife.
The chief contention is that James Dwyer agreed to give Sullivan the notes and mortgages sought to be foreclosed, for the services he had rendered and was rendering for him. The court permitted the defendant to amend his answer to correspond with the proof offered, and the objection to it was overruled. There had been a partial distribution of the estate to the persons named in the will other than Mr. Sullivan, and it was said that he was to get l/56th of the prop-, erty. There were other assets to distribute, but they could not estimate what would go to each. A demurrer to the evidence introduced was overruled and defendant gave evidence in rebuttal of that which had been produced by the plaintiff.
Proof was offered by plaintiff that Sullivan had sought to raise money to pay off the mortgage, but had not succeeded. Finally, when the uncle died, the suit was brought on the note and mortgage. The summer before James Dwyer died he directed that the mortgage due be collected. In the course of the trial the court remarked on an objection to evidence:
“Well, the evidence of one of the witnesses, Hubert Sullivan, is that at the time this note and mortgage was made between the parties, that that $1,500 should be the property of the defendant in consideration of certain services he was to perform; and whether you say it was made before or at the time the note and mortgage was made, or whether it was afterward stated that it would be the defendant Sullivan’s money, and that it should not be enforced against him, I don’t think that makes much difference. I think the pleading is sufficient so that an amendment can be made to it, stating more fully, more definitely, and leaving us in no doubt as to what was intended.”
Leave to answer was granted. The objection was overruled and the testimony admitted. There was a conflict in the testimony and plaintiffs insist that that offered by them is more credible than that produced by defendants, and that defendant’s testimony is not reasonable or convincing. It is said that the agreement not to enforce the notes and mortgages in consideration of the services rendered and required to be rendered could not be made legally, and that a statement in an ordinary conversation for the cancfellation or nonenforcement of a note which was not reduced to writing was not effective. In Smith v. Cameron, 92 Kan. 652, 141 Pac. 596, a similar contract was upheld, and it was there decided:
“An oral agreement of a sister to remove from her parents’ home and live with her brother as his housekeeper and to care for him, upon his promise that she shall have his property at his death, when faithfully kept by her, affords solid grounds for the exercise of the power of a court of equity by a decree for specific performance.” (Syl. HI.)
In the case of Jacks v. Masterson, 99 Kan. 89, 160 Pac. 1002, the following was said:
“In a suit for partition of real estate between the collateral heirs of a deceased person, the appellee filed a cross petition in which she claimed to be the owner of the real estate by virtue of the full performance on her part of a contract, which she alleged was entered into on the one part by the deceased and his wife in their lifetime, and on the other part by her father when she was a child ten months old, by which her father surrendered to them full control and custody of her in consideration of which they agreed to take her into their family as their own child and heir. The cross petition then alleged ‘that said contract so entered into . . . was evidenced by the following written instrument executed and delivered by the parties, and set out a copy of the instrument which showed on its face that it had been executed and delivered by her father alone, although in the handwriting of the owner of the real estate. Held, that the trial court properly construed the cross petition in its entirety as stating a cause of action founded upon a parol agreement, and as though it had alleged the existence of the written memorandum as some evidence of the terms of such parol agreement.” (Syl. If 1.)
The services, it appears, were rendered for a considerable period; they were of importance and were apparently satisfactory to Dwyer. The only objection he appears to have made was that he wished to get rid of his tenant, and Mr. Sullivan was not favorable to that action.
The court concluded that the services were performed for a series of years, that they were important, that it was a matter of contract that the notes and mortgages were to be given to the Sullivans for the services performed. One of the defendant’s witnesses, when asked what services he knew of having been performed by Sullivan, said, in substance, that there were corn, wheat, oats, milk and eggs to be figured up and a division thereof made. The tenant was collecting the eggs that were brought in and the settlements were made, dividing them frequently. The tenant was practically deaf, which made it more difficult. The son said he was' out there and heard three or four settlements made.
The contract, as we have seen, could be made. The conflict in the testimony was marked and sharp and depended upon which side was the most worthy of belief. The court heard the testimony o.f the witnesses, observed their manner in giving testimony, and had a better opportunity than we have to determine that question. It has been held that the services were performed, the consideration for such services being that the note and mortgage should not be enforced against them, and, under the circumstances, the decision of the court is held to be controlling. We therefore hold that the testimony was sufficient to uphold the decision of the district court.
The court held that an option contract had been made by the Sullivans with the Smiths and that they had an equity of redemption in the land. They were in default on their option and had not made the payments to keep the option in force, and the court therefore held that it should be canceled. It was directed that if the Smiths would make the payments within six months from that date they would be entitled to a deed, but if they failed to make payments their rights would cease. The default in the option contract continued, and it was held that the Smiths were barred, and title to the land was quieted in the Sullivans as against the Smiths.
Our view is that the judgment of the district court should be and it is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action arose out of the sale of a Hart-Parr tractor. When the tractor was purchased, the defendant was engaged in operating a large farm of about 1,000 acres, and was told by the dealer that he should have an 18-36 tractor. The manufacturer of these tractors made three sizes — 12-24, 18-36 and 28-50. The figures indicate the power exerted by’ the machine, eighteen horsepower at the drawbar and thirty-six horsepower orí the belt. Defendant told the seller what was required, and was informed he would need 18-36, and that was what he purchased.
The defendant had given a promissory note for $675 due on the fifteenth day of July, 1929, and a second-hand tractor. The plaintiff had taken over the business of the Hart-Parr company, had pos session of the note and brought an action on it. The contract was made in July, 1928, and among other things provided that the retention or possession for more than six days after first day's use of said machinery, shall be construed as conclusive evidence that the warranty has been fulfilled. The tractor was warranted to be reasonably fit for the purpose for which it was made, an obligation which the law would impose independently of the contract or order under which the article was purchased.
The case was here before and was submitted on the pleadings and an opening statement of plaintiff. (Oliver Farm Equipment Co. v. Rich, 134 Kan. 23, 4 P. 2d 465.) Plaintiff there moved for judgment on his note, contending that defendant was precluded from the defense of failure of consideration by the terms of the written warranty made a part of the contract or order for the machine. On the other hand, defendant contended that the express warranty contained in the order did not preclude the existence of either an express or an implied obligation on the part of the manufacturer to deliver a tractor reasonably fit for the purpose designed and made.
The court held that where a manufacturer sells a machine on a written order, describing it, an express warranty of quality will not exclude an implied warranty that the machine will do the things necessarily implied by the description. There is nothing in the express warranty which destroys the obligation of the seller to deliver the engine described in the order. It is a matter of common knowledge that an engine that will neither develop nor sustain power is of no value.
This having been decided, so much was settled and the trial and proof showed that the former opening statement of counsel in the case was generally verified by the testimony. There were numerous tests made which proved that the engine lacked the power it was designed to exert; and the agents and mechanics of plaintiff came and undertook to remedy the defects and make it exert more power, but when it was called on for greater power it could not exert it, and therefore was worthless to the purchaser who had bought it for heavy work which it could not perform.
A variety of tests were made by the mechanics and experts sent out by plaintiff to correct the defects in the tractor. They said it would not produce the power, but they could not understand what was the trouble with it. The warranty which was agreed to says the Hart-Parr tractor is well made, of good material and workmanship. It is guaranteed to burn kerosene and to develop as much power from it and use no more of it than of gasoline; if any part of the tractor breaks within one year from the date of delivery because of faulty workmanship (batteries, spark plugs or other electrical equipment excepted) a new part will be furnished by the manufacturer free of charge at Charles City, Iowa.
A reading of the testimony in the record satisfies us that it is substantially the same as was set forth in the opening statement of counsel in the first trial. There were a few things that could be done on the farm with the tractor where not much power was required, but when heavy work was to be done in plowing or harvesting it failed to operate successfully. The experts worked on the tractor, but failed to develop power. Late in 1928 defendant undertook to cut and combine maize, but it failed to work, as it had failed in the wheat field. When he slowed down so as to do the work, the motor would stall. In one such case a half day was spent trying to make the machine work, and it was found impossible, and defendant resorted to an old motor which cut and combined it without any trouble.
Defendant had occasion to use the tractor in the spring of 1929, and in one of the tests made by mechanics and experts sent out by plaintiff, they represented they had put a new block in the motor, but it did not work any better; and later a test was made by pulling it with another tractor, upon the theory that if the small tractor would plow the same hard and dry land in high gear, the plaintiff would give him his note back or give him another and better tractor. Cook, the owner of the small tractor, had no trouble in plowing the land, going in high gear. But plaintiff failed to carry out its contract.
It was well shown that the tractor was weak and that no amount of treatment of mechanics and experts of plaintiff could develop the power in it. Defendant had tried hard enough to have the defects cured, and plaintiff’s mechanics sent out in 1928 and again in 1929 tried, but without success; even trying for more than a year after the six-day test mentioned in the contract. In fact, plaintiff and its experts concluded that they could not develop the power it was represented to have, and experts found it was weak and not as represented, but were unable to find or cure the trouble.
A number of complaints are made on rulings on admission of evidence. One was a question as to the kind of a tractor the plaintiff should buy to pull a certain plow, and the dealer told him that an 18-36 horsepower was the tractor for him for such a plow. This was competent to show the kind of work the tractor was designed and made for, and in view of the ruling on the first trial that it was designed for eighteen-horsepower at the bar, it was not material error or important.
Another objection was in allowing the defendant to testify that the tractor was worthless to him, which testimony was not stricken out on motion of plaintiff. • That was an issue in the case as made by the pleadings, and the tests were made showing that it was of no value to the plaintiff who purchased it for work which it failed to perform. It may not be the best evidence of the fault in the tractor, but it is clear that it was not material error.
The plaintiff sent out advertising matter which was distributed in the neighborhood. It advertised the Hart-Parr tractor; that it would pull 1,535 pounds at three miles an hour; that this power was made with the cheap, low grade of fuels; that they saved one-half of the gasoline and added to the season’s profits; that Hart-Parr will pull seven plows on a special occasion without straining or laboring; that the surplus power is there when it is needed, and that the Hart-Parr 18-36 is built for all kinds of heavy farm work, and actually develops 32-43 power in official tests. It is equipped for all kinds of farm and custom work developing a speed of four and one-fourth miles per hour. This with a good deal of elaboration was distributed generally and was mailed to the mailing lists of the agent. He said he knew Mr. Rich had been brought to his office when the purchase was made, but he could not say that he delivered one of the circulars to him, but that it was likely he did. This evidence was offered to show what the manufacturer designed as to the power that would be exercised by the 18-36 tractor, and that it was constructed to supply the designated power. It is deemed to be admissible to show that it would exert the power which it was marked and recommended to do and sufficient to show the power that plaintiff designed it to exert.
Complaint is made of instructions 6, 7 and 9, which show adoption of the rules determined by the court on the first trial, but these are without material error.
Instruction 22 is complained of, but it is favorable to the plaintiff, and is as follows:
“You are. instructed that if you find that'the tractor in question was defective, that is, that it would not do wholly the work for which it was intended, but that the defendant used said tractor and that it partially did the work for which it was intended although in some degree defective, then and in such case you would be authorized to allow the plaintiff such sum as you believe from the evidence the plaintiff is fairly entitled to, provided you find that the defendant never returned or offered to return the tractor to the plaintiff; that is, you would be authorized to allow the plaintiff the fair and reasonable value of the tractor, taking into consideration all the facts and circumstances as shown by the testimony.”
It will be seen that the instruction advises the jury that if the tractor was defective and that it partially did the work for which it was designed, the plaintiff might be allowed the fair and reasonable value of the tractor as shown by the testimony. Plaintiff has no room to complain of the instruction.
We see no reason why the judgment should not be affirmed, and it is so ordered. | [
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The opinion of the court was delivered by
Burch, J.:
In an action commenced by the Citizens State'Bank of Humboldt, as plaintiff, against defendants, W. C. Shaffer and Clark O. Works, two verdicts were returned! We are concerned here with but one of them, which was a verdict in favor of Works and against Shaffer. Charles Wilkerson was a member of the jury. On motion for a new trial, the court set aside the verdict on the ground Wilkerson was related to Works. Works appeals.
The nature of the relationship between Wilkerson and Works was established by affidavits of G. V. Seymour, Ida Seymour and Charles Wilkerson. The relationship is undisputed, and is shown by the following genealogical table:
GENEALOGICAL TABLE
The journal entry of judgment reads:
“The court, after hearing.said motion and argument of counsel and being duly advised in the premises, finds that while, the juror, Chas. Wilkerson, was remotely indirectly related by marriage to the defendant, Clark O. Works, it was such as compels the court to grant the defendant Shaffer a new trial as between defendant Shaffer and defendant Works, the judgment as between plaintiff and defendant Shaffer to stand'. The finding of the court as to such relationship being determined by the facts set forth in the affidavits of G. V. Seymour and Ida Seymour and Chas. Wilkerson.
“It is, therefore, by the court considered, adjudged, ordered and decreed, . . . that the defendant W. C. Shaffer’s motion for a new trial be sustained on the ground that the juror Chas. Wilkerson, while remotely indirectly related by marriage to the defendant Clark O. Works, yet such relationship made said juror Chas. Wilkerson incompetent, and overruled as to all other grounds.”
The result of the foregoing is, the motion for new trial was sustained on the single ground the juror was incompetent. The juror was not incompetent. (State v. Hooper, 140 Kan. 481, 500, 502, 37 P. 2d 52.)
Shaffer presents the cases relating to discretion of the trial judge in granting a new trial. The cases have no application. The court exercised no- discretion. The court specified the evidence establishing relationship, and then held the relationship disqualified the juror.
Shaffer’s brief presents a number of matters not disclosed by the record, not specified by the court, as forming a basis for its ruling, and excluded by the court from consideration by express specification of the basis for the ruling.
The judgment of the district court is reversed and the cause is remanded with direction to deny the motion for new trial, to reinstate the verdict, and to render judgment pursuant to the verdict | [
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The opinion of the court was delivered by
Smith, J.:
This is a claim against the administrator of the estate of Margaret Schindler, deceased, for personal services based upon an alleged oral contract. Judgment was for claimant. The administrator appeals.
Margaret Schindler died in Wichita on March 15, 1930. She died intestate and, as far as is now known, without heirs. She left an estate of approximately $75,000. On account of the statutes which provide that when one dies intestate and without known heirs the estate after the lapse of a certain number of years escheats to the state for the benefit of the common school fund, the attorney-general, as well as the attorney for the administrator, appeared in this action to safeguard the interests of that fund. Since the death of Mrs. Schindler several actions have been brought by persons who claimed to be heirs, or by persons who claimed the estate or a part of it on account of an alleged contract with Mrs. Schindler during her lifetime. None of the claimants have been successful so far in this court.
This court took cognizance of the situation in the opinion in McVeigh v. First Trust Co., 140 Kan. 79, 34 P. 2d 571. In that opinion it was suggested that wherever possible, without prejudice to the rights of litigants, these cases should be consolidated, heard together and finally disposed of so that the estate will not be consumed in the expense of litigation.
The claim in the present case concerns a contract alleged to have been made by deceased in 1887. In that year Mrs. Schindler and her husband were keeping house in Indianapolis. He owned and operated a hardware store there. Eor some time before his death there is evidence that his mind was impaired. He died in 1899. Soon after his death Mrs. Schindler moved to Wichita, where she resided until her death. The claimant in 1887 was 15 years old. In that year she started to work for Mr. and Mrs. Schindler, doing housework in the home. She continued' in this capacity until 1898, except for one year while the family was in California. There was evidence that she helped care for Mr. Schindler in his last illness. She was paid $2 a week and board and room. The claim is for the difference between that amount and what she claims to have been reasonable compensation for the services performed. In 1892 claimant started keeping company with the man she afterwards married, and who is still her husband. Claimant continued to work for the Schindlers until 1898. In that year Mr. Heine completed his studies for the ministry, which he had started when he entered the theological seminary in 1892, and he and claimant were married.
After pleading the facts, about as above set out, plaintiff pleaded first that in April, 1887, she made an oral contract with Mrs. Schindler to perform personal domestic services in the home of Mrs. Schindler and “in consideration whereof Margaret Schindler agreed to pay this plaintiff well and at full value for said services to be performed by the plaintiff by making a will with a devise, bequest or legacy in said will to this plaintiff for the amount due this plain tiff over and above any amount actually paid to the plaintiff during the time said services were rendered.”
As thus pleaded, this contract is one for no definite term and in which claimant agreed to wait until Mrs. Schindler’s death for part of her compensation.
The petition then alleged the performance of her part of the contract until June 1, 1898, except for a year from December 1, 1892, to December 1, 1893, when Mr. and Mrs. Schindler were in California.
The petition alleged further that the condition of Mr. Schindler grew steadily worse and that he became insane and helpless before he died.
The petition then alleged that in 1892 claimant became acquainted with William Heine; that William Heine was about to leave Indianapolis, Ind., and remove to Springfield, 111., to enter a theological seminary there, where he would remain six years; that Mrs. Schindler became alarmed for fear this would cause claimant to leave her employ and go to Springfield to seek employment in that city; and that the said Margaret Schindler at said time reaffirmed the oral agreement in all respects hereinbefore mentioned and requested that this plaintiff remain in the service of the deceased, particularly on account of her ability to handle Mr. Schindler, until such time as William Heine should graduate from his studies, and that she, the deceased, would compensate plaintiff well in her will for such services; that this plaintiff agreed to, and did so remain until June 1, 1898, at which time the said William Heine graduated and this plaintiff and the said Rev. William Heine were married.
The petition alleged the performance of the contract on the part of claimant; that the reasonable compensation for the services performed was $22 per week; and prayed judgment for $10,400, this amount being claimed to be the difference between the amount actually paid and the reasonable compensation for the services.
Defendants filed a general denial and raised the defense of the statute of frauds and the statute of limitations. Trial was before a jury. At the close of the case for the claimant, the trial court sustained a demurrer to the evidence of claimant in so far as it related to the contract claimed to have been made in 1887, but submitted the question of the contract claimed to have been made in 1892 to the jury. A verdict in favor of claimant was returned. Judgment was entered accordingly; hence, this appeal.
Defendants argue that the claim is barred by the statute of limitations; that there is no substantial evidence of the agreement pleaded; that the only agreement sought to be proved is barred by the statute of frauds; that the claim is barred by the statute of non-claim ; that there is no substantial, competent evidence that claimant was not paid the value of her services.
The position of claimant is that the claim is not barred by the statute of limitations because it did not accrue until the death of Mrs. Schindler, and that action was brought within the statutory time after her death.
This contention will be dealt with later in this opinion. On the question of whether there was substantial evidence of the agreement pleaded, the record must be examined.
The evidence on this point was the oral testimony of claimant and her husband. In brief, claimant’s testimony was as follows:
“Q. Now, did you ever have a conversation with Mrs. Schindler in reference t'o what she would do for you if you would remain and work as a domestic in the family? A. Yes; she talked it over with me and made the agreement if I would stay with her.
“Q. Now, Mrs. Heine, what was the agreement? A. Well, that she would will or do good for me if I would stay with her. That she would pay me well.
“Q. How was she going to pay you? A. In her will, she would will me some of her property, make it good that way.
“Q. After you had what you call an agreement with her did you stay in the family and work? A. I stayed with them.
“Q. When did she make that agreement with you, Mrs. Heine? A. That was in 1892.”
Referring to the matter, she later said:
“In 1892 Mr. Heine came to see me frequently at the Schindlers. It was about then that we became engaged. Mrs. Schindler knew it. She discussed it with us. In the presence of my husband Mrs. Schindler said to me ‘that if I would stay with her she would will me something. If I would stay with her until I got married she would make it good with me.’ The length of time Mr. Heine would be away at college she knew, and that was six years.”
That was all that claimant knew about the contract in June, 1931, and she did not attend the trial because of illness. When the case was tried in March, 1934, her husband testified in court and said:
"I began to keep company with Anna Huebner (claimant’s maiden name) at the end of 1888 and went to the Schindlers to see her perhaps once or twice a week. I concluded to enter the Evangelical Lutheran pastorate in the spring of 1892 and at that time I had some conversation with Margaret Schindler about entering the pastorate. That was in June of 1892, when I was on my way to enter college in the fall.”
“Anna Huebner and I were engaged prior to the time I decided to go to school. Mrs. Schindler approached me about our engagement.
“She proposed to me. Anna Huebner told her we were engaged and that we had made an agreement with each other ahead of time that she would stay with them and they would will all their property to her, and now she had broken this agreement — understand—she is engaged to me and so she arranged another agreement that she wanted her to stay with her anyway up to the time that I would finish my study and get married for the reason to help her along in the household affairs and especially in helping her to take care of the insane Mr. Schindler, and she had on her side agreed that she would later on make good for this service to stay there up to that time, to will plenty of property to her, and so she told me, to consent to this, not to interfere and not to coax her away.”
He further testified that at the time of this conversation he knew he would be at school six years and that it could not be shorter than six years and that Mrs. Schindler knew this. He further testified as follows:
“Q. Had Anna made any arrangements at the time that conversation was had to leave the employ of Mrs. Schindler, that you know of? A. Mrs. Schindler somewhat was worrying that she would leave.
“Q. But do you know whether Annie had made any plans or arrangements to leave? A. No, no; there was no plan made. Worry without reason.”
There was some other evidence offered to support the contentions of claimant but it is not deemed of sufficient importance to be noticed here.
In brief, the contract pleaded is that claimant agreed to stay and work for the Schindlers for six years and in return Mrs. Schindler agreed to pay her a reasonable compensation by way of a bequest at the time of her death. It must be remembered that nothing is pleaded about the $2 per week which claimant received during the time that she was working.
The evidence offered to sustain this contract is that claimant had no intention of leaving the employ of the Schindlers but that Mrs. Schindler told her that if she would stay with them for six years they would “do good” for her or pay her well. The evidence of the husband was to the same effect, except that he testified that Mrs. Schindler agreed to will plenty of property to her.
It should be stated here that this claim is brought altogether upon a contract. There can be no recovery unless the contract is proven. The position of claimant on the question of the statute of limitations precludes any conclusion but this. Since that is the case, we must examine what the evidence shows to have transpired between claimant and Mrs. Schindler. In order for a contract to exist there must be a meeting of the minds. On what proposition did the minds of the parties meet here? First, that claimant was to stay and work for six years. Examining the record, we fail to find any evidence that claimant was about to leave had this alleged contract not been made or that she was dissatisfied with the wages she was receiving. What does the record show on the side of Mrs. Schindler, on which the minds of the parties met? In the light of the circumstance just spoken of, that claimant had no intention of leaving, and in the absence of evidence that claimant was dissatisfied with what she was receiving, we must construe the statements of Mrs. Schindler. The language speaks of no fixed remuneration for claimant. No standard of measurements by which claimant or Mrs. Schindler could tell how much Mrs. Schindler was to leave claimant in her will is given. Considered together with all the surrounding facts and circumstances, what is proven by this evidence? Little more than the expression of an intention by Mrs. Schindler to leave claimant something in her* will, the amount being whatever Mrs. Schindler might at that time deem appropriate. Claimant in 1892 did just what she had intended to do; that is, she continued in the only job she had ever had. This conclusion is fortified by the fact that after the conversations that it is claimed constituted the contract relied on here, that is, in December, 1892, the Schindlers took a trip to California and were gone a year. Claimant took employment in another family while they were gone. The testimony of claimant is that the Schindlers begged her to come back. Presumably claimant might contend that they wanted her back under the old agreement and she might have come back under it, but there is no evidence to justify such a presumption.
Claimant cites and relies upon many authorities wherein this court has upheld contracts to bequeath property in return for services performed. We do not understand that such a rule is questioned here. The point is that the evidence offered, given its most favorable interpretation, does not prove the contract pleaded.
In the case of Purcell v. Miner, 4 Wall. (U. S.) 513, 18 L. Ed. 435, an oral contract of this sort was considered. The court said:
“It cannot be made out by mere hearsay, or evidence of the declarations of a party to mere strangers to the transaction, in chance conversation, which the witness had no reason to recollect from interest in the subject matter, which may have been imperfectly heard or inaccurately remembered, per verted or altogether fabricated; testimony, therefore, impossible to be contradicted.” (p. 518.)
In Bateman v. Franklin, 114 Kan. 183, 217 Pac. 318, this court said, in speaking of such a claim:
“But such claims may be bona fide, and when they are such and are established by clear and convincing evidence, they are perfectly legitimate and must be respected and enforced ... So far as now appears, it is merely a question whether plaintiff can clearly and convincingly establish the material facts alleged in his petition.” (p. 185.)
See, also, 66 A. L. R. 66, note.
The authorities are overwhelming that to support a contract of this sort the evidence must be clear and convincing and the terms of the contract must be definite and certain. In the case at bar, far from being clear and convincing, the evidence was not such as to warrant submitting to the jury the question of the existence of the contract and the contract pleaded was not definite and certain in its terms as to what was to be done by Mrs. Schindler.
Defendants next argue that the agreement sought to be proved is void under the statute of frauds because it could not be performed within a year. R. S. 33-106 provides:
“No action shall be brought . . . upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized in writing.”
There is no question here but that claimant agreed to work for a term of six years or until 1898. Since nothing was offered to show what the laws of Indiana were at that time, it is presumed that the statute of that state was the same as the law of this state, quoted above. In this connection, claimant argues that even if the contract cannot be enforced, claimant could, recover on quantum meruit.
There are two answers to this argument. The first has been spoken of heretofore. That is, the action is based not on quantum meruit, but strictly on contract. In the second place, if the action was on quantum meruit, it was barred by the three-year statute of limitations three years after the last services were performed in 1898. The fact that the contract had been performed on the part of promisee does not take it out of the statute. That doctrine applies only to contracts that relate to land. (See Osborne v. Kimball, 41 Kan. 187, 21 Pac. 163, and cases cited.) This case comes clearly under that rule. In Wonsettler v. Lee, 40 Kan. 367, 19 Pac. 862, this court held:
“A party who performs labor for another under a verbal contract not capable of performance within one year, and which the other party refuses to carry out, cannot enforce such agreement; but the party refusing to perform, and who has received the benefits of the labor, is liable for the same upon a quantum meruit(Syl. ¶[ 1.)
See, also, 27 C. J. 359, where it is said:
“Plaintiff is entitled to compensation only under such circumstances as would warrant a recovery in case there was no express contract.”
Since we have concluded that where the contract is unenforceable the recovery is on quantum meruit, the three-year statute of limitations has barred recovery. On account of the conclusion that has been reached with reference to the two questions discussed, it will not be necessary to discuss the other questions raised by defendants.
The judgment of the trial ’court is therefore reversed, with directions to enter judgment for defendants. | [
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in this action is by the plaintiffs,
the receivers of the railroad and property of the St. Louis-San Francisco Railway Company, in an action now against the board of county commissioners of Miami county, Kansas, which was by the plaintiffs commenced by filing claims with the defendant board under the cash-basis law for the recovery of excessive taxes paid under protest by the plaintiffs under tax levies of the years 1931 and 1932. The claims being rejected by the board, plaintiffs appealed to the district court of Miami county, where, after a trial and judgment for defendant, the plaintiffs again appealed.
The taxes paid under protest, which are claimed to have been excessive, were in the county general fund, the poor fund and the county road fund of the levy of 1931 and the high-school tuition fund of the levy of 1932. Plaintiffs filed these claims with the board on May 15, 1933, and they were heard and denied by the board on the same day, and appeal was taken to the' district court within time.
The plaintiffs base their claims as arising on implied contracts within the meaning of section 1 of the cash-basis law, chapter 319 of the Laws of 1933, and upon the estimates made and published under the budget law, being chapter 310 of the Laws of 1931, which has since been amended and repealed by the budget law, chapter 316' of the Laws of 1933. The plaintiffs assert that the protest they made in connection with the payment was in compliance with the requirements of R. S/1933 Supp. 79-2005, being section 1 of chapter 291 of the Laws of 1929.
The answer of the defendant board, in addition to being a general denial, included a defense of res adjudicate and the statute of limitations, setting out the former defense at great length in reference to a hearing had before the state tax commission upon the three claims for refund of the 1931 tax here involved and three others, where it is alleged in the answer the state tax commission sustained the demand of the plaintiffs as to the other three items and overruled their demands as to the three items here involved, and that the plaintiffs accepted the refund from the board on the other three items and did not appeal from the adverse ruling of the tax commission as to the three claims here involved.
The plaintiffs filed a motion to strike out parts of the defendant’s answer, which motion was, by the trial court, overruled. Defendant then filed its motion for judgment for defendant on the pleadings, and in connection therewith was permitted to read in evidence the order of the state tax commission in disposing of the matters, above mentioned, when heard by it. The trial court took the motion of defendant for judgment on the pleadings under advisement and proceeded with the hearing of the testimony. A request was made by plaintiffs for findings of fact and conclusions of law, and suggested findings and conclusions were furnished by plaintiffs. The trial court made some findings as to the hearing before the state tax commission, and concluded as a matter of law that the motion for judgment on the pleadings should be sustained as far as it related to the three items under the tax levy of 1931. As to the one item under the 1932 tax levy, the court found the defendant board had in good faith made the levy based upon the estimates and reports of officers and accountants, and mentioned the uncertainty as to delinquencies and failures in payment of taxes, and held, as a matter of law, that the plaintiffs could not recover. From these rulings the plaintiffs appeal to this court.
The ruling of the trial court on the motion for judgment for defendant on the pleadings was made apparently, as claimed by appellants, on the theory that the matters arising out of the 1931 tax levies were res adjudícala. If so, the theory or reason for the ruling was wrong, even if the ruling itself might not have been wrong. The state tax commission is an administrative body and not a judicial body, and matters can only become res adjudícala which are decided by a judicial body. (Coffman v. Hall, 107 Kan. 188, 190 Pac. 761; Salthouse v. McPherson County, 115 Kan. 668, 224 Pac. 70; and Brelsford & Gifford Co. v. Smith County Comm’rs, 139 Kan. 339, 31 P. 2d 25.) This,would not overturn the legal effect of the conclusion on the motion for judgment on the pleadings regarding it either as a demurrer to the petition or claims or as a demurrer to the evidence of plaintiffs. In Smith v. Lundy, 103 Kan. 207, 173 Pac. 275, it was said:
“A motion for judgment on the pleadings invokes the trial court’s judgment on questions of law as applied to the pleaded and conceded facts, and a judgment thereon is equivalent to a ruling on a demurrer. It is a ruling on the merits of the action or defense as presented by the pleadings (Civ. Code, § 565), and its propriety or correctness is purely a question of law.” (p. 208.)
The facts and figures in the case at bar were matters from the records of the defendant, which were necessarily equivalent to being conceded. The abstract and counter abstract do not show any substantial conflict as to facts and figures, so the ruling on the motion for judgment on the pleadings was under these circumstances equivalent to a ruling on a demurrer to the petition alleging plaintiffs' claims together with the conceded facts.
We think the defense of the statute of limitations was not applicable in this case, and therefore we eliminate from further consideration in the case that question and the defense of res adjudicata.
This brings us to the fifth and most important assignment of error by the plaintiffs, which, in the language of the plaintiffs, is as follows:
“5. Appellants were entitled to recover and the court erred in not finding and rendering judgment for appellants for the refunds claimed. Under the constitution and budget law the levies were grossly excessive and illegal in the respects and to the amounts claimed.”
The determination of the issues in this case was, at the suggestion of appellants, delayed in order to wait for the rehearing in the case of Chicago, R. I. & P. Rly. Co. v. Paul, 139 Kan. 795, 33 P. 2d 304. After a full and complete rehearing in that case no change was made in the decision first rendered therein on June 9, 1934, as stated in the opinion on the rehearing, reported in 140 Kan. 507, 37 P. 2d 1119. The case at bar is practically identical with the Paul case in subject matter and time, being under the same budget laws and the same cash-basis law. Another case, State, ex rel., v. Peal, 136 Kan. 136, 13 P. 2d 302, is very similar, but a little earlier in point o'f time, and was a mandamus action instead of one to recover a refund of excessive taxes paid. In the latter case it was held:
“A tax levy, within the limits of the statute, is not void because a larger amount is levied than actually required, unless the amount is so grossly excessive as to show a fraudulent purpose in making the levy.” (Syl. ! 2.)
In the Paul case it was held:
“The action of a board of county commissioners in making higher levies of taxes for the general fund and for the road and bridge funds of the county than the published budgetary estimates would appear to justify was not a sufficient basis for the recovery of any portion of such taxes paid by plaintiff under protest.” (Syl. J 1.)
It was said in the opinion:
“While the act of 1931 required more formality than theretofore in the matter of estimating fiscal requirements, and gave the taxpaying public an opportunity to protest and object to the budgetary estimates of taxing officials, it made no such fundamental difference in the pertinent law as to warrant such an action as the one instituted by plaintiff. The remedy for excessive levies was by protest and objection at the time and place prescribed in the published notice, and to be made before the excessive levies were actually made and certified to the county clerk. Unless the levies were grossly excessive, and on that point we express no opinion, plaintiff’s statutory redress of timely protest and objection to the taxing officials, however inadequate, was its exclusive one.” (p. 797.)
Appellants insist that the case at bar should not be governed and controlled by the decision in the Paul case, because the levies in the case at bar are grossly excessive, whereas in the Paul case they were not. The briefs nowhere attempt to furnish us with a comparison of the figures as to excessiveness, but from the figures given and furnished in the record of both cases, it appears that some of the excesses complained of in this case are greater than some of those in the Paul case, and vice versa. When counsel for appellants, in attempting to further distinguish this case from the Paul case, state that in the Paul case there was no contention that the tax was grossly excessive, they certainly overlooked the use of those very words occurring more than once in the rehearing brief and the phrase “greatly in excess” occurring frequently in the original brief of the railroad company. The following expression in the closing part of the opinion in the Paul case, shows, too, that this feature was in fact considered in that case:
“In State, ex rel., v. Peal, supra, the rule there stated tacitly recognizes the right of a taxpayer to enjoin a grossly excessive levy because of the fraud which would manifestly inhere in it; but such a grievous defect is not pleaded nor is it fairly to be inferred from the allegations of plaintiff’s petition.” (p. 798.)
We conclude that there was no error in the findings and conclusions as to the levy of 1932, and that all the issues involved in this case have been fully decided in former cases, particularly the Peal and Paul cases, and while we do not agree with the evident theory of the trial court in disposing of the issues as to the levies of 1931, we agree with the result reached thereon to the effect that the plaintiffs, as on a demurrer, to the petition or claims and conceded facts, should not recover.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action in the district court was one to determine boundary, and for other relief.
Defendant, a recent purchaser of land, built a fence thirty-three feet over on what had been assumed to be his neighbor’s land. Plaintiff, who claimed benefit of the-same kind of conduct, exhibited with respect to defendant’s land, prayed for an injunction. Defendant countered with prayer to quiet title. The district court could satisfy neither of them, and both appeal.
The land lies in a bend of the Marais des Cygnes river, which the government survey treated as if navigable. In 1876, in a partition suit referred to as Davis v. Pratt, tracts were assigned to Davis and to Pratt as shown on a plat, part of the record of the case, and filed in the office of the register of deeds. The following plat was made from the original, a photograph of which is before the court. The plat here exhibited is not accurate, but will serve to visualize the scene of the controversy.
The plat shows two channels of the river surrounding an island. When partition was made between Davis and Pratt, water flowed in both channels. Since then, water has ceased to flow in the north channel. Both parties alleged the cessation was not gradual. There was no evidence on the subject, and as the pleadings stand, the fact is admitted. Since the cessation of flow was not by gradual reliction and accretion, neither boundary nor 'title was affected. While the old channel and the island are now cultivated, the right by which they are cultivated was not determined by the judgment, and the fact is of no consequence in solution of the boundary question.
Dyer traces title to tracts H and J through Hutchins, his immediate vendor, and through Creager, to Djavis. Scott traces title to tracts I and K through Croxton’s heirs, and through Croxton, to Pratt.
The original plat and the one reproduced above show that tract K lay in a loop of the river, and occupied the entire loop, plus a small quantity on the west side of the tract. Dyer claims all of that part of the loop lying south of a line formed by extending the north boundary of tract J eastward, entirely across the south part of the loop, to the river above the division of the channel.
The original plat purported to bound each tract. Tract H was bounded by straight lines. Tracts I, J and K were bounded by straight lines and by the river. There was no line drawn across the south part of the loop, and all of the loop belonged to tract K. While lines were not marked on the ground, they were marked on a paper representing the ground, and the absence of a line across the loop is conclusive against Dyer.
Dyer invokes a rule of interpretation, appropriate in cases of uncertainty, to ascertain the meaning of a plat which can be understood, so far as Dyer’s claim to part of tract K is concerned, by simply looking at the plat. Generally the bank of a stream is considered as extending from the top of the bank, down to the water, which moves or rests on the stream bed. In the notes describing tract J, the call was from a point forming the southwest corner of tract H, east 18.14 chains to the right bank of the river. The plat shown above indicates the line would reach the water in the north part of the north channel. The original plat makes the line just touch the northernmost point of the north channel. The argument is, the line could not touch water at that point, and so to satisfy a call of 18.14 chains to a river bank, the line would have to go about a quarter of a mile farther, across tract K, to get to a river bank, that is, to water. The draftsmen of the original plat stopped the north line of tract J at a place on the river which would make all of tract J, containing 18.17 acres, lie west of the north channel, and would make all the land in the river loop a part of tract K, containing 13.87 acres.
The distance from the southwest corner of tract H to the bank of the river, is given on the original plat as 18.14 chains. On the plat shown above, the distance is given as 18.44 chains; which seems to be the true distance. The discrepancy is not material in interpretation of the plat. The river bank was a monument as much as a stone. There was a river bank 30 links away, and if there were nothing else to show what the plat meant, the line would not be extended about twenty chains to reach another river bank.
The proposed interpretation would require a line to be drawn on the plat which is not there, would exaggerate distance, would distort the tracts in form and size, and is altogether inadmissible.
Dyer also claimed the south part of tract K by adverse possession. There was abundant proof that while the land was owned by Croxton’s heirs, and until 1921, it was farmed down to the river. In that year, Hutchins, owner of tracts H and J, put a fence across tract K about on a line formed by extending the north boundary of tract J, eastward. Hutchins sold to Dyer in 1928. Scott purchased of Croxton’s heirs in 1930. In 1932 Scott removed the fence, put it at a place which suited him, and farmed down to the river. The result is, the adverse possession lasted but eleven years.
The judgments in some actions to quiet title were introduced in evidence. The judgments, however, quieted title to tracts as described in Davis v. Pratt, and are of no assistance in determining boundaries.
After partition between Davis and Pratt, a boundary in fact between tract I on the north and J on the south was marked in a manner to be discussed later. After Scott became owner of tract I, he erected a fence thirty-three feet south of the apparent boundary. This occasioned the present litigation. On July 20, 1933, the court returned findings of fact and conclusions of law intended to be adverse to Dyer’s claim respecting tract K, and adverse to Scott’s claim respecting the boundary between tracts I and J, and rendered judgment. Scott’s motion for a new trial was denied on October 5, 1933, and Scott appealed. Dyer read the judgment as giving him the part of tract K which he now claims, and Scott filed a motion to clarify the judgment, stating specifically how that should be done. The motion was allowed, and the introductory portion of the order reads:
“On this 2d day of April, 1934, this matter comes up for hearing upon the motion of the defendant, Wilbur L. Scott, for an order clarifying the findings and judgment of the court, rendered and entered herein on the 20th day of July, 1933, by inserting certain words in said findings and judgment.
“And it appearing to the court that there is some misunderstanding as to the meaning of the judgment of the court as now filed and recorded, and that the insertion of the words as asked in said motion will make such findings and judgment more clearly express the actual findings and judgment of the court, the court finds that said motion should be granted.”
The order then adopted the suggested changes, making it clear Scott owned tract K, as shown on the plat. Dyer appealed.
Dyer contends that at a term subsequent to that at which judgment was rendered, and after an appeal from the judgment had been taken to this court, the district court simply changed its judgment to deprive Dyer of a portion of tract K given him by the judgment. This court regards the later action of the district court as simply making the record speak the truth. That may be done at any 'time.
Besides what has been said, Scott appealed from the order denying his motion for a new trial. One ground of the motion was, the judgment and findings of the court were unsupported by evidence. One assignment, of error is, that the district court erred in denying the motion for a new trial. Interpreting the judgment as Dyer interprets it, the subject of soundness of the judgment is before this court, and this court would not permit such a judgment to stand.
We now reach the meritorious feature of the controversy, the boundary between tracts I and J. The court made the following findings of fact:
“4th. The evidence in this case fairly and most conclusively shows that as far back as the memory of any witness extends, a fence has been maintained at least a part of the time separating lots H and I from lot J, and trees and brush grew up along the strip of ground where the fence was usually erected, and that stumps of trees and good-sized trees, brush and a kind.of fence for many years, and at this time, indicate and mark a strip of ground running east and west up to which owners of lots H and I farmed their land on the north side and the owner of lot J on the south side farmed his land, and the true east-and-west line separating lots H and I on the north from lot J on the south is along the center part of this strip of land, as indicated by the trees, stumps, brush and fence, . . .
“6th. That the plaintiff (Dyer) and his immediate grantors have occupied and held possession and farmed all of lot J on the south side of the true line between lots I and J as fixed in finding No. 4 above, and has held and occupied said lot, notoriously and adversely under claim of title for more than thirty years, and is now in possession of said lot.”
Scott contends the findings, except with respect to existence of an old fence, and use of land up to the fence, are not sustained by evidence.
Dyer testified as follows:
“I am the plaintiff in this action. Am sixty-four years of age, and am the owner of lots H and J, sec. 5, twp. 20, range 24. Bought same from I. N. Hutchins in 1928. Have been over the land and along the river ever since I was a boy. As far as I knew, when I bought this land Croxton owned lots I and K, now owned by the defendant. Croxton had been in apparent ownership for about 35 years. When I bought the land there were old trees along the north-and-south line between lots H and I, some thirty-five or forty feet high, and an old barb-wire fence, and some woven wire. The fence line between I and J was probably the same as to brush, only not so dense. Large trees here and there, and some chopped off. Straggling old wire fence and old posts where brush did not hold it up. The fence between lots J and I must have been maintained there quite a while. My first recollection is that there was timber here and there, and afterwards the Croxton part was cleared off and farmed, probably fifty-five or fifty years ago. In a general way I was familiar with ownership and conditions of land and fencing back that far.”
Smith, a witness for Dyer, testified as follows:
“When Dyer bought land, there was good-sized trees along line between lots I and J, and old wire fence in middle of trees. Wire grown into trees. Some trees two feet around.”
As indicated above, Dyer’s chain of title was from Davis to Creager, to Hutchins, to Dyer. John Creager, son of the former owner of tracts H and J, was born on the land in 1883, and lived there until 1904, when he became of age. As a witness for Scott, John Creager testified as follows:
“My father never claimed to own any part of lot I. Wherever the fence was between lots J and I, my father always considered it as on the line between said lots.”
Dyer gave it as his opinion that the line extended eastward from the southeast corner of tract I — just touched the top of the bank of the north channel of the river.
Gowing, sixty-nine years old, was familiar with the Croxton and Creager land. As a witness for Scott, Gowing testified there was a swimming hole in the north bend of the old north channel where he went swimming when a boy. He farmed the Croxton land, tracts I and K, for sixteen years, and the line between I and J, if extended, would strike the north bend in the center of the river.
There was testimony that when the fence was built across tract K it was built on a straight line with the old fence on the south of tract I. Pierce, who helped build the fence, testified it was bellied around the point to the north. Toward the west the old fence was in bad shape and it was rebuilt.
Since 1876 tracts H and J have at no time been separately owned by different owners. The same is true of tracts I and K, and the court was in error in finding there was an old fence between tracts H and J. There was a north-and-south fence between H and I.
In 1932 a survey was made, on proper notice, which located the true line between tracts I and J thirty-three feet south of the old fence line. There was no appeal, and acting on the survey, Scott built the fence, maintenance of which Dyer sought to enjoin.
The foregoing includes the substance of all the testimony of any importance bearing on the subject of boundary in fact between tracts I and J. The result is, there was no testimony to support the court’s judgment regarding boundary between tracts I and J, or regarding adverse possession of those tracts up to that boundary, except existence of the old fence, and use of land up to the fence.
John Creager’s testimony refuted adverse possession by Dyer’s predecessors in interest before 1911, when Hutchins became owner of tract J. If John Creager’s testimony be rejected, there is nothing to show that Creager had any purpose to claim and adversely hold any of Croxton’s land. There is nothing to indicate Hutchins’ attitude toward boundary until 1921, when .he built the fence across tract K and rebuilt the old fence in disrepair between tracts I and J. On the other hand, whoever built the old fence, and whenever it was built, there is no evidence that the builder intended to relinquish thirty-three feet of land, if the fence were not on the true line.
The opinion in the case of Kinne v. Waggoner, 108 Kan. 814, 197 Pac. 195, contains the following:
“It is no longer an open question in this state that adjacent landowners are not estopped to dispute the accuracy of a boundary line which by mistake they have long treated as such, nor does the occupancy of land beyond the true boundary line by an encroaching owner form a basis for adverse possession unless the encroachment is made with intention to claim and hold adversely.” (p. 819.)
Previous decisions of the court were collated. The Kinne case has been cited with approval as late as 1932. (Wiburg v. Stevenson, 134 Kan. 530, 531, 7 P. 2d 512.)
Dyer relies on the decision in Vandling v. Griffith, 105 Kan. 477, 185 Pac. 23, in which the district court established a boundaiy, not the true boundary, because of recognition and acquiescence of adjoining proprietors. ;In that case, with knowledge or at least abundant reason to know of uncertainty of location of true line, resulting from discordant surveys, landowners accepted one of the surveys, and acted accordingly for years. We have no such case here.
The correctness of the survey of 1932 is not disputed. There is no occasion for another survey, and under the circumstances stated, the thirty-three-foot strip belongs to Scott.
The judgment of the district court with respect to tract K is affirmed. The judgment with respect to boundary between tracts I and J is reversed, and the cause is remanded with direction to quiet Scott’s title to the thirty-three-foot strip. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action brought in the district court of Sedgwick county, Kansas, by eight duly licensed practicing attorneys at law of the city of Wichita, Kan., on behalf of themselves and all other practicing attorneys of the city of Wichita, to enjoin the Wichita Retail Credit Association, Inc., from the illegal practice of law.
The defendant filed a motion to strike, out several allegations of the petition and also filed a demurrer to the petition, both of which were by the trial court overruled, from which rulings the defendant appeals, insisting — (1) that the trial court had no jurisdiction of the person of the defendant nor the subject matter of the action, (2) that the plaintiffs had no legal capacity to sue, (3) that several causes of action were improperly joined, and (4) that the petition did not state facts sufficient to constitute a cause of action against the defendant. The errors upon which the appellant relies most strongly concern the overruling of the demurrer to the petition, in the review of which we shall of course consider the allegations of the petition as being true.
There are two questions seriously involved: (1) Is injunction a proper remedy to prevent a corporation from engaging in the unlawful practice of law; and (2) Are individual attorneys, suing on behalf of themselves and all other practicing attorneys of the city of Wichita, proper parties plaintiff in an action to enjoin a corporation from engaging in the unlawful practice of law?
Appellant cites many Kansas decisions to the effect that courts of equity will not entertain jurisdiction of cases where there is an adequate remedy by an action at law, as it claims there is here by an action in quo warranto, quoting from the decision in the case of Jordan v. Updegraff, McCahon, 103, the following on page 108:
“The principle in jurisprudence, ‘That a court of chancery will not entertain jurisdiction of a case, to exert its equitable power's of relief, when the complainant can have an adequate remedy by an action at law,’ is too well established to admit of a doubt.”
Also quoting the first syllabus of Neeland v. The State, ex rel., 39 Kan. 154, 18 Pac. 165—
“Injunction is not the proper remedy to determine the title of an office, but quo wananto is.” (See, also, Treat v. Wilson, 4 Kan. App. 586, 46 Pac. 322.)
Appellant also cites Telephone Co. v. Telephone Association, 94 Kan. 159, 146 Pac. 324, which relates not only to the question of the remedy by injunction but also to the right of a licensed telephone company to exclude from its competition another telephone company which does not possess a license, and it was held that the plaintiff was not entitled to an injunction. It is proper and best to consider in connection with this decision another and more recent case cited by appellees, viz., Wichita Transportation Co. v. Peoples Taxicab Co., 140 Kan. 40, 34 P. 2d 550, where a street-car company was held to come under the exception noted in the Telephone company case and be entitled to an injunction to avoid what might eventually lead to bankruptcy of the plaintiff. The exception, noted on page 163 of the opinion in the Telephone case, is as follows:
“A private plaintiff who is likely to be injured in some special manner or whose situation is peculiarly affected by the exercise of a usurped power could maintain the action, but no such case is presented here.”
Both these cases have to do with the question of parties plaintiff as well as the remedy.
Both parties refer to the case of State, ex rel., v. Perkins, 138 Kan. 899, 28 P. 2d 765, which is all important here because it involved the authority of the party defendant to practice law in this state. It was an original action in quo warranto, brought in the name of the state on relation of the attorney-general, but in discussing the different methods of bringing actions to question the right of defendants to practice law, including contempt, injunction and quo warranto, it was said in the opinion on page 906 that—
“The form in which the matter is called to the court’s attention is not so important. Since the court has jurisdiction of the subject matter, any recognized procedure by which a charge or complaint is entertained, and the one charged is given proper notice, and in which there is a full hearing fairly conducted, would appear to be sufficient.” •
Many of the cases cited by appellant from other jurisdictions are not fully applicable to the case at bar, because they hold injunction is not a proper remedy for the reason there is in those states an adequate remedy at law in that the unlawful practice is by statute made a misdemeanor. Similar laws exist in this state as to a number of professions, but not as to the practice of law.
In line with the exception stated in the Telephone case, and the decision in the recent Street-car case, it is interesting to note the very decided recent modification of the earlier exceedingly strict rule as to the use of injunction as an equitable remedy. In 32 C. J. 34 it is said:
“While it has been said that the writ of injunction will not be awarded in new and doubtful cases not coming within the well-established principles of equity, yet the absence of precedent, although not to be overlooked entirely, does not of itself determine questions of jurisdiction. It is not a fatal objection that the use of the writ for the particular purpose for which it is sought is novel. Courts may amplify remedies and apply rules and general principles for the advancement of substantial justice. If this was not so, and courts were confined to particular precedents, there would be no power to grant relief in new cases constantly occurring.”
In the Law of Injunctions by Lewis & Spelling, pages 2 and 3, it is said:
“In numerous judicial opinions are to be found recognitions of the expansion which has been found necessary in the use of injunctive processes to keep step with the onward march of civilization and meet man’s manifold needs. Mr. Justice Brewer, while sitting in the circuit court for Nebraska, in an unreported case, expressed a view which has been often quoted, that ‘the powers of a court of equity are as vast, and its processes and procedure as elastic, as all the changing emergencies of increasingly complex business relations and the protection of rights can command.’ . . .
“That the remedy by injunction has become more common and therefore more prominent in modern or recent times is doubtless true, and this grows out of the ever changing conditions and evolutions in business incident to •modem civilization. That the courts adapt themselves to these changing conditions and afford relief, thus preserving- the rights of the individual citizen from combinations of the many, is a tribute to the conservatism and wisdom of both bench and bar.”
It is also interesting to note in chapter 21 of our Revised Statutes, being that concerning crimes and punishments, how many provisions there have been enacted since the year 1900 authorizing the use of the remedy of injunction to prevent the commission of crimes, for Which there are definite and specific punishments prescribed.
As to the legal capacity of the plaintiffs to sue and maintain this action, they allege in their petition that they are all residents of Wichita, Kan., and are duly licensed practicing attorneys at law by virtue of franchises granted to them by the supreme court of the state of Kansas and the United States courts, maintaining their - offices at Wichita, Kan.; that they have been practicing law in said city for a number of years; that they and each of them have built up a valuable practice; that all of them are members of the Wichita Bar Association and comprise a committee appointed by said association to take action against illegal practice of law by persons not licensed practicing attorneys; that they maintain this action on behalf of themselves and all the practicing attorneys of Wichita, Kan.; that all of the acts alleged concerning the doings of the defendant are illegal, contrary to the rights of these plaintiffs and all other attorneys at law of Wichita and the public and the courts, and tend to bring the legal profession and administration of justice and law into bad repute, and that the plaintiffs and others similarly situated have no adequate remedy at law and will be irreparably damaged if an injunction is not issued against the defendant corporation.
Appellant cites many Kansas cases to the effect that when public ' rights are to be subserved a public officer must apply for the writ, and that before a private individual can make such an application he-must show some particular right or privilege of his own independent of that which he holds with the public at large. (Bobbett v. State, 10 Kan. 9.) The following is cited from Mining and Gas Co. v. Gas and Mining Co., 55 Kan. 173, 40 Pac. 326:
“A private person or corporation will not be recognized in a court .of justice as the guardian of purely public interests, nor to further its private ends by assuming that character.” (p. 179.)
Along the same line appellant also cites Craft v. Jackson Co., 5 Kan. 518; Ruthstrom v. Peterson, 72 Kan. 679, 83 Pac. 825; and Comm’rs of Barber County v. Smith, 48 Kan. 331, 29 Pac. 565.
Our attention is directed by the appellant especially to the case of Amusement Syndicate Company v. City of Topeka et al., 68 Kan. 801, 74 Pac. 606, where the Amusement Syndicate Company attempted to enjoin the city of Topeka and its officers from permitting the city building in which there was a large auditorium from being used for public entertainments for profit, and the injunction was denied, citing many of the cases herein above noted.
The Telephone case and the Street-car case are also cited in connection with the rights of the plaintiffs therein to maintain such actions.
We again refer to the Perkins case for a good definition of an attorney at law. It was there stated, and quoted with approval,that the authority, permit or license to act as an attorney at law is a privilege “in the nature of a franchise from the state conferred only for merit” and revocable on his violation of his obligations and' duties.
Although one or two statements among the allegations of the petition might be construed as pleading' a private or personal right and injury, yet in the main the plaintiffs’ claim is for themselves, other' members of their profession' and the public generally for protection against the illegal practice of law in their city. It was held in In re Casebier, 129 Kan. 853, 284 Pac. 611, that—
1 “The right to practice law is a privilege conferred upon a specially qualified' class of persons for the purpose of assisting the state and its tribunals to administer justice. It is neither property nor a property right.” (p. 855.)
This ruling was followed and approved in In re Hanson, 134 Kan. 165, 5 P. 2d 1088.
It was also held in the Casebier case, supra, that “an attorney is an officer of the court, a quasi public official.” And in' the Perkins case along the same line it was stated in the opinion that—
“While an attorney at law is not a public officer in the sense, that term is' ordinarily used, he is nevertheless ‘an officer of the court’ (In re Pryor, 18 Kan. 72; Hanson v. Grattan, 84 Kan. 843, 115 Pac. 646).” (p. 903.)
So whether or not the interest of the plaintiffs in their professional- capacities is in the nature of a property right, they have under the allegations of their petition and these definitions a special privilege, franchise and duty as officers of the court to protect the legal profes-' sion, the courts and the administration of justice generally. And it would seem to be well within such special franchise and privilege to protect not only themselves and others of their profession, but the courts Of which they are officers against the illegal and unprofessional conduct of others.
Many very strong and well-considered cases from other states are cited by appellees holding that a member of the legal profession Or a bar association may maintain injunction proceedings against corporations to restrain them from the unlawful practice of law. Perhaps the latest was decided by the supreme court of Ohio on November 27, 1934, the seventh syllabus of which is as follows:
“The right to practice law conferred by the state is a special privilege in the nature of a franchise, and a possessor thereof may be protected by injunction from the invasion of the right thus vested in him.” (Land Title Abstract & Trust Co. v. Dworken; Guarantee Title & Trust Co. v. Same; Cuyahoga Abstract Title & Trust Co. v. Same [Ohio], 193 N. E. 650.)
In each of these three cases Jack B. Dworken, a practicing lawyer, for himself and in behalf of all other attorneys at law commenced and maintained each of these three injunction cases against three different trust companies to restrain each of them from continuing in the unauthorized and unlawful practice of law. The six prior paragraphs of the syllabus defined and determined different items of business conducted by these trust companies as being within the business of practicing law, and the seventh paragraph, as above quoted, holds that a member of the bar was a proper plaintiff to maintain such an action. Another recent case reaching the same conclusion was maintained by a licensed practicing attorney and the bar association of New Jersey, viz., Unger v. Landlords Management Corp., 114 N. J. Eq. 68. Many other cases reaching the same conclusion are cited in the opinions in these two cases last mentioned and are cited in the brief of appellees from the highest courts of Illinois, Minnesota, Washington and other states.
Another recent case is that of State Bar v. Retail Credit Ass’n, (Okla.) 37 P. 2d 954, decided by the supreme court of Oklahoma in November, 1934, but it differs in being maintained by the State Bar Association, a chartered corporation authorized by statute to sue and be sued.
Appellant insists that many of these cases are not applicable in this state because they directly or indirectly base their conclusion upon the theory and principle that a license to practice law is a property right, which is contrary to the holdings in Kansas as expressed in the Hanson, Casebier and Perkins cases, but it is held that such apparent difference in the reasoning and logic of the different theories will not make those decisions inapplicable to the questions involved in the case at bar nor prevent them from being reliable precedents.
In the original Hanson case, reported in 99 Kan. 23, 160 Pac. 1141, the opinion recites that the attorney-general of Kansas was directed by the supreme court to take proper steps by filing an accusation against the attorney in the contempt matter that had occurred in another case. It was based, as stated in the opinion in that case, on the ground that an attorney is an officer of the court and is under special obligations to the court and that it is his duty to uphold the honor and dignity of the court.
It is said in an opinion written by Judge Cardozo in the case of People, ex rel. Karlin, v. Culkin, 248 N. Y. 465, that—
“ ‘Membership in the bar is a privilege burdened with conditions’ (Matter of Rouss, supra, p. 84). The appellant was received into that ancient fellowship for something more than private gain. He became an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice. His cooperation with the court was due whenever justice would be imperiled if cooperation was withheld.” (p. 470.)
Licensed privileges of attorneys and duties as court officers are so closely related and interwoven as to justify their maintaining an action to sustain the honor of the court and restrain the unlawful practice of law.
We conclude that injunction is a proper remedy to restrain a corporation from the unlawful practice of law, and that attorneys as officers of the court, suing on behalf of themselves and other practicing attorneys of their vicinity, are proper parties plaintiff in such an action to enjoin a corporation from the unlawful practice of law, and further that there was no error in the overruling of the demurrer to the petition by the trial court.
The judgment is affirmed.
Hutchison, J., dissenting. | [
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The opinion of the court was delivered by
Harvey, J.:
In an action to foreclose a real-estate mortgage, on plaintiff’s motion to confirm the sheriff’s sale and to fix the period of redemption, the court confirmed the sale and fixed the period of redemption at eighteen months. Plaintiff has appealed, and contends the mortgage foreclosed was a purchase-money mortgage; that less than one-third of it had been paid, and that the period of redemption should have been fixed at six months.
The question presented is one of law. There is no substantial controversy about the facts, which may be stated as follows: In June, 1919, John Bales, who then owned the real property, contracted to sell it to G. E. Planck, and as a part of that contract executed a mortgage for $2,500 to the building and loan association, •and also contracted to purchase on installments stock of the association of the face value of $2,500. He conveyed the property to Planck, who assumed and agreed to pay the mortgage and take over the contract to purchase the stock. The mortgage was for the full purchase price of the property, and was a mortgage given for the purchase price of the property within the meaning of R. S. 60-3466. (See Langworthy v. Martin, 129 Kan. 159, 281 Pac. 870.) Planck held the property about two years, during which time he paid the monthly interest on the mortgage and also the installment dues upon the shares of stock. He then sold the property to one Schultz, who assumed and agreed to pay the mortgage, and took over the contract to purchase the shares of stock. Schultz borrowed from the building and loan association an additional $500, giving a second mortgage on the property, and also contracted to purchase additional shares of stock. In 1923 Schultz conveyed the property to Greenlee, who in turn borrowed an additional $1,000 on the property and contracted to purchase additional shares of stock. In ■June, 1931, Greenlee conveyed the property to the Citizens National Rank, subject to these several mortgages, and assigned to the bank his contracts to purchase stock. Prior to that time there had been paid by the respective owners of the property on these several contracts to purchase shares of stock in the association sums which, with dividends credited to such stock, aggregated $1,615.23. The bank, by one of its officers, requested the building and loan association to credit upon the mortgages on the property the then value of the several issues of stock. The building and loan association agreed to that, and the shares of stock were canceled and their then value credited upon the last mortgages and taxes then due, and the balance, $200, credited upon the first mortgage of $2,500. This is the mortgage that was foreclosed because of default of later payments. It was the original purchase-money mortgage, was for the full amount of the purchase price, and less than one-third of it has been paid. Under the statute (R. S. 60-3466) the period of redemption should have been fixed at six months.
The evidence disclosed that payments made on the first shares of stock taken out, with dividends thereon, had amounted to more than $1,100 at the time they were applied, as directed by the then owner of the property. Appellee argues this should be construed as a payment upon the first mortgage of $2,500, and if so construed amounted to more than one-third of that mortgage. Apparently the trial court took that view. The contention is erroneous. The-present value of the shares of stock was not credited upon the loan until the parties agreed to make the credit, and at that time and by that agreement the credit was made upon the subsequent loans. Under the plan and by-laws of the building and loan association the shares of stock purchased and paid upon by the borrower, while-held by the building and loan association as additional collateral to his loan, were just as separate and distinct, so far as a credit upon the mortgage was concerned, as though he had those shares of stock in some other association. Under the by-laws they would not be credited upon the loan until they became of sufficient value to cancel the loan. In the event of a foreclosure of the mortgage while the stock still was held by the association the court would have been required, under the statute (R. S. 17-1010), in its judgment of foreclosure, to give credit on the mortgage for the then value of the shares of stock; but there was no foreclosure while the stock still was outstanding. Here, by the request of the owner and the consent of the building and loan association the value of the stock had been credited upon the third and second loans, upon taxes, and the balance upon the first loan. It is not contended the parties did not have a right to agree to so credit the value of the shares of stock.. The result is that the only credit made on the first loan was the $200..
Appellee contends appellant cannot be heard on this matter for the reason that he filed no motion for a new trial. The hearing held by the court was upon a motion to confirm the sale and to fix the period of redemption. No motion for a new trial is necessary to review the order of the court made upon the hearing of such a motion.
The result is the judgment of the court must be reversed with directions to the court to fix the period of redemption at six months. Since that time has expired appellee is given sixty days-from the date this opinion is filed within which to redeem, but unless redemption is made this order shall not otherwise affect the rights of the parties.
Reversed, with directions. | [
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