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The opinion of the court was delivered by
Dawson, J.:
The plaintiff herein, Mrs. Myrtle Cherry, sued the defendant, John R. Hays, for damages for injuries sustained when an automobile in which plaintiff and defendant were riding was overturned through the fault of defendant.
It appears that the plaintiff, a working woman, resided with her sister, Mrs. Gladys Gibson, in an apartment situated beside an alley in Wichita. In the afternoon of June 6, 1931, plaintiff came home from her work and found her sister and this defendant in the apartment. The three indulged in the drinking of some “spiked” -beer. Defendant gradually became loud, vulgar, and boisterous. Mrs. Gibson feared the neighbors would call the police. She asked plaintiff to drive them out for an airing. Defendant gave plaintiff the keys to his automobile' and told her where to find it. Plaintiff got the car and drove it to thé alley near her sister’s apartment. Defendant and Mrs. Gibson got into the car and plaintiff drove it out of town and north to N;ewton, where the three persons dined together at a railway hotel. Defendant became boisterous and profane and knocked dishes off the table, so they left the hotel and started back to Wichita over the maip highway. It had rained that day. A few miles south of Newton the Hays’ car, with the plaintiff at the wheel, was traveling at 35 miles an hour. A side road from the west led into the highway, on which a Ford car approached, but did not stop. Defendant grabbed the steering wheel. This caused plaintiff to lose control of the car; it swerved toward the east, where it ran into soft mud by the roadside and upset. Plaintiff was severely and variously injured.
In her petition plaintiff pleaded the material facts. The answer contained a general denial and a plea of contributory negligence— particularly in operating the car at a greater speed than reasonable under the circumstances. The answer also raised a question of law touching the sufficiency of plaintiff’s petition.
Issues were joined on the allegations of fact; the legal question raised by the answer was ignored; and the cause was tried before a jury which returned a verdict for plaintiff in the sum of $1,000, and answered special questions as follows:
“1. Was the defendant in an intoxicated condition when the parties entered the car at Newton for the return trip to Wichita? A. Slightly intoxicated.
“2. If you answer question 1 in the affirmative, state whether plaintiff knew defendant was intoxicated at this time. A. Yes.
“3. Did the plaintiff slow down to 15 miles per hour for the intersection just prior to the accident? A. No.
“4. If you answer question 3 in the negative, state whether the accident would have occurred if she had slowed down to 15 miles per hour. A. No.
“6. Did the Ford roadster approaching from the west stop before it turned on the highway in front of the car driven by plaintiff? A. No.
“7. If you answer question 6 in the negative, state whether the accident would have occurred if the Ford had stopped. A. No.
“8. Do you find that the defendant was guilty of any act or acts of negligence? A. Yes.
“9. If you answer question 8 in the affirmative, state what that act or acts of negligence was. A. Interfering with steering wheel.
“10. Where was the defendant sitting in the ear at the time of the accident? A. Center.”
Defendant moved for judgment on the special findings regardless of the general verdict. • This motion was sustained and judgment was rendered accordingly.
Plaintiff appeals, urging various errors, the first of which is a general complaint against.the trial court’s ruling on the motion for judgment on the special findings. She argues that they are not inconsistent with the general verdict. However, if any legal signifi canee should be attached to special findings 3 and 4 it is not readily discernible how those findings harmonize with the general verdict, since the jury was properly instructed on the subject of contributory negligence; and special findings 3 and 4 seem to establish that controverted issue against the plaintiff and in favor of defendant. Another consideration which tends to make out a case of contributory negligence was the fact that plaintiff went auto riding with a man so boisterously drunk, according to her own testimony, that there was a possibility that the police would be called to take charge of him, and his boisterous misbehaving was still so violent at Newton that he knocked the dishes off the table and “cursed and swore” and “made things very embarrassing for my sister and I both.” In view of such evidence, findings 1 and 2 are not wholly without significance on the question of contributory negligence.
It is next argued that question No. 4 should not have been submitted to the jury. The objection is that it invited the jury to indulge in conjecture. The question might be criticized on the ground that it did not seek to elicit an evidential fact but merely a conclusion, but no such objection was made to it. Plaintiff’s objection to both questions 3 and 4 was that the statutory provision requiring automobile drivers to reduce speed to 15 miles per hour at intersecting roads did not apply to this sort of an action — but merely to collision cases. This point leads to the next error urged, and which relates to an instruction which quoted the legislative declaration in R. S. 1933 Supp. 8-122, requiring motorists to reduce their speed to a rate not exceeding 15 miles per hour on approaching an intersection of highways and not to exceed that speed until it is passed. Plaintiff contends that this statutory provision is designed to avert collisions of vehicles. As applied to this particular case, it is rather obvious — or the jury might so conclude — that there was a fair chance of collision with the Ford, and if plaintiff had reduced the speed of the car to 15 miles per hour the interference of the defendant with the steering wheel would not have happened or would not have caused the sudden swerving of the car to the slippery roadside with the consequences which followed. It will be noted that in special finding No. 9 the jury exculpated defendant of the alleged meddling with the gasoline control. His only wrongdoing found by the jury consisted of his interfering with the steering wheel; a direct consequence of disregard of the traffic regulation.
Another argument is advanced to support the contention that the statute did not require plaintiff to reduce speed at the intersection. This is based on the fact that she was driving on a state and federal highway where the entrances of intersecting roads are required to be marked with signs directing traffic to come to a full stop. (R. S. 1933 Supp. 8-122.) Counsel for appellant deduce that this provision of statute impliedly relieves motorists on the main highways from reducing speed at intersections where the secondary, intersecting roads are marked with stop signs. The case of Keir v. Trager, 134 Kan. 505, 7 P. 2d 49, is cited in support of this argument. But that case does not so decide. It merely holds that the motorist on the main highway is not negligent in assuming that the driver of a vehicle coming into the main highway from a secondary road will stop in obedience to the sign. The cited case also holds inferentially that under such circumstances the question whether the motorist on the main highway would be guilty of contributory negligence in failing to slacken speed, as the statute directs, would be one for the jury to settle and should not be decided as a matter of law. The statutory provision to avert or reduce accidents is two-fold. The motorist on the main highway should slacken speed as he approaches intersections, and the motorist about to enter the main highway from secondary, intersecting roads should come to a full stop. If these two statutory requirements had been observed in this case this accident would not have happened. We do not ignore the fact that plaintiff testified that she did slacken speed as she approached the intersection and that defendant cursed her for so doing; and that he interfered with the gasoline control as well as the steering wheel. But the jury disbelieved this testimony. (Finding 3; Roberts v. Railway Co., 98 Kan. 705, 161 Pac. 590; Cole v. Cook, 137 Kan. 250, 253, 20 P. 2d 483.) It is also argued for plaintiff that the accident did not occur at the intersection. This point is too subtle. The negligent-act of defendant and the contributory negligence of plaintiff were both set in motion at or prior to the time they reached the intersection although the ultimate consequences, the overturning of the automobile, occurred at some distance beyond it.
Some other arguments are urged against the judgment but they present nothing to warrant further discussion.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action for damages for the alleged breach of a parol warranty in the sale of aluminum paint. The verdict and judgment were for defendant, and plaintiff has appealed.
The plaintiff Smith, on May 20, 1932, entered into a written contract with the state architect and the business manager of the state to furnish the materials and to paint a standpipe at one of the state institutions. Specifications attached to the contract contained this provision, relating to painting the outside of the standpipe:
“The exterior of the standpipe shall be thoroughly cleaned and then painted from top to bottom as follows: The first coat of metal primer to consist of inhibition blue lead and Dixons Graphite mixed with superboiled linseed oil. Then a double spray coat of aluminum paint, as manufactured by the Pittsburg Plate Glass Company, or other approved equal.”
The contractor guaranteed the painting to stand in good condition for a stated period.
Smith purchased paint to use on this contract from the defendant, McConnell, and painted the standpipe. The state architect, who had authority to approve or disapprove the work, inspected it after it was completed, and rejected it for two reasons: (1) Because the kind of paint specified was not used, and (2) because of poor workmanship. The result was Smith had to scrape off the aluminum paint he had put on the outside of the standpipe and repaint it with approved paint and good workmanship. This action is to recover the expense he was put to in doing so, alleged to be $287.31.
Plaintiff predicated his action upon the theory that defendant specifically guaranteed this paint for this particular job. The evidence on this point was conflicting. Obviously the jury believed and relied upon the evidence of defendant that no such guarantee was made. The paint was not of the brand named in the specifications, nor did plaintiff submit it to the state architect for his approval. The architect had a reason for wanting to approve the paint, if some other brand were used. He knew the ingredients of the first coat of paint and wanted the aluminum paint covering it to contain ingredients which would be appropriate for the first coat base and did not care to use a brand of paint the ingredients of which he did not know. More than that, there was evidence to the effect that the trouble with the job was not the paint itself, but the manner in which it was applied. The architect refused it for the two reasons. Defendant was not at all responsible for the manner in which the paint was applied, and there is no contention that he was; hence, it is difficult to see how plaintiff could have won this action had he been able to show defendant had guaranteed the paint for the particular job.
There really is nothing in this case but controverted questions of fact. The records of this court should not be encumbered by cases involving such questions only.
Appellant complains of the ruling of the court in excluding evidence, but appellant is in no position to present that question, since he did not comply with our statute (R. S. 60-3004) by presenting the evidence properly on the hearing of a motion for a new trial.
Criticism also is made of some of the court’s instructions. The jury was instructed orally, and. perhaps the statements in them are not arranged as well as they would have been had the instructions been prepared in writing, but they fairly presented the case to the jury. Appellant did not complain of them when they were given, and his criticism of them now is not well taken. ■
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for damages under the federal employers liability act.
Plaintiff was a section laborer on defendant’s railroad at Nelagoney, Okla. He and the section foreman, C. T. Carson, who also served defendant as plaintiff’s fellow workman, were engaged in lifting a motor car from the railway track, when, according to plaintiff’s testimony, the foreman suddenly dropped his share of the load. This resulted in a severe wrenching of plaintiff’s back and strained the muscles of his abdomen so as to cause a ventral hernia.
These facts were pleaded at length. Plaintiff charged defendant with negligence in retaining in its employment a foreman who served as a section laborer who was not physically fit for such labor; that defendant knew of the foreman’s incapacity for such employment; and that plaintiff was not aware of the foreman’s unfitness for such heavy work.
Defendant’s answer pleaded a general denial, and alleged that plaintiff’s injury was caused by his foot slipping off the rail while he and the foreman were lifting the motor car from the track, and that plaintiff assumed the risks of the employment. Defendant also denied that the foreman was disabled in any way and denied that it knew of any disability of the foreman, and alleged that the latter was a careful and competent man of ordinary ability to perform the work in which he was engaged.
The case was tried before a jury. Plaintiff’s evidence tended to. support the material allegations of his petition.. He testified that the proper and usual way to lift the car from the rails was for two men to turn their backs to one end of it, lay firm hold of it, lift it steadily and in unison, and carry it without haste halfway around and then roll it off the track. In this instance, according to plaintiff’s testimony, the foreman lifted it with a jerk, hurriedly swung it around, suddenly lost his grip and dropped his hold saying, “My old game crippled hand gave way with me.” All this testimony was denied, of course; and the defendant’s testimony was that no such incident happened and no such remark was made by the foreman. Plaintiff’s evidence also showed that he was suffering from a ventral hernia, and that it and the wrenching of his back were the result of the accident alleged. It was also shown by several expert' witnesses that the hernia wo.uld not improve unless a surgical operation was undertaken, but that it would yield to such treatment; and that the operation was not attended with serious danger to life. It was also shown that the employees of the defendant, including the plaintiff, supported a railway employees’ hospital out of their salaries and wages; and that its facilities and the services of its surgical experts were available to plaintiff without cost to him; but that he steadily refused to have anything to do with them. Plaintiff did testify that he had been “treated by different doctors,” but there was no testimony as to the nature of the ailment or malady for which he was so treated; and the fair inference from all the evidence was that nothing was done by these “different doctors” to correct or cure the ventral hernia.
Doctor Smith, a witness for plaintiff, testified:
"I live at Neodesha, Kan. I am a physician and surgeon, have practiced thirty-five years. . . . This was last April. . . . There was a small ventral hernia. I also examined him to-day. The rupture is still there. . . . The hernia is permanent as long as he is not treated and will become worse upon any attempted exertion or forced effort that he might have, but it can readily be corrected by medical attention, by an operation.”
Doctor Benage, a witness for plaintiff, testified:
“I live at Pittsburg, Kan. I am a physician and surgeon, have been in practice seven years. Plaintiff came to me yesterday afternoon for a physical examination. He had evidence of bruising around the back and had a hernia which could have been caused by lifting.
“A ventral hernia can be cured by operation. It is not considered a serious operation as compared to some others, but most any major operation is considered of some seriousness. A ventral hernia is .classified as a major operation because it is necessary to go through the abdominal wall. This hernia had not been taken care of.”
Two surgeons of the staff of the railroad employees’ hospital, called as witnesses on behalf of defendant, gave testimony to the same effect, and there was no testimony to the contrary.
The jury returned a verdict in favor' of plaintiff for $5,500 and answered special questions, viz.:
“2. If you find for plaintiff, on what ground, or grounds, of negligence do you base your verdict? A. Section foreman in hurry and weak hand.
“3. If you find for plaintiff, state what items of damage you include in your verdict and the amount of each item. A. (a) lost time, $490; (b) physical pain and misery, $1,065; (c) loss of physical powers, $3,945.
“4. Do you find that in carrying said motor car from the tracks at the time plaintiff was injured plaintiff’s foot slipped on the track rail? A. No.
“5. Do you find that section foreman at the time of plaintiff’s injury had a weak and disabled hand, which at times materially weakened and reduced his power of grip, and if so, which hand? A. Yes, right hand.
“6. If you find that foreman Carson had a weak and disabled hand, which at times materially weakened and reduced his power of grip, did any officer or agent of the defendant know of such fact, and if so what officer or agent or employee or servant? A. Mr. Carson and claim agent.
“7. If plaintiff had availed himself of the hospital facilities and surgical aid, to which he was entitled as an employee of defendant, is it reasonably certain that his physical condition would have been materially better than it is now? A. He would have been materially better.”
The usual motions were filed and overruled, and judgment was entered on the verdict. ' Deféndaht presents various errors for our review, in the first of which it questions the sufficiency of the evidence, to establish defendant’s'knowledge of the foreman’s weak hand. That evidence consisted of what Foreman Carson himself said' on the spur of the moment when he lost his grip on' the car, and the further fact that there was on file in the office of the claim agent a record of a fight the foreman had theretofore engaged in with a discharged employee and'in which he had received a wound on his- right hand which left a scar. ' This court is inclined to hold that as Carson was none fhe léss the defendant’s foreman with the usual authority of one serving in that capacity although he himself also served as a fellow laborer, the knowledge of Carson, the foreman, was knowledge imputable to his employer, the defendant company. It was chiefly on the significance attaching to these facts that the jury'made its'finding No. 6, and that finding will have to stand. '
Defendant’s next contention is that error inhered in the instructions which treated of defendant’s liability if it knowingly kept in its employment an incapacitated foreman with whom -plaintiff had to serve as fellow workman. The objection to this instruction is that there was no evidence that defendant or any of its responsible officers or agents had any knowledge that the section foreman had a defective hand. That point, however, has already been disposed of in what we have said about the knowledge of the foreman being imputable to the. company., One of the requested instructions which the court refused to give would have declared the law to be that knowledge of the foreman would not be knowledge-of the defendant under the facts of this case. In other words, defendant’s counsel would have us promulgate a special rule of law to this effect: While knowledge of .a railroad foreman that one of its section laborers is physically incapacitated to work alongside other' laborers is ordinarily to be regarded as knowledge to the railroad company, that rule does not apply when the foreman himself also performs the. work of such a laborer; and although such laborers do not ordinarily assume the risk of injury from the incapacity of a fellow workman,, unless- they are • informed of his incapacity, they do assume such risk when perchance their foreman also works alongside of them as their fellow workman. In our view such a qualification of the limits of the doctrine of assumption of risk is so preposterous that we wouldj not know where to look in the law books for something to support it. Certainly counsel for defendant cite noting that would countenance it.
Error is also based on an instruction in the law of negligence, on the ground that it enlarged the issues. Plaintiff tendered an issue by broad allegations of negligence. Defendant ignored them in its answer except by general denial. Evidence on the tendered issues was adduced at length; and while defendant did make general obj ections to the instructions as given, all it said on this particular point was this:
“Defendant objects and excepts to the instruction given by the court relative to the negligence of the defendant.”
Certainly such an objection gave the court no suggestion as to any irrelevancy or infirmity in the instruction. (Young v. Youngman, 45 Kan. 65, 25 Pac. 209.) In Clark v. Linley Motor Co., 126 Kan. 419, 422, 268 Pac. 860, it was said:
“The rule has .frequently been announced and should be applied here, that whenever a litigant has a meritorious proposition of law which he is seriously pressing upon the attention of the trial court he should raise that point in such clear and simple language that the trial court may not misunderstand it, and if his point is so obscurely hinted at that the trial court quitie excusably fails to grasp it, it will avail naught to disturb the judgment on appeal.” (Citations.)
Another ground of error urged by defendant is based upon accident and surprise when plaintiff, in giving testimony in his own behalf, repudiated statements he had made touching the cause of his accident and injury. In these statements, one of which was written by plaintiff’s wife and signed in his name by her, he attributed his injury to the slipping of his foot on the rail as he and the foreman were lifting the motor car off the track. In that statement there was no intimation that any incapacity on the part of the foreman had anything to do with the cause of his injury. However, such an impasse is not rare in a damage suit; and while this court may view such evasiveness on the part of a litigant with distrust, it merely presents a question of' credence addressed to the consciences of the jury and of the trial court, and not to this court. Furthermore, however discreditable it may be for a litigant to seek to avoid a statement he may have made about the cause of his in jury at or near the time it happened, in this case the repudiation of the statement written by plaintiff’s wife and signed in his name could not have been much of a surprise to defendant. Plaintiff’s petition alleged quite a different narrative touching the cause of his accident and injury. Defendant’s answer stated the cause of the accident substantially as plaintiff’s wife had written it down, and -plaintiff’s reply denied the truth of the matters pleaded in the answer. Thus defendant was forewarned that the prior statements attributed to plaintiff touching the cause of his injuries would be repudiated.
Defendant also bases error in overruling its motion for a new trial because of newly discovered evidence which tended to show that the statements written by plaintiff’s wife bore the genuine signature of plaintiff himself. That, in our view, would be a rather slender ground on which to base a reversal of the judgment.
However, we now come to a matter of more serious gravity than any of the points urged against this judgment. It relates to the amount of the verdict, the evidence on which it was based, and to the jury’s special findings Nos. 3 and 7. It is the duty of one who is injured in person or property by any wrongdoing or shortcoming of another to take all .reasonable means to minimize his damages. This plaintiff did nothing to correct or'cure the ventral hernia he sustained in the manner alleged. He would not go to the railway employees’ hospital for free treatment of that hernia. His own witnesses testified that by surgical treatment that hernia could be cured and it could not be cured otherwise. There was testimony that in refusing to go to the hospital for that purpose he said, “No, I have a family doctor in Mound Valley; I’ll tell you what, the company doctors ain’t worth a damn.” Well,' of course, this is a free country and plaintiff was not bound to go to the hospital. He was free to seek relief from his family doctor or any other competent practitioner. But neither the family doctor nor any other did anything to cure this hernia. Plaintiff’s own witness, Doctor Benage, testified: “This hernia had not been taken care of.” And not only did all four doctors testify that a surgical operation would cure that hernia, but the jury’s special finding No. 7 clearly shows that they gave credence to this unanimous testimony of the doctors who were witnesses in the case.
It is a well-established rule of law (although there are respectable authorities to the contrary) that where a person has been physically injured by the fault of another, which injury can be minimized or cured by a surgical operation not attended with undue suffering or serious hazard to life, and the injured person refuses to undergo such operation, he cannot recover for the consequent prolongation or aggravation of his disability which would be avoided by the needed operation. (Brewing Co. v. Duncan, 6 Kan. App. 178, 57 Pac. 310; McIntosh v. Railway Co., 109 Kan. 246, 198 Pac. 1081; Keown v. Young, 129 Kan. 563, 283 Pac. 511.)
In Strong v. Iron & Metal Co., 109 Kan. 117, 198 Pac. 182, a workman who had sustained an inguinal hernia through an industrial accident and refused to undergo a needed operation to effect its cure was denied compensation for future incapacity. The late Mr. Justice Marshall, speaking for this court, went thoroughly into the subject of the duty of an injured person to terminate or minimize his incapacity by submission to a surgical operation not unduly painful or hazardous to his life. True, that case arose under the workmen’s compensation act, not under the federal employers’ liability act nor under the general law of damages for tortious wrongdoing, but the elementary principles of law touching the duty of a litigant injured in person or property to minimize his damages by such proper course of action as would be followed by a man of ordinary prudence do not vary, in the absence of statutory exception thereto, whatever the nature of the action which the injured party seeks to maintain against his adversary.
There is another objection to the size of this verdict which addresses itself strongly to this court. In itemizing the damages allowed, the jury specified one item, “Loss of physical powers, $3,-945.” The record does not reveal any substantial evidence on which this item could be predicated. Moreover, as we have seen, an allowance of damages cannot be justified on the continued loss of plaintiff’s physical powers consequent upon his persistent refusal to do the thing the jury itself said would have rendered his physical powers materially better, finding No. 7. This court holds that this item in the verdict and judgment cannot stand, and the judgment in favor of plaintiff will require modification to that extent.
It follows that the cause will be remanded to the district court with instructions to reduce the judgment in favor of plaintiff from $5,500 to $1,555, and when so modified it will be affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one by Tomie Jean Neely, as an insured employee of the Cudahy Packing Company, to recover on a group insurance policy issued to the packing company by the Travelers Insurance Company. The verdict and judgment were for plaintiff, and the insurance company appeals.
Neely was employed by the packing company in 1926, and worked in various departments of the packing company’s plant in Wichita. In the course of his employment he suffered an accident resulting in loss of an eye, and he became partially deaf, both ears being affected. In November, 1933, he was working in the hide department. Work in that department is temporary, and on November 3 he was laid off. He had been laid off a number of times before. When laid off, it was necessary that he be reémployed, and if laid off for more than two weeks, he was required to pass a physical examination.
On November 20, 1933, there was work to be done in the hide department, and Neely reported for duty. He had been passed physically after other layoffs, but the instant examination disclosed he was permanently and totally disabled because, in addition to the infirmities of sight and hearing, he had leaking heart valves and high blood pressure, and would be subject to apoplexy.
There was no dispute that work in the hide department was temporary. When there was no work, an employee was given a layoff slip. If the employee was dismissed, he was given a discharge slip. The slip given Neely on November 3 was a layoff slip, which read as follows:
“department release “Date 11-3-33
“Name: T. Neely
“Number 670 Has been this day released from service in hide department:
“State reason fully Laid off. H. Connors, Foreman."
The foreman testified Neely was not “discharged” when he was “laid off.” There was no dispute that after a layoff of two weeks, an employee would not be taken back without a physical examination.-
With respect to time when disqualifying disability occurred, Neely testified two ways. He was working when he was laid off. . He said that when he returned for work on November 20 he felt as though he was able to do the same work he had always been doing, and there was no doubt about it in his mind. He also said he had been unable to do any work since he was laid off.
The policy contained the following provision:
“The insurance of any employee covered hereunder shall end when his employment with the employer shall end, or prior thereto when the employee shall cease to pay to the employer the required amount to apply toward the premium for this insurance.”
The policy also provided that if any employee furnished proof that, while insured, he became wholly disabled by bodily injury or disease, the insurer would waive further payment of premium. Premium on the policy to be paid by the employee was payable weekly. Neely testified money was taken out of his wages every week to pay premiums, and he paid no premiums after November 2, 1933.
The court instructed the jury as follows:
“It is admitted that the policy was issued and that the premiums were paid up until the 2d day of November, 1933. It is also admitted by the' plaintiff that after that date he paid no more premiums. If, however, at that time his disability had appeared, then, under the terms of the policy, it was unnecessary to pay any more premiums to keep the policy in effect.”
After the jury had deliberated for a day, it was called into court, and the following proceedings occurred:
“The Court: Well, Mr. Foreman, have you arrived at a verdict?
“The Foreman: Your Honor, we haven’t yet at this time arrived at a verdict.
“The Court: What do you think the chances are, Mr. Foreman?
“The Foreman: Well, Your Honor, I can’t just say.
“The Court: You don’t believe it is hopeless?
“The Foreman: Well, I hardly think so. It might be.
“The Court: Let me read you another instruction. Now, watch it carefully: ‘There is little excuse for a hung jury. It is generally senseless and, too, generally arises out of personal quarrels or differences between the jurors. It is an abomination to any court, an abhorrence to taxpayers, and a reproach upon the members of the jury. It is hoped by the court that you twelve jurors are as intelligent as the next twelve jurors- would be. The differences of the jurors are seldom over an issue in the case. They are seldom caused by lack of evidence, but, rather, by a perversity or egotism on the part of some one or more jurors, or by ill-will of some one or more jurors towards a lawyer or a witness in the case. Such jurors forget their oath and the purpose of a jury — justice, not travesty. . . .’”
With a general verdict for plaintiff, the jury returned, among others not now material, the following findings of fact:
“1. When did the plaintiff’s employment with the Cudahy Packing Company cease? A. November 20, 1933.
“2. Did the plaintiff pay any premiums on the insurance contract to the defendant company after his employment ceased? A. No.
“3. Did the plaintiff work regularly at the Cudahy Packing Company except for intermittent layoffs on account of lack of work, until the date you found in question No. 1? A. Yes.
“5. Do you find that the plaintiff has become wholly disabled by bodily injury or disesase? A. Yes.
“7. If you answer No. 5 in the affirmative, state when he became totally and permanently disabled. A. November 20, 1933.”
A motion to set aside findings 1 and 3 was denied, and a motion for judgment notwithstanding the verdict, was denied.
The instruction given the jury when it was deliberating upon its verdict was insufferably coercive.
In the case of the State v. Witt, 34 Kan. 488, 8 Pac. 769, it was held error to refuse to give the following instruction in the general charge.
“If any one of the jury, after having considered all the evidence in this case, and after having consulted with his fellow-jurymen, should entertain a reasonable doubt of the defendant’s guilt, or after such consideration and consultation, should entertain a reasonable doubt as to whether or not the defendant was present at the time and place of the commission of the alleged homicide, then the jury cannot find the defendant guilty.” (p. 495.)
In the opinion the court said:
“It is conceded by counsel for the state that this instruction correctly states the law, and that it was one proper to be given in the case; and the question arises, was its refusal error? In no part of the general charge given by the court is the individual duty and responsibility of each juror stated, or in any way referred to. The jury are instructed as a body, and although the doctrine of reasonable doubt is stated in the general charge, it is addressed to the jury in its collective capacity. Under our system, the verdict must be the concurrent judgment of all the members of the jury. It is the duty of the juror to consult and consider the views of his fellow jurors, but ultimately he must act upon his individual judgment, and as stated in the instruction which was refused, if any one of the juiy, after having considered all the evidence, and after having consulted with his fellow jurymen, should entertain a reasonable doubt of the defendant’s guilt, they cannot convict.” (p. 495.)
In the case of the State v. Logan, 73 Kan. 730, 85 Pac. 798, the syllabus reads:
“An instruction relating to the individual responsibility of each juror in a criminal case which implies that he is to act solely upon his individual judgment, and is silent as to his duty to consult with his fellow jurors, is erroneous.”
In the opinion it was said:
“The verdict of a jury is the combined judgment of twelve men who have all heard the same evidence, each one of whom may have received some impression therefrom differing from that of all his fellows, and is not the separate, independent acts of twelve men — that is, twelve independent verdicts. After hearing the evidence and the arguments of counsel thereon, pro and con, in which arguments the evidence is usually sought to be harmonized with the conclusion of the guilt of the defendant by the attorneys for the state and with the conclusion of the innocence of the defendant by the attorneys for the defendant, the jurymen are segregated to permit them to consult and compare views, for the purpose, of course, of coming to a common conclusion that will satisfy the judgment of each juror. If such common conclusion can be arrived at, it should be embodied in a verdict. If it cannot be arrived at, there should be a disagreement.” (p. 731.)
The result is, that conscientious disagreement, after the duties of a juror have been observed, is approved.
Turning to the subject of duties of jurors in civil cases, in the case of C. B. U. P. Rld. Co. v. Andrews, 41 Kan. 370, 21 Pac. 276, the syllabus reads:
“The refusal of the court to charge the jury in a civil action that each juror must ultimately act upon his individual judgment, where it does not appear that there was any special necessity for such an instruction, or that any prejudice resulted therefrom, is not reversible error.” (p. 371.)
In the opinion it was said:
“An instruction was asked directing the jury that while each member was expected to consult' and confer with the others, yet ultimately he must act upon his individual judgment. While this instruction might have been given with propriety, its refusal in this case cannot be regarded as reversible error. The failure to so charge the jury in a criminal case, when requested, has been held a ground of error in The State v. Witt, 34 Kan. 488; but the same strictness is not required in civil as in criminal cases, and no showing was made that there was any special necessity for the giving of such instruction in this case, or that any prejudice resulted from the refusal.” (p. 381.)
It will be observed the court said the requested instruction might properly have been given as a part of the general charge.
In the case of Smith v. Cement Co., 94 Kan. 501, 146 Pac. 1026, an instruction to be embodied in the general charge relating to the subject of a juror yielding simply because his fellows were of a different view, was refused. It was held the refusal was not error, because there was nothing to show any necessity for the instruction.
There seldom is necessity for stressing the subject of duty and responsibility of an individual juror, in the general charge. It is usually sufficient if the common duty of jurors in considering the case is explained. When disagreement is impending, the subject of divergence of view becomes important.
In the case of Sibley v. Cotton-mills Co., 85 Kan. 256, 116 Pac. 889, the opinion reads:
“When the jury were about to return to their deliberations, after a noon recess, the court made some inquiry, and indulged in observations concerning the importance of an agreement, intimating that the jury might be kept in their room overnight, referring also to the expense of another trial. Objections were made to these remarks. It is not believed to be necessary to insert here a copy of the remarks objected to. While recognizing the importance of allowing the jury independence of action within their rightful sphere, it does not appear that the court invaded their province or went beyond the boundaries of judicial discretion.” (p. 263.)
While the extraneous coercive matters appear to have been tactfully communicated to the jury, the instruction was not approved.
In the case of Karner v. Railroad Company, 82 Kan. 842, 109 Pac. 676, the court admonished the jury, while it was deliberating, as follows:
“I think you have failed to read your instructions as much as you should have read them, and learn from them that when you cannot decide a matter in favor of the party who has the affirmative, because the weight of the evidence is not that way, you should decide the other way. ... You can see the necessity for your making some strenuous effort to come to an agreement upon that doctrine that when a party has the affirmative of an issue, if the evidence does not show that party is entitled to recover, you must find the other way; find against that party.” (p. 843.)
It was contended the instruction was likely to be and was misunderstood. In the opinion, which was per curiam, this contention was refuted, and it was sáid:
. “The court went quite far in seeking to impress upon the jury their duty to agree if possible, but not so far as to constitute coercion or otherwise amount to reversible error.” (p. 484.)
It will be observed the instruction related to duty of the jury to consider and apply a principle of law enunciated in the general instructions.
The foregoing are the only decisions of this court called to its attention, and they are sufficient. None of them justifies the bludgeoning administered to the jurors in this case who were reluctant to agree. None but a juror of exceptional strength of mind and character would dare face the obloquy threatened by the court, if he stood out. The lone juror, or small minority of jurors, possessing courage to obey the juryman’s oath and to withstand dragooning, is the bulwark in the jury system against mob verdicts.
Since the judgment must be reversed, the question arises what the order of this court should be.
There are many kinds of group policies negotiated by 'employers for benefit of employees. Some make provision for what shall be done in case of layoff. The one sued on did not do so, and the policy was not aided by statute relating to continuity of employment in case of layoff for unavoidable cause, similar to the provision found in the workmen’s compensation- act. (R. S. 44-511, 1 [a]; Horn v. Elm Branch Coal Company, 141 Kan. 518, 41 P. 2d 751.) The policy provided insurance should end when employment ended, without distinction between layoff and discharge. The layoff slip which Neely received said he was released from service. The packing company had no work for him to do, he did not work, he received no pay for work, and he was not in fact employed when laying off. He might never be taken back to work, and if there should be work to be done, it was necessary that he be reemployed. Interpretation of the policy was a matter for the court and not for the jury, and under the policy, Neely’s employment ceased on November 3.
Passing the subject of termination of employment, the policy lapsed unless Neely kept up the premium, and he paid no premium after he was laid off. He was relieved of payment of premium if his disability occurred while he was employed. He worked until November 3, ’and there was no evidence his disability occurred on or previous to that date. The jury found, on his own testimony, his disability occurred on November 20. The result is, that in no aspect of the case could plaintiff recover.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for defendant. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In this case the defendant was prosecuted for ■selling capital stock in a bank when it was in a failing condition, ■using false pretenses and representations with intent to defraud F. .F. Schainost.
It was alleged that on May 21, 1931, the defendant unlawfully, feloniously and falsely represented to Schainost, with intent to cheat ■and defraud him, that defendant was looking after the settlement of his father’s estate; that the estate was possessed of sixteen shares in "the First National Bank of Colony; that to settle the estate it would be necessary to sell the sixteen shares of stock, and that on May 21, 1931, the shares of stock in the bank were in book value $135, and reasonably worth $150 a share. The information charged these statements were false and fraudulent in the following particulars: That on May 21, 1931, the bank was in a failing and insolvent condition, and was known by the defendant to be in a failing and insolvent condition; that on that date the estate of the defendant’s father possessed only one share of stock in the bank, instead of sixteen; that said defendant cashier was the managing officer of the bank and knew that the shares of stock of the defendant’s father had been transferred and distributed; that Schainost believed the false representations to be true and, being deceived thereby, was induced by the falsé representations to pay for two shares of stock in the'bank. This informátion charged the making of representations which led Schainost to purchase, and that this was done with the intent to cheat and defraud him. • -
The information is substantially like that in State v. Palmer, '40 Kan. 474; 20 Pac. 270, and the information in that case was held to be adequate arid sufficient in that it set out the' pretenses by which the fraud was consummated, the value of the property obtained and alleged the fraudulent intent. It is said that the false representations should have been negatived specifically. .The truthfulness of defendant’s representation that the estate belonging to his father was possessed of sixtéen shares of stock in the bank is properly negatived by the allegation, “when in truth and in fact said statements were false and fraudulent”; and the allegation that Lintner’s father at the time possessed but one share of stock, and that the defendant was cashier and managing officer of the bank, and knew to whom the shares of stock belonged and knew that the shares in question belonging to the estate had theretofore been distributed to the members of his family.
The information alleged the pretense of the defendant as to the book value of the stock being $135 and reasonably worth $150 .a share. This pretense of the defendant is sufficiently negatived by the allegation that said statements were false and fraudulent and that the bank was then and there in a failing condition and known by J. V. Lintner to be in a failing condition. The book value of the stock depends largely on the solvency of the corporation, arid by setting up the fact that the bank was failing and insolvent sufficiently negatives the truth of the defendant’s pretense that the stock had a book value of $135 and was reasonably worth $150 a share.
In our opinion the charge in the information was sufficient according to the authorities. (State v. Palmer, supra; Griggs v. United States, 158 Fed. 572.) In May, from the third to the fifth, an examiner from the office of the comptroller of the currency was present and made an examination and found the stock to have been impaired, and an order to make up the deficiency was made. This is done by calling a meeting of the stockholders and making an assessment pro rata of the amount of the stock held by each stockholder.
“If any such association shall fail to pay up its capital stock and shall refuse to go into liquidation as provided by law, for three months after receiving notice from the comptroller, a receiver may beappointed to close up the business of the association.” (R. S. § 5205, U. S. C. A. title 12, § 55.)
No meeting of stockholders to make an assessment was held, and evidently no removal of the impairment was made, but the stock was sold on May 21,1931. The representation that the father of the defendant owned sixteen shares when as a matter of fact he only held one share was a false pretense evidently made with intent to defraud. This, the defendant, who was cashier and general manager of the bank, necessarily knew. The father evidently was a man of means and the pretense aided in inducing the purchaser to believe that the bank was sound and that the stock was worth the money asked for it. He was told by the defendant that the bank examiner had pronounced it in good condition financially, when in fact a report of the comptroller was on file in the bank holding the stock was impaired. These statements having induced the belief in the mind of the purchaser that the bank was sound, he ventured to buy the two shares of stock for which he paid $300 in money.
It has been held that the decision of the comptroller of an impairment is binding upon the stockholders. In Thomas v. Gilbert, 55 Ore. 14, it was said:
“The decision of the comptroller of the currency that the capital stock of a national bank is impaired is conclusive on the stockholders of the bank and on the courts; the bank having no alternative but to make good the impairment or liquidate.” (Syl. If 3.)
It devolves on the stockholders to make the findings of impairment and the assessments so that the bank can continue in business. This was not done, and the impairment of the capital was not removed. It continued impaired so long as the bank continued in business. Efforts were evidently made to restore the capital, but it was not effected and the defendant admitted that from the time the notice of the comptroller was received in April the impairment of the capital continued until the bank finally closed. The defendant testified that they were continuously in difficulty, working from one thing to another until finally the bank had to close.
It has been held that the book value of corporate stock is the net worth of all corporate assets less all liabilities of the corporation. (Gurley v. Woodbury, 177 N. C. 70.) This case is cited in an annotation to Early v. Moor, 33 A. L. R. 366. As far as the defendant is concerned, the purchaser, Schainost, was led to part with money by false pretenses and defendant must be regarded as guilty of an offense. In the case of Musgrave v. The State, 133 Ind. 297, it was said:
“If the false pretenses of the wrongdoer are such as to deprive the person from whom the money is procured of his money, then money is obtained by false pretenses, and a crime is committed. If, in other words, the wrongdoer does make such false pretenses as induces another to part with his money or property, that money or property is obtained from the owner by false pretenses, because he is deprived of it by criminal means and methods. The law does not make it an element of the offense of obtaining money or property under false pretenses that it shall be obtained for the person making the pretenses himself, or that it shall be intended to obtain it for another, for it is provided that ‘whoever shall obtain money or property’ by false pretenses shall be guilty of a felony.” (p. 307.)
We have noted that in In re Snyder, 17 Kan. 542, it was said:
“It is not necessary, to constitute the offense of obtaining goods by false pretenses, that the owner should have been induced to part with his property solely and entirely by pretenses which were false; nor need the pretenses be the paramount cause of the delivery. It is sufficient, if they are a part of the moving cause, and without them the prosecutor would not have parted with the property.” (p. 555.)
The evidence sufficiently establishes the finding of the defendant’s guilt.
There are criticisms of the instructions brought to our attention, for instance, the sixth instruction, which provides:
“In connection with this same matter I have to advise you that a person who has something to sell may lawfully represent it as he believes it to be, however mistaken he may be in such belief; however, he is not warranted in making representations as to value which he expects the other party to rely on without some knowledge of the situation, and if he does it improvidently and without investigation or such knowledge of the affair as he was capable of ascertaining from means under his control he may not thereby escape from the effect of such representations, but must answer for the same accordingly. So, if you believe that Lintner, without sufficient examination and research into the facts and without the use of such information as he may have had at his command, represented to Schainost a state of affairs that was not warranted by the facts then I think you would be justified in finding that Lintner made a false representation in spite of the fact he may have done so inadvertently, providing always that such representations were made by Lintner with the intent to deceive Schainost and consequently cheat and defraud him.”
It is contended that the latter part of the instruction is erroneous wherein the court says:
“So, if you believe that Lintner, without sufficient examination and research into the facts and without the use of such information as he may have had at his command, represented to Schainost a state of affairs that was not warranted by the facts, then I think you would be justified in finding that Lintner made a false representation in spite of the fact he may have done so inadvertently, providing always that such representations were made by Lintner with the intent to deceive Schainost and consequently cheat and defraud him.”
This seems to be favorable to defendant. He could not shut his eyes to information in his bank and falsely represent a fact with the intention to defraud and cheat Schainost and consequently to defraud him. In that event he is chargeable.
Some complaint is made of instruction seven, but it also is favorable to the defendant. It simply points out that the fact the bank may have closed its doors in August, 1931, would not be sufficient to warrant the conclusion that a false representation was made by Lintner in the negotiations which led up to the deal on May 21, but such fact is an incident which may very properly be taken into consideration with other testimony.
What could happen in the few days which existed between May 5 and May 21 of the same month? The other testimony reveals the fact that no steps were taken, but evidently defendant was looking towards a patching up of the capital which he was unable to accomplish.
There is a claim that an instruction was requested by defendant to the effect that the state’s evidence of other transactions similar to the one involved is to be considered only for the purpose of showing the intent, method and means of business or knowledge of the defendant, and that such evidence is to be considered for no other purpose. The court appears to have given, some attention to the subject where it said in the eighth instruction:
“There is some evidence before you gentlemen in regard to the opinion of witnesses as to the solvency of the First National Bank of Colony, and of the-result of examinations thereof and consequent report thereof. This evidence- would not bind the defendant except as to matters which were communicated to him, and the effect of giving the information to him, if it was given, would be simply to charge him with knowledge of what such witnesses thought the financial state of the bank to be.”
The instruction said to have been asked, it appears, is not in the record. It does not appear in the files of the case. In order that this instruction shall be considered it is necessary that it be filed in compliance with R. S. 60-2942. It is not filed with the clerk, was not requested in open court and does not appear as a part of the transcript of the proceedings of the case taken by the court reporter, and it therefore cannot be brought before us for review. It was held that:
“Error cannot be predicated on the omission of the trial court to give fuller instructions when the omission is first called to the attention of the trial court after verdict by a motion for a new trial; and such omission is not a proper ground for a motion in arrest of judgment.” (State v. Clough, 70 Kan. 510, 79 Pac. 117, syl. ¶ 2.)
See State v. Winters, 81 Kan. 414, 105 Pac. 516, where the subject is more fully treated and is well supported by- other authorities. The motion, if made, has not been inserted in the record and is not effective. Cases must be tried on the record made.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action upon an oral agreement to recover the reasonable, value, or quantum meruit, of information furnished, which was in the possession of the plaintiff prior to the time of making the agreement, and from which information the defendant bank was enabled to recover a substantial part of the loss occasioned by an erroneous credit on the books of the bank. A trial was had before a jury and a verdict and judgment were rendered for the plaintiff for $1,000, from which judgment the defendant bank appeals.
The appellant summarizes the points involved in the appeal as follows:
“1. The alleged agreement was too indefinite to establish an enforceable contract.
“2. The appellee gave the information voluntarily without promise of compensation, and the claimed services were performed prior to the offer of reward.
“3. The alleged agreement was contrary to public policy and therefore void.
“4. Incompetent- and prejudicial evidence was admitted to prove the value of appellee’s services.”
The following is the testimony of the plaintiff as to the oral contract she made over the telephone with John McLean, a vice president of the bank, on July 15, 1930:
“I told him I had some information to give the bank that I thought would be very valuable to them, concerning the overpayment of one of their depositors. I told him that this was not a small sum of a few hundred dollars or a thousand dollars, but that it was a staggering amount, and that I would give them the information and thought it would be worth something ' if the bank could recover on that. He told me to go ahead and give him the information and the bank would , take it up, and if they were able to realize anything on my information they would be glad to do the right thing for me and be liberal. I also told them if they checked it up and found my information was correct that I also had some more information that I thought would be valuable to the bank. I told him that the information that I had was to the effect that they had overpaid Lawrence H. Moore, otherwise known as L. H. Moore.”
At the time of the trial John McLean was deceased, and there was no conflicting evidence offered as to the terms of the agreement as stated by plaintiff. The defendant introduced the testimony of many witnesses to show that no such conversation over the telephone was had or could have been had, yet three or more of the officers of the defendant bank testified that the first information the bank, or its officers, had as to such erroneous credit was from the plaintiff. The testimony further shows that the auditor of the bank went to the home of the plaintiff the same day that she says the telephone conversation took place to get details of the information, especially as to where the money improperly withdrawn by L. H. Moore was invested, and also shows that two court actions were commenced by the bank within two days thereafter in an attempt to recover portions of this wrongfully withdrawn fund, one action in Kansas, and the other in Oklahoma.
The evidence shows that one J. H. Moore made several deposits in the defendant bank which were erroneously credited to the account of L. H. Moore, another depositor in the bank, and the latter wrongfully withdrew from the bank by reason of this erroneous credit the sum of $12,269.52. That approximately $8,000 of it was used by said L. H. Moore in the purchase and improvement of a property in Sedgwick county, Kansas, which property was recovered by the bank, and also twenty shares of building and loan stock in Oklahoma, for which stock the defendant bank received $2,020. There was some evidence to show that the real property recovered by the bank may not at the time of recovery have been worth the $8,000 it cost L. H. Moore. One of the officers of the bank testified that after deducting all expenses involved in the recovery the bank realized from it $5,796.
Appellant cites on the first point involved many cases concluding that the contract upon which recovery was sought was too indefinite to establish or be an enforceable contract. Such might have been said as to the contract here under consideration, if the plaintiff had attempted to enforce it as a full and complete contract in itself. The plaintiff in her petition specifically acknowledged its incompleteness in itself by proper allegations for quantum meruit, which of course would not have been necessary if the promise and agreement had contained a definite sum as compensation. Some of the cases cited have reference to enforcing liens on lost property, when discovered, after a reward had been offered. The case of Nichols v. Coppock, 124 Kan. 652, 261 Pac. 652, is cited where it was held that the sale of property on “easy terms” was too indefinite. The missing feature there could not be supplied under quantum meruit and it was not so attempted. That is very different from employing one and agreeing to pay him reasonable wages. His contract is definite and an action for quantum meruit is decidedly proper.
In the case of Berry v. Craig, 76 Kan. 345, 91 Pac. 913, it was held:
“In an action for a commission a real-estate broker may join a count for the reasonable value of his services with a count based upon an express contract to pay a stated commission.” (Syl.)
In the opinion it was said:
“The two counts were entirely consistent. Neither contradicted the other. The facts stated in the first might be true and the facts stated in the second also might be true. If an express contract existed, recovery could not be had upon an implied contract; but to meet possible exigencies of the proof the plaintiff had the right to go to the jury upon both' sets of allegations.” (p. 346.)
In Williams v. Jones, 105 Kan. 282, 182 Pac. 391, it was said:
“The findings in question were not that the defendant had said in so many words that he would pay for the plaintiff’s services, but that in the situation the jury found to exist an agreement to that effect was reasonably to be implied. A mere request or direction to the defendant to do the work would be enough to warrant an inference that it was to be paid for, in the absence of evidence that it was to be gratuitous, or that the plaintiff was to be compensated in some other manner.” (p. 283.)
In Merywethers v. Youmans, 81 Kan. 309, 106 Pac. 1071, it was held:
“It is competent for the plaintiff to set up an express contract to pay specified wages for work done and also that the work was reasonably worth the amount claimed.” (Syl. If 3.)
It is said in 28 R. C. L. 694:
“ . . . the generally recognized doctrine is that although a' contract is invalid because the minds of the parties did not meet as to some of the essential terms thereof, yet a party thereto who furnishes material or renders services to the other party, relying on the terms as he understood them, is entitled to recover what the labor furnished was reasonably worth, even though that is in excess of the contract price. This is true where the minds fail to meet as to the compensation to be paid.”
In the case of Millspaugh v. McKnab, 134 Kan. 579, 7 P. 2d 51, it was held:
“Where there is an express contract of employment to obtain an oil and gas lease which provides that the compensation of the employee is to be graduated, determined and established by the success of his endeavors and the value of the lease, as shown by developments thereon, and the lease is obtained, recovery may be had for services rendered on the basis of quantum meruit.” (Syl. If 1.)
The general rule is stated in 22- R. C. L. 47 as to information, both in possession of one of the contracting parties, as well as that to be ascertained afterwards, in which it is described as property and subject to contract.
As to a consideration for the contract in this action, a mutual promise or' a promise for a promise is a consideration, as stated briefly in 13 C. J. 328.
The case of Reed v. Golden, 28 Kan. 632, was where the information furnished was already in the possession of the party offering to furnish it, and it was there held:
“A party who has discovered the locality of an oil spring, a mine, or other valuable properties, may sell the knowledge thus acquired, and such information is a sufficient consideration for a purchaser’s promise to pay.” (Syl. Ifl.)
The case of Berkey v. Smith, 138 Kan. 792, 28 P. 2d 763, was where the plaintiff had instructed defendant in the art of embalming and funeral directing, and certified to the same so that he could enter an embalming school and receive a license as a practical embalmer and funeral director, upon a written agreement that he should not enter into competition with him within ten miles of his place of business while he remained in that business at that place. The defendant, however, in the name of his wife, started a few months later an embalming business in the same town, and the action was to enjoin him. This court in the opinion said:
“Appellant contends the contract was without consideration. The point is not well taken. The contract as written contains mutual promises, and it is fundamental that the consideration for a promise may be a return promise. (Restatement of the Law of Contracts, § 75.) . . . We see nothing in the contract as written, or as enlarged by the finding of the court, which renders the contract illegal or void, as against public policy, nor as tending to show that the consideration was insufficient. (A. L. I. Restatement, Contracts, §§83,84.)” (p. 795.)
The second point involved, as outlined by appellant, is as follows:
“The appellee gave the information voluntarily without promise of compensation, and the claimed services were performed prior to the offer of reward.”
This is correct according to the testimony of defendant’s witnesses who were not given credence by the jury. And since there was sufficient evidence to support the verdict of the jury, we must accept that which the jury credited, and it negatives the above statement as to the information being given without a promise of compensation and also negatives the second part of the statement as to the services being performed prior to the offer of reward. The plaintiff’s evidence on this point, which the jury credited, leaves this question undebatable. It is as follows:
“He told me to go ahead and give him the information and the bank would take it up, and if they were able to realize anything on my information they would be glad to do the right thing for me and be liberal. I also told them if they checked it up and found my information was correct that I also had some more information that I thought would be valuable to the bank. I told him that the information that I had was to the effect that they had overpaid Lawrence H. Moore, otherwise known as L. H. Moore.”
The third point involved among the errors assigned is that the agreement was contrary to public policy and therefore void. Appellant cites numerous authorities where such contracts have encouraged extortion, and have been denominated as common barratry and champerty, citing R. S. 21-745, being our statute on common barratry in our criminal code, which offense is generally defined as that of frequently exciting and stirring up quarrels either at law or otherwise. This feature of public policy turns largely on the facts and circumstances of the case. No one rule or statement will determine it.
It is argued that it was the duty of the plaintiff to furnish the information she did as soon as it came to her knowledge and again that it was wrong and against public policy to agree to furnish it for compensation. Some of the cases cited hold very properly that it may be against public policy to agree to go out and gather information that will produce litigation. The proposition here is that I have heard that you have lost by mistake several thousand dollars; if you care for such information, I will tell you where it is said you have lost it, and where it is said you may be able to recover some of it. Most cases involving public policy include work or services to be performed after the making of the agreement, which work in itself is what may be against public policy. Among the cases cited there does not seem to be any precedent as to divulging information already in one’s possession, not received in trust or confidence, which is of benefit to the other contracting party. In the Millspaugh cases, supra, it was held:
“A contract to obtain a lease upon state land from the board of administration, which provides that the compensation shall depend upon the success of the efforts to obtain the lease, is not void as against public policy where no immoral, illegal or corrupt acts are claimed or shown.” (Syl. IF 2.)
It has long been the rule in this and other states that there is no presumption that a contract is illegal, and its illegality must be made to appear from the facts and circumstances involved. (See M’ Bratney v. Chandler, 22 Kan. 692, and Paving Co. v. Botsford, 56 Kan. 532, 44 Pac. 3.)
The last point raised is in the use of incompetent and prejudicial evidence to prove the value of the services rendered by the plaintiff. An expert witness was called, shown to be familiar with all kinds of services rendered in the way of making collections by attorneys of collection agencies, and compensation paid for such services where based on the recovery made, and he was asked a hypothetical question based on the evidence introduced on the subject of the information furnished and recovery had. We think this was proper and well within the rule stated in Telegraph Co. v. Morris, 67 Kan. 410, 73 Pac. 108. The witness used was an attorney, but the qualification and the hypothetical question were not limited to his professional work along collection lines.
We conclude that the rulings of the trial court on the four points • here considered were not erroneous.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.;
This is a second appeal in an action involving defendant’s right to recover damages for alleged breach of contract.
The opinion in the former appeal is reported in J. I. Case Co. v. Bodecker, 137 Kan. 136, 19 P. 2d 450, where the issues are outlined and the evidence offered at the first trial is summarized. In that trial, the trial court sustained a demurrer to defendant’s evidence, but on motion for a new trial concluded it had erred and granted a new trial. In disposing of plaintiff’s appeal from that ruling, we said:
“We think the court was correct in saying there was evidence from which a jury might find, from its course of dealing with defendant, plaintiff had become estopped from insisting on the literal interpretation of its contracts with respect to weekly reports, or had waived its rights to cancel the contracts by reason thereof.” (p. 140.)
At the second trial, evidence of about the same character as outlined in the above opinion was offered by the defendant and plaintiff again demurred thereto, the demurrer was overruled, and at the conclusion of the trial a verdict -was rendered in favor of the defendant. Plaintiff appeals, and its assignments of error are summarized as follows:
1. That the court erred in admitting testimony tending to show it had waived or qualified any of the terms of its written contract with defendant, and in instructing the jury thereon.
2. In overruling its demurrer to defendant’s evidence and
3. In admitting testimony relative to the value of defendant’s services or time, and in instructing the jury with respect thereto.
As to the first assignment, it may be said the matter was fully treated in the first appeal, and need not be discussed further than to say that the evidence was properly admitted, and except as to the item of $1,200 listed in the statement of defendant’s claims, which is hereafter mentioned, the jury was properly instructed, and its finding, having been approved by the trial court, is conclusive here.
As to the second assignment of error, it is not necessary that we repeat the testimony tending to support defendant’s claims as to the contract having been unlawfully canceled, as the substance of it is stated in the first appeal. Neither are we concerned with appellant’s interpretation placed upon it, which is in a large part predicated on what it claims is incompetent, but what we hold to be competent, evidence. The trial court properly overruled the demurrer.
The third assignment we regard as meritorious. The first cause of action of defendant’s cross petition alleged his contracts with plaintiff, dated December 4, 1930, constituting him the exclusive agent of plaintiff for the sale of plaintiff’s merchandise until October 31, 1931, and that in pursuance he entered upon the work of advertising and selling in his assigned territory, performing all conditions and work required by the contracts, but that about June 3,. 1931, the plaintiff unlawfully canceled the contracts, no longer recognized him as agent, and no longer furnished him merchandise; that in the preliminary work done by him for the sale of plaintiff’s products, it was necessary to expend and he did expend certain amounts for automobile service, salesmen’s expense and advertising, the sum of $794, for which he sought recovery. It is not necessary to review the contracts further than to state they required defendant to advertise and canvass for business, to make two demonstrations of tractors, to set up and start machinery sold under the contract, to maintain a shop, etc. His compensation was the profit made from selling the machines above certain listed prices, with a special discount for the performance of the above services. At no place in the contract is there any provision for salary.
On trial, after showing the above items of expense, and over plaintiff’s objection, defendant was permitted to testify that his time devoted to the business was worth $200 per month for six months, or $1,200, being the item before referred to, and he was then permitted to amend his cross petition to conform to proof.- On cross-examination he testified he had received cash commissions of $340 and had sold two tractors, receiving for his commission some machinery which he had never been able to sell. At no time did he offer to return the commissions of cash or machinery received, or to give any credit on account thereof, and, indeed, that being a part of what he gained from a performance of the contract, he did not have to, but having accepted commissions, he could not “change horses in the middle of the stream” and seek to recover also for his time. His measure of damages was the amount of commission he would have been paid, less his expenses, had the contract not been breached. As was said in Richardson v. Swartzel, 70 Kan. 773, 79 Pac. 660:
“Where a partially performed contract between a company and its agent for the sale of machinery is arbitrarily and wrongfully terminated by the company, the agent has the option to sue for the breach and recover damages, or upon a quantum meruit for the worth of his services already rendered.” (Syl. IT 1.)
In Sparks v. Motor Co., 85 Kan. 29, 116 Pac. 363, Ann. Cas. 1912C 1251, the syllabus reads:
“The measure of damages for breach of a contract giving the plaintiff the exclusive, agency for the sale of automobiles where the manufacturer invades the plaintiff’s territory is the amount of commissions or discounts of which the plaintiff is deprived by sales made by the defendant.” (Syl. IF 1.') '
In Emerson-Brantingham Co. v. Lyons, 94 Kan. 567, 147 Pac. 58, a somewhat similar situation was involved, and it was held-the agent could recover reasonable expense incurred in advertising and demonstrating' machinery, but was not entitled to recover for the value of services rendered. And see Osborne v. Stassen, 25 Kan. 736, as bearing upon the question.
To permit defendant to recover for his time, as well as for expenses incurred in advertising and demonstration, and to retain the commissions of cash and machinery he had received, would be to permit a double recovery. When he retained the commissions he had received and sought to recover, the expenses paid, he waived any right he might otherwise have had to recover as on quantum meruit, and the trial court erred in receiving the testimony and permitting amendment of the cross petition.
We are then confronted with the proposition of what effect the wrongfully admitted testimony had upon the verdict of the jury, which was for $896. There is no dispute in the evidence that the expense items for which defendant was entitled to recover totaled $794. It follows also that the difference of $102 is what the jury allowed defendant for his time under the improperly admitted evidence. It requires no new trial to determine that the amount of defendant’s recovery should have been $794, and judgment for that amount is ordered. At the trial, it was admitted by the pleadings that plaintiff was entitled to judgment against the defendant on a note, for the sum of $600 and interest, or a total of $766.67, as of April 23, 1934. This amount should be set off against the judgment for $794, leaving a balance dúe on defendant’s judgment against plaintiff of $27.33, which should bear interest at six per cent from April 23, 1934 (R. S. 60-3317).
The judgment of the lower court is reversed, and the cause remanded with instructions to enter judgment in accordance herewith. | [
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The opinion of the court was delivered by
Harvey, J.:
This action involves the right of the state to have its claim for motor-fuel tax against an oil company allowed, with priority of payment over other claims, by the receiver of the oil company appointed by a state court. The trial court allowed the claim to be paid pro rata with claims of other creditors, and denied priority. The state has appealed.
The Sarver Oil Company, engaged in the retail sale of petroleum products, was a Kansas corporation with its oil service station and principal place of business at Osborne. Its service station burned] it became financially involved, and in October, 1932, O. M. Madison was appointed as its receiver upon the petition of a creditor and stockholder. The oil company had not paid the state the tax required by chapter 287 of the Laws of 1929, then in force, for petroleum products sold in 1931. The state of Kansas, through its authorized official, an assistant state oil inspector, filed with the receiver its claim against the oil company for such tax, in the sum of $1497.94, and asked that it be allowed with priority of payment over other claims.
On the hearing as to priority it was stipulated: That the tax in question was levied by virtue of statutes in force when the petroleum products were sold; that no notice of lien was filed with the register of deeds; that the state claims no lien upon any property for the amount of the tax; that no attempt had been made to collect the tax against the Sarver Oil Company, or any member thereof, except the filing of this claim, correspondence and personal solicitation; that no tax warrant or other process to collect the tax has been issued or used; that no money from the sale of the petroleum products by the Sarver Oil Company, or tax money thereon, ever came into the hands of the receiver, and that no cash came into the hands of the receiver from the bank.
Our constitution (art. 11, § 10 [new number]) authorizes the levy of special taxes for road and highway purposes on motor fuels. The pertinent statute (Laws 1929, ch. 287), in force at the time the tax in question accrued, shortly stated, imposed a tax of three cents per gallon on the sale or use of motor fuels, to be computed on motor fuels purchased by a dealer, which he could charge to the person to whom he sold. The dealer was to make a report to the state oil inspector each month of all motor fuels received by him, and pay the tax due thereon less certain allowances not important in this case. Each dealer was required to give a bond to the state, in the sum of $500, conditioned that there will be repaid to the state any sum of money it may lose through the violation of any of the provisions of the act; and violations of the act by a dealer were made misdemeanors, for which punishments were prescribed. Under this statute the dealer, by noncompliance with the statute, became liable to the state as for a debt (State, ex rel., v. Snell, 127 Kan. 859, 275 Pac. 209), also became liable to the penalties prescribed (State v. Snell, 131 Kan. 370, 291 Pac. 737).
It was by virtue of the fact that the dealer was liable to the state as for a debt that the court was justified in allowing the claim of the state in this case even as a common claim, for normally taxes are not debts. (Comm’rs of Stafford Co. v. National Bank, 48 Kan. 561, 30 Pac. 22; Comm’rs of Franklin Co. v. City of Ottawa, 49 Kan. 747, 31 Pac. 788.) In this state the whole matter of taxation, including the levy and collection of taxes, is statutory and does not exist apart from the statute. (Sedgwick County Comm’rs v. Conners, 121 Kan. 105, 245 Pac. 1030; Crawford County Comm’rs v. Radley et al., 134 Kan. 704, 8 P. 2d 386; Crawford County Comm’rs v. Kurent, 138 Kan. 556, 27 P. 2d 226.) While the taxes sought to be recovered in this action are “special taxes,” authorized by our constitution (art. 11, § 10 [new number]), no reason suggests itself why a different rule should apply to them. The legislature did provide a method of collecting these specific taxes. It required the dealer to pay such taxes to a designated state official each month, required that he give a bond conditioned for their payment, and made his failure to pay a punishable offense. The statute did not by its terms give the state any lien on property of the dealer nor any priority of payment over other creditors. Nonpayment by the dealer authorized criminal prosecution by the state, and to recover the tax due it authorized an action by the state on the dealer’s bond, and authorized an action by the state against the dealer to recover the amount of the tax due, with all the ancillary and final remedies- — -such as attachment, garnishment, execution — available to any creditor in an action for debt. The natural inference is the legislature deemed these remedies adequate. Whether they would have been adequate in this case never can be told, for they never were tried.
Appellant, in effect conceding all hereinbefore said and passing it by, contends the state is a sovereign; at common law the sovereign had priority over other creditors in the payment of taxes, whether they were general or special; the common law, as modified by constitutional and statutory law, judicial decisions, and the conditions and wants of the people, remains in force in aid of the general stat utes of this state (R. S. 77-109); and the common law on the point here involved never has been modified in any manner mentioned in the statute last cited; hence, that it is in full force and effect. Authorities from other jurisdictions are cited which tend to support these contentions, or some of them, in some degree. We deem it unnecessary to analyze these authorities in detail, or to attempt to write all there might be said on the subject, for it covers a wide range. It is sufficient to say that with us sovereignty is vested in the people. The state is sovereign to the extent the people make it so. In this state all matters pertaining to the levy, assessment and collection of taxes, either general or special, are statutory. Our courts have so held from the beginning. Taxes not authorized by statute, or in excess of those so authorized, uniformly are held to be void. Taxes are liens upon property of the character and to the extent prescribed by statute, and no more. They are personal obligations of the taxpayers only when made so by statute and to the extent so made. Their payment is secured or assured in the manner and to the extent the legislature has by statute provided, and no further. All of these statements are elemental in the law of this state. We may concede the people, by legislative enactment, had authority with respect to the tax in question to provide that in the event a dealer in petroleum products neglected to pay the special tax on motor fuels, became financially embarrassed and a receiver was appointed for his or its assets, the amount the dealer previously owed the state should be allowed by the receiver as a claim against such dealer, and the assets in the receiver’s hands, to be paid prior to the payment of claims of common creditors. But the legislature has made no such provision. No contention is made in this case that it has made such a provision. Until it does so the courts have no authority to require such priority of payment.
It is stipulated in this case that none of the tax money in question, and that none of the proceeds of the sale of motor fuels, for the sale or use of which the tax was levied, ever passed into the hands of the receiver. This is an additional equitable reason the claim of the state should not be allowed priority of payment over those of other creditors. However, we prefer to predicate our decision upon the ground previously stated.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to enjoin the governing body of a city from diverting the waters of a stream. Judgment was for defendants. Plaintiff appeals.
The Ninnescah river flows eastward through the city of Kingman. In 1881 the Ninnescah Water and Power Company condemned land for the right of way and constructed a millrace. This millrace commenced west of the city of Kingman and ran in a southeasterly direction, roughly paralleling the river to a point a little over a mile east of the city, where it discharged back into the river. At the point where the millrace discharged back into the river a holder of the title from the corporation in 1882 built a flour mill, which was operated by means of this millrace. At the point where the millrace commenced a dam was built in the river large enough to divert sufficient water from the river down the millrace to operate the flour mill. At a point about midway between the intake of the millrace and the flour mill the millrace almost touched the channel of the river. At this point the company built a gate on the side of the millrace that was next to the river and arranged it so that by raising or lowering this gate the height of the water in the millrace could be regulated. For about twenty years this dam in the Ninnescah, the millrace and the flour mill were all owned and operated by the same man. Later, after the mill had burned down, a power plant was built on the same site, and for about fifteen years electric current was furnished to the city of Kingman. After the city of King-man installed a municipal power plant, power from the plant on the river was transmitted to the city, where it was used to operate a mill. In 1923, during a flood, the dam in the river at the intake of the millrace was washed away, and from that time until the happening of events which brought on this action the water ran down the race only intermittently, when the river was high on account of rains.
Some time prior to 1923 Charles S. Gill became the owner of the right of way of the millrace and all of the ground condemned by the corporation in the first place, together with the building on the old millsite at the lower end of the race. In 1928 Charles S. Gill and wife, by a quit-claim deed, conveyed to the city the upper end of the millrace from the point where the waters of the Ninnescah are directed into it to a point near the east corporate limits of the city. The deed contained the following language:
“Also the millrace, together with the rights of way belonging to the Ninneseah Roller Mill under former grants in so far as they apply to tracts west of the north-and-south half-section line in section five (5), township twenty-eight (28), range seven (7), west of the sixth P. M., the same being the same right of way condemned heretofore by legal proceedings by the Ninnescah Water and Power Company, said race at the time of said condemnation being through and across the lands of S. Turner, W. D. Sugar, South Addition to the city of Kingman, Kansas, A. D. Turner, H. L. Ball, Joseph L. Roberts and P. Buffington, together with all dams, wasteways, sluices and all appendages and properties, belonging to said race in so far as they apply to the property west of the north-and-south half-section line of said section, five (5).
“The intention being hereby to grant, convey and quitclaim unto party of the second part, its successors and assigns, all of the millrace property and contiguous lands lying within the corporate limits of the city of Kingman, Kan., and west of the center line of section five (5), township twenty-eight (28), range seven (7), west of the sixth P. M., together with any and other rights or easements which we now have within the corporate limits of said city not heretofore conveyed or contracted upon.”
The point where the waste gate was installed in the millrace is located at about the east edge of the portion of the millrace that was acquired by the city. Shortly after the city acquired title to the upper portion of the right of way of the raceway, and near the point where the waste gate was located in the north bank of the raceway near the east corporate limits of the city of Kingman, and near the east edge of the grant to the city of Kingman, the city tore away the waste- gate and built a dam across the entire width of the race and raised the level of the water in the race, widened out its banks and added that portion which they owned to their park system. In building the dam and structure the city tore away and removed the north bank of the millrace, this being the bank next to the river below the point where they erected the dam, thus diverting the water after it passed over the dam back into the river and placed the water in such a way it could not and did not flow on down the raceway to the millsite.
Shortly after the city acquired title to the upper portion of the millrace the plaintiff acquired title to the lower portion of it east of the city limits and to the land belonging to Gill at the millsite. Desiring to use the water that flowed down the raceway the plaintiff demanded of the city that it restore the north bank of the race below the dam so the water might flow over the dam in the race and on down the race to the point where the water could be utilized for the operation of a mill on the land of this plaintiff. The city refused, and this action is the result.
The petition alleged facts about as they have been stated here. The defendants demurred on the ground that the petition did not state a cause of action. The demurrer was sustained. Hence this appeal.
It is the contention of plaintiff that the millrace, having been used by the owners of the millsite for more than forty years, became to all intents and purposes a natural stream, and that' all the rights of a riparian owner attached to it, and that the use of the water was adverse and the right to use became a right acquired by prescription and this right passed to plaintiff when he acquired the lower end of the race. It is further contended by plaintiff that this millrace became an ancient water right and that by reason of the provisions of R. S. 17-618 could be disturbed or destroyed by the city of King-man only by condemnation proceedings.
It will be noted that the party from whom plaintiff acquired his title to the lower portion of the millrace and the millsite is the same one from whom defendant acquired the upper portion of the millrace. It is also worthy of note that plaintiff acquired his title after defendant had acquired its title, and the conveyance to defendant conveyed all rights and easements which grantor then had.
The theory of plaintiff is that his land is the dominant estate, and that water having flowed over the land owned by defendant for use at the millsite of plaintiff, the defendant’s land is the servient estate. The trouble with that theory is that there was no servient or dominant estate here. From the time when the condemnation proceedings were first had until the upper part of the millrace was conveyed to defendant all the property in question belonged to one person. There was unity of ownership of the dominant and servient estates. This question was considered in Gayetty v. Bethune, 14 Mass. 49. There a right of way across land was claimed by right of prescription. The court held that it was impossible for a man to obtain an easement over his own ground. The court said:
“Prescription, in the ancient sense of the word, is founded upon the supposition of a grant; and therefore it is, that the use or possession, on which it is founded, must be adverse, or of a nature to indicate that it is claimed as a right, and not the effect of indulgence, or of any compact, short of a grant.” (p. 52.)
To the same effect is Vossen v. Dautel, 116 Mo. 379. There the court said:
“It is to be observed that no man can acquire an easement in his own lands.” (See, also, Clark v. Allaman, 71 Kan. 206, 245, 80 Pac. 571.)
The reason for this rule is that the obtaining of a right by prescription is based on the theory that the person claiming the right claimed it all the time as a right against the rights of others. If there was a situation at any time while the right by prescription was being acquired when it appeared that the owner of the servient estate was permitting the use, then at that time the reason upon which the right is based falls. The reasoning applies with peculiar force here. There never has been a time since the millrace was built that the owner of the lower part of this millrace and the millsite took the position he was using the water that came down the race against the rights of any person. How could such a thing be true? There was no person except the owner of the millsite who claimed any rights in the millrace until the conveyance of the upper part to tb'* citjL Hence the use of the water and the millrace was never adverse. There was no one for it to be adverse to. Plaintiff makes an argument that the city should have condemned this property under the provisions of R. S. 17-618. That argument is not good, for the reason the city could have acquired nothing by condemnation that it did not already have by conveyance. Since all these facts appear in the petition, we have reached the conclusion that the demurrer of defendant was properly sustained.
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The opinion of the court was delivered by
Thiele, J.:
This is an appeal from a judgment allowing recovery on a policy of insurance.
Although error is assigned in a number of particulars, the principal questions are whether the policy of insurance was in force at the time the loss occurred, and whether the evidence as to value supports the judgment.
Briefly stated, plaintiff’s evidence with respect to the procuring of the insurance, and what followed up to time of the loss, was as follows: On April 13, 1930, plaintiff then being a resident of Topeka, procured from defendant’s agent there a policy of insurance in the amount of $1,000, covering “household and personal effects of every description . . '. belonging to insured and all members of the insured’s family, usual or incidental to the occupancy of the premises by the insured as a dwelling,” etc. In March, 1932, plaintiff and his family moved to Oswego, where they occupied a dwelling situated on a fifty-acre farm, thirty acres of which were within the city limits. The house was within the city. Just before leaving Topeka, plaintiff’s wife called on the insurance company’s agent in Topeka and informed it that they were moving to Oswego, and desired to cancel the insurance and would like to get the refund. The agent was the Shawnee Investment Company, and the clerk in charge told plaintiff’s wife that need not be done, that the policy could be transferred, and gave her the name of the company’s agent at Oswego. When she arrived at Oswego she called on the agent there to have the insurance transferred. The agent refused to transfer, claiming that a country and not a city rate applied. Plaintiff’s wife offered to pay the difference between the Topeka and Oswego city rates, but the agent refused to transfer unless plaintiff paid the country rate. Nothing further was done by the agent. There is controversy concerning whether plaintiff’s wife then wrote the Topeka agent and whether the agent received her letter, but it was never answered. On February 9, 1933, most of the property was destroyed by fire. The company refused payment and this suit .followed.
Was the insurance in force at the time of the fire? At the trial it was stipulated that at the date of the policy the Shawnee Investment Company was the company’s agent at Topeka, and F. J. Bell was manager of its insurance department; that the investment company ceased to be such agent on March 14, 1932, and Mr. Bell was agent thereafter; that Pierce was the agent at Oswego; that the authority of the local agents was to issue policies of insurance, to assent to assignments or transfers, to make indorsements, and to do such other things as shall from time to time be authorized by the company.
Appellant’s contention is that when plaintiff moved his 'goods from Topeka to Oswego he took them from a place where the company was willing to assume the risk to a point where a higher rate prevailed; that the company, through its Oswego agent, had refused to continue the insurance longer without the payment of additional premium, which plaintiff had refused to pay; that the company was privileged to carry, or not to carry, the insurance, and it had the right to refuse, as it did. The principal case cited in support of this theory is Johnson v. Insurance Co., 100 Kan. 53, 163 Pac. 1074. That case is not in point, for there the parties never agreed on any contract; no premium was ever paid and no policy was ever issued. In addition, the appellant overlooks certain pertinent facts: The policy was properly issued at Topeka. The company, through its agent at Topeka, was asked to cancel, and for practical purposes may be said to have refused, for it advised that the insurance could be transferred and for plaintiff to see the agent at Oswego; after the removal that was done; there the agent refused to transfer unless the country rate were paid; plaintiff insisted the city rate applied and offered to pay any difference there was in the two rates, to which the agent would not assent. When the Oswego agent refused the transfer, plaintiff wrote the Topeka agent, who says he never received any letter. Plaintiff never received any reply; although there is considerable space devoted to the proposition of whether plaintiff did write the letter, and whether the agent did or did not receive it, it does not seem to be of any controlling significance, for it is undisputed that the company was aware of the removal of the goods and the attempt to transfer the insurance. With that information at hand, the company did not cancel the insurance and return the unearned premium, but permitted the policy to remain in force and kept the premium. Neither does the fact the Oswego agent thought the farm rate applied alter the situation. Under that circumstance, it would seem all the more incumbent on the company to cancel the policy and return the unearned premium. What is said in Hulen v. Insurance Co., 80 Kan. 127, 102 Pac. 52, is pertinent here:
“A policy of insurance covering a stock of merchandise contained the usual condition that it should be in force only while the property was located at a certain place. The stock was afterward removed to another location, where the rate of premium was higher. The company was duly notified of the removal, with the request that the policy be canceled and the unearned premium returned. It replied by letter suggesting that the insured see the local agent of the company and have the policy transferred to the new location. The insured thereupon saw the local agent, who orally agreed to a transfer of the policy. The company retained the unearned premium. Held, that the company was bound by the act of its agent, and that the failure of the company or its agent to notify the insured of the increased rate of premium and demand payment therefor was a waiver of the higher rate.” (Syl. 112.)
See, also, 26 C. J. 330, where it is said:
“It is also stated generally th&t where the insurer does not, within a reasonable time after acquiring knowledge of a breach of condition, assert its right to forfeit or cancel the policy, the policy continues in full force and effect and the right to declare a forfeiture is lost.”
Appellant complains that incompetent evidence was received as to the city rate in Oswego. Perhaps by reason of R. S. 1933 Supp. 40-911 to 40-916, both inclusive, there was better evidence as to whether a rate had been established at the point in question, and what- it was, but the witness whose evidence is complained of stated he was an insurance agent at Oswego, knew there was a published schedule of rates prepared in accordance with the above statutes and what the rate was. There is no complaint that his testimony was not true, nor any contention that a farm and not the city rate controlled. There was no prejudicial error in the admission of the above evidence.
It is our judgment the policy of insurance was in force on the date of the fire.
The question of proof of the amount of loss leads us to a consideration of the evidence to determine whether it supports the court’s finding as to the value of the destroyed and damaged property. Under the policy, the company’s liability was limited to the actual cash value of the property at the time of the loss, ascertained or estimated according to actual cash value, with proper deduction for depreciation, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality. The amount of the policy was $1,000. The loss was not total, some goods being destroyed and others only damaged. Attached to the petition was an itemized list showing the destroyed articles and their value and also itemizing the damaged articles and the amount of the damage, the total being $1,834.96. Plaintiff’s wife was the principal witness as to value, although she and her husband both testified that they made the list; that they knew the usable condition of the property and observed its condition and with that knowledge fixed the value as above noted. Defendant offered no testimony as to value. Appellee cites authorities as to property having no market value, and that real value may be ascertained from such data as is available, and that cost, use and condition are elements for consideration. We have no quarrel with that general principle, but here the only evidence shows that the values put on the property destroyed are the original costs, and in one instance a greater value. A twelve-year-old linoleum rug, costing $14, is valued at $15, a four-year-old suit of clothes, which cost $30, is valued at that figure, four toothbrushes of which the wife said, “I cannot tell how long they have been used,” are listed at $2. Men’s and women’s underwear, clothes, socks and neckties, although used for some years, are included at cost, as are two electric washing machines, one three and the other seven years old. And there are other articles valued at cost which the family has used for periods varying from two or three up to thirty-four years. And referring to the whole list, plaintiff’s wife testified that as near as she recollected, the prices in the list were the cost prices of the articles. So far as the record shows, there was no other testimony of value, other than Mrs. Kerr’s insistence the articles were not for sale and were in good condition. Neither she nor her husband put any value on the property as used or depreciated. Included in the list were medicines at $10 and groceries at $50, which the court refused to allow. It.then fixed the loss at $846.43. We find no basis in the evidence for this verdict, and for this reason a new trial is ordered on the question of amount of loss. Because of questions raised as to certain items included in the list, they will be noticed briefly. The trial court ruled correctly in excluding the medicines and groceries. The set of tools used by a paper hanger are not included under the terms of the policy and should be excluded. Appellant insists that articles of clothing are not household furniture and that may be conceded. However, the policy included personal effects belonging to the insured and members of his family, and we hold this covers articles of wearing apparel and the like. A like complaint is made that the cream separator, valued at $100, and some other articles used in taking care of milk, valued at $12.75, are not household goods, especially in view of the fact that the plaintiff and his family are conducting a dairy. A majority of the court is of the opinion that these items were properly included.
That portion of the trial court’s judgment holding the policy of insurance sued on in full force and effect at the time of the loss is affirmed; that portion of the judgment finding the value of the destroyed and damaged goods is reversed, and the cause is remanded for a new trial on the question of such value. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff, William D. Bowling, brought this action for disability benefits under a $4,000 life and accident insurance policy issued by the defendant, Illinois Bankers Life Association. The other defendant was impleaded for reasons of no present concern.
In his petition plaintiff alleged that he was totally and permanently disabled by an accident which happened thus:
In March, 1930, plaintiff drank some Jamaica ginger. This decoction was poisonous, but plaintiff had no knowledge of that fact. It damaged the nerves, tissues and bones of his body and paralyzed his legs and arms. The provision.of the policy particularly relied on for a recovery provided:
“IX. Disability Benefits. — Upon receipt of satisfactory proof to the Association that the insured has become totally and permanently disabled by accident (result of crime or attempted crime excepted) and will be thereby continuously prevented for life from doing any labor, or the prosecution of any kind of business, then the Association will pay, upon due and sufficient proof, one-half of the face of this policy, and the remainder to the beneficiary at the death of the insured, the policy having been continued in force.”
Plaintiff's petition closed with a prayer for judgment for one-haff the face of the policy — $2,000.
The principal defendant answered, admitting the execution of the policy sued on, and set up another provision of its terms which reads:
“X. Proof of De.ath or Disability. — Proof of death or disability of the insured must be furnished the Association at its home office upon forms furnished by the Association within six months after the death of the insured or the commencement of the total and permanent disability. No action at law or in equity shall be maintained on any policy of insurance issued by this Association or recoveiy had unless such proof be so filed . . .”
Defendant alleged that plaintiff never complied with the provision of the policy just quoted, and not until October 29,1932, did he attempt to make proof of disability — some two and a half years after the date of his alleged total and permanent disability. The answer also denied that plaintiff’s disability had resulted from an accident within the terms of the policy, but that it was caused by his drinking the Jamaica ginger purposely as a beverage.
• In plaintiff’s reply his belated acts to comply with the provisions of the policy were pleaded at length. He alleged that, not until shortly before notifying the defendant had he learned that his total disability would be permanent; that following such notification defendant had requested a personal letter from plaintiff’s attending physician; that such request was complied with; that thereafter defendant requested a personal affidavit from plaintiff and likewise an affidavit of some personal friend and also an affidavit from plaintiff’s regularly attending physician. Defendant' further requested plaintiff to submit to a physical examination by a doctor of its choosing, and¡ informed plaintiff that the expense of such examination would have to be borne by plaintiff. Plaintiff alleged that these requirements prescribed by defendant were complied with by him at considerable trouble and expense, and—
“That the defendant, by making said requests of the plaintiff for additional proofs and in putting the plaintiff to the trouble and expense of obtaining and forwarding the same, has waived the requirements of [the] policy . . . sued on, as to the time of giving notice of the commencement of plaintiff’s total and permanent disability.”
The cause was tried before a jury. Documentary evidence, copies of correspondence between plaintiff’s attorney and defendant, and doctors’ certificates touching plaintiff’s disability were introduced. One of the latter reads:
“Wichita, Kan., September 17, 1932.
“To Whom This May Concern:
“This is to Certify that Mr. William D. Bowling has had fake paralysis since March, 1930. For several months he was confined to his room. He is now able to get around with the 'aid of his cane, but is still totally disabled.
“(Signed) W. P. Callahan.”
[Surgeon.]
Another doctor’s certificate supplied at defendant’s request reads:
“Wichita, Kan.
“Illinois Bankers IAje Assurance Co.:
“Gentlemen — About March 15th, 1930, I was called to the home of Mr. W. D. Bowling, who was ill. Upon examining him I found that he was suffering from toxic paralysis due to a consumption of Jamaica ginger. Mr.. Bowling was in bed for a period of eight or nine months, and following that time was able to walk with the aid of crutches, which he used one year. Since that time, he has been able to walk with the aid of a cane.
“Mr. Bowling still has a very marked spastic paralysis of both legs and arms, and I see no possibility for further improvements.
“(Signed) J. G. Missildine, M.D.
“September 22, 1932.”
In plaintiff’s proof of total and permanent disability in a blank form supplied by defendant and dated October 25, 1932, and subscribed by plaintiff, was this recital:
“The claimant agrees that the receiving of this claim by the Illinois Bankers Life Assurance Co. shall in no way bind the said company to allow or pay such claim and that other or additional proofs will be furnished if required by said company.”
At the trial plaintiff, a man of 64 years, testified that he had been accustomed to drinking Jamaica ginger since his boyhood; that in March, 1930, he drank some poisonous Jamaica ginger, and' — ■
“The first feeling of pain was in the lower part of my legs, severe pains and unable to balance myself; I couldn’t stand still. I was taken sick in some town in southern Texas, and sent for a doctor that night, and he told me I had better go home and I got on the train and went home [to Wichita]. I was in bed on the train practically all of the time, and as quick as I got to Wichjta, I sent for Doctor Callahan, or Doctor Missildine, I forget which one I sent for first. I guess I was in bed from six to nine months. I couldn’t pick up a match to save my life, I couldn’t walk and I couldn’t stand up any more than a baby a day old, I couldn’t move my feet, I had severe pains in my legs and my hands were all drawn and the muscles just withered away. I remained in bed and was treated by these two physicians and also by an osteopath. At the end of approximately nine months I commenced to hobble around.”
“In the latter part of the summer or fall of [1932] I had conversations with Doctor Callahan and Doctor Missildine as to my condition. I think it was either August or September I went to see Doctor Callahan. I reached the point in my physical condition where I realized I was no longer making any improvement. I think it was in 1932, about two years after I was sick, I noticed I wasn’t getting any better for two or three months. I ran along there and I was disheartened about it, and I went to him and told him I wasn’t making any improvement and asked him if I was going to get well or if I would hobble around that way all of my life.”
“When was that? A. I think that was along in August or September.”
Doctor Callahan testified:
“Q. Do you happen to remember of a conversation that he [plaintiff] had in your office about September, 1932? . . . A. I do.
“Q. Now, at that time, or near that time, did you have a conversation with Mr. Bowling in which you informed him that in your opinion he was totally and permanently disabled? ... A. I do.”
The jury returned a verdict for plaintiff and answered special questions, some of which read:
“1. If you find for the plaintiff, then state on what date this total and permanent disability commenced. A. In March, 1930.
“3. If you find that the defendants, or either of them, waived the requirement of furnishing proof of disability, within six months after the commencement of permanent and total disability, state what acts or conduct on the part of the defendants, or either of them, constituted such waiver. A. Asking for proofs of his disability upon being notified of same.
“4. If you find that the plaintiff was totally and permanently disabled, then state when the plaintiff first realized that his disability was the result of the Jamaica ginger which he had previously taken. A. March, 1930.
“5. If you find the plaintiff was permanently and totally disabled, then state what caused such permanent and total disability. A. Unknowingly drinking poison Jamaica ginger.
“7. If . . . when did the plaintiff learn that he was permanently and totally disabled? A. August, 1932.
“9. Did Mr. Bowling submit proofs of loss to the defendants within six months from the time he realized that he was permanently and totally disabled? A. Yes.”
Defendants appeal, urging several errors, the most vital of which is involved in the potency of the express provision of the policy which required that proof of plaintiff’s disability must be furnished to defendant within six months after the commencement of the total and permanent disability. The textbooks and decided cases are generally to the effect that such a provision is reasonable. (Vance on Insurance, 2d ed., 785, 786; 5 Joyce’s Law of Insurance, 2d ed., § 3283; 7 Couch’s Cyclopedia of Insurance Law, § 1538a; 14 R. C. L. 1325, 1326.) Our own cases have recognized the binding force of such a provision. (Mayse v. Insurance Co., 117 Kan. 662, 232 Pac. 865; Smith v. Missouri State Life Ins. Co., 134 Kan. 426, 434, 435, 7 P. 2d 65), although want of compliance with it was excused in the unique case of Hawthorne v. Protective Association, 112 Kan. 356, 210 Pac. 1086. But in that case the accident— which was the swallowing of a staple which lodged in the bronchial tube — was not discovered for nearly two years, and during that long interval plaintiff’s physicians attributed his ailment variously to laryngitis, tonsillitis, asthma, hay fever and consumption. (8 Briefs, 112 Kan., Files of State Library.) So, too, in Beeler v. Continental Casualty Co., 121 Kan. 642, 249 Pac. 579, where plaintiff’s indisposition was successively attributed to biliousness, malaria, “trouble in the front door,” bad teeth, etc.; and not until long after the time specified in the policy for notifying the company was it discovered that his malady was the result of an accidental fall he had sustained when he slipped and fell on some oil pipe. Moreover, in that case, while the time fixed in the contract for notifying the company of the accident was 20 days, this prerequisite was not absolute. Delay was to be excused if notice to the company within the time specified was not reasonably possible.
We do not regard the instant case as analogous to either the Hawthorne case or the Beeler case. Here there was never any doubt about the nature and cause of plaintiff’s incapacity- — conceding that it was an accident (Woods v. Provident Life & Accident Ins. Co., [Ky. App.] 42 S. W. 2d 499) within the terms of The policy, which defendant insistently disputes. Pursuant to his almost daily custom plaintiff took his usual dram of Jamaica ginger. He “thought it was safer than corn liquor.” His statement reads:
“In the first part of March, 1930, I left here for the Rio Grande Valley to effect a land deal. On the way down there the calves of my legs began hurting and continued to pain me. While I was there it got so that I couldn’t stand still on my feet, even long enough to shave. I came back to Wichita on the train and immediately went to bed, realizing what my trouble was. I had heard a man say at Wellington, Kan., that there were over 500 cases of ‘Jake-leg’ in Wichita and I at once knew what I had.”
Plaintiff’s total and permanent incapacity began in March, 1930. He was bedfast for nine months. His indisposition continued until August, 1932, without material change for the better. Then in the course of a conversation with his physician he avers that for the first time he learned that his disability was total and permanent. If such a transparently self-serving averment may demolish the reasonable and precautionary provision intended for the protection of the insurance company, it might just as well be eliminated from the policy altogether.
In Fairgrave v. Illinois Bankers Life Assn., 211 Ia. 329, the action was to recover for total and permanent disability benefit on an insurance policy issued on November 4, 1910, to Maria Fair-grave. She paid the required premiums until and including the one due on July 1, 1926. On September 5, 1925, the insured suffered a stroke of paralysis which immediately rendered her totally and permanently disabled. The first notice of such disability was received by the insurance association on July 15, 1927. Liability was denied. The defendant relied on a provision of the policy which read:
“In the event of any certificate of membership or policy of insurance issued by this association becoming a claim against the association by reason of the death or total and permanent disability of any member or policyholder satisfactory proofs shall be furnished upon blanks provided by the association within ninety (90) days after the death of said member or policyholder, or the happening of the total and permanent disability as provided in said certificate or policy of insurance, or claim on account of the death or total and permanent disability of any certificate or policyholder or beneficiary thereof shall be forfeited by failure to furnish the proofs within the time and in the manner above provided.” (p. 332.)
The court held:
“An agreement in a policy of insurance against total and permanent disability, specifically providing that all claims shall be forfeited if proof of such disability is not furnished the insurer ‘within 90 days after the happening of the total and permanent disability,’ is valid and enforceable, . . (Syl. ff 1.)
In the opinion the court said:
“However hard and cold-blooded the instant decision may seem, with respect to the terms and provisions of the insurance contract, we are committed to the doctrine that, while the laws of the state of Iowa permit parties to make contracts in plain and unmistakable language, this court may not change that language and read into the contract other terms, which were not agreed upon at the time of the making of such contract.” (p. 336.)
The same rule is enforced in the federal courts, in life and accident cases and fire insurance cases. In Fidelity-Phenix Fire Ins. Co. v. Haywood, 71 F. 2d 834, the failure of plaintiff to comply with a provision of the policy requiring proof of loss within 60 days was held binding unless waived. In the opinion it was said:
“Limitations such as this, if. reasonable, are valid, and compliance therewith is a condition precedent to the enforcement of the policy. (Callen v. Massachusetts Protective Association, 24 F. 2d 694 (C. C. A. 8); Metropolitan Casualty Insurance Co. v. Johnston, 247 F. 65 (C. C. A. 3); Maryland Casualty Co. v. Massey, 38 F. 2d 724, 71 A. L. R. 1428 (C. C. A. 6); Niagara Fire Insurance Co. v. Pospisil, 52 F. 2d 709, 79 A. L. R. 404 (C. C. A. 8).” (p. 836.)
On behalf of appellees, however, it is argued that defendant waived the requirement of proof of disability within six months after the commencement of the total, and permanent disability as pre scribed in the policy. The grounds relied upon to support plaintiff’s theory of waiver have already been stated. The jury found that the waiver consisted of defendant’s “asking for proofs of his disability upon being notified of same.” (Special Finding No. 3.) Such finding excluded any and all other incidents pleaded by plaintiff to establish a waiver. (64 C. J. 1054-1056, id. 1112; 27 R. C. L. 833-836.) We think it quite clear that in this case the asking for proof of plaintiff’s disability did not constitute a waiver of the provision of the policy requiring the presentation of proof within six months. Indeed, the proof supplied by plaintiff in response to defendant’s request, upon a form furnished by defendant — which was also according to the terms of the policy — contained the following:
“The claimant agrees that the receiving of this claim by the Illinois Bankers Life Assurance Co. shall in no way bind the said company to allow or pay such claim and that other or additional proofs will be furnished if required by said company.”
This court has held that the requiring of proofs of loss did not constitute a waiver of the rights of a fraternal insurance society under the terms of the beneficiary certificate which defines and limits its liability. (Modern Woodmen v. Taylor, 67 Kan. 368, 375, 71 Pac. 806.) To a like effect was Ridgeway v. Modern Woodmen, 98 Kan. 240, 157 Pac. 1191, L. R. A. 1917a, 1062 and note, where this question is dealt with comprehensively. (See, also, Alston v. Insurance Co., 7 Kan. App. 179, 53 Pac. 784.) On the other hand, we have held that a condition requiring the giving of notice to the insurance company within a specified time will be deemed waived where notice of the injury or death is subsequently given, together with proofs of loss, and the company retains the same without objection, and subsequently calls for and receives additional information and proof respecting the injury and death of the assured. (Insurance Co. v. Davis, 59 Kan. 521, 53 Pac. 856.) To like effect were Erickson v. Commercial Travelers, 103 Kan. 831, 176 Pac. 989; and Docking v. National Surety Co., 122 Kan. 235, 252 Pac. 201. But in neither of these cases had the defendant taken the precaution to stipulate that the receiving of proofs should in no way bind the company to pay the claim, as in the case at bar. In this case the policy did not require the giving of notice. The prerequisite requirement was the timely furnishing of proofs upon forms to be furnished by the company. In the recent case of Smith v. Missouri State Life Ins. Co., 134 Kan. 426, 7 P. 2d 65, this court said:
“The law is settled that a policy of insurance which is prepared by the insurer will, if there is any ambiguity in the terms of the contract, be solved and the construction adopted in favor of the insured. [Citing cases.] This, however, does not mean that the court will by construction alone make a new contract for the parties or disregard the plain terms and conditions in the policy.
“The sanctity of contracts is vital to our business and economic institutions, and where the parties are contracting within the law, the terms of which are their.own choosing, it is the duty of the court to enforce the contract.” (p.429.)
Defendant urges some other points against the judgment, but they will need no consideration.
The judgment is reversed and the cause remanded with instructions to set aside the judgment and to enter judgment in favor of defendant. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The plaintiff, Marie Bates, brought this action against G. A. Stearns, on whose farm a rodeo exhibition was being conducted, and she alleged that she attended the exhibition given there on October 7,1932. She alleged that wild, untamed horses were exhibited there and that one of those horses with a rider thereon was turned loose on the premises. After getting out of the inclosure the horse went over two fences in front of the grandstand, each about five feet high, over some box seats and up one aisle of the grandstand, and in going through struck or kicked the plaintiff, injuring plaintiff’s left leg between the knee and the ankle.
The plaintiff alleged that defendant was the owner and promoter of the exhibition and liable for any injuries suffered. The situation at the place where the exhibition was given is described as a half-mile race track in a circular form; that in the traveled part of the track in front of the grandstand there was first a fence all around the track about five feet high, made of steel posts and Page wire, heavy and strong, and then an open space of fifteen feet, then the boxes in front of the grandstand, seventeen feet wide, and then a second fence.
She alleged that after about an hour and a half a horse was let out of the pen or chute with a rider on him; that the horse came out bucking and kicking and plunging, and jumped the first fence, ran over the box seats, went over the second fence, which was about five feet high, of woven wire, and there dislodged the rider. The horse went up into the grandstand and struck plaintiff as he passed, bruising her leg, as stated. She remained some time in the show and afterwards walked to the car in which she went home.
Defendant answered that he was the owner of the farm, which was twelve miles north of Wichita, and he denied especially that he had any control or supervision over the horse which the plaintiff alleges causéd her injury. He denied that he received the proceeds of the exhibition or that he in any way participated in the distribu tion of said money; defendant denied that he is in any way responsible for the plaintiff’s injury, and that plaintiff failed to exercise any care incumbent upon her to avoid the injury, and .that if she suffered any injury plaintiff proximately contributed to it by her carelessness and negligence.
While the defendant was described as the owner and promoter, it was shown that he had leased the ground as a race track to the Wichita Driving Club Association, and that he had no control whatever of the exhibition. The Wichita Driving Club put the improvements on the farm for the exhibition and then leased it to B. Davis of Wichita. The association was to receive a percentage of the receipts.
The testimony in the case makes it clear that Stearns was without responsibility for the accident. He had leased the property to another, and the fences and structures on the ground had been placed there by the Wichita Driving Club Association and he had no part in that, nor in the money received by admissions of spectators— which was fifty-five cents each.
An incident was stated on which a claim was made of responsibility for the accident. It is said that the show was opened by an announcement that Mr. Stearns was the owner of the farm and a promoter of; the association, and is said by Mr. Bates, the husband of plaintiff, to have been introduced to the audience that night as the owner and promoter of the show and that he tipped his hat or bowed to the audience. Defendant demurred to plaintiff’s evidence, which was overruled, and moved for judgment on the record and made a motion for a new trial, which motions were denied.
Defendant was the landlord, and the Wichita Driving Club Association was the tenant. It was given the lease and it built the improvements, including, the fences, box seats and grandstand. A director of the association testified the organization was formed about February, 1930, and since that time he had attended all the exhibitions given there, and there was no building, grandstand nor improvements of any kind on the ground when it was leased, but that these were put there by the Wichita Driving Club Association. Defendant said he was acquainted with B. Davis. The club made a lease of the property to him to put on the rodeo, Davis to give a percentage of the receipts to the association. In his opinion, due precautions were taken for safety of patrons and people by the construction of the buildings and improvements. Stearns, the defend ant, testified that he was the owner of the farm near Wichita, that Davis and others had approached him for permission to put on a rodeo, but he told them he had no authority — that the track and grounds were already under lease to the Wichita Driving Club, and they would have to apply to them; that there was nothing said that night or announced that he was the promoter of the rodeo; that he owns the farm, nothing more, and has no control.- He testified further that he was in the grandstand and naturally felt like helping anyone that had been hurt. He had sent a boy for bandages and iodine. The testimony of these witnesses was'not denied except perhaps as to the announcement that he was the owner and promoter. The court gave an instruction to the jury as follows:
“If you find that the defendant was announced as the owner of the farm and promoter of the rodeo, that he heard the announcement and responded thereto by bowing to the audience and did not deny or in any other manner contradict the assertion that he was promoter, then he would be bound by such announcement that he was the promoter and in that instance would be held liable for any liability following. . .
That makes a liability rest on the tipping of his hat, the denial of which might not be heard by the person injured, and yet he would, under the court’s instruction, be liable unless he could prove that he had made a sufficient denial and that it could be heard by the plaintiff or called to the plaintiff’s attention. There was direct evidence that he was not the promoter and they did not have to resort to signs and symbols -of consent. This instruction was not correct. The landlord had leased the property and given possession and control of it to the tenant. An action could have been maintained against him for interference if he had assumed control of the rodeo or interfered with possession in any respect. The holding of such exhibitions is quite common in the West and the plaintiff had attended other exhibitions of this character in which wild horses were used. This was an exceptional case, and the horse jumped over barriers that had previously stopped the wildest of horses. The owner of the ground had no right to interfere with the possession and he was not responsible on any account for the accident. No negligence was pleaded against him and he could not be held liable for a tip of the hat or a bow to the audience, if one was made, that ■he was the promoter of the rodeo. He may or may not have heard’ the announcement, if it was made, and the husband of the plaintiff; who gave testimony for her, did not know that the landlord heard! the announcement; he did not know who made it, and did not even see the man making announcements. There was no denial of the testimony of defendant’s witnesses.
The defendant cites Hart v. Washington Park Club, 157 Ill. 9; Hallyburton v. Fair Association, 119 N. C. 526; Swan v. Riverside Bathing Beach Co., 132 Kan. 61, 294 Pac. 902, and some other cases where accidents occurred, but where full possession had been given and the owner of the land was held not liable for the accident. As to the right and liability of tenants see 16 R. C. L. 731, sections 222, 223, et seq.
We have no occasion to consider contributory negligence. The defendant’s motion for judgment on his demurrer to the plaintiff’s evidence should have been sustained.
We decide only the question of the landlord’s liability for the accident. Negligence was not proven and the defendant’s demurrer to the evidence should have been sustained. The defendant’s evidence of leasing the premises to the Wichita Driving Club Association, and surrendering control and possession of it to them, entitled him to judgment. He was not negligent towards the plaintiff.
The judgment is reversed with direction that the demurrers and motions be sustained. | [
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The opinion of the court was delivered by
Smith, J.:
The defendant was convicted in twelve counts of a violation of R. S. 1933 Supp. 9-140. He appeals.
At the time of the trial and for some years prior thereto defendant was a director and president of the Fidelity State and Savings Bank of Emporia. He owned a majority of the stock in this bank. 'He was also president and general manager of the Emporia Telephone Company, the Paola Telephone Company and the Sabetha Telephone Company and president of the Farmers State Bank of Neosho Falls. Defendant is charged with embezzling, abstracting and willfully misapplying the funds of the Emporia bank. This bank and the Neosho Falls bank were closed by the bank commissioner August 8, 1933. Various transactions had by defendant with reference to the corporations named furnish the facts upon which the various counts in the information are based. At the outset it should be stated that the National Bank of Topeka was the correspondent bank at Topeka for the Emporia bank. The defendant makes a vigorous argument that the evidence of the state was not sufficient to prove the commission of a crime as to any of the counts. For that reason the evidence as to each count will be briefly noticed. It should be stated here that Robert Needels was assistant cashier of the Emporia bank and Fred A. Baird was the cashier.
The first count charges the embezzlement of $7,000 on or about December 27, 1932. On that date defendant had an overdraft in his personal account of $7,915.63. This overdraft had accumulated since November 21, 1932. On December 27 defendant directed the cashier of the bank to charge the account of the Fidelity bank with the National Bank of Topeka with $7,000 and to give him credit for the $7,000. This was done. He stated he would go to Topeka the next day and would place $7,000 in the Topeka bank for the Emporia bank. He never did make this deposit. The argument of defendant is that what happened was merely the change of one form of indebtedness for another; that the bank lost nothing by the transaction on December 27. Hence, there was no embezzlement. We cannot take such a narrow view. We will consider the case as the trial court did from the viewpoint of the entire course of dealing of defendant extending over many months. There were other instances of overdrafts and the covering of them with questionable transactions. There were instances of the withdrawal of cash items from the bank and the replacing of them with worthless paper. These were matters of habit and practice with the defendant. A particular part of a transaction may be innocent and regular in itself, but when in conjunction with other acts the result is that money is taken out of'the bank and converted to the use of another and the bank is defrauded, embezzlement has been committed. When this whole course of dealing is examined it becomes plain that the steady withdrawal from November 20 to December 27 so that the overdraft amounted to over $7,000 on that day, together with the attempt to meet the situation by the bogus deposit of $7,000 in the account of the Topeka bank, constitutes a conversion of the funds of the Emporia bank. Certainly there can be no doubt that a prima facie case of intent to defraud the bank was proven.
Count 2 charges the embezzlement of $9,056.26 on August 5, 1933. On Sunday, August 6, defendant met Needels and Baird at the bank. At that time he had an overdraft in his personal account of $8,361.49. In order to cover this overdraft defendant deposited some cash and a check for $3,256.16. This check was dated August 1, 1933. It was signed “The Kansas Home Telephone Company, Liq., by Nell Roach,” and made payable to the Kansas Home Telephone Company and drawn upon the Farmers State Bank of Neosho Falls. At the time of the trial it bore the stamped indorsement of the Emporia Telephone Company. The name of Nell Roach was written by defendant. The Kansas Home Telephone Company had no account with the Neosho Falls bank during 1933; neither did the Kansas Home Telephone Company, Liq., have an account with that bank in 1933. The defendant had not been connected with the Kansas Home Telephone Company since 1929. The cashier of the Neosho Falls bank testified that had this check reached that bank before it was closed August 8 it would not have been paid, but would have been sent to defendant at Emporia. Defendant attempted to explain this check to the jury, but there was abundant circumstantial evidence from which the court and jury were warranted in reaching the conclusion that the transaction was a bogus one intended to cover the overdraft of defendant for the time being.
In addition to the deposit of the check just referred to the defendant told Needels to charge the National Bank of Topeka with $5,-800. Defendant stated he was going to Topeka on Monday or Tuesday and would place that amount in the Topeka bank for the Emporia bank. Needels entered this transaction on the records of the bank, showing the deposit to defendant’s account in the Emporia bank in the amount of $5,800. No deposit was made in accordance with this conversation. The Emporia bank received nothing for the credit of $5,800 given defendant.
At the conclusion of the transactions just detailed, instead of an overdraft of $8,361.49, defendant’s account showed a credit balance of a few dollars. The argument of defendant is that after the deposits that have just been detailed had been made the bank was no worse off than it had been before, and the transaction with reference to the $5,800 credit was only a promise to do something in the future and cannot be the basis of a criminal prosecution. To this argument the same answer must be made in considering count 1. We must look at the course of dealing of defendant. The making of the overdraft in so large an amount and'then the attempt to cover it by bogus transactions, all considered, make a good case of converting the money of the bank to defendant’s own use with intent to defraud the bank. Defendant complains as to this count that he was not permitted to testify that he intended to make the deposit of $5,800 at the time of the conversion. This offer of proof was refused because it tended to show restitution rather than intent. The conversion of the money took place while the overdraft was being built up. The securing of the credit for $5,800 was only part of the scheme. The criminal act was complete when the money was taken. What transpired after this could have no bearing on what the intent of defendant was in taking the money in the first place. There is a reason for this rule. People to whom money is intrusted cannot be heard to say they used the money but intended to put it back. If this should be the rule every embezzler would say that. See State v. Pratt, 114 Kan. 660, 220 Pac. 505; also State v. Wacker, 120 Kan. 387, 243 Pac. 1026; also State v. Robinson, 125 Kan. 365, 263 Pac. 108. There is a further reason why this ruling of the trial court may not be urged as error here. While permission to answer the specific question whether he intended to make the deposit was denied, defendant was permitted to testify that at the time he deposited the telephone company check, heretofore spoken of, and at the time he received the credit for $5,800, he had no intention of defrauding the Emporia bank.
In count 14 defendant is charged with the embezzlement of $1,700 on July 22. On that day the account of defendant was overdrawn in the amount of $404.69. Defendant came to the bank with Mr. Needels. Defendant took out of the bank cash items in the amount of $1,005.25. Mr. Needels testified that to meet this situation defendant told him to debit the account of the Emporia bank with the National Bank of Topeka with $1,700. This was done and defendant was given a deposit credit of $694.75. No deposit was ever made to substantiate this entry. The Emporia bank received nothing for this credit. Defendant testified he did not tell Needels to charge the Topeka bank with the $1,700, but told him he would bring in a check to cover the item. He testified that on July 31 he brought to the bank a check to cover this $1,700 item and a $2,500 item, which is involved in the fifteenth count. Let it be said here, that, unexplained by defendant, the transaction just detailed clearly constituted embezzlement, both as to the overdraft that was balanced and the credit created and the cash items that were taken out.
Count 15 will be discussed now since part of the explanation offered by defendant as to that count has some bearing on count 14. In count 15 defendant is charged with embezzling $6,366.19 on or about July 29, 1933. On that day defendant and Mr. Needels were at the bank together. Defendant took certain cash items out of the bank in the amount of $3,498.80. He was overdrawn $3,999.91 on his personal account and he secured a credit of $4,000 to his personal account. This credit, plus the cash items referred to, amounted to $7,498.80. At the same time defendant left with the bank, good checks in the amount of $1,032.61. The difference which defendant received that day is $6,366.19. For this the bank got nothing. The defendant left with the bank also his personal check for $2,000 drawn on the Neosho Falls bank and a check for $1,866.19 drawn on the Neosho Falls bank and signed “The Neosho Falls Telephone Company” by Nell Roach, payable to the Emporia Telephone Company, and dated July 26, 1933, and bearing the indorsement of the Emporia Telephone Company. These checks were sent through channels for collection, but never paid. The bank actually received nothing for them. There is evidence in the record on both sides of the question whether these two checks were given in good faith, but in view of the fact that the jury apparently took the view they were not given in good faith, and there was ample evidence to sustain that view, that action will not be discussed further.
In addition to the two checks mentioned, Mr. Needels testified that defendant instructed him to charge the National Bank of Topeka with $2,500. Needels did this, and made the proper entries on the records of the bank. The bank received nothing for the $2,500. The transactions related as to this count happened on Saturday, July 29, after banking hours, or on Sunday, July 30. Defendant, in testifying as to count 14, denied he told Needels to charge the National Bank of Topeka with $1,700, but stated he told Needels he would give a check for that amount. He also denied he told Needels, with reference to count 15, to charge the $2,500 to the Topeka bank, but stated he was very much surprised to learn, a week after the transaction as to count 14, that this $1,700 had been charged to the Topeka bank. He testified that when he learned this he brought to the bank a check for $4,200 to cover the $1,700 item and the $2,500 item. He also was permitted to testify he later issued another draft for $4,200 on the Traders Gate City Bank for the same purpose; that he issued this draft because he thought the check for $4,200 on the Neosho Falls bank might embarrass it; and that he had sufficient money on deposit in the Gate City bank to pay the check. The complaint of defendant with reference to these two counts is that he was not permitted to make a further showing as to these two checks. The affidavit of defendant, furnished on the hearing of the motion for a new trial, covers what his testimony as to these checks would have been, and, with the exception of the fact he identifies the checks, it is substantially as he was permitted to give from the witness stand. Under the circumstances, we are not disposed to hold the ruling of the court in not permitting defendant to testify further was error. This holding might very well dispose of the argument of defendant as to counts 14 and 15. There is, however, additional reason why the evidence might have been property refused. As proven, the counts both consisted in part of the covering of an overdraft by a bogus transaction. We have seen heretofore in this opinion this constitutes embezzlement. Both counts also included the taking from .the bank of certain cash items. Cash items have a definite meaning in bank parlance. The term applies to items for which the bank has paid its money, but for which it has not been paid, and which for some reason have not been placed on the books of the bank in their proper place, but are carried in the assets of the bank as cash. As far as the record in this case discloses the defendant and the bank were treating the cash items concerned as cash. So when defendant took the cash items out of the bank he was in the same position as if he had taken so much currency out.
As to count 14, the proffered testimony was that he furnished a check to cover this withdrawal a week after the event. He was permitted to testify that he had no intent to defraud the bank and that at the .time he took the items out he intended to put in a check. Was it error to refuse to permit him to testify about putting in the check a week afterwards? The defendant insists that it simply has a bearing on the intent, and was a part of the transaction. The state insists that it is an attempt to prove restitution. There can be no doubt the crime of embezzlement was consummated when the cash items were taken from the bank as far as the conversion is concerned. Defendant argues, however, that embezzlement is not complete until intent to defraud is shown. The question is, then, How far will defendant be permitted to go in showing acts performed after the conversion in order to show lack of intent to defraud? This takes us into the reason for the rule.
Manifestly a banker cannot be heard to say he embezzled money from his bank and later returned it. If this should be the rule, money in a bank would never be safe. The reason for this lies in the frailty of human nature. The bank official who could use the money of the bank under such circumstances as to constitute embezzlement, and then restore, would be tempted to do so, and thus subject the money of the bank to the vicissitudes of whatever enterprise or speculation the banker might desire to indulge in. Keeping this thought in mind, let us examine what happened here. Defendant was the president of the bank, and the cashier and assistant cashier apparently permitted him to do as he pleased with the property of the bank. He carried out several thousand dollars in cash with no record at all. He had no right whatever to do this. Re gardless of what he says as to his intent, let us see how the reason for the rule applies here. During the week that transpired between July 22, 1933, and July 28 that year, events were moving forward that were to bring about a closing of the Emporia bank and the Neosho Falls bank and the financial ruin of defendant. At that time he was in possession of the cash of the bank with no record to show for it. Before he did get a compensatory check ready the cataclysm occurred, and the reason noted a moment ago came into being. Whether it be called an attempt to show restitution or to prove lack of intent such a course of conduct cannot be approved. The same reasoning applies with equal force to count 15.
In count 3 defendant is charged with the embezzlement of $6,000 on or about June 10, 1933. The account of the Emporia Telephone Company with the bank for June shows a charge of $6,000 against the telephone company June 10. The bank sent to the treasurer of the Emporia Telephone Company at Topeka a statement each month of the account of the telephone company with the bank for that month. This $6,000 first came to the attention of the bank officials about July 1, when Mr. Needels noticed a clerk changing this statement to be sent to the telephone company so as to omit this $6,000 item. This clerk testified that she had been instructed by defendant to omit this item. When Needels saw this he told defendant he would have to bring something to the bank to show for this $6,000. Defendant left the bank and returned shortly with a check in the amount of $6,000 payable to the Emporia bank and signed “W. W. Finney, Pt.” This check was deposited to the account of the Emporia Telephone Company and charged to the Emporia Telephone Company so that the account was in the same condition after the transaction as before. This check was placed ■in the files of the bank. Each month when the account of the telephone company with the bank was forwarded to the office of the telephone company at Topeka the bank indorséd the checks drawn upon the account of the telephone company. The clerk made up the report for June, but omitted the $6,000 item, and did not forward the check. She testified she did this for the June and July business because the defendant instructed her to do so. There was additional evidence introduced on the count, but it is not deemed necessary to set it out here. Suffice it to say there was ample to make out a case of embezzlement against defendant. The defendant denied the statements of the clerk and Mr. Needels about his having instructed her not to include the $6,000 charge in the report to. the telephone company. He further testified that the telephone company had some bonds coming due in the amount of $6,000, and that he had drawn drafts for the amount of the bonds which he had attached to the bonds and sent to the company at St. Louis, and that the telephone company not knowing this had sent cashiers’ checks in the amount of $6,000 to pay for these bonds and that he had taken these checks and bought municipal bonds and held them for the telephone company. Defendant testified that when the clerk had trouble finding the check that had been paid for the bonds, he told her she should have it, but went ahead and drew the check that has been mentioned. So far, this count just presents a picture of two conflicting stories, one of which the jury believed. The argument of defendant as to this count is directed to a claim that he was not permitted to show certain transactions in his cross-examination of Mr. Needels. We have already seen that defendant testified he delivered $6,000 in bonds to the bank on August 8, 1933. Defendant complains he was not permitted to show by Mr. Needels that these bonds were received on August 8. An examination of the record discloses that Mr. Needels in answer to questions of counsel for defendant testified as to the receipt of the bonds and as to the proper entries. The court did exclude the exhibits offered, which were the bond record of the bank and-the deposit slip. We fail to see how this ruling could be prejudicial to defendant. Furthermore, the embezzlement was proven to have occurred on June 10, 1933. The offer was as to a transaction on August 8. What has been said here in discussing counts 14 and 15 is an answer to this argument. There is an additional reason why this particular evidence was not competent. It is claimed by defendant to be a part of the transaction relied upon by the state. The embezzlement took place June 10. The offer is of August 8. This bit of evidence might well have been refused because it was too remote.
In count 5 defendant is charged with the embezzlement of $4,000 on April 22, 1932. It will be remembered that defendant was president and general manager of the Paola Telephone Company. The financial offices of this company were located at Topeka, with the office of the Southwestern Bell Telephone Company. Mr. Needels testified that on April 22, 1933, defendant took $4,000 of cash items out of the bank and gave him a check for $4,000. The check bore no date; had no payee and the $4,000 was written in figures but not in words. It bore the signature, “The Paola Telephone Company, Geni. W. W. F.” This check was placed in a drawer along with other checks. It was the practice of the bank to render to the treasurer of the Paola Telephone Company at Topeka a statement of the month’s business. The $4,000 item that has been spoken of was entered on the books of the bank as a charge against the account of the telephone company. When the report to the telephone company was made, however, for April, May, June and July, this charge was 'not included in the report. It was the practice also to send the canceled checks with this report. When these reports were made this particular check was not included. The bank clerk testified that all this was done at the direction of defendant. This had the effect of showing the Paola Telephone Company to have $4,000 more in the bank than the books of the bank showed it to have. There were additional incriminating circumstances introduced, but the detailing of them here would add nothing to this opinion. The evidence was enough to make a case of embezzlement with the intent to defraud the bank. Defendant denied that he had directed anyone to leave anything out of a report to the telephone company and also denied taking any cash items out of the bank on this occasion. His testimony further was there was a competing mutual telephone company at Paola; that there had been for some time a movement on the part of the citizens of Paola to cause the mutual company to sell, and there was to be a meeting at Paola to talk things over about April 20, and he purchased a draft for $4,000, with the check that has been spoken of, payable to himself, on the Gate City National Bank, so that he could use the $4,000 as earnest money in that transaction. He testified that the negotiations were not successful and he then deposited the draft to his personal credit in the Gate City bank and later returned the $4,000 to the telephone company’s account. As thus detailed, the evidence presents a picture of two conflicting stories. The jury evidently believed the one related by the witnesses for the state. The ruling that the defendant urges as error as to this count is the alleged refusal of the trial court to permit him to relate the complete transaction as to the withdrawal of the money, the buying of the draft, the reason for buying the draft and the negotiations and finally the placing of the $4,000 back in the account of the telephone company. On account of the vigor with which this point is urged by counsel, the record has been checked with assiduous care to ascertain the true situation. This has convinced us that defendant was permitted to show every fact contained in his affidavit used on the motion for a new trial and every fact was offered that had any bearing on the issues. There is some vagueness about a deposit to the account of the Paola Telephone Company in the bank on the day the bank closed, but no difficulty is expressed in ascertaining that a deposit of $4,000 was made.
There is a further reason why the ruling of the trial court in this matter was not error. The embezzlement was proven to have taken place on April 20. The $4,000 deposit was made on August 8, at a time when all concerned must have known the bank was doomed. For the reasons heretofore given in this opinion the trial court carefully scrutinized the proffered evidence because it concerned transactions that took place subsequent to the event which the state charges as a crime and was offered wholly to show intent, or the completion of a transaction. On this count it appears that there were hundreds of items with which defendant was concerned; at least one $4,000 item that appears about the same time as the transaction involved in this count took place. The record is not at all clear from testimony that was admitted or from what was offered but not admitted that the $4,000 deposit was any part of the transaction that took place in April. In case it should appear that it was all a part of that transaction it is about as clear a case of restitution as could be made out.
In count 8 the defendant was charged with embezzling $10,000 on or about July 1, 1933. Mr. Needels testified that in April or May defendant came to the bank and took out about $20,000 of cash items. In return for part of these items defendant left a memorandum stating that $10,000 in bonds had been left with the National Bank of Topeka by his son, Ronald Finney, for the Fidelity bank. Needels testified that defendant stated that Ronald had told him these bonds were in Topeka, but defendant did not know whether they were or not. This memorandum was changed several times. The one in the bank when it closed bore the date of July 1, 1933. It was carried as an asset of the bank from along in April or May until the bank closed. Needels testified that the bonds never had been entered on the bond account and upon the records of the bank and that if they had been the memorandum would have been taken out of the assets of the bank. So far this proves a clear case of embezzling $10,000 of the bank’s funds. To meet this, the defendant relied on the fact that the Emporia bank had bonds on deposit with the National Bank of Topeka to secure the deposits of Lyon county, and part of these bonds had been loaned to the Emporia bank by Ronald Finney. The error urged with reference to this count is the refusal of the trial court to permit defendant to show certain facts with reference to these deposits. We are unable to see where the proffered evidence was competent. The question was not whether the Emporia bank had bonds on deposit with the Topeka bank, but whether there were bonds there for meeting the memorandum. When the introduction of evidence was being discussed the trial court stated expressly that evidence going to prove that question would be admitted. The only attempt made by the defendant to take advantage of this holding of the court was to offer certain receipts covering deposits of bonds to secure county deposits. These documents had no bearing on the question under consideration.
Count 9 charges defendant with embezzling $5,379.40 on August 5, 1933. Mr. Needels testified that sometime in April or May when defendant took out of the bank the $20,000 spoken of in the discussion of count 8, besides the bond memorandum described in that count, he left a five-day draft executed by him on the Neosho Falls bank for about $5,500. This draft was withdrawn a few days later and a new one substituted and every few days between that time and August 5 a new draft was substituted. Sometime during that time $20,000 was paid on the draft so that on August 5 it was $5,379.40. At the time each of these drafts was drawn Needels testified that defendant instructed -him to hold it and not send it for collection. Defendant testified that he issued the draft on the date it bore. He denied there had been different drafts and that he had ever told the bank people not to send it in for collection. He testified he had made arrangements for it to be paid at Neosho Falls (two conflicting stories), and the jury believed the witnesses for the state. The defendant argues that the trial court committed error by refusing to permit him to testify as to the arrangements made at Neosho Falls so that this draft would be paid. We have examined the record and find that the evidence about which complaint is made was admitted.
Count 10 charges defendant with embezzling $5,895.76 on or about August 5, 1933. Mr. Needels testified that at the same time when the $20,000 in cash items referred to in the discussion of counts 8 and 9 was taken out of the bank by defendant, besides the bond memorandum and draft heretofore referred to, the defendant left a sight draft drawn by him on Harris Upham & Company, of Kansas City, Mo., in the amount of $5,895.76. The transactions referred to in counts 8, 9 and 10 all occurred on Sunday. Needels testified that at the time when this sight draft was left with the bank he was instructed to hold it and not send it in for collection. From time to time other drafts were substituted for this one, different only in date. At the time each draft was substituted Needels testified he was told not to send it in for collection.
Defendant admitted he drew the draft, but testified it was good when drawn, and denied that he ever told anybody at the bank not to send it in for collection. The state proved that about August 15 defendant called Hams Upham & Company and asked if a draft on him had come through, and when he was assured that none had, he instructed them not to pay it if one was presented. The defendant offered to show that he stopped payment on this draft to get money to pay $40,000 to depositors whom he paid after the bank closed.- Defendant argues that the refusal of the trial court to admit this evidence was error. We think not. The question was the intent of defendant at the time he took out the cash items and gave the draft. What he offered to prove he intended to do with the money was an attempt to prove restitution.
Defendant argues that the facts proven under counts 8, 9 and 10 do not prove embezzlement. The theory of defendant is that what was taken out of the bank were cash items on which defendant was liable and that the memorandum and drafts were cash items. Thus, the net result was only the substitution of one form of indebtedness for another, which is not embezzlement. The trouble with that argument is that as far as this record shows the cash items taken out-were all worth one hundred cents on the dollar, while the memorandum was found by the jury to be fictitious, and the jury found that defendant never did intend the drafts to be paid. As far as this record shows, the cash items taken out were the same as cash.
The defendant further argues as to these counts that they were all one single transaction and that his motions to compel the state to elect upon which count it would rely for conviction should have been sustained. The fact that the two transactions may have had some material fact in common is not decisive of whether they must be joined in one count or may be charged in more than one.
In State v. Schmidt, 92 Kan. 457, 140 Pac. 843, this court said:
“In criminal cases the ultimate test applied in determining the validity of :a plea of former conviction or former acquittal is identity of offenses, and it as not necessarily decisive that the two offenses may have some material fact in common.” (Syl. fl 2.)
It cannot be said there was only one conversion of the $20,000. It was effected by three separate instrumentalities. It is plain the facts that would convict as to counts 8 or 9 would not have convicted as to count 10. The motion to compel the state to elect was not good. See State v. Ragan, 123 Kan. 399, 256 Pac. 169, where this court said:
“If the facts which will convict upon the second prosecution would not (necessarily have convicted on the first, then the first will not be a bar to the second, although the offense charged may have been committed under the .same state of facts. (8 R. C. L. 143, 144.) A putting in jeopardy by one act is not a bar to a prosecution for a separate and distinct act, merely because they are so closely connected in point of time that it is impossible to separate the evidence relating to them on the trial for the one of them first had. Consequently a plea of former jeopardy will not be sustained where it appears that in one transaction two distinct crimes were committed. (8 R. C. L. 151.)” (p. 401.)
Count 11 charges defendant with embezzlement of $6,119 on or .about August 7. On August 3, 1933, defendant mailed to the National Bank of Topeka several checks, amounting in the aggregate to $2,178.52. Included among these was a check for $611.92, ■dated August 1, 1933, payable! to defendant, drawn upon the Emporia bank and signed “The Altoona Telephone Company by Nell Roach.” Defendant received credit to his personal account for this amount on August 4. Shortly after that his account was ■closed and defendant withdrew his credit balance from the bank. When this check reached the Emporia bank it was paid. The Altoona bank had no account with the Emporia bank. It had been ■dissolved since 1930. Mr. Needels testified that defendant had authorized the bank to pay such checks.
Defendant claimed that when he sold the Altoona Telephone Company he received certain cash assets owned by the company, including accounts due, and that he had authority to use the name of the company in liquidating these accounts. He claimed that this check for $611.92 represented money that had been collected and paid to him, and he had sent this check for record purposes only. He testified that had the check been called to his attention he would have paid it. Defendant complains that he was unduly restricted in his efforts to show the practice at the bank as to handling checks of this kind. The record has been checked carefully and it appears that all the evidence offered on this question was admitted. Defendant asks us to hold that the evidence on this count shows that there was nothing irregular about this check and no intent to defraud the bank was proven. To so hold it would be necessary for us to accept the explanation offered by defendant and his witnesses and disregard the evidence of witnesses for the state with all the inferences proper to be drawn therefrom. We cannot do that. It is hardly fitting to take up time in an opinion already too long to set out in detail the circumstances which might very well have caused the jury to accept the version of the matter offered by the state. Suffice it to say that we see no reason for disturbing the result.
Count 13 charges defendant with the embezzlement of $439.54 on or about October 7, 1932. A day or two after October 7, 1932, a draft drawn by the General Machine and Tool Company against W. W. Finney came to the Emporia bank for collection. It was forwarded to the Emporia bank by the Prairie State Bank of Augusta. Mr. Baird testified that when it first came to the bank and.several times thereafter when it was called to his attention defendant said, “Let’s not pay it now.” He testified that on or about October 25 defendant told Baird to pay this draft and carry it. The bank paid the draft with its funds and carried it as a cash item. It was among the cash items when the bank was closed. The testimony of defendant was that he was receiver of an oil company and the draft was for the purchase price of supplies used by him as receiver. He stated when the draft came in he directed that it be not paid — that he would have to get a court order first. He denied that he ever told the bank people to pay it and that when he discovered it had been paid he instructed the bank employees to make some effort to recover the money. This statement was denied by the employees. The argument is that since the draft was to pay a bill of the receiver, defendant got nothing by its payment and hence could be guilty of no intent to defraud the bank. The fact remains that the bank paid out its money and received nothing for it but the draft which it carried as a cash item from October 7, 1932, until the bank was closed. It is not necessary to constitute embezzlement that the money converted should be used for the benefit of defendant. It is sufficient if it was used for the benefit of a third party on account of acts performed by defendant.
In count 17 defendant is charged with embezzling $1,325.23 on or about August 8, 1933. This represents the amount of the overdraft of defendant when the bank closed. This had grown from a credit balance of nine cents on July 29. This is not a case where a depositor had an overdraft under ordinary circumstances. We have seen how defendant made a practice of overdrawing his account and then covering it with a fictitious transaction. We must consider the whole course of dealing with the bank on the part of defendant. It is possible that a transaction, apparently regular and lawful in every particular, may become criminal when at some stage it appears that the innocent instrumentality is being used to some criminal end. Thus, in State v. Crow, 124 Kan. 55, 257 Pac. 735, this court held that where the president of a bank had sold to it notes at par, which he had bought for a greatly reduced amount, the facts were sufficient to sustain a charge of embezzlement.
In this count there can be no doubt that the money of the bank was converted to the uses of defendant and that the bank received nothing for it. Under the circumstances we have concluded that a conversion with intent to defraud was shown.
Thus far the argument of defendant that evidence was not sufficient to prove embezzlement as to each count on which defendant was convicted has been dealt with. As each count was considered, the argument of defendant that the court refused to permit the introduction of competent evidence was also discussed. This was done so that the application of the proffered evidence to the particular count would readily appear. The disposition that has been made of the errors urged on account of rejected evidence disposes in a large measure of the argument of defendant that the trial court placed too strict a construction on the holding of this court in the case of State v. Pratt, supra, since most of the proffered evidence was offered to prove an act of defendant done after the commission of the acts which the state contended constituted embezzlement and which the defendant said were offered on the question of intent and to prove the completion of a transaction, and which the state contended would have had the sole result of proving restitution. The question is: What was the intent of the defendant at the time of the conversion? After the conversion has taken place there must be some time when the conversion of the money will carry with it a presumption of intent to defraud, under the rule that every person is presumed to intend the natural and inevitable consequence of his own acts. In a case where the president of a bank has taken the funds of his bank out of the bank without any right, as soon as the banker has subjected the funds to the vicissitudes and uncertainties of business, the bank has been defrauded. When the conversion of the money has reached that point where there is no longer any question about the intent of the defendant, then further evidence as to conduct of defendant after the commission of the acts charged to constitute embezzlement is incompetent and immaterial.
The argument of defendant that the motion of defendant to require the state to elect upon which of- counts 8, 9 and 10 it would rely for conviction has also been disposed of.
There remain several questions which defendant urges against the entire case.
Defendant argues that the information is bad for duplicity because it charges that defendant embezzled, abstracted and willfully misapplied the moneys, funds, securities or credits of the bank. He argues that embezzling is a crime, abstracting is a crime, and willfully misapplying is a crime, and they should not all have been charged in the same information. No motion to quash the information was filed nor was any motion to compel the state to elect filed. The matter is raised for the first time in this court. That is too late. An attack upon the sufficiency of an information must be made prior to the plea. In 31 C. J. 798 the rule is stated as follows:
“While it has been stated broadly that a motion to quash an indictment may be made at any time, or at any time before verdict, it is variously held that a motion to quash or set aside an indictment or information must be made before arraignment, or at arraignment, or before plea, or before trial, or submission of the case to the jury. ... A motion comes too late after verdict, . . .”
In State v. Pryor, 53 Kan. 657, 37 Pac. 169, this court said:
“A motion to quash should precede arraignment. (The State, v. Otey, 7 Kan. 69; The State v. Ruth, 21 id. 583; 4 Am. & Eng. Encyc. of Law, 764.) The proper time to raise the question of sufficiency of an information or indictment before a verdict is by a motion to quash; after verdict, by motion in arrest of judgment. It is not good practice to raise an objection to an information by objecting to the introduction of testimony. . . . The general rule is, that duplicity in criminal cases cannot be made the subject of a motion in arrest of the judgment. It is cured generally by a verdict of guilty as to one of the offenses charged. (Whar. Cr. Pl., Sec. 255.) Therefore it is important that the sufficiency of the information or indictment be disposed of before arraignment.” (p. 658.)
See, also, State v. Startzman, 111 Kan. 136, 205 Pac. 1026.
In addition to the foregoing answer to this argument of defendant it may be said that this information followed substantially the wording of the statute and was good even against a motion to quash or to compel the state to elect.
In 31 C. J. 771 it is said:
“Offenses including Other Offenses. An indictment is not double because it charges several related acts, all of which enter into and constitute a single offense, although such acts may in themselves constitute distinct offenses, and although one of the offenses is a felony and the other a misdemeanor. . . There are some instances in which two crimes are of the same nature and so connected that when both are committed they must constitute but one legal offense, in which case both may be charged in the same count.”
In State v. Hodges, 45 Kan. 389, 26 Pac. 676, the question is settled. There this court said:
“As we understand, it is claimed that the present information is not good, for the reason that each count first charges the crime of actual embezzlement, and then charges a second offense by charging that the defendant made way with the same property and secreted it with the intent to embezzle and convert the same to his own use. This certainly does not render the information bad, for all these charges could have been shown under the single charge of actual embezzlement; for if a person commits the offense of actual embezzlement he must commit all the rest above specified. He cannot commit the offense of actual embezzlement without also attempting and intending to commit such offense; and he cannot commit the offense without also converting the property of his employer in his hands and which he embezzles to his own use, and without also attempting and intending to so convert it. All that was material in the aforesaid charge was included in the one charge of actual embezzlement. Besides, in the present case, before the defendant was called upon to introduce any evidence, the state elected to rely for a conviction upon the single charge of actual embezzlement and of the embezzlement of a particular thing; and this election was as to each count, and the defendant was convicted upon this election, and upon this election only. What we have said with reference to the first count may also be said with reference to all the other counts upon which the defendant was convicted.” (p. 394.)
See, also, State v. Meade, 56 Kan. 690, 44 Pac. 619, and State v. Richmond, 96 Kan. 600, 152 Pac. 644.
The offense oí abstracting or willfully misapplying are all included in the charge of embezzling. Only one transaction is relied upon in each count and only one crime is claimed to have been committed in each count. The rights of the defendant do not appear to have been prejudiced by the form of the information.
R. S. 62-1010 provides the indictment or information is sufficient if it appears therefrom—
“Fifth. That the offense charged is stated with such a degree of certainty that the court may pronounce judgment upon conviction, according to the right of the case.”
R. S. 60-1011 provides—
“No indictment or information may be quashed or set aside for any of the following defects:
“Seventh. For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”
R. S. 62-1718 provides—
“On an appeal, the court must give judgment without regard to technical errors, or defects, or to exceptions which do not affect the substantial rights of the parties.”
These statutes are sufficient authority to sustain a holding that the argument of defendant against the sufficiency of the information is not good.
When the trial court submitted the form of verdict to the jury the jury was informed that it could find the defendant guilty of embezzlement or of abstraction or of willful misapplication. The defendant argues that the court by this action submitted a question of law to the jury and this was error. This argument is not good. At the same time that the court gave the jury the above information a verdict whereby the jury could find the defendant guilty of embezzling, abstracting and willfully misapplying was also submitted. The jury used the latter form of verdict. All the terms used were defined in the instructions by the trial court. The questions of law were all settled by the instructions. The jury had only to apply the instructions to the facts.
. In counts 1, 3 and 5 of the information defendant is charged with embezzling, abstracting and willfully misapplying the funds of the Fidelity State Bank rather than moneys, funds, securities and credits, as charged in the other counts. Defendant argues that he should have been discharged as to these three counts because the word “funds” of the bank means only government, state, county, and municipal securities or other forms of indebtedness, and the evidence on these counts did not prove the embezzlement of any of these. The argument is extremely technical. The word “funds” has a much broader meaning than is contended for by defendant. It has been held to have the following meaning, quoting from Black’s Law Dictionary, 3d ed., 828:
“Fund, n. A sum of money set apart for a specific purpose, or available for the payment of debts or claims.
“In the plural, this word has a variety of slightly different meanings, as follows:
“1. Money in hand; assets; cash; money available for the payment of a debt, legacy, etc. Galena Ins. Co. v. Kupfer, 28 Ill. 335, 81 Am. Dec. 284; United States v. Jenks, (D. C.) 264 F. 697, 698; Wherrell v. U. S., 18 F. 2d 532, 533; Federal Reserve Bank of St. Louis v. Quigley, (Mo. App.) 284 S. W. 164, 166; National Surety Co. v. Williams, 74 Fla. 446, 77 So. 212, 221; Bishop v. United States, 16 F. 2d 406, 408; Johnson v. State, 37 Ga. App. 129, 139 S. E. 118, 119.
“2. The proceeds of sales of real and personal estate, or the proceeds of any other assets converted into money. (Citing case.)
“3. Corporate stocks or government securities; in this sense usually spoken of as the ‘funds.’
“4. Assets, securities, bonds, or revenue of a state or government appropriated for the discharge of its debts.” (Citing cases.)
Quoting from 4 Words and Phrases, 3004:
“The word ‘fund,’ in its broader meaning, may include property of every kind. In re Tatum, 70 N. Y. Supp. 634, 635, 61 App. Div. 513 (Citing And. Law Dict.).
“‘Funds’ include moneys and much more, such as notes, bills, checks, drafts, stocks and bonds. United States v. Greve, (U. S.) 65 Fed. 488, 490; Hasbrook v. Palmer, (U. S.) 11 Fed. Cas, 766; Ayres v. Lawrence, 59 N. Y. 192, 198.”
“In indictment under Laws 1919, page 216, section 20, charging defendant, being an officer and employee of bank, with embezzling, abstracting, and misapplying moneys and funds of bank in named amount, the word ‘funds’ includes all bank’s available assets, and hence instruction permitting conviction, if money, checks, note, funds or assets were embezzled, was not erroneous.” (Johnson v. State, 166 Ga. 755, 139 S. E. 118, headnote.)
The word “funds” might have been used alone throughout the information with no loss to its force. The defendant has no cause to complain because of the use of this word alone in counts 1, 3 and 5. The word adequately describes the thing with which defendant was charged and convicted of embezzling in those counts.
Defendant requested the trial court to instruct the jury as follows :
“On this count I instruct you that if you find from the evidence that on the 27th day of December, 1932, the defendant had an overdraft in his account of 87,900 and that on said date a credit was given to his account and a charge made in the account of the National Bank of Topeka which had the effect only of reducing his overdraft on the books of the bank, and that no funds of the bank were converted thereby, you must find the defendant not guilty on the first count in the information.”
The instruction was refused. This is urged as error. The instruction was properly refused. The first part of the proposed instruction had no place in this case for the reasons given in our discussion of count 1. The remaining portion of the instruction was given elsewhere.
Defendant objected to instructions 1 to 42 for the reason that they did not each contain a paragraph instructing the jury that if it did not believe beyond a reasonable doubt that the state -had proven each and every element necessary to complete the offense-it was its duty to bring in a verdict of not guilty. Defendant argues that the failure of the court to add such a paragraph was error.
The court instructed the jury as to each count and at the conclusion of such instruction as to each count used the following-instruction:
“If you and each, of you find each and every element of the above and foregoing beyond a reasonable doubt, then and in such event it will be youiduty to return a verdict of guilty against said defendant on the charge so-contained and set out in the first count of the information filed herein.
“On the contrary, however, in event you or any one of you may not so find each and every element of such charge beyond a reasonable doubt, then and in such event you are instructed you cannot return a verdict of guilty against said defendant as to such charge so contained in such first count of such information.”
The above instruction, repeated each time the court dealt with the instruction as to each count, is held to fairly cover the questiom of reasonable doubt.
Instruction 61, given by the court, was as follows:
“Yoú are instructed that to constitute the offense of embezzlement there-must be -a conversion to the use of the defendant, or to the use of some other, of moneys, securities or credits of the bank, and if you find from the evidence as to any count or counts of the information that the defendant did not convert any of the moneys, funds, securities or credits of the bank to his own. personal use or the use of some other with the intent to injure and defraud the bank, then in such case you are instructed that you must find the defendant not guilty as to such count or counts of the offense of embezzlement.”'
Defendant objected to this instruction on the ground that it placed! on defendant the burden of proving his innocence. In view of the other instructions that were given on the question of reasonable-doubt instruction 61 was not necessary, but it has the appearance of having been given for the benefit of the defendant. At any rate: it did not have the effect contended for by defendant.
Instruction 60 was as follows:
“The intent to injure and defraud does not within the meaning of the statute necessarily involve malice or ill will toward the bank. The term as used in the statute means that general intent to injure or defraud which always arises in contemplation of law, when one willfully or intentionally does that which in its necessary and natural consequences must injure another so that while the offense of willful misapplication of the moneys, funds or credits of the bank must be committed by the accused with intent to injure or defraud the bank, that intent may be shown or be presumed from the doing of the wrongful, fraudulent and illegal acts which in their necessary results naturally produce loss or injury to the bank.”
Defendant argues that the giving of this instruction was error because it tells the jury that it can disregard all other evidence as to intent except the doing of wrongful or illegal acts which in their necessary results produce loss or injury to the bank. The instructions must all be considered together, and when this is done it appears that the court fully instructed the jury on the question of intent.
In instruction 58 the trial court instructed the jury that—
“You are further instructed in regard to felonious intent that the law presumes a fraudulent or criminal intent when one willfully and knowingly appropriates moneys, funds, securities, or credits rightfully in his possession belonging to another, to any purpose inconsistent with the purpose of the original possession or for his personal or private benefit or use, whatever that benefit or use may be, without the knowledge or consent of such other person or owner, natural or artificial; and this is true, even though at the time he does it he intends to restore or replace it, or does actually restore it-or its equivalent, he is nevertheless guilty of the offense of embezzling, or abstracting, or misapplying within the spirit as well as the letter of the law. His intent to appropriate the moneys, funds, securities or credits without authority so to do, is the intent which is an element of the offense, and the fact that he may or may not have had other intents, hopes, or aspirations is not material. Further, the motive which prompted the embezzlement, or abstracting, or misapplication, if such there was, is not material, nor is it any defense. Funds, moneys, securities or credits are applied to the use of an accused when he uses them in the way he desires to use them, whether for his personal use or for the use of another. If the defendant directed the disposition of the moneys, funds, securities, or credits for his own use or benefit, he thereby applied them to his own use, and the offense, if otherwise established, would be complete, and the fact, if it is a fact, that the bank as owner of the moneys, funds, securities, or credits set out and described in the several counts of the information, suffered no loss, or that these moneys, funds, securities or credits were ultimately returned to the bank, is of no materiality, and constitutes no defense on the part of the defendant, for the criminal character of the transactions is to be determined from the facts as and when they occurred, and if they were then wrongful, they do not lose their criminal character by anything the defendant may do or fail to do thereafter.”
Defendant argues that the giving of this instruction was error because it does not properly instruct the jury as to intent. The part to which defendant particularly objects is as follows:
“And the fact, if it is a fact, that the bank as owner of the moneys, funds, securities, or credits set out and described in the several counts of the information, suffered no loss, or that these moneys, funds, securities or credits were ultimately returned to the bank, is of no materiality, and constitutes no- defense on the part of the defendant, for the criminal character of the transaction is to be determined from the facts as and when they occurred.”
The argument is that the instruction eliminates the question of the good faith of the defendant and also eliminates the question of whether the bank lost anything as a result of the action of the defendant. In the first place, there is no count in this case, as has been demonstrated, where the bank did not lose on account of the acts of the defendant. In the second place, the defendant has a wrong idea of what constitutes embezzlement. He thinks that a bank president can take money out of the cash drawer of the bank, carry it around in his pocket, buy stock with it, or make any other use of it that he wishes to make, and so long as he intends to pay it back sometime he is not guilty of embezzling the funds of the bank on account of lack of intent. That is not the law. When a bank president, or any person named in R. S. ,1931 Supp. 9-140, converts the funds of the bank to his own use with no right to do so and subjects it to the vicissitudes of life and business he has defrauded the bank. This has been demonstrated heretofore in this opinion.
The court told the jury orally just how it should mark the verdict form that was submitted to it. The defendant contends this was a violation of R. S. 62-1447, which requires the instructions of the court to be in wilting. We have examined the oral statement of the court and have concluded what was said by the court was only an explanation to the jury as to how to mark their verdict and not an instruction as to the law of the case.
In State v. Jones, 137 Kan. 273, 20 P. 2d 514, this court considered this question, and said:
“In our view of the matter the claimed oral instruction was only a response to the foreman’s question and was only a statement, using different language, of the written instruction. If any error was made, it was technical; there is no showing it affected the substantial rights of the defendant, and it must be disregarded.” (p. 278.)
Defendant argues the verdict of the jury was void for the reason there were three distinct crimes charged in each count of the information and no evidence that defendant is guilty of more than one. The question is raised for the first time in this court. That is too late. If it had been raised in time the point is not good, as has been heretofore held in this opinion on the question of duplicity.
Defendant argues the trial court by its oral instruction and written instruction 47 told the jury in substance it could find defendant guilty if some believed he embezzled, some believed he abstracted and some believed he willfully misapplied. The defendant cannot complain of this since the jury found him guilty of embezzling, abstracting and willfully misapplying.
After the jury had returned a verdict of guilty on all twelve counts the court started to poll the jury. The first juror was asked the following question:
“Thb Court: Mr. Bixler, you have heard the verdict as just read with reference to the charge contained in the first count of the information filed in this case, let me inquire, is this your verdict and are you still satisfied therewith?”
To this the juror answered “No.” The jury was sent back to continue its deliberations. When a verdict was again returned defendant again asked the court to poll the jury by asking the same , questions. This the court refused to do. Defendant argues that this was error. The question was not a proper one to be used in polling a jury. The only reason for polling a jury is to ascertain if the verdict returned is really the verdict of all the jury. The question that will enable the court to ascertain that, is the question “Is this your verdict?” At'that stage the court is not concerned with the question of whether each juror is satisfied with the verdict.
In Bowen v. Bowen, 74 Ind. 470, that court said after quoting from authorities:
“We are satisfied that the rule declared by these cases is a sound and practical one. The question ‘Is this your verdict?’ asks for all the information a party is entitled to receive, and affords each juror ample opportunity to dissent, if he is dissatisfied.”
See, also, Black et al. v. Thornton, 31 Ga. 641; also Oil Co. v. Moore, 202 N. C. 708.
On the hearing of the motion for a new trial an affidavit of one of the jurors was introduced. In the affidavit the juror described the deliberations in the jury room. The juror stated that the jurors were greatly impressed by instruction 58 that has been heretofore set out in this opinion and that the jurors placed the interpretation on the instruction that it was their duty to convict if defendant used the money regardless of the intent defendant may have had at the time. Defendant argues that this affidavit was the ground for a new trial. In the first place, a juror cannot impeach his verdict in this manner. (See State v. O’Keefe, 125 Kan. 142, 263 Pac. 1052; State v. Wright, 112 Kan. 1, 208 Pac. 630; and State v. Keehn, 85 Kan. 765, 118 Pac. 851.) In the second place, the interpretation claimed to have been put on the instruction is not far from the correct one.
The defendant points out that during the course of the trial the court room was crowded and that frequently there were bursts of laughter and applause, which showed that the crowd was in sympathy with the state and prejudiced against the defendant. It is pointed out that the trial court did not admonish the jury that it should not be influenced by the crowd. The jury was kept together during the trial. They were not permitted to separate. On the hearing of the motion for a new trial the trial court considered an affidavit of one of the counsel for defendant which stated the occasions on which the crowd laughed and applauded. The court found that nothing came under its observation that would prejudice the jury. We are not disposed to disturb that finding.
Defendant argues that he should be granted a new trial on account of misconduct on the part of counsel for the state. This record does not disclose conduct other than what might be expected from a vigorous prosecutor. We find no evidence of misconduct.
Complaint is made of the prejudice of the trial court which prevented defendant having a fair trial. We cannot agree with this contention. There was not a great deal of dispute in the evidence. The case depended to a large extent on records and documents about which there could be but little dispute. There was a sharp conflict as to the admissibility of the evidence. Those questions were decided correctly by the court. There was no abuse of discretion on the part of the trial court in denying the continuance asked for by defendant. It does not appear that the defendant could have done anything further in the preparation of his case than was done. It does not appear that there is any error in this record.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
While the parties disagree as to the nature of the action in this case, it appears to have originated as one for conversion of wheat, upon which plaintiff claimed to have a chattel mortgage. Plaintiff alleged defendant purchased the wheat from the mortgagor, George Kenneck, after it had notice of plaintiff’s mortgage. Plaintiff recovered judgment for the value of the wheat, and defendant appeals.
The mortgagor, Kenneck, was not a party to this action, but was a party to two other actions involving Kenneck and the plaintiff 'herein. The present action is an outgrowth of those disputes, and the facts in those cases, to the extent they bear on the issues before this court, will be briefly stated.
It appears Kenneck had purchased farm machinery from plaintiff, executing in payment thereof five promissory notes secured by a mortgage on the machinery; that on January 23,1931, there was due and owing from Kenneck to plaintiff on these notes the sum of $2,934.67. On this date the indebtedness was extended to June 15, 1931. As consideration for the extension, Kenneck executed to plaintiff a chattel mortgage on growing wheat in Harper county, Oklahoma, which mortgage was duly recorded in Oklahoma. The mortgage was not recorded in Kansas.. On June 16, 1931, the indebtedness being due and unpaid, this plaintiff filed an action, No. 3453, in Clark county, Kansas, against Kenneck, asking judgment on the indebtedness and foreclosure of the mortgage on the machinery. A receiver was appointed and took possession of the machinery. Kenneck filed an answer on December 8, 1931, in which he alleged an oral extension of the indebtedness until after harvest, and setup failure of consideration for the mortgage on the Oklahoma wheat. This action was determined adversely to Kenneck on March 2, 1932.
While the above mentioned action, No. 3453, was pending in Clark county, and on July 1, 1931, Kenneck filed an action, No. 3176, in Harper county, Oklahoma, against the plaintiff in the above action for cancellation of the mortgage on the Oklahoma wheat, the grounds for cancellation being an assertion of the same facts set up by Kenneck as a defense to the Clark county action, namely, extension of the indebtedness until after harvest and failure of consideration by reason of the Clark county action, No. 3453, having been pre maturely brought.
The Oklahoma court appointed a receiver, who took charge of the wheat. Kenneck took steps to procure service by publication, and on October 27, 1931, the district court of Oklahoma rendered judgment for the plaintiff, Kenneck. This judgment canceled the chattel mortgage and directed the receiver to deliver the wheat to Kenneck.
In July, 1931, the Oklahoma receiver stored the wheat in Kansas with the Lewelling Grain Company at Englewood. During the same month, and before the wheat was so stored, the attorney for the plaintiff, the Allis Chalmers Manufacturing Company, notified the grain company that it claimed the wheat under the chattel mortgage. The grain company ignored the notice, and the action which is now before this court followed.
The plaintiff alleged the facts of the extension of the indebtedness, execution of the mortgage on the Oklahoma wheat and the first action between plaintiff and Kenneck. The defendants answered, alleging the jurisdiction of the Oklahoma court, and set up the Oklahoma judgment canceling the mortgage. Plaintiff replied, denying the allegations of the answer inconsistent with plaintiff’s petition; denied the validity of the appointment of the receiver by the Oklahoma court; alleged the affidavit for publication service was void and was not filed according to law and was insufficient to give the court jurisdiction; that the publication notice was void and insufficient as a basis of service by publication under the laws of Oklahoma; that the service by publication was without force or effect; that the Oklahoma court had no jurisdiction of either the subject matter or of the defendants, and that the proceeding in Oklahoma was not in rem but one in personam; that the judgment and proceedings in the district court of Harper county, Oklahoma, and each and every step therein taken, were void. Plaintiff further replied the wheat was placed in defendant’s elevator in Kansas and defendant had knowledge of plaintiff’s claim; that the Oklahoma receiver had no authority in Kansas.
Plaintiff’s evidence consisted of the files and transcript in the first Clark county action, No. 3453, the original mortgage and some oral testimony of notice to defendant and as to value of the wheat. Defendant introduced authenticated copies of the records in the Oklahoma case. Excepting oral testimony of notice and value of wheat, the evidence was all documentary, consisting of the pleadings, order and exhibits in the first two actions involving this plaintiff and Kenneck.
Trial was by the court, which overruled defendant’s demurrer to plaintiff’s evidence, and rendered judgment November 9, 1933, for plaintiff.
Defendant says the court erred in overruling defendant’s demurrer to plaintiff’s evidence, in refusing to give full faith and credit to the Oklahoma judgment and in rendering judgment for plaintiff.
The plaintiff makes an argument here in line with the allegations of its reply, which has been heretofore noticed. The first argument is that the order appointing a receiver was void. Plaintiff points out the action was filed July 2, 1931. The order appointing the receiver was made July 1, 1931. It will be seen the receiver was appointed at a time when there was no action pending. Plaintiff argues that on this account the order was void.
The case of In re Sharp, 87 Kan. 504, 124 Pac. 532, is relied on. In that case a temporary injunction was issued two or three days before the action in which the injunction asked for was filed. This court examined the provisions of the code, which provide for a temporary injunction at the time of commencing the action, and held that since the injunction was issued before the action was commenced it was void. The statutes provide that a receiver may be appointed at or after the commencement of an action. (See Okla. Stat. 1931, § 773.)
Following the rule laid down in the case of In re Sharp, supra, we have concluded the order appointing the receiver in this case was void.
The petition in the Harper county case was filed July 2, 1931. No attempt was made to get service by publication until September 23, 1931.- This was more than sixty days after the filing of the petition. Section 164 of the Oklahoma Statutes of 1931 provides that a civil action may be commenced in a court of record by filing in the office of the clerk of the proper court a petition and causing a summons to be issued. In cases where service by publication is proper, an action may be commenced by filing a petition with an affidavit for publication, provided the service is duly perfected, by commencing the publication of such notice within sixty days after filing the petition. (See Raymond v. Nix, Halsell & Co., 5 Okla. 656, 49 Pac. 1110.)
In the case of Jones v. Warnick, 49 Kan. 63, 30 Pac. 115, this court held that where the petition had been filed and no summons had been issued or no publication notice had been filed then the suit had not been commenced, and an order of attachment issued in the meantime was void. Where the question is the time when the filing of an action stops the running of the statute of limitations, the Oklahoma Statutes provide that an action shall be deemed commenced at the date of the first publication and that—
“An attempt, to commence an action shall be deemed equivalent to the commencement thereof, within the meaning of this article, when the party- faithfully, properly and diligently endeavors to procure a service; but such attempt must be followed by the first publication or service of the summons within sixty days.” (Okla. Stat. 1931, § 103.)
The Kansas Statutes contain a similar provision. This court has held in cases that did not involve the statute of limitations that where the publication was made after the filing of the petition it related back to the time of the filing of the petition, provided it was made within sixty days of the filing of the petition. (See Bannister v. Carroll, 43 Kan. 64, 22 Pac. 1102.) We conclude, therefore, that no action was commenced in the district court of Harper county, Oklahoma, against the plaintiffs in this case.
The defendants here argue that when the receiver took possession of the res — in this case, the wheat — the court had jurisdiction to make disposition of the wheat, even though the court had no jurisdiction in the original case. We have just seen, however, that the order appointing the receiver was void because there was no suit pending when the receiver was appointed.
Let us see further what happened in this case. ■ The receiver took possession of the wheat and stored it in the elevator of defendant in Kansas. Section 183 of the Oklahoma Statutes of 1931 provides, in part, as follows:
“Service may be had by publication in any of the following cases: . . . in actions which relate to, or the subject of which is, real or personal property in this state where any defendant has or claims a lien or interest, actual or contingent therein, or the relief demanded consists wholly or partly in excluding him from any lien or interest therein, and such defendant is a nonresident of the state or a foreign corporation.”
It is under the above provision that the action in Oklahoma was brought and service by publication attempted. What was the situation in that case when the first publication notice was made in 1931, on September 24? There was no property in Oklahoma to form a basis for service. It had all been moved to Kansas. Hence, there was lacking a necessary element to enable the plaintiff in that action to obtain service by publication. The jurisdiction of the court of Oklahoma to adjudicate the questions in this case depended on the location of property of the defendants in that state within the jurisdiction of the court.
In the case of Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565, the supreme court held:
“A personal judgment rendered in a state court, in an action upon a money demand against a nonresident of the state, without personal service of process upon him within the state or his appearance in the action upon service by publication is without any validity; and no title to property passes by a sale under an execution issued upon such a judgment.
“The state, having within its territory property of nonresidents, may hold and appropriate it to satisfy the claims of its citizens against them; and its tribunals may inquire into their obligations to the extent necessary to control the disposition of the property. If nonresidents have no property in the state, there is nothing upon which the tribunals can adjudicate.
“Process from the tribunals of one state cannot run into another state, and summon parties there domiciled to leave its territory and respond to proceedings against them; and publication of process or notice within the state in which the tribunal sits cannot create any greater obligation upon the nonresident to appear. Process sent to him out of the state, and process published within it, are equally unavailing in proceedings to establish his personal liability.” (24 L. Ed. 565, headnotes 2, 3, 5.)
It will be noted that the Oklahoma Statutes, upon which plaintiff in that case depends for the right to secure service by publication, provided that such service may be had when there is property of the person sought to be charged within the state. Thus, the court of Harper county, Oklahoma, was without jurisdiction, both under the statutes of its own state and the decisions of the courts.
Defendant here argues that since the Oklahoma court held it had jurisdiction, such an adjudication cannot be questioned in a collateral proceeding such as this unless the lack of jurisdiction appears on the face of the judgment. The jurisdiction, however, of a court by which a judgment is rendered in any state may be questioned in a collateral proceeding in another state, and notwithstanding the averments contained in the record itself.
In Thompson v. Whitman, 18 Wall. 457, 21 L. Ed. 897, it was held;
“Neither the constitutional provision that full faith and credit shall be given to each state to the public acts, records and judicial proceedings, of every other, state, or the act of Congress passed in pursuance thereof, prevents an inquiry into the jurisdiction of the court by which a judgment offered in evidence was rendered.
“The record of a judgment rendered in another state may be contradicted as to the facts necessary to give the court jurisdiction; and if it be shown that such facts did not exist, the record will be a nullity, notwithstanding it may recite that they did exist.
“Want of jurisdiction may be shown, either as to the subject matter or the person, or in proceedings in rem as to the thing.” (Syl. 11¶ 1, 2; 3.)
See, also, Litowich v. Litowich, 19 Kan. 451; Brinkman v. Shaffer, 23 Kan. 528; Paul v. Butler, 129 Kan. 244, 282 Pac. 732.
From an examination of the record in this case we have reached the conclusion that at the time the action was taken to obtain serv ice by publication, upon plaintiff here in the district court of Harper county, there was no property of defendant in that case within the state of Oklahoma. Since this is true, that court was without jurisdiction to render any judgment in that case. When the plaintiff in this case found the wheat in Kansas it had a right to proceed against it just as if nothing had happened in Oklahoma. That is what was done in this case.
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The opinion of the court was delivered by
Burch, J.:
The action was one by the receiver of a failed bank to enforce double liability of a stockholder. Defendant prevailed, and the receiver appeals.
Defendant was owner of five shares of stock of the Farmers State Bank of Alton. In 1926 the shareholders made an assessment of 100 per cent on themselves to restore impaired capital. Defendant did not pay the assessment, because financially unable to do so. Instead, he assigned the certificate, and mailed it to the bank, with instruction to sell the shares, as provided by law. The bank did not sell the shares, retained the certificate, and carried the assessment as an' asset until required to charge it off by the bank commissioner. The bank continued to do business until January, 1932. When the receiver took charge he found the certificate among the bank’s papers.
After a trial the district court found the facts substantially as they have been recited, and simply stated as a conclusion of law that the receiver should take nothing. There is no brief for defendant, but counsel for plaintiff suggests the court’s view seemed to be that failure of the bank officers to sell the shares to satisfy the assessment, and so to devest defendant of ownership, relieved defendant of double liability as a stockholder accruing six years later.
There was no testimony and no finding that defendant followed up delivery of the share certificate to the bank for sale, with effort to see the bank did dispose of the shares, and so get defendant’s name off the stock register as a stockholder. Indeed, defendant’s own testimony, on which the court based no finding, was, defendant made no inquiry with respect to whether his stock had been sold. He received no notice of stockholders’ meetings, attended no meetings, received no statements of the bank’s financial condition, and merely assumed the matter had been taken care of as he requested.
Defendant did not propose to sell the shares to the bank, and the bank took no title to the shares by assignment and delivery of the certificate. Indeed, the bank could not take title to satisfy the assessment. To do so would be to withdraw that much capital, when the assessment was made to restore capital already impaired.
Assessment of stockholders is a means resorted to for the benefit of stockholders to keep the bank a going concern. It has nothing to do with double liability of a stockholder, which is imposed for benefit of creditors of the bank. Defendant assumed the shares could and would be sold to satisfy the assessment, in whole or in part. That would end his relation to the bank as stockholder, and the purchaser would be stockholder, subject to double liability. In that event it would be incumbent on defendant to see the transfer was made on the stock book of the bank, in order to relieve himself of double liability as stockholder.
If the shares could not be sold, or were not sold, defendant remained a stockholder. When the receiver took charge nothing had been done to get defendant’s name off the stock register as a shareholder. Whether the officers of the bank were at fault or not, defendant still was a shareholder. Neither the receiver nor creditors for whose benefit double liability is imposed were at fault for this state of affairs, and the receiver should have recovered.
The principles of law applicable to the case have been discussed in the opinions in Bank v. Strachan, 89 Kan. 577, 132 Pac. 200; Citizens Bank v. Needham, 120 Kan. 523, 244 Pac. 7; Kershaw v. Cozad, 137 Kan. 128, 19 P. 2d 452; and in cases referred to in those opinions.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for plaintiff. | [
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The opinion of the court was delivered by
Smith, J.:
This is an action in which the county commissioners of Sedgwick county ask a writ of mandamus to compel the county treasurer to disburse certain tax money that was paid under protest and to compel defendant railroads to withdraw their protests. Judgment was for plaintiffs. Defendants appeal.
The taxes involved are those payable in December, 1933. The action arises on account of a dispute about which tax limitation statute controls. The levy which is attacked here was 4.5 mills in the aggregate. Defendant railway companies paid such of their taxes as they deemed illegal under protest. The county treasurer is holding such amount, awaiting the outcome of this action.
Chapter 309 of the Laws of 1933 is what is generally known as the “levy limitation” statute. It provided a comprehensive plan for limiting the amount that could be levied in the counties in Kansas. It divided the counties into seven classes according to assessed valuation. It limited the aggregate levy of a county the size of Sedgwick to 3.5 mills and limited the levy for the poor fund to one mill. Provision was made in the statute for the board of county commissioners to secure permission from the state tax commission to make an additional levy of one mill for poor relief. This act was approved March 25, 1933, and became effective on publication April 3, 1933. That levy was made under the authority of the above statute. Chapter 309, however, was not the only act passed by the legislature of 1933 that dealt with tax levies. Chapter 198 deals with that subject as applied to Sedgwick county alone. It provides for a levy of one mill for the poor fund and provides that such a levy shall be in addition to the one provided for by R. S. 1931 Supp. 39-340. That section was an act increasing the poor levy to one-half mill. Chapter 198 further provided that in any county affected by the act if the poor fund should become exhausted before the additional levies authorized in the act were made the county commissioners were empowered to issue warrants in the amounts necessary to care for the poor, unemployed and unfortunate in an amount not greater than could be raised by the additional levy. The act further provided that it should not be in effect after December 31, 1934. This act was approved March 21, 1933, and took effect on its publication in the official state paper March 24, 1933. It will be seen that this act had been in effect eleven days when chapter 309 became effective. The county commissioners claim that they made the extra one-mill levy under the authority of chapter 198. They allege that they have issued warrants under its provisions. The defendants point out the fact that chapter 309 became effective several days after chapter 198 and limits the making of an additional levy to an application to the state tax commission for permission, and that chapter 198 is a special act, while chapter 309 is a general one purporting to formulate a tax-limitation policy for the entire state. They argue that because of all these circumstances the passage of chapter 309 repealed chapter. 198 by implication. Defendants strengthen this view by pointing out that chapter 198 provides that the levy provided for in that chapter is in addition to the one provided for in R. S. 1931 Supp. 39-340, and that section was repealed by implication. It may be stated here that R. S. 1931 Supp. 39-340 was a section that conferred the power on county commissioners to make additional levies for poor relief and chapter 191 only amended it in some particulars so as to give the counties of a certain population additional authority. Furthermore, chapter 191 did not go into effect until publication in the statute book, which was some weeks after the publication of chapters 309 and 198. It may safely be said that chapter 191 does not need to be considered in this case. We will place the decision on the question of whether chapter 309 repealed chapter 198 by implication. Defendants rely on Topeka v. McCabe, 79 Kan. 328, 99 Pac. 602. There this court said:
“It is true that repeals by implication are not favored, but this rule has no application where the later statute is obviously intended to cover the entire subject matter of the prior act, and its provisions are manifestly intended as a substitute therefor. (Citing many cases.)” (p.331.)
We are unable to say that it is obvious that chapter 309 was intended to so cover the subject matter of chapter 198 as to be manifestly intended as a substitute therefor. The provision in chapter 198 giving the county commissioners authority to issue warrants if the fund for the support of the poor should become exhausted before the levies provided for are made is enough to take the chapter out of the above rule. This view is strengthened by the fact that chap ter 198 is only in effect for one year by its own provisions. The application for the writ alleges that plaintiffs have issued warrants in excess of the amount of the one-mill levy.
It will be remembered that there were about ten days after chapter 198 became effective before chapter 309 became effective. This was ample time for warrants to have been issued. While the pleading does not state that the warrants held were issued during this period of time, still the fact that they could have done so makes it obvious that the legislature intended to make such a happening possible. At any rate a sufficient period of time had elapsed between the taking effect of chapter 198 and chapter 309 that it cannot be said that circumstances were such that chapter 309 could ever be a substitute for chapter 198. Plaintiffs meet this argument by urging that counties had the right to issue no-fund warrants without the authority of chapter 198 until the passage of the cash-basis law, which is chapter 319 of the Laws of 1933. The answer to that is two-fold — the authority to make the additional levy and the authority to issue no-fund warrants go hand in hand in chapter 198. It would do no good to have authority to issue the warrants unless there was also authority to make the additional levy, since everyone could see that there would be as much demanded of the poor fund in the year that was coming as in the year just passed. The other answer is that the cash-basis law was being considered during most of the time that the legislature was in session. The members of both houses were familiar with its provisions. The general purpose for which it was being considered was to forbid cities, counties and school districts issuing no-fund warrants. Probably no bill that was enacted received such general consideration. No doubt the legislature foresaw this and conferred on the county commissioners the authority to issue warrants under the circumstances covered by chapter 198.
It is not always held that the later act of a legislature repeals another by implication. In the case of State, ex rel., v. McCombs, 125 Kan. 92, 262 Pac. 579, this court said: We have concluded that the case under consideration comes under the rule announced in those and analogous cases. These two chapters of the Laws of 1933 deal with the same general subject and were enacted and put into effect on days so close together that allowing for the manner in which the work of a legislature is performed they might be said to have been passed at the same time.
“ ‘Laws enacted by the same legislature about the same time and concerning the same subject matter, being in pan materia, are to be taken and considered together in order to determine the legislative purpose and arrive at the true result.’ (In re Hall, Petitioner, 38 Kan. 670, syl. 1, 17 Pac. 649. See, also, Hibbard v. Barker, 84 Kan. 848, 115 Pac. 561; State, ex rel., v. City of Lawrence, 98 Kan. 808, 160 Pac. 217; Shortall v. Huppe, 99 Kan. 639, 162 Pac. 319.)” (p. 95.)
This is a sufficient reason for affirming the judgment of the trial court.
Plaintiffs urge in addition that the protests filed by defendant railway companies were insufficient under the statutes. The statute is R. S. 1933 Supp. 79-2005. It is as follows:
“Any person, association, partnership or corporation, before protesting the payment of his taxes, shall be required, at the time of paying said taxes, to make and file a written statement with the county treasurer clearly stating the grounds on which the whole or any part of said taxes are protested, and shall further cite any law, statute, or facts on which such taxpayer relies in protesting the whole or any part of such taxes, and shall further state the exact portion of said tax which is being protested: Provided, That the county treasurer is authorized to disburse to the proper county funds all portions of such taxes not protested.”
It will be noted that the statute requires that the protest should state clearly the grounds upon which the taxpayer relies. The protests filed in this case simply stated that the aggregate limit which Sedgwick county could levy was 3.5 mills and that the county had actually levied an aggregate of 4.5 mills. As a matter of fact, what the taxpayers were relying on was the claim that chapter 198 had been repealed by chapter 309 by implication. Such a statement was necessary in order for the protest to be a clear statement of what statute the taxpayer relied on. We have concluded that the protests were insufficient.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action in the name of a minor about seventeen years of age by her father, as her next friend, against the administrator of J ames Brady, deceased, to recover damages for injuries received by the plaintiff when riding in the car of the deceased, James Brady, driven by him at a high rate of speed, when ■ the car ran against a high embankment at the side of the highway at a railway underpass near Blackwell, Okla., on May 23, 1933. Two other young people were with them in the car when the accident occurred. The driver was instantly killed, the plaintiff was seriously injured, the other girl lived only a few hours after the accident, and the other young man was rendered unconscious for a while.
This action was commenced in the district court of Cowley county, Kansas, which had been the home of both plaintiff and James Brady, and still is the home of the plaintiff, and is the county in which the administration of the estate of James Brady is pending.
The petition alleged there was no law, regulation or statute such as the Kansas guest statute in force and effect in the state of Oklahoma at the time of this accident and injury, but that the common law governs and determines the-liability of a driver of an automobile to his guest in Oklahoma, except as modified by a certain statute as to speed and careful driving, which is criminal in effect, providing for a fine and jail sentence.
The answer admitted the collision between the automobile and the embankment of the underpass and that the deceased was driving at the time and place of the accident, but alleged that the deceased and the other three young people, including the plaintiff, were engaged in a joint enterprise, going to a dance at Ponca City, Okla., and the deceased Was the agent of the plaintiff and others, and plaintiff assumed and was bound by any alleged negligence of the deceased.
The jury returned a verdict for plaintiff against the estate of the deceased for $12,500, and answered a number of special questions. Judgment.was rendered for plaintiff, from which the defendant appeals, raising many questions and assignments of error.
The first assignment of error argued by appellant is the failure of the trial court to sustain the demurrer of defendant to the evidence of the plaintiff and to give an instruction concerning the requirement of gross and wanton negligence under the Kansas guest statute, R. S. 1933 Supp. 8-122b, which is as follows:
“That no person who is transported by the owner or operator of a motor vehicle, as his guest, without payments for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence of the operator of such motor vehicle.”
The first question for consideration is whether the Kansas guest statute applies to this accident which occurred in Oklahoma, when recovery for the injuries received is being sought through the courts of Kansas. Our guest statute was enacted in 1931, and the reasons for its enactment and enforcement are thoroughly discussed and con sidered in the case of Stout v. Gallemore, 138 Kan. 385, 26 P. 2d 573.
Appellant cites the case of Young v. Nave, 135 Kan. 23, 10 P. 2d 23, where in an action on a promissory note and mortgage, made and payable in Indiana-, and providing for the payment of an attorney fee, which was valid in Indiana, it was held—
“. . . the judgment was forbidden by a statute of this state, R. S. 67-312, which the district court was not at liberty to disregard for the sake of comity.” (Syl. If 1.)
It is worthy of notice and comparison as to the prohibitive language in this statute as compared with that in the guest statute. In the attorney-fee statute it is stated that “hereafter no court in this state shall render any judgment, order or decree by which any attorney’s fees shall be allowed or charged to the maker of any promissory note, bill of exchange, bond, mortgage or other evidence of indebtedness by way of fees, expenses, costs or otherwise,” whereas in the guest statute the negative provision is “that no person shall have a cause of action,” etc. The plaintiff’s cause of action here is an Oklahoma matter, and the courts are not prohibited in the guest matter from rendering a judgment on a cause of action arising in another state.
It was held in the early days of the enforcement of the liquor laws in Kansas in the case of Distilling Co. v. Nutt, 34 Kan. 724, 10 Pac. 163, that—
“Mere knowledge by the vendor of goods lawfully sold in one state that the vendee intends to use them in violation of law in another state, will not defeat an action brought in such other state by the vendor against the vendee for the purchase-price of the goods. In order that the action in such a case may be defeated, it must be further shown that the vendor sold the goods for the purpose that the law should be violated, or that he had some interest in its violation, or that he participated in some manner in the unlawful purpose.” (Syl.)
This case is cited in 49 A. L. R. 1005, among decisions from many states under the heading of Enforcing Foreign Contract, valid where made, for sale of intoxicating liquor.
In the case of Otey v. Railroad Co., 108 Kan. 755, 197 Pac. 203, it was held:
“In a cause of action arising in another state, the sufficiency of the evidence to sustain such an action when brought in this state is governed by the Kansas law of evidence.” (Syl. ¶[ 2.)
The case of Koster v. Matson, 139 Kan. 124, 30 P. 2d 107, was an action, prosecuted in this state, to recover damages for personal injuries sustained in an automobile accident in Nebraska under a guest statute of that state, and it was stated in the opinion that “Since the accident occurred in Nebraska, the liability of defendant is to be determined by the law of that state.” (p. 126.) The fact that Kansas also had a similar guest statute was not involved in the case.
It was said in Roseberry v. Scott, 120 Kan. 576, 244 Pac. 1063, that causes of action arising in another state will be enforced in this state unless to do so would be contrary to the laws or public policy of Kansas. (p. 579.)
If the liability is fixed by the law of the place of the injury — in the case at bar, Oklahoma — there is nothing against public policy in the courts of Kansas enforcing such liability, as the petition alleges that the state of Oklahoma has the same common law as to liability of a driver of an automobile that we have, but we in addition to such, or in modification thereof, have the guest statute, which Oklahoma does not have. The case of Hamilton v. H. & St. J. Rld. Co., 39 Kan. 56, 18 Pac. 57, was where a railroad employee was killed in Missouri, and the widow brought the action in the courts of Kansas, where it was said in the opinion:
“. . . where a right of action becomes fixed and a legal liability incurred under the statute law of a state, such action is transitory, and the liability may be enforced in the courts of any state which has jurisdiction of such matters, and can obtain jurisdiction of the parties.” (p. 60.)
The case of Loranger v. Nadeau, 215 Cal. 362, was almost exactly similar to the one at bar. The personal injury was by automobile accident occurring in Oklahoma, and the action for recovery of damages for such injury was brought in California, which state was the residence of plaintiff and defendant and had at the time a guest statute, and it was said in the opinion:
“The state of Oklahoma follows the common-law rule and permits a recovery on the part of a guest based on the ordinary negligence of the operator of the car. Prior to the enactment of section 141% of the California vehicle act in 1929 the law of this state was the same. Did the requirement of proof of gross negligence foreclose here the enforcement- of the right which arose in Oklahoma? We are persuaded that it did not. The liability of a host to his guest for negligent injuries existed in both states. The trial court assumed jurisdiction of the subject matter of the action and acquired jurisdiction of the parties, both residents of this state. It cannot be said that in doing so the court violated any fundamental principle of justice or public policy of this state and no question of good morals would seem to be involved.” (p. 366.)
It was held in Dennick v. Railroad Co., 103 U. S. 11, that—
“A right arising under or a liability imposed by either the common law or Ihe statute of a state may, where the action is transitory, be asserted and enforced in any'circuit court of the United States having jurisdiction of the subject matter and the parties.” (Syl. J[ 1.)
The case of Masci v. Young, 109 N. J. L. 453, was where an action was brought in New Jersey to recover from the owner of a car, living in New Jersey, which car was loaned to another party who drove it to New York City and there injured the plaintiff, and the New York statute imposed a liability upon the owner of the car, and the owner did not know that the borrower was going across the line into New York, and it was there held:
“In a suit wherein the cause of action arose in another state, the courts of this state will apply the law of the foreign state applicable thereto when it is not penal in nature, when it is not contrary to the policy of the law of this state, and when the local judicial procedure is adequate to enforce it.” (Syl.)
In the case of Reilly v. Pepe Co., 108 Conn. 436, it was held:
“That although the New York statute was in some respects dissimilar to our own — the amount recoverable being larger, the cause of action arising in favor of certain beneficiaries rather than of the decedent’s estate, and the burden of proving contributory negligence resting upon the defendant — it was, nevertheless, enforceable in the courts of this state, since it was not penal in nature, nor did it violate our positive laws, contravene our public policy, offend our morals or threaten injury to public rights or the interests of our citizens.” (Syl. It 4.)
In a very recent case, Brown, Admr., v. Perry, Jr., et al., 104 Vt. 66, it was held:
“General rule is that when action is transitory, and right has become fixed and liability has been incurred in state where transaction occurred, such right of action may be pursued and such liability enforced in any court having jurisdiction of subject matter and parties, provided statute under which cause of action arose is not inconsistent with public policy of state where cause of action is sought to be enforced.” (Syl. ¶ 9. See, also, De Shetler v. Kordt, 43 Ohio App. 236; Ryan v. Scanlon, 117 Conn. 428; Wise v. Hollowell, 205 N. C. 286; Levy v. Steiger, 233 Mass. 600; and 84 A. L. R. 1268.)
It cannot be successfully contended that the common-law liability of the state of Oklahoma, which we also have at this time, is inconsistent with our law. Neither is the enforcement of it against the public policy of this state nor contrary to the provisions of the guest statute. We do not think the guest statute in any way prohibits or restricts the enforcement of the common-law liability where the injury occurs in another state, like the Young case, which was with reference to attorney fees. So we conclude that the district court of this state had jurisdiction of the subject matter as well as of the parties to this action and that the action was not in violation of any positive law of our state and did not contravene our public policy, nor offend our morals or threaten injury to any public rights or the interests of our citizens in any way, and was therefore a proper case to be brought in the district courts of this state to enforce the liability created by the laws of Oklahoma.
We will next consider two other assignments of error together, the injection of the insurance question, and the excessiveness of the verdict.
The plaintiff herself, an intelligent girl seventeen years of age, and a graduate of high school, practically volunteered twice to inject the matter of insurance in the case. In neither case was it a necessary answer to the question asked of her by one of her own attorneys. In the first instance no objection was made to the question nor motion made to strike it out and admonish the jury. In the second instance such a motion was .made and plaintiff’s counsel promptly consented thereto, but nothing further was done in the way of withdrawing it from the jury or admonishing the jury to disregard it. It is argued that defendant, having failed to object and move to strike out the first answer, has waived the right to assign the matter as error now and in the motion for a new trial. Such is the general rule, and no explanation or reason is given by appellant for such failure. There are and always have been exceptions to this general rule, and whether or not objections and motions to strike out have been promptly made, it has been held to be the duty of the trial court to carefully exclude all 'highly prejudicial matter from the jury, and admonish the jury to wholly disregard the same in the hope thereby of avoiding a mistrial or the necessity of a new trial on account of the possible prejudice and passion created thereby in the minds of the jurors.
The following rulings go more particularly to the misconduct of the attorney, mostly in argument, sometimes in asking questions, but they will apply as well to volunteered incompetent evidence and will emphasize the duty of the court in seeing to it that prejudicial matter does not reach the jury.
In the case of State v. Shelton, 6 Kan. App. 662, 49 Pac. 702, it was said:
“This language was calculated to create prejudice against the prisoner. There is nothing in the record to justify its use. It was personal abuse. The court of its own motion should have interfered, reprimanded the county attorney, and instructed the jury to disregard the language in their deliberation.” (p. 663.)
In State v. Gutekunst, 24 Kan. 252, it was said:
“Where counsel refers to pertinent facts not before the jury, or appeals to prejudices foreign to the case, it is the duty of the court to stop him then and there. The court need not and ought not to wait to hear .objection from opposing counsel. The dignity of the court, the decorum of the trial, the interest of truth and justice forbid license of speech in arguments to jurors outside of the proper scope of professional discussion.” (p.254. See, also, State v. Comstock, 20 Kan. 650, 655; and Hanks v. Cab & Baggage Co., 112 Kan. 92, 209 Pac. 977.)
In the case of Weaver v. Winchell, 116 Kan. 296, 226 Pac. 719, the remarks of counsel were criticized, but no objection was made thereto until in the motion for a new trial, and it was said on page 299:
“The remarks of counsel for plaintiff in the instant case could, and undoubtedly did, enter largely into the result of the jury’s verdict and thereby prejudiced the rights of the defendant. Under the circumstances there should be a new trial.”
Applying such rulings now more particularly to the question of insurance, it was said in the case of Van Pelt v. Richards Paint & Paper Co., 132 Kan. 581, 296 Pac. 737:
“Evidence that defendants had indemnity against loss by reason of personal injuries was foreign to any issue in the case, and being incompetent and of a kind that might result in prejudice, counsel, should have been careful 'to keep out any mention of that fact in the trial. To persist in suggestion to the jury that the defendants would not have to^ pay any damages that they might allow, and that some one else in the case would discharge the judgment, cannot be regarded as other than misconduct. Such a collateral matter injected into the case and kept before the jury is recognized by the courts to be highly improper and to constitute reversible error.” (p. 587.)
In the recent case of Bliss et al. v. Hartnett, in the court of appeals of Ohio, 192 N. E. 818, it was held:
“A verdict will be set aside as excessive where the amount awarded is not warranted by the evidence and it is apparent that it was rendered under the influence of passion and prejudice resulting from the jury concluding from repeated suggestions by plaintiff’s counsel that the defendant was insured.” (Syl. If 1.)
The case of Holloway v. Telfer, 136 Kan. 80, 12 P. 2d 826, was not reversed because the verdict was conceded to be not excessive, and there was nothing to show passion or prejudice of the jury, bul. in the opinion the practice of inferring there was liability insurance was criticized as follows:
“In cases of this character the persistent efforts of counsel to inject into the trial before a jury the inference that defendant is protected by indemnity insurance may constitute reversible error.” (p. 83.)
In the recent case of Coffman v. Shearer, 140 Kan. 176, 34 P. 2d 97, an objection was made to the improper evidence as to insurance and overruled, and it is said in the opinion reversing the ruling and judgment that—
“It would appear that in a damage suit for personal injury the inadmissibility of such testimony and of the trial court’s duty to exclude it is no longer a subject of fair debate in this jurisdiction. And not only so, but it is only when such testimony gets into the record inadvertently that its admission can be cured by a peremptory order of the court to strike it out and for the jury to disregard it. (Holloway v. Telfer, 136 Kan. 80, 12 P. 2d 826.) Where it has been deliberately brought into the case the presumption is that it was done to influence the jury improperly, and a mistrial should be declared.” (p. 181.)
The first question and answer in which the plaintiff mentioned the question of insurance were as follows:
“Q. How long after Tuesday was it before you were able to recognize anyone or carry on an intelligent conversation? A. It was Friday before I had any idea even where I was; the doctors wouldn’t let anyone see me except my folks; people just would push in anyway out of curiosity; I didn’t have any idea anyone else was hurt besides me until the insurance agent called upon me and told me.”
The following three questions were asked her later by her counsel, and answers given as follows:
“Q. Did any other doctor examine you after you were brought to the Win-field hospital? A. Doctor Hawke.
“Q. Dr. C. C. Hawke, of Winfield? A. Yes.
“Q. Was he employed by you to make an examination? A. No, the insurance company.”
This last answer was immediately followed by the following motion and consent:
“The defendant moves to strike out the answer. '
“Mr. Walker : It should be, and the jury instructed not- to pay any attention to it.”
Appellee argues that the last question was asked with the view that possibly the defendant was sending a physician to examine her, but such knowledge is generally acquired from the client before she goes on the witness stand.
Without minimizing in any way the seriousness of the personal injury of this plaintiff, we are constrained to hold the verdict is excessive. Counsel for plaintiff cites a larger verdict in a similar case, but many smaller ones can be cited, and the question is, under all the facts and circumstances of the case, is it fair and reasonable, or is it excessive? We think it is excessive at $12,500. And if it is excessive, could it be the result of the prejudicial reference to insurance? This matter has been so thoroughly treated and discussed in the cases above cited, and other decisions along the same line rendered by this court, that it would serve no good purpose to further treat the subject here. Any reference to insurance in such a damage action is incompetent and is likely to arouse passion and prejudice in the minds of the jury, which we are constrained to believe it did in this case, resulting in the excessive amount of the verdict rendered. Under the rulings above cited and quoted a new trial must be granted with the hope that insinuations or references to insurance may be kept out of the next trial.
Appellant also criticizes some of the language used by counsel for plaintiff in the closing argument as referring to insurance. Counsel for appellee urges that no objection was made to it and that it was in response to part of the argument made by the appellant. The first point as to there having been no objection made at the time is covered in the earlier part of this opinion, and as to the second it may be said that it is not always safe to follow an opponent in argument into forbidden territory. We have no record of the language used by counsel for defendant in his argument, but he says he did not mention or refer to insurance. The record shows what is criticized in the closing argument of counsel for the plaintiff, which al most can only be said to emphasize what has already been considered to be sufficient to require a reversal and a new trial on account of the testimony of the plaintiff.
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The opinion of the court was delivered by
Burch, J.;
The action was one of ejectment,, to recover a lot, according to plat number, the east 29 feet of which were occupied by another. The real question was location of boundary between two lots. Plaintiff was defeated, and appeals.
In administration of Courtney’s estate, the administrator sold to Baker, the plaintiff, four lots, numbered from west to east on the plat of the subdivision, 27, 28, 29 and 30. The next lot to the east is 31. Originally Courtney owned that lot. Before his death Courtney deeded lot 31 to Smith. Smith deeded to Jones, and Jones contracted to sell to Wilderson, who was in possession when the action was commenced. Lot lines were not marked on the ground, and Baker procured surveys to be made. The surveys disclosed that the true line between lots 30 and 31 ran through Wilderson’s house..
Before Courtney deeded to Smith, all the lots constituted a small field used for farming and gardening. Courtney had reared Smith, Smith was about to get married, and Courtney gave lob 31 to Smith. Smith dug a cellar, and subsequently erected the dwelling house, with funds obtained from Jones. In fact, Smith deeded to Jones, and Jones gave Smith a contract to reconvey when the money was repaid. The contract was not recorded, Smith was unable to pay Jones, and Jones “took the property.”
The lots were about an acre in size. How it happened the cellar was located where it was is not explained. When the house was to be built, the excavation was too large, and the foundation was erected inside the excavation.
Elliott was the contractor who built the house. He testified the contract to build the house was made with Smith. A few days before the contract was made, he had a conversation with Smith and Courtney touching the subject of placing the house where the excavation had been made. The day before Elliott commenced work he was present at a conversation between Smith and Courtney touching the subject of location of the house. Elliott built the house in twenty days and turned it over to Smith. The house cost $1,-650. Elliott testified Smith was there most all the time. Courtney would come over and look around to see how the building was progressing, and was around and over the premises during the entire time the house was building. The painter who painted the house testified Courtney and Smith were there about every day. A carpenter who helped build the house said Courtney was around at least once a day and seemed interested in the building.
When Smith began his improvements there was a dead furrow in the field 29 feet west of the west line of lot 31. As a part of the improvement, a well was dug in the twenty-nine foot strip. After the improvements were completed Courtney used the land west of the furrow, and Smith used the land east of the furrow.
Thus far nothing has been said about locating the house with reference to the dead furrow as the west boundary of lot 31, conveyed by Courtney’s deed to Smith. The conversations between Elliott and Courtney and Smith have not been given. The subject of the conversations has merely been identified to show Courtney’s knowledge of what was going on.
Baker contends we must start with the presumptions enumerated in the second paragraph of the syllabus of the decision in Edwards v. Fleming, 83 Kan. 653, 112 Pac. 836, which reads:
“Among the presumptions which usually obtain with respect to the possession of real estate are these: (1) It is presumed that the possession is in subordination to the true title; (2) where one enters into possession under a deed it is presumed that he claims only the title given him by his deed and that his possession is restricted to the premises granted.”
Presumptions are sometimes helpful in boundary cases, when we are in a state of ignorance regarding the facts. The law, however, is realistic, and when we gain knowledge of facts presumptions have no function to perform. The facts of this case are clear. Courtney made a deed to Smith of an acre of land in a plowed field. The boundaries of the acre were not marked. Smith went out in the field, assumed dominiion over part of it, and proceeded to erect improvements at a cost of what to him was a large sum of borrowed money, since he was never able to repay. The improvements were of a lasting kind, indicating intention of permanent dominion, and Smith moved in. Courtney saw all this done, and submitted to what was done. Without any statute of limitations to help Smith, Courtney would not now be allowed to claim the boundary of his land was east of where the house was built and the well was dug. Baker took nothing from Courtney’s administrator which Courtney could not have recovered from Smith.
This is not a case like many in the books, involving mutual mistake as to boundary, intention on one side to occupy only to the true boundary, wherever it may be, and acquiescence on the other side. It is a case involving intention by Smith to occupy permanently a definite part of the field, under circumstances open to but one interpretation, namely: That it was Courtney’s intention Smith should do so. There was mutual assent manifested by conduct. That constitutes an agreement, and on the facts thus far stated the boundary between lots 30 and 31 was fixed, by agreement of parties, at least far enough toward the west to permit Smith to build where he did build.
The court returned the following finding of fact:
“There was an understanding and agreement between Courtnejr and Smith that the line between their respective tracts of land was where the dead furrow lay, or twenty-nine feet west of the east line of lot 30.”
A few days before Elliott contracted with Smith to build the house Courtney and Smith told Elliott to place the house where the excavation was already made. The day before Elliott commenced work'he was present at a conversation between Courtney and Smith, which Elliott related as follows:
“Mr. Courtney and Mr. Smith were standing there together when I was over there and just before I started to build on it. They had a furrow plowed through there, one plowed one way and one the other, making a ditch straight from north to south, and Mr. Courtney and Mr. Smith discussed that was the line. The property east of it belonged to Mr. Smith, which Mr. Courtney gave him. That was five or six feet west of the well, and makes about twenty-five feet west of where the house stands.”
After the cellar was dug, and before Smith made his financial arrangement with Jones, Jones inspected the property. He testified Courtney pointed out the line. There was corn west of the dead furrow. Courtney told Jones the property where the corn was belonged to Courtney, and what was on the east side he had given Smith, up to the furrow.
Baker minimizes the conversation between Courtney and Smith in Elliott’s presence, and contends the fact Courtney and Smith “discussed” the furrow as being the line did not tend to prove an agreement the furrow was the line. The court is of the opinion the entire conversation left no room for doubt the boundary was an agreed boundary.
Courtney and Smith and Elliott were at the site of the house immediately to be erected. There was the furrow, and boundary was a subject of discussion. Courtney and Smith did not merely talk about the furrow being the line. They “discussed that was the line.” If, by the word “discussed,” Elliott meant Courtney and Smith talked about the furrow as the line, then the furrow as the line was a closed subject between them. The word “discussed” was, howeyer, merely Elliott’s idiom for what in legal phrase would be “stated,” and the whole conversation was, in effect, that they stated the furrow was the line, and the property east of it, which Courtney had given to Smith, belonged to Smith. That could not be, unless what Courtney and Smith were saying was the result of present or previous agreement. What Courtney told Jones was equally indicative that Courtney and Smith had agreed the furrow was the line.
Objection was made to proof of the conversations just considered: They contradicted the deed, they were hearsay, and Courtney’s declaration after parting with lot 31 could not enlarge or otherwise affect estate. The objections were properly overruled.
In decision after decision, cases have been collated up to date, holding that boundary may be proved by parol evidence, and it is not necessary to extend the list. The relation by Elliott of what Courtney and Smith said about boundary was not hearsay. The dead furrow bounded Courtney’s land, as well as Smith’s. Courtney’s declaration to Jones was against Courtney’s interest, was provable against Courtney and, dropping into the'very expressive vernacular, Baker stands in Courtney’s shoes.
There is nothing else in the case which would affect the result. The finding of the court relating to agreed boundary was abundantly sustained by parol evidence, properly admitted.
The judgment of the district court is affirmed.
Thiele, J., not sitting. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action for a declaratory judgment to construe a will.
Prior to his death in 1925, one George R. Rathbun owned real estate in Ellsworth county. After his death his last will was duly admitted to probate in the probate court of that county. Under the terms of that will, to which detailed reference is hereafter made, the testator devised separate lands to each of his seven children. We are concerned with two of these devises. On June 10, 1929, the son and devisee H. R. Rathbun conveyed the real estate devised to him to M. M. Rathbun, who later on June 22, 1929, reconveyed it to H. R. Rathbún. Thereafter and on November 19, 1934, H. R. Rathbun and wife executed to the plaintiff an oil-and-gas lease covering a portion of the real estate. On January 10, 1935, plaintiff contracted to sell this lease to defendant, who refused to complete the transaction and to pay the purchase price for the lease on the ground that the title to the described real estate was not merchantable. In another cause of action similar allegations were made as to the lands devised to the son and devisee M. W. Rathbun. Both causes of action contained other appropriate allegations, including reference to the will of George R. Rathbun, a copy of which was attached, and the plaintiff prayed for a judgment construing the ..will particularly as to whether the devises created estates in fee tail, and if so, whether the subsequent conveyances by the devisees barred the entail. The trial court concluded that an estate in fee tail had been created by both devises, and the defendant appeals.
Substantially identical language was used by the testator in each devise and we will therefore notice only the devise to H. R. Rathbun:
“2. I hereby give and devise unto my son H. R. Rathbun a life estate only in and to all of section thirty-one, and the southwest quarter of section twenty, all in township sixteen, range eight west, and situate and being in Ellsworth county, state of Kansas, subject, however, to a charge upon said real estate, to be paid on the 1st day of January, each year, after my death of fifty cents an acre to be paid unto my wife, Mary J. Rathbun, so long as she shall live; after the date of the death of my said son H. R. Rathbun, I give and devise, unto the lawfully begotten issue of my said son H. R. Rathbun then living, all of the said real estate, to take share and share alike, and to their heirs and assigns forever; but this devise shall not take effect so as to vest the title in said issue until the youngest of such issue shall reach the age of twenty-one years; but should any of such issue of my son H. R. Rathbun die, before the youngest of said issue shall reach the age of twenty-one years, leaving issue, such issue shall take the parents’ shares.”
In order to give an idea of the entire will, it may be remarked that there are six other devises like the above; that provision is made for death of the devisees without issue; for the appointment of trustees to act under certain circumstances, viz.: failure of devisees to pay the charge to the mother or the taxes on the real estate, or where the devisee dies and leaves issue not then twenty-one years of age.
In Ewing v. Nesbitt, 88 Kan. 708, 129 Pac. 1131, may be found a résumé of the history of estates tail. In that case it was held that estates tail exist in Kansas. In Gardner v. Anderson, Trustee, 116 Kan. 431, 227 Pac. 743, reference is made to efforts to abolish such estates in Kansas. In the last case an estate tail was defined as follows:
“An estate tail or fee tail is a freehold estate in which there is a fixed line of inheritable succession limited to the issue of the body of the grantee or devisee, .and in which the regular and general succession of statutory heirs at law is cut off.” (Syl. If 3.)
See, also, Allen v. Pedder, 119 Kan. 773, 241 Pac. 696, where there is further discussion in the opinion and in the concurring opinion, both by Burch, J.
In Woodley v. Howse, 133 Kan. 639, 3 P. 2d 475, it was said:
“The essential and distinguishing earmarks which denote the creation of an estate tail are an interference with and curtailment of the statutory rules pertaining to the descent and distribution of real estate and a limitation of the right of inheritance to the issue of the body of the grantee or devisee.” (p. 640.)
“Where the grantor has selected a line of inheritable succession for his property it must continue so long as posterity endures in a regular order and course of descent. He may, of course, provide for the disposition of the property on an indefinite failure of issue, but if this is attempted on a definite failure, such as at the time of the death of the devisee named or other fixed time, the estate tail fails.” (p. 642.)
It is not necessary that other cases in which estates tail have been considered be discussed for, on the question of definition, they are in accord with the above.
Applying the definition to the case at bar, the following is disclosed. The devise, for our purposes, may be read:
“I hereby give and devise unto my son . . . a life estate only in . . .; after the death of my said son ... I give and devise unto the lawfully begotten issue of my said son . . . then living all of the said real estate to take share and share alike, and to their heirs and assigns forever,’’ etc. (Italics ours.)
The testator did, in part, select a fixed line of inheritable succession limited to the issue of the body of his devisee, but by express inclusion, he then provided that the heirs and assigns of the devisee were to take, and thus the regular and general succession of the statutory heirs at law was not cut off. Under the terms of the devise, the line of inheritable succession in the selected line could not continue so long as posterity endures in the regular course of descent, for the testator has provided otherwise, and for that reason no estate tail in the first taker was created. The result is that the devisees named as taking life estates took life estates and no more, the remainders going to the issue and the heirs and assigns of such issue of the respectively named devisees of the life estates. We are not now concerned with the interests of the remaindermen, for they are not parties to this action.
It having been shown that estates tail were not created, it is not necessary that we consider the question discussed in the briefs as to whether the limitation over on failure of issue is upon definite or indefinite failure.
The trial court erred in concluding that the two devises created estates tail and that therefore the title to the oil-and-gas leases is merchantable, and its judgment is reversed with instructions to render judgment in favor of the defendant. | [
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The opinion of the court was delivered by
Smith, J.:
This is an appeal from a judgment of the district court refusing to allow a claim of a trustee in bankruptcy against the estate of a deceased person.
On March 9, 1933, the Bosca Leather Goods Company secured a charter from the state of Kansas. It had 950 shares of preferred stock with a par value of $100 a share and an equal amount of non-par common stock. John Friggeri was one of the organizers of the company, and subscribed for 10 shares of preferred stock at $100 a share. He did not pay for the stock. In the latter part of June, 1932, the company had a fire and was adjudged a bankrupt. Leonard T. Jent, the plaintiff here, was appointed trustee in bankruptcy. At about the same time John Friggeri died. On February 15, 1933, the trustee in bankruptcy filed a claim against the estate of John Friggeri for the $1,000 stock subscription. The claim was allowed by the probate court. The administratrix appealed to the district court. The claim of the administratrix was that the stock for which John Friggeri subscribed was canceled by the corporation for nonpayment. The judgment of the district court was in favor of the claim of the administratrix. From that judgment this appeal is taken.
The statute providing for the cancellation of stock in a corporation is R. S. 17-606. It is as follows:
“If any stockholder shall neglect to pay any installment, as required by the board of directors or trustees, the directors or trustees may declare his stock and all previous payments forfeited to the use of the company; but no stock shall be forfeited until the directors or trustees have caused a notice, in writing, to be served on him personally, or by depositing the same in the post office, properly directed to him at the post office nearest his usual place of residence, stating that he is required to make such payment at the time and place specified in said notice, and that if he fails to make the same, his stock, and all previous payments thereon,' will be forfeited for the use of the company; which notice may be served as aforesaid, at least thirty days previous to the day on which such payment is required to be made.”
It will be noted that the above statute provides just how stock in a corporation may be canceled. There was a dispute in the trial court as to just what was done by the board of directors of the corporation with reference to canceling the stock of Friggeri. Some testified that a resolution to that effect was passed. Some testified that it was only talked about. No minutes of the- meeting were ever introduced. There was no evidence at all that a notice was served on him personally or mailed to him as is provided in the above act. The statute with reference to canceling a subscription is not merely to protect the stockholder. Where the statute sets out just how stock may be canceled the cancellation must be carried into effect in substantial compliance therewith.. In this case no notice whatever was given the stockholder nor was any other attempt made to comply with the statute. The rule is stated in 7 R. C. L. 254 as follows:
“Being a mere creature of statute, the power to forfeit or sell shares of stock must be pursued in the strictest accordance with the terms of the statute. . . . Notice must be given as required by statute, and in general all the proceedings leading up to or involving a forfeiture or sale of delinquent shares must comply strictly with the statutory requirements.”
In Germantown Passenger Railway Co. v. Fitler, 60 Pa. St. 124, the court said:
“The power given [forfeiture and sale of delinquent stock] must be strictly pursued, and if any restrictions or limitations . . . have been disregarded, the alleged act of forfeiture must be declared invalid.” (p. 130.)
In American Well, etc., Co. v. Blakemore, 184 Cal. 343, the court said:
“In taking the necessary steps to sell stock for nonpayment of assessments a strict observance of the statutory mode and provision is essential.” (p. 347.)
In that case the forfeiture and sale of stock was held invalid by reason of the company’s failure to publish the statutory notice, although the sale was effective as against creditors of the corporation on account of other statutes. The requirement of strict compliance with the statute is the general rule. (See 19 A. L. R. 1096, note; 4 Fletcher Cyclopedia Corporation, sec. 1862; 14 C. J. 649.)
It is not necessary to go beyond our own statutes and decisions to solve this question. We have seen what the requirements of the statute are. This statute was construed by this court in Crissey v. Cook, 67 Kan. 20, 72 Pac. 541. There the court said:
“Where the statute prescribes the method of forfeiting capital stock it must be pursued with some strictness.”
In that case there had been a notice to the stockholder, and the court held that what was done was a substantial compliance with the statute. We have seen in the case under consideration there was no notice and no attempt to comply with the statute.
In 14 C. J. 649, after recognizing the general rule that statutory provisions for notice must be followed, it is stated:
“Some courts treat them as directory only and require merely substantial compliance.” (Sec. 983.)
Defendant relies on that rule and the holding of the court in the case of Crissey v. Cook, supra, that substantial compliance is sufficient to sustain her position here. We have concluded that the argument is not good. It cannot be said there was substantial compliance with the statute here since there was no attempt whatever to comply with it. The verdict for defendant should have been set asidfe for the reason there was no evidence to sustain it.
The judgment of the trial court is reversed with directions to enter judgment for the plaintiff. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for damages to a building alleged to have been caused by a defective fire hydrant. Judgment was for plaintiff. Defendant appeals.
Plaintiff alleged in his petition that defendant maintained a defective hydrant covering a period of time from February 1, 1932, to about August 11,1932. On the above date he filed his statement and claim for damages with the city.
Defendant answered with a general denial, and that the hydrant in question was maintained by the-board of public utilities of the ■city for use in its governmental capacity, and that if it caused dam age to the' property of plaintiff the damage resulted from interlopers or third parties interfering with it without the knowledge of defendant.
At the close of plaintiff’s evidence defendant’s demurrer thereto was overruled, and defendant rested.
The cause was tried before a jury. A verdict for plaintiff was returned, and special questions were answered. The trial court overruled a motion of defendant for judgment on the special questions notwithstanding the general verdict, and for a new trial, and gave judgment for the plaintiff. From that judgment this appeal is taken.
The facts are that in 1930 the plaintiff owned a building located on a corner in Kansas City. In 1931 the city condemned the west side of this building and it was torn down. The entire building was rebuilt. This necessitated a fill of considerable .amount along the west side of the building where the sidewalk was built. There was a hydrant located near the corner. When the street was widened in 1931 the old hydrant was taken out and a new steamer Ludlow hydrant was installed.
In February or March, 1932, the foundation of the building of plaintiff became wet; the water came through and under the foundation every time the hydrant was used. It caused the brick work to crack, and the walls, plaster and floors of the room to crack. All this was testified to by plaintiff, and since it is not contradicted by defendant must be taken as true.
Among the special questions answered by the jury were the following:
“6. Whom do you find from the evidence opened the hydrant on the 22d of March, 1932? A. Street department.
“7. Do you find from the evidence that the person or persons who op'ened the said hydrant on March 22,- 1932, caused the hydrant to be damaged by misuse? A. Yes.
“8. If you find said hydrant was damaged as aforesaid, then state if said hydrant was repaired promptly by employees of the water and light departments of the city upon receiving notice of the damage. A. Yes.
“9. Do you find from the evidence that said hydrant leaked when properly opened and closed? A. No.
“10. Do you find from the evidence that said hydrant was in good condition from the 22d day of March, 1932, to the present time? A. Yes.”
It is these answers which defendant argues entitle it to a judgment.
It will be remembered that plaintiff filed his claim with the city for damages on August 11, 1932. The court instructed the jury as follows:
“However, if in case you find for the plaintiff, you can allow him only such items of damage as you find from the evidence were sustained by him within a period of three months prior to August 10, 1932.”
The above instruction was given on account of R. S. 12-105. That section is as'follows:
“No action shall be maintained by any person or corporation against any city on account of injury to person or property unless the person- or corporation injured shall within three months thereafter and prior to the bringing of the suit file with the city clerk a written statement, giving the time and place .of the happening of the' accident or injury received and the circumstances relating thereto. Such city shall have thirty days from the time of the filing of such statement to make settlement with the claimant if it so desires.”
In this connection, the answer to question- No. 10 becomes important. In order for the claim for the damages, of which complaint is made, to be filed in time under R.( S. 12-105, the damages must have occurred not more than three months prior to August 10, 1932, or subsequent to May 10, 1932. Now, the jury, by its answer to question No. 10, found that the hydrant was in good condition from March 22 to the time of trial or considerably more than three months before that date.
Plaintiff attempts to meet this situation by arguing that the answer to the question should have been set aside by the court because there was no evidence to sustain it. He has a cross-appeal from the order of the trial court denying a request that this be done. We have examined the record on this point. It would serve no good purpose to set out the evidence in this opinion. Plaintiff relied on the city employees to prove this phase of his case. One -of them, a trouble man on valves and hydrants for the water and light department, testified:
“I put in the rubber the last time I was there; those three times that I was there was during the spring and summer of 1932.”
On cross-examination, however, he testified as follows:
“Q. All right, there was nothing wrong with it the second time. Now, the third time — the last time that you were there — do you know about what time that was? A. Sometime in the winter months.
“Q. 1932? A. Yes, sir.
“Q. The last time you were there? A. Yes, sir.
“That was my last time there — I did not say that there was anything wrong with it — I found the stem bent slightly the last time I was there; I put in a new rubber at that time. I do not know how long these rubbers last. If the hydrant is not closed down, so that there is a little leak, it has a tendency to wear the rubber; if the hydrant is closed too tight, it will bend the stem.”
There is additional testimony that the last time witness was at the hydrant was while there was a deep snow on the ground and the water was being used to flush it off the streets. The date of this snowstorm was fixed at about March 22, 1932.
There was testimony of another employee of the city, who was a witness for plaintiff, to the same effect.
In view of this testimony, it can hardly be said that there was not sufficient evidence to sustain the answer of the jury to question No. 10.
Plaintiff makes the further contention that the answer to question No. 10 should not entitle the defendant to judgment because even though the leaky hydrant was in good repair from March 22 until the time of trial, still the damage from it occurred to plaintiff’s building after March 22, and less than three months before the filing of the demand with the city.
The trouble with that argument is that it must be considered in the light of the answers to other questions.
Question No. 3 is as follows;
“If you find that any part of the damage to plaintiff’s building was caused by water from the said fire hydrant, then give the dates upon which said damage occurred. A. Three months prior to August 10, 1932.”
The answer to this question must be considered in the light of the answers to questions 1 and 2. They are as follows:
“1. Do you find from the evidence that plaintiff’s building was damaged by water from the hydrant in question? A. Yes.
“2. Do you find from the evidence plaintiff’s foundation and building were damaged by the water which the plaintiff caused to be poured into the fill in flushing it? A. Yes.”
An examination of these questions leads to the conclusion that the jury believed some of the damage to the building of plaintiff was caused by the water the plaintiff himself poured around the building a year before, and that there w;as no part of the damage that did not occur more than three months prior to August 10, 1932. Now, if the damage to the building occurred more than three months prior to the date when the claim was filed, and the hydrant in ques tion was in good condition from about five months prior to .the date the claim was filed until the time of the trial, the conclusion follows that under- the provisions of R. S. 12-105 the claim was filed too late. •
There are other points raised in the briefs, but on account of the decision reached it will not be necessary to discuss them here.
The judgment of the trial court is reversed, with directions to enter judgment for defendant. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action by a father against his son and the son’s wife to establish and enforce a lien on certain real property, conveyed by plaintiff to defendant, for the purchase price thereof and money advanced for its improvement. The trial court sustained a demurrer to plaintiff’s petition, and he has appealed. The question argued is the statute of limitations.
The amended petition, filed February 7, 1934, briefly stated, alleges that plaintiff is about 77 years of age; that he had a meager education and limited business experience in handling property transactions; that from about 1918 he had trusted his son, George J. Senate, hereinafter referred to as defendant, to handle many of his business transactions for him; that they had numerous transactions in which his son had looked after his business; that he had trusted his son in those matters, and that the relation between them in such matters was one of confidence and trust; that in 1926 plaintiff was the owner of certain lots in the city of Paola on which defendant desired to build a home; that the parties agreed upon a price of $600 for the lots, and that plaintiff would sell them to defendant, who would buy them for that sum; that the transaction was not then closed, but that defendant took possession of the lots and constructed a residence thereon; that in November of that year defendant borrowed from plaintiff $1,200 to pay for the materials used in the building of the home and agreed to execute a mortgage on the property to plaintiff for $1,800 covering the original cost of the lots and the money borrowed for the payment of materials, but that no deed or mortgage was made at that time; that in May, 1930, defendant represented to plaintiff that the property was excessively taxed, and if the title stood in his name he could go before the equalization board and have the assessment adjusted; that plaintiff executed to defendant a deed for the property and he did succeed in having the assessment reduced, and he advised plaintiff that he and his wife had executed a note and mortgage to him for $1,800, and that he was taking care of the matter for plaintiff in accordance with their agreement; that thereafter and on or about November 2, 1933, defendant advised plaintiff that he never would get a deed or mortgage on the property and that he now had plaintiff where he wanted him, and that plaintiff would get nothing; that until this declaration by defendant, because relations between plaintiff and defendant were those of confidence and trust, plaintiff had no reason to think that the mortgage had not been given as defendant had advised him. The prayer was for the establishment and enforcement of an equitable lien against the real property for the sum of $1,800- with interest.
In support of the judgment of the trial court appellees argue: (1) That there was no fraud pleaded. The fraud pleaded is the false statement of defendant that he had executed the note and mortgage and was looking after them for plaintiff, if, in fact, they had not been executed, and his declaration to plaintiff that he never would get a mortgage or anything to secure him for the money advanced. The petition contains other fraudulent allegations which need not be set out or repeated here. We think there is no fatal defect in pleading the fraud. (2) Appellee argues that the action is barred by the two-year statute of limitations (R. S. 60-306, 3d clause). Under the allegations of the petition the fraud was not discovered until November 2, 1933; hence, the action was brought in time even if it be conceded that the two-year statute of limitations is applicable.
The judgment of the court below is reversed, with directions to overrule the demurrer to the petition. | [
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The opinion of the court was delivered by
Harvey, J.:
Appellant was charged with the violation of R. S. 21-907. The information charged the offense in the general language of the statute, and in addition thereto alleged the specific manner in which the act complained of was performed. It contained four counts charging defendant with the offense committed with four young men, two of high-school age, two a little older. The trial resulted in a verdict of guilty on each count. Because of a previous conviction and penal servitude he was sentenced to terms in the penitentiary twice as long as the statute provides for the offense if there had been no such previous conviction. Three of the sentences were made to run consecutively, the fourth to run concurrently with the others. He has appealed.
Appellant contends his motion to quash should have been sustained on the ground the act described in the information is not an offense under the statute. That specific question was presented to this court in State v. Hurlbert, 118 Kan. 362, 234 Pac. 945. Indeed, it was the only question presented. The court thoroughly considered the question and decided it adverse to appellant’s contention. The court noted some division of authority, but deemed its conclusion in harmony with the weight of authority and with the better reasoning. The article, since published in 58 C. J. 786 et seq., with citations, confirms that conclusion. There is no reason to change our former holding.
Appellant contends the court erred in sustaining a demurrer to his plea in abatement, predicated upon the ground that he had no legal preliminary examination and that he had not waived it, nor was he a fugitive from justice. The record discloses he had a preliminary examination at which all witnesses which either party desired to call, were sworn and testified, at the close of which he was duly bound over for trial in the district court. But appellant contends the preliminary examination was unlawful, for the reason: (1) That the magistrate refused his application for a fifteen-days continuance after he had filed the affidavit provided by R. S. 61-801. This section pertains to continuances in civil actions before a justice of the peace. It has no application to continuances of preliminary examinations before a magistrate. That is governed by R. S. 62-611. This leaves the matter of continuance within the discretion of the magistrate (16 C. J. 322) with the exception that the continu anee cannot be longer than ten days over defendant’s objection. (2) That the magistrate overruled his application for a change of venue. That consisted of defendant’s affidavit that he thought the magistrate prejudiced against him. The affidavit contained no facts which would have justified the change of the hearing to another magistrate, even if the statute provided for such a change; but it does not. We are cited to no statute, and our own research discloses none, providing for any change of venue in the hearing of a preliminary examination in a felony case. Appellant argues that such a hearing is a trial, and hence that the matter of change of venue should be governed by the rules pertaining to trials of civil or criminal actions. The point is not well taken. The preliminary examination in a felony case is not a trial in the sense that word ordinarily is used. (16 C. J. 316, 323.) It is purely statutory, since it was unknown at common law. (16 C. J. 314.) It is not judicial, and authority to conduct such examination may be vested in persons other than courts (16 C. J. 319), such as mayors (R. S. 62-201). A discharge by a magistrate is not a bar to another examination. (16 C. J. 334; State v. Jones, 16 Kan. 608.) (3) That the county attorney refused to deliver to defendant for inspection written statements made by the four young men to the county attorney in his office when he was attempting to learn the facts respecting the offense. It is sufficient to say defendant was not entitled to inspect such statements. They were in no sense public records and amounted to no more than memoranda the county attorney might have made of what the witnesses told him. (See State v. Laird, 79 Kan. 681, 100 Pac. 637; State v. Jeffries, 117 Kan. 742, 232 Pac. 873; State v. Furthmyer, 128 Kan. 317, 277 Pac. 1019; State v. Hooper, 140 Kan. 482, 37 P. 2d 52.)
In developing the story of the offense charged from the four young men called as witnesses it was brought out that the same offense had been committed with the same young men at different times and on some occasions outside of this state. Appellant contends this testimony was wrongfully received, especially as to those acts outside of this state, for the reason that there was no showing that they constituted crimes in the state where they were committed. This evidence was not offered to establish the commission of a crime in another state. Appellant was tried for no such crime. It was offered to show other offenses of the same kind, and, as it happened here, with the same party, to show habit, motive and practices, as well as being a part of the story of the offense specifically charged, and was competent for those purposes. (State v. Reuter, 126 Kan. 565, 268 Pac. 845; State v. Frizzell, 132 Kan. 261, 295 Pac. 658.) The court in its instructions to the jury correctly advised the jury the purposes for which such evidence was received. No complaint is made of the instruction.
The defendant, by several witnesses called on his behalf, offered testimony that defendant had not committed the offense with them although he was with them under such circumstances that it might have been done. The court excluded this evidence and it was re-offered by affidavit on the motion for a new trial. Appellant complains of the exclusion of this evidence. The ruling was proper. One who is charged with burglarizing a house cannot well defend by showing that he might have burglarized a score or more of other houses and that he did not do so.
Appellant complains that the court appointed a commission to inquire into the defendant’s sanity at the time of the trial. That came about in this way: Defendant called as a witness a doctor who, in answer to a hypothetical question, gave it as his judgment that the defendant at the time he committed the crimes charged — if he did commit them — was not normal mentally and was in fact afflicted with some degree or variety of insanity. Questioned by counsel for the state the witness testified that the mental condition which he described was a permanent one and existed at the time of the trial. When this was brought out the court, on its own motion, appointed a commission to determine defendant’s sanity, and stopped the trial while such an examination was made. The commission found defendant to be sane, and the trial proceeded. The action of the court was in harmony with the law pertaining thereto. (R. S. 62-1531.) When during a trial it is brought out by the testimony of any witness, or is called to the attention of the court by anyone connected with the case, that the defendant then on trial is insane, or that there is a serious question as to his sanity at that time, it is the duty of the court to stop the trial and make an inquiry concerning that matter. (State v. Detar, 125 Kan. 218, 263 Pac. 1071.) It is the policy of the law not to try persons while they are insane. There was no error in the action of the court.
Appellant complains of certain remarks of the court at the trial as misconduct. Having read the entire transcript, we find nothing in the record that justifies even suggesting that question. Defend ant’s requested instructions were properly refused, and there was no error in the court overruling the motion for a new trial.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Smith, ■ J.:
This action was brought to recover damages on account of the failure of defendants to fulfill a contract to buy a carload of sugar. Judgment was for plaintiff. Defendants appeal.
Plaintiff is a sugar brokerage company in New Orleans. Defendants are partners engaged in the business of making cider and vinegar at Wichita. The Russell Brokerage Company is a brokerage company at Wichita. The contract for the breach of which suit was brought was contained in the following correspondence. On April 30, 1930, the Russell Brokerage Company wrote plaintiff:
“We were t-nlking to the manager of the Wichita Vinegar & Cider Works of Wichita, Kansas, to-day, and he made us an offer of 4 cents on the N-grade of raw sugar and 3% cents on the S-grade of raw sugar, delivered Wichita or Hutchinson, Kansas, for shipment about the 15th or 20th of May.
“You forwarded them samples April 21 and the above offer is f. o.b. Wichita, or Hutchinson, and the car will contain 600 bags, on-which..they will specify before the 15th, as to how much of the S-grade they will .want: : . ‘
“As near as they can tell n.ow, it will be about 100 bags of the.S-gra,de arid the balance of the car in N-grade raw sugar.
“We would appreciate your advising us if you can supply them this sugar, on the above basis. - -
“Please send us a sample of same and advise the brokerage- you'-"will allow us.”
On May 2, 1930, plaintiff sent the Russell'Brokerage Company the following telegram:
“Answering letter thirteenth confirm car sugar Wichita Vinegar protecting your brokerage.” . • >
On May 3,1930, the Russell Brokerage Company wrote the plaintiff:
“This will acknowledge receipt of your wire of May 2, confirming the car’ of raw cane sugars for the Wichita Vinegar & Cider Works -of Wichita, Kaiisas.
“We will see these parties and get the exact specifications to you around the 10th of May for shipment. • • ’
“We want to thank you, very much, for confirming this order and we note-that y.ou are protecting us, on our brokerage.
“Please advise us just how much the brokerage will be on this car of raw sugars.”
There is no dispute that this correspondence constituted a binding contract. The dispute arose on account of some later events.
It will be seen that under this contract defendants were to advise plaintiff about May 15 to ship the sugar and how many bags of grade N and how many bags of grade S were wanted. The directions were never given and the sugar was never shipped. Before time for ordering the sugar shipped the premises of defendants were raided by federal prohibition officers, and defendants were instructed by them not to accept more sugar or permit any to be on the premises. The sugar defendants had was seized. They were also notified their alcohol permit for making sugar vinegar would be revoked. The sugar purchased was to be used for the making of sugar vinegar. This necessitated the making of alcohol.
Plaintiff claims that it had set aside and held .for shipment .600 bags of grade-S sugar and defendants failed to give the shipping order. It.was not sold until January, 1931. The damages for which plaintiff prays are the difference between what defendants agreed to pay for the sugar and what plaintiff was .able to sell the sugar for in January, 193.1, the earliest .plaintiff was able to sell it, plus storage and insurance charges. The judgment included these items.
The first error of which defendants complain is that the court fixed August 16, 1930, as the date when the contract was breached rather than May 15, the date when defendants failed to send the shipping order. Defendants urge there was a better market for the sugar on either one of the above dates than on January 5, 1931, when the sugar was sold.
The theory of plaintiff is that one of its remedies was to resell the sugar when the defendants refused to receive and pay for it, and that the proper measure of damages is the contract price less the selling price, plus the reasonable expenses incurred in caring for and preserving the sugar.
Plaintiff’s evidence in the case was presented to the jury by means of depositions and letters that passed between the parties. Nothing would be gained by setting out the evidence here, but an examination of the record has convinced us that defendants did not finally breach the contract until August 16, 1930. On this date the defendants advised plaintiff that they could not use the sugar and could not find any buyer for the sugar.- Up to that time the correspondence had been such' as to cause plaintiff to believe that eventually defendants would take the sugar at the contract price. ■ There is ample evidence to justify the jury in reaching the conclusion that plaintiff sold the sugar at the first opportunity after August 16, 1930, and for the best price obtainable.
The next error of which defendants complain is that the court erred in rejecting evidence offered by defendants of the price of raw sugar. The proffered testimony was as to the market price of raw sugar during the months of May, June, July, August and September, 1930. The court refused to admit it because it did not refer to the price of grade-N and grade-S sugar. Some correspondence is referred to where the parties spoke of “raw sugar” and did not refer to grades. In the correspondence, however, which constitutes the contract, the two grades are referred to. Defendants argue that what was meant was simply raw sugar and that the designation “grade-N” and “grade-S” did not mean any difference in quality. The answer to this argument is that in the contract there is a difference in price of a quarter of a cent. The fact was established by plaintiffs that this was a by-product of the sugar mills,, being what is known as second run sugars, and the grade depends on the extent to which a particular lot has been subjected to the refining process.
Defendants next argue that the trial court erred in refusing to submit to the jury the defense that the contract was rendered impossible of performance by the act of the agents of the federal government. The evidence offered was to the effect'that the prohibition agents had prohibited defendants from receiving any sugár. The fact is that the proffered evidence would not have proved that' the contract was impossible of performance. It would only have shown that its performance had been rendered unprofitable or difficult. The latter condition is no defense to a suit for nonperformance of the contract.
In City of Topeka v. Industrial Gas Co., 135 Kan. 646, 11 P. 2d 1034, this court considered such a question. In that case a gas company accepted an ordinance whereby it agreed to construct a gas main from Amarillo, Tex., to Kansas City, Mo., a distributing system in Topeka, and a line connecting the line from Amarillo, Tex., to Kansas City, Mo., with the distributing system in Topeka. The company was unsuccessful in obtaining a certificate to do business in Kansas City, Mo., and, therefore, refused to construct the distributing system in Topeka. When sued on its performance bond the company contended the city knew of the necessity for the certificate as to Kansas City and that they were each dependent on the other. This court said:
“It is fundamental that the performance of a contract will not be excused merely because its performance turns out to be hard and improvident or less profitable or unexpectedly burdensome. . . . This question was dealt with in the case of Drug Supply Co. v. Board of Administration, 106 Kan. 256, 187 Pac. 701. In that case the promisor endeavored to escape performance of a contract on account of having gone into the hands of a receiver. The court said: ‘Generally, when one contracts to do a thing possible in itself he will be liable for breach of such contract, notwithstanding the occurrence of a contingency which, although not foreseen by him or within his control, but which might have been provided against, has put it out of his power to perform.’ In the present case it can hardly be said that it was beyond the power of the gas company to perform. It is only unprofitable. (See, also, Winfrey v. Automobile Co., 113 Kan. 343, 214 Pac. 781.)” (p. 651.)
In the case of Winfrey v. Automobile Co., 113 Kan. 343, 214 Pac. 781, the fourth syllabus reads:
“Where one agrees to perform an act possible in itself he will be liable for breach thereof although contingencies not foreseen by him arise which make it difficult or even beyond his power to perform and which might have been provided against in the agreement.”
What was said in those cases applies with equal force here. Had defendants cared to provide for nonliability under the contract in case .the prohibition officials rendered it unprofitable, they could have done so. There was nothing about the evidence offered that tended to prove any issue in the case or to. .establish any defense.
Defendants next argue that the trial court erred in allowing the jury to return a verdict based on the difference in market price of the sugar, plus storage, interest and carrying charges. The argument is that since the court fixed the date of the breach of- the contract, the defendants were no.t liable for any carrying charges up to that date. The theory upon which the court allowed storage and carrying charges from May 16 is that in order to be prepared to comply with the contract in case defendants gave the shipping order it was necessary the sugar be set aside,- and held. That was the correct theory. The additional storage and carrying charges were, caused by the action of defendants already discussed in causing plaintiff to be uncertain from May 15 to .-August 16, whether they would finally,- fulfill the contract. From that time on the plaintiff was looking for a buyer for the sugar, and the carrying charges were' incidental.
Other points argued in the brief have been examined and are held not to be good.
We see no error in this record, and 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 on a faithful performance bond. Judgment was for plaintiffs. Defendant appeals.
On December 5, 1930, the state highway commission entered into a contract with the Whitney-Teeter Construction Company for the construction of a project on the state highway system. A considerable part of this contract was subcontracted to plaintiffs. When the Whitney-Teeter Company entered into the contract it gave two bonds. One bond was given pursuant to R. S. 1931 Supp. 68-410. That section is as follows:
“All contracts for the construction, improvement, reconstruction and maintenance of the state highway system, the cost of which exceeds one thousand dollars ($1,000) except contracts between the state highway commission and the various counties shall be awarded at a public letting to the lowest responsible bidder. The state highway commission shall make necessary rules and regulations covering the making and receiving of bids and letting of contracts: Provided, That in case of an emergency, the nature of which shall be stated in the minutes of the state highway commission, contracts for repairs and reconstruction may be let without public letting and notice, as provided in this act. The person or persons to whom a contract may be awarded shall give good and sufficient surety bond by a company authorized to do business in this state, to be approved by the state highway commission in such sum as the state highway commission shall fix, not less than such contract price, conditioned that such contractor will faithfully perform such contract in every respect: Provided, That the state highway commission shall have the right to reject any and all bids.”
This is commonly known as a faithful performance bond. Pertinent provisions of this bond are as follows:
“1. The party of the second part (construction company) agrees with said party of the first part (highway commission) at his own proper cost and expense to do all the work, furnish all material and labor necessary to do the work in accordance with the plans and specifications herein described and in full compliance with all of the terms of this agreement and the requirements of the engineers under it; and,
“2. It is also understood and agreed that the advertisement, proposals, bond, specifications and plans hereto attached, or hereinbefore referred to are all essential documents of this contract and are a part thereof.”
The other bond was given pursuant to the provisions of R. S. 60-1413 and 60-1414. This is known as a contractor’s statutory bond. These two sections are as follows:
“That whenever any public officer shall, under the laws of the state, enter into contract in any sum exceeding one hundred dollars, with any person or persons for the purpose of making any public improvements, or constructing any public building or making repairs on the same, such officer shall take, from the party contracted with a bond with good and sufficient sureties to the state of Kansas, in a sum not less than the sum total in the contract, conditioned that such contractor or contractors shall pay all indebtedness incurred for labor or material furnished in the construction of said public building or in making said public improvements.”
“That such bond shall be subject to the approval of the clerk of the district court of the county in which such public improvement is to be made or such public building is to be erected and shall be filed in the office of said clerk. When such bond is so approved and filed no lien shall attach under this article, and if when such bond is filed liens have already been filed, such liens shall be discharged. Any person to whom there is due any sum for labor or material furnished, as stated in the preceding section, or his assigns, may bring an action on said bond for the recovery of said indebtedness: Provided, That no action shall be brought on said bond after six months from the completion of said public improvements or public buildings.”
It will be noted that any action on a bond given pursuant to the above sections must be brought within six months from the completion of the improvements. This improvement was completed on March 16, 1932.- The action was -brought September 1, 1933. It will be noted that any action under the contractor’s liability bond was barred by the, lapse of time before this action was brought.
This action was brought upon the bond given pursuant to R. S. 1931 Supp. 68-410, known as the faithful performance bond. Upon the completion and acceptance of the project, the Whitney-Teeter Construction Company was paid the contract price in full. That company paid plaintiffs ..only, .part,.pf .the amount due them under their contract. This action was brought to recover the balance. Defendant demurred to the petition. This demurrer was overruled. It then filed a plea in abatement. This was overruled. From these two orders this appeal is taken.
The position of defendant is that the only right of action available to plaintiffs was upon the contractor’s bond and that since this action was commenced more than six months after the completion of the contract the plaintiffs cannot recover and judgment should have been for the defendant.
The theory of plaintiffs is that the contract between the Whitney-Teeter Construction Company and the highway commission should be construed with the bond. The argument is that when this is done the construction contract bound the Whitney-Teeter Company to furnish and pay for the material and labor that went into the project; that the faithful performance bond was given to secure the faithful performance of the contract; that it was made for the benefit of plaintiffs as third parties, and that since plaintiffs furnished some labor and the materials that went into the completed job they are entitled to sue on that bond. To sustain that position they cite the Topeka Steam Boiler Works Co. v. United States F. & G. Co., 136 Kan. 317, 15 P. 2d 416; also, Cooke v. Luscombe, 132 Kan. 147, 294 Pac. 849. In none of the authorities cited had the contractor given two bonds, as is the case here.
The bond that was given in compliance with R. S. 60-1413 and 60-1414 was intended for the benefit of laborers, materialmen and other lienholders. They can enforce a lien against the property where it is privately owned. The requiring of this bond was intended to give them the same protection where the property which had received the benefit was publicly owned. (See Road Supply and Metal Co. v. Bechtelheimer, 119 Kan. 560, 240 Pac. 846.)
In this case -not only should the bond given in compliance with R. S. 1931 Supp. 68-410 be construed with the contract between the highway commission and the original construction company, but the bond given in compliance with R. S. 60-1413 should also be considered in the same connection. When we do this a different situation presents itself than was presented in the authorities upon which plaintiff relies.
When the construction contract was entered into protection was provided -for parties in the position of plaintiffs by the contractor’s bond. This bond was required by statute. In the cases involving privately owned projects where the faithful performance bond is the only one given, there is a reason why it should be held to cover claims of laborers and materialmen. Were it not so held the owner of the property might find that after he had paid the full contract price his property would still have some liens against it. Obviously such a situation violates the terms of a faithful performance bond where the bond is construed with the construction contract to bind the contractor to furnish and pay for all labor and material used in the building. In cases where the project is a public one, however, R. S. 60-1413 requires a bond to secure parties who stand in the position in which lienholders would have stood had the project been a private one. There are some requirements that must be met. One of them is that the action to take advantage of this bond must be filed not more than six months after the completion of the work. This is not an unreasonable provision. In cases of private contracts, where the intention is to file a lien, there are additional requirements. These have been held to be reasonable. (See Road Supply and Metal Co. v. Bechtelheimer, 119 Kan. 560, 240 Pac. 846.)
At the time the job was completed plaintiffs had a right to proceed on the contractor’s bond. This right existed for six months thereafter. Since plaintiffs failed for six months to take advantage of the bond that had been given for their benefit, no good reason appears for holding that the faithful performance bond was given for their benefit.
The judgment of the trial court is therefore reversed with directions to enter judgment for defendant. | [
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The opinion of the court was delivered by
Johnston, C. J.:
An information was filed against Claude Williams charging him with unlawfully and feloniously drawing and delivering a check, commonly called a draft, on the Cudahy Packing Company on December 27,1932, a corporation with a place of business in Wichita; that it was signed by the defendant, Claude Williams, and was delivered to the State Bank of Fredonia, and he obtained money amounting to $400, when'the defendant knew he had no funds on deposit and no credits with the Cudahy Packing Company with which to pay said check or draft upon its presentation, contrary to the statutes on the subject.
This was an attempt to prosecute a violation of the “worthless-check statute,” and the question presented is, Does the act of the defendant fall within the statute? The motion to quash the information raises the question as to whether the Cudahy Packing Company is a. depository. Is it a bank' or depository within the meaning of the act? The trial court held that it was not, and sustained the motion to quash the information, and the state appeals from the decision. The statute provides:
“It shall be unlawful for any person, corporation, or partnership, to draw, make, utter, issue or deliver to another any check or draft on any bank or depository for the payment of money or its equivalent, knowing, at the time of the making, drawing, uttering or delivery of any such check or draft as aforesaid that he has no funds on deposit in or credits with such.bank or depository with which to pay such check or draft upon presentation.” (R. S. 21-554.)
The act forbidden states thet it shall be unlawful to draw or deliver a check on any bank or depository when there are no funds in the bank or depository drawn on to meet the check. The bank or depository named is a place where money is deposited from which the check may be paid, and the Cudahy Packing Company, as its name indicates, is not. a bank or depository of money with which to pay checks drawn on it. The statute provides that it shall be a bank or place like it, where money is deposited subject to be drawn out on a check or draft. There may be some other institutions, like trust companies or treasuries, where money is deposited subject to be drawn out at the option of the drawer, but it is insisted that a packing house where animals are sold and slaughtered is not one of these. The animals sold or shipped to a packing plant are not deposited there to be drawn out in kind, but to be converted into food products and resold to consumers. The statute is plain that the place must be one where money is deposited to be drawn out on the option of the depositor; and not animals, goods and articles, such as are carried by a packing house, and other dealers in manufactured goods.
Defendant cites State v. Avery, 111 Kan. 588, 207 Pac. 838, which was a bank case and which gave no occasion to define a depository. As will be seen, it determines the elements of the offense, distinguishes the case from false token or the false pretense group of crimes where intent to defraud is required to be shown. The court held that the worthless check must be willfully drawn, knowing at the time there is no fund deposited to meet it. It was there said that the object of the statutes was to discourage overdrafts and bad banking and to stop the practice of che'ck-kiting and avert the mischief to trade and commerce which the circulation of worthless checks inflicts.
Where there was no definition of a depository, what was said about the purpose of the act to avert bad banking, makes it plain that only banks or like institutions were included in the term depository. The packing company is not a depository of money in the sense of the act, and we therefore hold that the information was rightly quashed by the court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal from a judgment of the district court denying appellant' the rights granted her as a creditor of the estate of Fred J. Ross, deceased, to have her claim for rent accrued and to accrue under the terms of the lease paid or sufficient property retained by the administrator for its payment, pursuant to R. S. 1933 Supp. 22-729. The lower court held that the statutes have no application to this sort of a situation. Appellant urges that to so hold would say that in Kansas a lessee’s death terminates a lease.
The lease in question was made by L. M. Jewell on February 20, 1926, in which he leased to the deceased, F. J. Ross, and his wife, Mallie Ross, certain premises in Topeka, known as the “Cremerie building,” at 724-726 Kansas avenue, in Topeka. The tenancy was for fifteen years from the first day of August, 1930, ending on August 1, 1945, at noon. The lease provided for a net rental of $3,000 per year, to be paid quarterly in advance each and every year for the period of fifteen years, beginning on the 1st day of August, 1930. In addition he agreed to promptly and punctually pay, prior to the delinquency thereof, all taxes, charges and assessments of every kind, character and nature, general or special; and further covenanted and agreed thereby to pay insurance premiums and other charges for the protection of said property and the lessor therein.
Ross and his wife possessed themselves of the property under the terms of the lease on August 1, 1930, and did pay and perform their covenants according to the tenor of said lease up> to and including the time of the death of F. J. Ross on September 16, 1931, and thereafter the colessee did pay and perform the covenants up to May 1; 1932, but on that day the lessee failed and neglected to pay the quarterly rent in advance as provided in said lease, amounting to $750, and has since paid on account of said lease the sum of $250, leaving a balance now due on account of the quarterly rent of $500, which is and has been a proper charge against the lessee.
The appellant had no knowledge of the death of F. J. Ross until about February 1, 1932, no notice having been given to her prior to that time. She alleges that in addition to her claim for $500 there is a liability against the estate of F. J. Ross on account of the terms and conditions imposed by the lease, for the ensuing term of said lease, for cash rental alone to the extent of $37,500, in addition to the other lease rent providing for the claims of taxes, charges and assessments, wherefore claimant asked the court that her claim for the present indebtedness to the extent of $500 be allowed against said estate, and given its proper classification under the general statutes of Kansas, and to prevent the distribution of the assets of said estate until full accord and satisfaction is given for the faithful performance of the terms of the lease. That said contingent liability be adjudicated and made a binding, valid and subsisting lien against the assets of the deceased.
The case was tried on an agreed statement of facts in the probate court which sets out the terms of the lease already stated generally. Hugh MacFarland was appointed administrator of the estate on September 29, 1931, and has ever since been the duly acting administrator of the estate. It was found that the original lessees, during the lifetime of F. J.' Ross, performed all of the covenants of the lease, and that since the death of Ross, the surviving lessee and Hugh MacFarland, trustee, in behalf of Mallie Ross, have continuously performed all of the covenants contained in the lease. There is nothing due and owing the lessor at the present time by virtue of the terms of said lease, and no breach of the lease.
Paragraph four of the original lease provided that in the event of the destruction of the buildings by fire or partial destruction rendering the leased premises wholly unfit for occupancy, the lessor had the option to declare said lease null and void from the date of the damage and destruction. On July 13, 1932, a copy of proof of demand and claim of Lizzie M. Jewell against the estate of F. J. Ross, was presented to Mallie Ross, and to her counsel, Hugh MacFarland, and that said original claim was returned to the defendant acknowledging the receipt of the proof of claim and waiving formal service thereof by Hugh MacFarland on July 23, 1932, and that the same was sent for filing and filed in the probate court of Shawnee county. The trial court found that the entire and total liability on account of the terms and provisions of said lease of which the estate of F. J. Ross, deceased, might be liable up to August 1, 1945, is impossible to determine; that on account of the constant changing in the amount of taxes, the change in the rate of insurance and the forfeiture or cancellation clause, it is not possible to determine the amount which the lessee would be liable for during the term thereof. That the only account which can be definitely determined is the cash recital of $3,000 per year. The cash rental from the date of the death of Ross, at the date of the expiration of the lease would be approximately $41,500. It was then concluded as a matter of law that the claim of the plaintiff against F. J. Ross, deceased, is dependent upon a future contingency, which may never happen, and for that reason is not a valid claim against the estate of F. J. Ross, deceased; that the claim of Lizzie M. Jewell, against the estate of Ross, should be and the claim is hereby disallowed.
The contention of the appellant, L. M. Jewell, is that the statutes and terms of the lease authorize a recovery by the plaintiff, while the defendant insists that no rent or other claim against the de fendant is now due, and she contends that it never may become due and therefore no recovery can be had. The lease in its terms states:
“It is covenanted that the heirs, executors, administrators, successors and assigns of both of the parties hereto shall be bound by all of the provisions contained herein.”
Then the statute provides that in case of the death of one or more obligors of a joint contract that the joint debt or contract shall survive against the heirs, executors and administrators of the deceased obligors as well as against the survivor. (R. S. 16-102.) There is a further provision that executors and administrators shall have the same remedies to recover rents and be subject to the liabilities to pay them as the testator or intestate. (R. S. 67-519.) Then follows the statute which the plaintiff is invoking for the presentation of her claim. (R. S. 1933 Supp. 22-729.) It provides that:
“Any creditor of the deceased whose right of action shall not accrue within the said one year after the date of the administration bond, may present his claim to the court .from which the letters issued at any time before the estate is fully administered, and if on examination thereof it shall appear to the court that the same is justly due from the estate, it may by consent of that creditor and the executor or administrator, order the same to be discharged in like manner as if due, after discounting interest as mentioned in this article, or the court may order the executor or administrator to retain in his hands sufficient to satisfy the same; or if any of the heirs of the deceased, or devisees, or others interested in the estate, shall offer to give bond to the alleged creditor with sufficient surety or sureties, for the payment of the demand in case the same shall be proved to be due from the estate, the court may, if it thinks proper, order such bond to be taken instead of ordering the claim to be discharged as aforesaid, or requiring the executor or administrator to retain the assets as aforesaid.”
Does this statute apply to the present case? The claim survives, as we have seen, and is binding upon both parties. It is for a longer period than one year. The statute points out the means for the claims to be adjusted and under this section several means are mentioned. This law, if carried out, fixes the requirements, and, if not carried out, will mean that a tenant’s lease will terminate by a lessee’s death. It appears to provide for claims of every kind when the debt will accrue later than one year. (McDaniel v. Putnam, 100 Kan. 550, 164 Pac. 1167.) It has been found to be “clear, unambiguous and comprehensive,” and a like statute in Alabama is cited in a case from which we quote:
“Words more significant to express every demand to which a personal representative can or ought to respond, or which can charge the assets in his hands subject to administration, or more expressive of every legal liability, resting upon the decedent, could not have been employed.” (Fretwell v. McLemore, 52 Ala. 124, 140.)
In the case of Newman v. Burwell, 216 Cal. 608, recently decided, the claim was presented by a divorced wife for payment in the support of a minor child during its minority. Upon the husband’s death the executrices of his estate were asked to pay the accrued and accruing debts for the support of the minor child. It was held that the father having been required to pay a monthly sum toward the support of the minor child, placed in the custody of the mother until further orders, the court should discharge the debt on the death of the father whether the liability of the father for the support of his minor child is extinguished by his death or passes on to his estate. In deciding the question the cofirt said:
“It is next urged that it cannot now be definitely determined that the child will reach her majority. . . . Respondents therefore contend that the claim here sought to be established is of such a contingent nature that the court below cannot by any possibility determine what it will be in amount if established or absolute.' ... We perceive of no substantial objection to a decree directing the defendant executrices to pay into court a sum sufficient to meet the monthly installments of $50 each accruing between the time of decedent’s death and the time when the child shall reach her majority.” (pp. 614, 615.)
No error was found and the judgment was affirmed.
In Minneapolis Trust Co. v. Birkholz, 172 Minn. 231, a decedent entered into a contract with his wife to pay her $1,000 as long as she should live. She made a claim in the probate court petitioning for an allowance during her expectancy of life. In passing on the question the court said:
“This court has held that a contingent claim is one where the liability depends on some future event which may or may not happen and, therefore, makes it wholly uncertain whether there ever will be a liability (citing cases). Respondent’s claim is founded on a contract which in effect provides for the payment of an annuity. She has a continuing rather than a contingent claim. A fixed income is to be paid to her for life and the corpus of the estate is chargeable with the payment thereof. True, the total amount required to meet the payments is uncertain, depending wholly on the duration of respondent’s life, but that fact does not make the claim a contingent one.” (p. 233.)
In Parker v. Luehrmann et al., 126 Neb. 1, the court had under consideration the right of a receiver of an insolvent bank to file a contingent claim for double stock liability against the estate of a deceased stockholder. In the syllabus the court said:
“A contingent claim against an estate, mentioned in section 30-701, Comp. St. 1929, is one where the liability depends upon some future event, which may or may not happen, and which, therefore, makes it wholly uncertain whether there ever will be a liability. In the case of a contingent claim, the contingency does not relate simply to the amount which may be recovered, but to the uncertainty whether any amount will ever become due.”
In In re Bolton’s Estate, 121 Neb. 737, the court had under consideration a case where the deceased was a stockholder in four banks that had failed, and although there was not any liability upon the stockholders, and it had not yet been determined that there ever would be any such liability, the court required the executor to retain $70,000 to pay such claims, and to retain that amount subject to the payment of stockholder’s liability in the defunct banks. The Nebraska statute reads:
“ ‘If any person shall be liable as security for the deceased, or have any other contingent claim against his estate which cannot be proved as a debt, the same may be presented, with the proper proof, to the county court, which, if satisfied that such claim is a legal demand against said estate, may order the executor or administrator to retain in his hands sufficient to pay such contingent claim when the same shall become absolute.’ ” (p. 741.)
In Bowler v. Emery, 29 R. I. 310, the court held that a claim for rent to accrue in the future for the unexpired term of a lease is not a contingent claim and is proper to be allowed against the estate of a decedent.
That the claim made in this case is not a contingent claim as the lower court held, but is a claim covered by the statute and is both a continuing and a conditional claim, is demonstrated by Brown’s Exor. v. U. S. Trust Co., 185 Ky. 747, wherein the court said:
“It is well settled by the authorities that a contract of this character is not terminated by the death of the lessee and that his estate continues liable for the performance of the conditions of the lease until it expires. It is also generally agreed that the obligations of a lessee under the contract pass on his death to his personal representative, who assumes in his fiduciary capacity the performance of the contract in the same manner that its performance could have been demanded of the lessee.” (Citing cases.) (p. 751.)
It appears to be settled by the authorities that a contract by decedent in his lifetime not to be paid until after his death does not preclude the enforcement against his estate. Sometimes claims of this character are regulated by statute, as in Kansas, providing that such claims shall pass to the personal representative, who is required to retain funds of the estate for the purpose of paying such claims when they shall accrue. In such case it is the duty of the administrator or executor to reserve money enough to pay debts before paying devisees. In 16 R. C. L. 855 this language is found:
“The contract of a lessee to pay rent is not discharged by his death, but survives, as in case of other contracts not of a personal nature, as a claim against his estate not only for rent accrued at the time of his death, but also for the subsequently accruing rents; nor can the administrator of a deceased lessee discharge the estate from liability merely by a notice to the lessor of his determination to abandon the leased premises.” (Citing cases.)
The statute R. S. 1933 Supp. 22-729 provides for cases of this character where a debt is not terminated by the death of a lessor but survives and becomes assets of his estate and places upon his executor and administrator the obligation to perform a contract. The means of performance are pointed out in the statute and there is discretion of the court to retain in his hands enough to satisfy the debt, discounting the interest, or require a bond by those interested in the estate to the alleged creditor with sufficient sureties for the payment of the demand in case the same shall be proved to be due. This is the way the statute provides for handling a continuing contract or one having a conditional or somewhat contingent provision in it.
It is within the power of the legislature to provide the probate court with power to make such provisions for the payment of continuing contracts after the death of the lessee. Although plaintiff concedes that the act applies on an ordinary indebtedness, it is contended that here it is contingent and therefore cannot be enforced, but, we have seen, it is provided for in the statute and may be enforced. The fact that there is a colessee does not change the provisions of the statute, and neither does the fact that eleven or twelve years of the lease are yet unexpired, and the survivor, co-lessee or administrator may be required to fulfill the provisions of the lease in accordance with the statute. It survives, and we think it is covered by the provision of the statute under which plaintiff makes her claim.
The judgment is reversed, and the case remanded with directions to 'grant the request of the plaintiff creditor. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on a benefit certificate issued to plaintiff, a locomotive engineer of the Rock Island Railway Company, by the defendant, the Brotherhood of Locomotive Firemen and Enginemen. Plaintiff prevailed, and defendant appeals.
The constitution of the brotherhood, pursuant to which the certificate was issued, provided that the beneficiary should receive the full amount for total or permanent loss of vision of one or both eyes on making application and sufficient proof. The certificate provided right of action for total or permanent disability should be barred unless proof were made within six months from the time such disability occurred. The words “loss of vision” were interpreted by the brotherhood to mean “practical and permanent blindness.”
On July 6, 1929, plaintiff was struck in the left eye by a particle of hot sand from the fire box of an oil-burning locomotive. Plaintiff testified that within three or four months after the accident he knew the vision of the left eye was gone, but he did not know vision was permanently gone until May 20, 1931. On February 14, 1931, plaintiff was notified by the railway company that as a result of the accident he had sustained total and permanent loss of vision of his left eye. On May 20,1931, plaintiff was examined by Dr. A. J. Her- , bolsheimer, of Minneapolis, Minn., who reported that as the result of the injury on July 6, 1929, plaintiff had totally or permanently lost the useful vision of his eye.
Plaintiff made claim under the certificate, and submitted proofs, which were received by defendant on July 20, 1931. Defendant declined to pay, under circumstances to be stated later.
The petition alleged that in July, 1929, plaintiff suffered the accident which has been described, and that on February 14, 1931, he received the notice from the railway company which has been referred to. No specific date was fixed on which plaintiff became practically and permanently blind. The petition further pleaded generally that after plaintiff suffered permanent loss of vision he complied with the laws of the brotherhood respecting proof of such disability.
Defendant made no motion to require the petition to be made more definite with respect to when blindness occurred. Besides that, defendant raised no question in its answer concerning proofs not having been furnished within six months after blindness did occur, but filed a general denial, and a specific denial of blindness. To raise an issue respecting timely proof of disability it was necessary that defendant specifically deny the allegation of the petition of due performance of' condition necessary to recovery. The result was, defendant went to trial on a petition which did not specify date of blindness, and on an answer which did not challenge timely proof of loss.
When plaintiff’s attorney made his opening statement to the jury he told of the accident, and said the eye continued to bother plaintiff for some months or weeks, when he became blind. Defendant’s attorney then moved for judgment on the opening statement, unless it were qualified by showing proof of loss within six months after blindness occurred. Plaintiff had tendered an issue respecting timely proof of loss; defendant had not denied timely proof of loss. Whether proof of loss were made in time was not an issue, and the motion was properly denied.
In his opening statement to the jury the attorney for defendant read the answer, said medical men would testify that plaintiff’s vision was good, and said:
“That’s what the evidence will show in behalf of the defendant in this case, and that’s all there is to it. Mr. Jones is either blind or not blind, one or the other, and that’s what we will offer; that he can see.”
The attorney for defendant did not ask leave to amend the answer to dispute timely proof of loss, but proceeded with the trial, standing on the defense plaintiff was not blind.
The court instructed the jury that, as a matter of law, defendant had waived all defenses it might have had, except the defense that the plaintiff had not lost the vision of his left eye.
Defendant contends the first information it had that plaintiff lost his vision at any time other than on May 20,1931, was when plaintiff’s attorney made his opening statement to the jury. The fact is, defendant did not concern itself with date of proof of loss, because it believed it had conclusive defense in that plaintiff was not blind.
Part of plaintiff’s proof of loss, received by defendant on June 20, 1931, consisted of an affidavit of Doctor Herbolsheimer stating the result of his examination on May 20, 1931. The affidavit disclosed date of injury as July 6, 1929, and disclosed existence on May 20, 1931, of total or permanent loss of vision as the result of the injury. The precise date when loss of vision became total and permanent was not disclosed. Plaintiff’s own affidavit in support of his claim, received by defendant on June 20,1931, contained the following:
“Affiant further states that he is a member of Lodge No. 734 of the above-named organization, and that he is the member who has filed a claim for total disability on account of the loss of vision of his left eye.
“Affiant further states that said affliction became apparent to him on the 6th day of July, 1929; ....
“Affiant further states that he has totally or permanently lost the vision in his left eye; that he knows he lost the total or permanent vision on the 20th day of May, 1931; and that the loss of said vision was caused by hot sand from fire box of an oil-burning locomotive becoming lodged in left eye, causing loss of vision.”
If defendant gave any attention to this proof it must have noted a strange coincidence — that the eye went out on the day plaintiff was examined to ascertain its condition. Besides that, there was discrepancy in the proof — that the affliction became apparent to plaintiff at once on July 6, 1929, but he knew it occurred in May, 1931. Defendant did not ask for further or clarified proof, but promptly caused an examination of plaintiff’s eye to be made. That having been done, defendant wrote plaintiff on July 28,1931, as follows:
“Report of examination in connection with your disability claim on account of the loss of vision of one eye has been returned to me by the physician who recently examined you.
“The evidence does not indicate that you have totally or permanently lost the vision in one eye, and for that reason it becomes necessary for me to disapprove your claim.”
Having reason to know the proof was -faulty, defendant ignored date of proof and disapproved the claim on the single ground plaintiff had not become practically and permanently blind; and the result is, defendant waived the question whether proof was made in time in two ways: First, by disapproving plaintiff’s claim, regardless of when proof was made, and second, .by not raising the question by answer.
There is nothing else in the case of sufficient importance to require discussion, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The proceeding was one for compensation to a shot firer in the coal mine of his employer, for total and permanent disability occasioned by premature explosion of a shot. Claimant was denied awards for certain items for which he contended, by both the compensation commissioner and the district court. The compensation commissioner awarded compensation, based on weekly wages of $19.20, the sum which claimant was receiving when injured. The district court computed the weekly wages as being $21.42. The employer’s insurance carrier was joined. All parties appeal.
The accident occurred February 21, 1933. While claimant was undergoing treatment after injury, it was recommended that he should have his teeth removed. Nineteen teeth, all claimant had, were extracted, and his condition improved. Claimant contended he should be allowed $50 for a new set of false teeth, but no award for that purpose was made. When the accident occurred, claimant had two false teeth attached to a plate. The teeth were knocked from the plate. There was no other injury to teeth. Claimant already had decayed and infected teeth. There was no evidence that any of the teeth extracted became decayed or infected as a result of the accident, and there was no basis in the evidence to sustain a claim for the cost of a new set of false teeth.
Part of claimant’s treatment after injury consisted of removal of one eye. After removal had been recommended] claimant asked a physician of claimant’s own choice to examine him, and the physician charged claimant $10 for the examination. Claimant demanded reimbursement. The employer fully performed its statutory duty to provide physicians and surgeons to cure claimant and relieve him from effects of his injury. N]o dissatisfaction with their services was manifested, and there was no basis in law for charging to the employer the fee of the physician whom the claimant voluntarily consulted. (R. S. 1931 Supp. 44-510.)
Claimant wanted an allowance of $100 for future medical treatment. The claim for compensation stated claimant had requested the employer to furnish medical attention and the employer had done so. The sum paid by the employer for hospital services, for services of physicians and surgeons and for medicines is not disclosed by the record. So far as appears, the amount may have exceeded the statutory limit. There was no showing which called for exercise of the compensation commissioner’s discretion in extreme cases (R. S. 1931 Supp. 44-510), and this court has no authority to make any order in the premises.
Claimant was awarded compensation by the compensation commissioner at the rate of $11.52 per week, or sixty per cent of the weekly wage of $19.20. The district court made a slightly larger allowance. Claimant contends he should have been awarded $18 per week. The statute under which the allowance was made was R. S. 1931 Supp. 44-511 (a), relating to continuous employment by the same employer for a year or more. Claimant invoked subdivision (6) of the same section, relating to employment for less than a year, and introduced evidence accordingly.
Claimant was employed by the coal company as a shot firer in January, 1930. He continued in active service as a shot firer until April 1, 1932. He was then laid off, because the company commenced mining soft coal, which did not require service of a shot firer. On November 28, 1932, the coal-company again reached and commenced to mine hard coal. Claimant returned to work and worked as a shot firer until the accident occurred on February 21, 1933. Before claimant was laid off he received the union scale of wages, $5.20 per day. In March, 1932, the coal company discontinued paying wages according to union scale, and paid $3.20. per day, which was the wage claimant received from November, 1932, to date of accident. During the period from April 1 to November 28, 1932, claimant himself considered he was the coal company’s regular shot firer. The coal company considered claimant was subject to call, and claimant would have been called if needed. Claimant was needed on November 28, was called, and went to work. During the period he was not working, claimant went to the coal company several times to see if he were needed, and told the coal company that as soon as there was work, to call him. He testified that while he was off, he was subject to call at any time, and that as soon as there was work, he was called.
; The -facts which have been narrated warranted an inference claimant had been continuously employed by the coal company for more than a year, but he did not work all the time, for the unavoidable cause, the coal company was mining soft coal part, of the time. . This was the interpretation placed on the facts by the compensation commissioner and the district court. It was the function of the compensation commissioner and the district court to deal with'the evidence, and this court is. not authorized to interfere. ■ -.
The computation of weekly wages made by the compensation commissioner- took into account the wages claimant was receiving when he was injured,- but did not take into account the higher wages claimant received before he was laid off. The district court considered the higher wages, and its computation is approved.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to partition real estate devised by will, and for other relief, commenced while the testator’s estate was in process of administration in probate court. A motion to dismiss was denied. Those adversely affected by the order appeal.
Thomas H. Gideon, of Jackson county, died testate, and the will was duly probated. The will nominated the testator’s widow, Helen M. Gideon, and a son, Mora E. Gideon, as executors. Helen M. Gideon declined to act and, pursuant to a provision of the will, the son qualified as sole executor. Debts of the estate have been paid, but the estate has not been closed in probate court.
The first item of the will was formal.
The second item gave the testator’s widow bonds, insurance policies and the homestead, for life, with power of disposal, remainder to become part of the residuary estate. It appears Helen M. Gideon is still living.
The third item gave to Mora E. Gideon described land, outright, and other land, title to which should not vest until he paid to the executor the sum of $3,000. It appears this sum has been paid, and the devise has become absolute.
The fourth item gave to the testator’s son,' Oscar D. Gideon, described land, title to vest on payment to the executor of $6,000. It appears this sum has been paid, and the devise has become absolute.
The fifth item gave to the testator’s son, Lloyd H. Gideon, described land unconditionally. If he should die without children, before death of the testator, the land to become part of the residuary estate.
The sixth and seventh items of the will read as follows:
“Item VI. All the rest and residue of my estate, be the same real, personal or mixed property, and wheresoever the same may be located, including such sum or sums, or real property, as may be left from the bequests and devises herein made to my said wife, and also the sums required to be paid by my said sons, Mora E. Gideon and Osear D. Gideon, I give, devise and bequeath to my children and grandchildren living at the time of my decease, share and share alike, ...”
“Item VII. I do hereby nominate and appoint my beloved wife, Helen M. Gideon, and my son, Mora E. Gideon, executors of this, my last will and testament, and in the event that either of said parties are, for any reason, disqualified from acting as such executor, or declines so to do, then the other shall be vested with all of the authority and power herein vested in both of said parties, and my said executors are hereby authorized and empowered to sell and make conveyance of any and all real estate of which I may die seized which does not become disposed of by the terms of this, my last will and testament, in full compliance with my wishes herein expressed, and that they act as such executors without compensation.”
Real estate not specifically devised consisted of four noncontiguous tracts in Pottawatomie county, containing, respectively, 22, 35, 80 and 160 acres, a lot in Holton, Jackson county, and 400 acres of land in Greenwood county. Some of the grandchildren of the testator commenced an action to partition some of the residuary land. The answer disclosed that the executor had sold the land, and the sales had been approved by the probate court. In making the sales, the executor acted pursuant to what he regarded as power conferred by the seventh item of the will. The fact of sale was ignored in the petition, and the reply was a general denial. A motion to dismiss, which had been made and denied, was renewed, and was denied. This appeal followed. The principal question presented is proper interpretation of the will.
Plaintiff contends that on death of the testator, title to all residuary land vested in the residuary devisees, pursuant to the residuary clause of the will, and the executor had no power to sell any part of the residual land. The argument in support of the contention is based on the decision in the case of Holt v. Wilson, 82 Kan. 268, 108 Pac. 87. The syllabus reads:
“Where one part of a will clearly indicates a disposition in the testator to create an estate in fee it will not be restricted or cut down to any less estate by subsequent vague or doubtful expressions.” (Syl. ¶ 1.)
The decision in Holt v. Wilson leaned toward the old mechanical rule for interpreting wills, and has required explanation several times. It is now settled law in this state that the testator’s intention is to be ascertained by consideration of the whole will, regardless of arrangement of clauses, and every part of the will must be given effect if that may be done.
In this instance, the will made specific bequests and devises, and then disposed of the residue. The ultimate composition of the residue was not and could not be known. However composed, it included everything the testator left, not specifically disposed of, even including after-acquired property. After doing this, and in connection with designation of executor, the testator gave the executor power to sell and convey all land of which the testator died seized that did not become disposed of by the terms of the will. The interpretation proposed by plaintiffs nullifies this provision. Everything belonging to the testator having been disposed of, either specifically or by the residuary clause, nothing is left which could be subjected to power to sell.
The separate item relating to executors and their power was inserted in the will at the proper place for dealing with those subjects. The item appears to have been inserted with as much deliberation and purpose as any other provision of the will, and must be given effect. Should Mora and Oscar fail to comply with the conditions precedent to taking title, their devises would simply fall into the residuary estate. If it had been intended the power should operate only on those tracts, the power would have been so limited, but it was not anticipated they would lose their devises. It was perfectly manifest that much, if not all, of the residual land could not be partitioned in. kind among the twenty-one residuary devisees, and would have to be sold at some kind of a sale, 'and the court is of .the opinion the will meant the executor ihight sell all land not disposed Of by specific devises.
Incidental to partition, plaintiffs asked.for an accounting with Mora, Lloyd and Oscar. The charge was they owed the estate and the'executor had failed to inventory the debts as assets, and had failed to collect them. The prayer of the petition was that the sums found due should be charged as. liens on the real estate devised to tlie'-debtors.,
The first duty of an executor or administrator is to return to the probate court a true inventory of all goods-, chattels, moneys, rights and credits belonging to the deceased to be administered. If he does not do this, it is the business of the probate court to see that it is done, as a primaiy feature of administration of an estate, and a district court has no authority to interfere.
But plaintiffs say they asked for equitable relief. Equitable relief-by way of creation of lien to secure indebtedness to be ascertained by an accounting could not be granted unless the court had authority over the subject of accounting, and the prayer did not enlarge that authority.
The judgment of the district court is reversed, and the cause is remanded with direction to dismiss the action. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action upon a promissory note. Judg.ment was for plaintiff. Defendant appeals.
Plaintiff alleged the execution of the note, that it was due and unpaid, and prayed judgment. Defendant answered and filed an answer and cross petition, admitting the execution of the note by himself and wife, and that it was past due and unpaid. He further alleged that at the time the note was executed he and his wife executed and delivered to plaintiff a mortgage on certain real estate, and that the mortgage was given to secure payment of the note sued on, and that the property at the time the action was begun still existed, undiminished in value. The answer then alleged that if the action went to judgment, and sale was had, that it would be a personal judgment and an execution sale, rather than a judicial sale, and that there would be a redemption period of eighteen months from a judicial sale.
The answer and cross petition then set out chapter 218 of the Laws of 1933, as follows:
“Section 1. The court in determining whether or not the proceedings in judicial sales are regular and in conformity with law and equity as expressed in section 60-3463 of the Revised Statutes of Kansas of 1923, may decline to confirm the sale where the bid is substantially inadequate, or in ordering a sale or a resale, may, in its discretion, if conditions or circumstances warrant, and after a proper hearing, fix a minimum or upset price at which the premises must be bid in if the sale is to be confirmed, or the court may, upon application for the confirmation of the sale, if it has not theretofore fixed an upset price, conduct a hearing to establish the value of the property, and as a condition to confirmation require that the fair value of the property be credited upon the judgment, interest, taxes and costs. A sale for the full amount of the judgment, taxes, interest and costs shall be deemed adequate. This act is intended as declaratory of the equity powers now existent in the courts under section 60-3463 of the Revised Statutes of Kansas of 1923.”
Also, the answer and cross petition set out chapter 232 of the Laws of 1933. That section is as follows:
“Section 1.. A moratorium is hereby declared upon all periods of redemption from judicial sales which were running at the beginning of the present emergency created by the bank moratorium under federal and state orders and which expire during the moratorium as defined in section 2 hereof. All such periods of redemption as provided by law shall be extended until the conclusion of said moratorium and no writ of assistance shall be issued or served, and no sheriff’s deed shall be issued or delivered during such moratorium.
“Sec. 2. Said moratorium shall extend for six months from and after the 4th day of March, 1933: Provided, In case at or before the expiration of the six-months period, it shall in the judgment of the governor of the state of Kansas, be necessary for the preservation of the public peace, health and safety so to do, and in case in his judgment said emergency still exists, then the governor of the state of Kansas is hereby authorized to extend said moratorium for a period of not exceeding six months.
“Seo. 3. Wherever a receiver has heretofore been appointed or may hereafter be appointed in a proceeding to foreclose any lien upon real estate, such appointment shall be set aside during said moratorium, except that a receiver, at the discretion of the court having jurisdiction thereof, may be appointed in cases of waste or where necessary for the preservation of the property.
“Sec. 4. It being immediately necessary for the preservation of the public peace, health and safety, an emergency is hereby declared to exist by reason whereof this resolution shall take effect and be in force from and after its publication in the official state paper.”
The answer and cross petition then alleged that the governor had declared the emergency to exist as provided for in that chapter.
The answer then alleged that the plaintiff, by bringing the action on the note and not asking foreclosure of the mortgage, was seeking to deprive defendant of the rights granted to him by the statutes quoted, and that plaintiff would, unless restrained, proceed to obtain a judgment upon which to base an execution sale; and that if plaintiff did proceed to an execution sale plaintiff would be deprived of the rights secured to him by the acts quoted, and that the sale would be an execution sale instead of a judicial sale.
Plaintiff filed a motion for judgment on the pleadings. This motion was allowed by the court; hence this appeal. The judgment from which the appeal is taken is simply for the amount of the indebtedness, which defendant does not dispute.
Defendant argues here that this court has held that execution sales, as well as judicial sales, should not be confirmed where there was a want of equity in the sale price. There can be but little doubt as to the correctness of this rule. (See Johnson v. Funk, 132 Kan. 793, 297 Pac. 670; also, Kaw Valley State Bank v. Chumos, 138 Kan. 714, 27 P. 2d 244.)
The trouble with the position of defendant is that he has appealed too soon. The judgment is for the amount of money which defendant admits he owes. This court has held recently, following former authorities, that one who holds a note secured by a mortgage could sue and recover judgment on the notes alone and cause execution to be issued and levied upon other property than that mortgaged. (See Farmers & Bankers Life Ins. Co. v. Brown, 140 Kan. 458, 36 P. 2d 960.) This case had progressed to that stage when this appeal was taken. The arguments that have been made here might very well be made to the trial court at some later stage of the case. As the record now stands, there is nothing which this court can review.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
John Olthoff, charged with the murder of his wife at their home in Independence the night of May 9, 1933, was tried, found guilty of murder in the first degree, and sentenced to life imprisonment. He has appealed, and complains of rulings of the trial court relating to the admission of evidence and the examination of witnesses, and contends the verdict is not supported by the evidence.
The facts disclosed by the record — as under the evidence the jury was entitled to find them to be — many of which were not controverted, may be stated as follows:
John Olthoff and Bertha Ritter, three years his senior, were married in 1911. Two children were born to them; a son, Martin, about twenty years of age at the time of the homicide, and a daughter, Helene, a year or more younger. The parties had lived at Independence since their marriage, and all of that time Mr. Olthoff had been employed by a retail mercantile company there, his hours of work being from seven to twelve in the forenoon and from one to six in the afternoon, with one Saturday off every two weeks. It was his practice to go home for lunch. The amount of his salary is not shown. Mrs. Olthoff was an only child and inherited her parents’ property, and from this she owned, at the time of her death, the bungalow in which the family lived, another one near by, which she rented, some real property in Oklahoma, and bonds and other securities of the value of about $8,000, and from her funds she had been paying the expenses of maintaining their two children in school. She personally looked after her property and managed her own financial affairs. Defendant testified that at the time of the homicide he had about $600 secreted in their home, for the reason that a year or two before he had sustained a loss by having a deposit in a bank which failed. What other property of consequence he had, if any, is not shown. The Olthoffs were of German descent, frugal and industrious. They were members and attendants of the German Lutheran church in Independence. Ever since about the time of the birth of her children Mrs. Olthoff had been in poor health. She suffered a great deal with what defendant spoke of as “female trouble.” At least three major surgical operations had been performed upon her. At each of these times she was treated at the hospital several weeks before she was able to be taken home, and this was followed by a long period of convalescence, during which she gradually regained strength to do her housework, or most of it. One of these major operations was about two years before the homicide, and she had not fully regained her strength at the time of her death.
Never a demonstrative couple, Mr. and Mrs. Olthoff, to their friends and neighbors, appeared to get along together with reaspnable harmony, and there is no evidence of a passionate fuss or quarrel between them. For three years prior to the homicide they had not occupied the same bed. For some months, perhaps a year and a half, prior to the homicide defendant had been paying some attention to and spending some of his spare time with a widow, Mrs. Stucker, who worked in a store around the corner and a few doors from the store in which he worked. The rear of the two stores came near each other at the alley. Frequently defendant would hurry through his lunch at home, get in his car, go to Mrs. Stucker’s house, or near there, have her get into the car, and take her to the store where she worked, or within a few doors of it. He also took her riding in the evening — about town, to the country, where they pleased to go. Defendant did not tell his wife about these things and she learned of them slowly, if at all. She did notice his absences from home and his increasing lack of interest in his home and family. She mentioned these matters to him; he was provoked that she did so. On some occasions, on trips with his family, defendant invited Mrs. Stucker to go with them, which she did. One of these trips was to Longton, another to Tulsa; perhaps there were others. Mrs. Olthoff wondered why her husband invited this other woman to go with them. She mentioned that to her children, and to her husband. He did not quarrel with her, but “went out to the garage to cool off.” He got to spending his week-ends away from home, every two or three weeks, on “fishing trips.” His wife did not like that, but he went. On one occasion, when he was preparing to go on one of these trips, she “took him to task” for leaving his family and spending so much of his spare time away from home, and insisted on knowing where he was going and whom he was going with. He told her he was going to Niotaze, a town in an adjoining county, with a Mr. Wilson, near Schoenfeldt’s garage. She wrote these words — “Niotaze, Wilson, garage by Schoenfeldt’s” — on a card, which she put in the cupboard. Her reason for doing this, as she explained to her daughter, was to be able to locate him if anyone called for him while he was away. It is conceded that on this occasion he willfully falsified to his wife about where he was going, and with whom. Instead of doing as he told his wife, he took Mrs. Stucker with him in his car, drove to Coffeyville, where they stayed and had sexual intercourse at a cottage camp.' The next day, Sunday, he brought Mrs. Stucker to he? home at Independence, and without going to his own home on that day drove south into Oklahoma, where he stayed until the next Thursday, when he came home. He testified the first day he was in Oklahoma he “fished some.” What he did the remainder of the time is not disclosed. He was out with Mrs. Stucker on other occasions, and on at least one other occasion stayed with her and had sexual intercourse with her at a cottage camp in another town. These liaisons continued up to the time of the homicide, perhaps later. Defendant, also, within the few months prior to the homicide, made himself obnoxious to some of the young ladies of the town by inviting them to ride with him. at times and under circumstances which indicated rides or trips for immoral purposes. These he repeated several times, and to as many as three young ladies, with whom he had only a passing acquaintance, although each time his invitation was firmly declined.
The home occupied by the Olthoffs at the time of the homicide is of the bungalow type. It faces west on Sixteenth street, paved thirty feet wide with brick. It sits back from the street about twenty feet. There is a grassed yard in front, but no sidewalk along the street. North and east of the house a short distance is a flower bed about seven by nine feet, which had been spaded up preparatory to planting, the ground of which was loose and dry. South of the house a few feet is an east-and-west alley, sixteen feet wide, surfaced with gravel. North of the house, about forty feet, is the other bungalow owned by Mrs. Olthoff,. situated on the same lots, facing north on Laurel street, the bedroom being at the south. It was then occupied by O. G. Griffin and family. These two houses, with their yards and appurtenances, occupy the space for half a block along Sixteenth street from Laurel street south to the alley. Between the two bungalows is a cement driveway from Sixteenth street east to a double garage near the east line of the lots. This driveway is widened to the south, so as to permit a car to stand just north of the middle and front portion of the Olthoff house. Across the south half of the front of the Olthoff house is a porch, eight by fourteen feet, partially extending into the house proper; back of that is the living room; back of that the bathroom, with approaching hallways, from which stairs lead to a rather low attic, unfinished, except that it is partly floored, and was used for a bedroom, occupied the night of the homicide by the daughter, Helene Olthoff; and back of the bathroom and hall is a bedroom in the southeast corner of the house, occupied that night by the son, Martin Olthoff. On the north "side of the house, from the front, is first, the dining room, back of that the kitchen, about midway of the house from west to east, from about the center of the north side of which stairs lead to the cellar, and back of the kitchen is a bedroom, on the east end of the house, occupied that night by Mr. and Mrs. Olthoff. North of this bedroom is a porch, about fourteen feet long east and west and about five feet wide, near the east end of which is a cistern. There is a door at the west end of this porch opening into the kitchen, also at the northwest corner of the porch was a screen door covered completely on the inside with an awning-like canvas attached on all sides to the framework of the screen door. This door opened outward onto four cement steps leading to the cement driveway and to the garage. Just west of these steps, and so set as partially to screen them from the street, was a trellis, perhaps five feet high, made of galvanized pipe. This extended out from the side of the house, perhaps three feet. Some vines were on the trellis, but not enough to make a complete screen. It appears the family, in entering or leaving the house, ordinarily used these porch and kitchen doors. We find no evidence in the record of the use of any other means of ingress or egress at or about the time of the homicide. Between the two bedrooms above mentioned was a closet, the length of the bedrooms east and west and two and one-half feet wide, with a door opening into it from each bedroom. These doors were not opposite each other. The closet was quite well filled with clothes on hangers. The bedroom occupied by Mr. and Mrs. Olthoff, being the north one of the two bedrooms in the east portion of the house, measured eleven by twelve and one-half feet. In the northeast comer was Mr. OlthofFs bed, with the head to the north. In the northwest corner was the bed occupied by Mrs. Olthoff, with the head to the north; it appears this was a single bed. Between the beds and on the north side of the room was a commode, and on this was a jewel box in which some inexpensive jewelry was usually kept. At the southeast corner of the room was a dresser, and another one near the center of the south side of the room. Just east of the center on the south side of the room was the door to the closet, and at the south end of the west side of the room was the door to the hall leading to the kitchen and to other rooms; both these doors opened into the bedroom, and were open the night of the homicide. Near the center, in the east side of the bedroom, were two ordinary sized outside windows, with screens. In the north side of the bedroom were two windows, one directly above the head of the bed occupied by Mrs. Olthoff, the other slightly east of the center of the room over the commode; these were smaller than ordinary size. All four windows were closed the night of the homicide.
The evening of May 9 the family had supper at home soon after six o’clock. Mr. Olthoff and Martin went to the airport to see a new plane which had come in. Martin stopped to see a show; Mr. Olthoff went home; then he and Helene went on an errand and returned in about twenty minutes. Mrs. Olthoff had been watering the lawn, but came in, spoke of feeling tired — she had washed that morning — and went to her room to lie down. Mr. Olthoff sat in the kitchen reading the paper; Helene was ironing. Martin came home about ten o’clock, and soon the family retired for the night. Helene was the last to retire and just before doing so went to the cistern on the north porch for a drink, fastened the screen door by hooking it from the inside, locked the door leading from the porch to the kitchen, leaving the key in the lock, and placed a chair against the door on the inside of the kitchen. About midnight, or a few minutes after, Mrs. Griffin, in her bedroom, about forty feet north of the Olthoff house, wakeful that night because of a sick child, heard the slam of the screen door on the north porch of the Olthoff house, looked out of her window — it was a moonlight night — and saw a man, dressed in white, go away from the screen door west along the cement driveway toward Sixteenth street, at a gait she described as between a walk and a run. She called her husband, who was asleep, awakened him, and told him something was wrong over at Olthoff’s. Both Mr. and Mrs. Griffin looked that way and saw the man, whom Mrs. Griffin said was the same man who a few minutes before had gone hurriedly from the Olthoff screened porch door toward Sixteenth street, now coming back along the cement driveway directly toward the screen door he had left a few minutes before. Mr. Griffin recognized the man as Mr. Olthoff. He was walking stooped forward, striking his breast with his fist as he walked, and uttering a peculiar moaning, crying sound. Mr. Griffin called him and asked: “What is the matter, John?” Mr. Olthoff then changed his direction and walked northward to near the window of the Griffin bedroom. As he walked he was talking about someone shooting, in a manner difficult to understand. Mr. Griffin understood him to say, as he neared the window: “They tried to shoot us.” From Olthoff’s conduct and the noise he was making Mr. Griffin thought he was shot, and asked him: “Are you shot?” Olthoff replied: “No, it’s not me, it’s Bertha.” Bertha was his wife. Mr. Griffin then told his wife to call the police and a doctor and told Olthoff he would be out as soon as he could get dressed. Mrs. Griffin called the police, and remembering Doctor Sheppard was Mrs. Olthoff’s regular physician, suggested that she call him, and Mr. Griffin told her to do so, and Mr. Olthoff said: “Yes, call the doctor.” Mr. Griffin dressed hurriedly and went out to where Olthoff was on the cement driveway between the two houses. About the time Griffin got out there two policemen came walking up the driveway. They had received the word and responded quickly. With nothing more being said, all four of the men went into the house, Olthoff leading, onto the north porch, into the kitchen, and through it into the north bedroom. Mrs. Olthoff was lying in her bed on the right side, with a bullet wound a little above her left ear. She was unconscious, motionless; her muscles were relaxed as though she had not moved after the blow of the shot. Doctor Sheppard and the coroner were there in a few minutes and saw that her injury was serious, perhaps fatal, gave some emergency treatment, called an ambulance, and had her taken to the hospital. She died about ten minutes after reaching the hospital; perhaps about 12:45. Mr. Olthoff did not accompany her to the hospital because of lack of room in the ambulance, but followed in his car. As soon as she died the doctors asked Mr. Olthoff’s permission to hold an autopsy. He consented readily. The autopsy disclosed Mrs. Olthoff was shot twice, near the same place; there were powder bums about the wound; one bullet flattened out on the skull bone and did not enter the brain; the other bullet went through, destroying a large area of the motor section of the brain, and lodged in the skull on the other side. The bullets were .38 caliber. Her muscles were relaxed, as in sleep, indicating she received the fatal blow without having been disturbed; none of them were tense, as some of them would have been had she been so aroused or disturbed.
When Mr. Griffin and the two police officers went to where Mr. Olthoff was on the cement driveway and went into the house with him he was dressed in light-colored, almost white, pajamas, and was barefooted. In going from the kitchen to the bedroom they passed the daughter, Helene, in the hall. The bedroom was lighted. Blood from the wound was about Mrs. Olthoff’s head and in the depression in the pillow, and some of it had splashed to the ceiling directly overhead. An officer asked Mr. Olthoff what had happened. He said some intruder came in there and .murdered his wife. He was asked if he didn’t have a gun around there for his own protection in a case of that kind. He replied: “No, officer, I have never owned a gun in my life, other than that old shotgun that you see sitting there in the closet.” He further stated there had been three shots fired in the room. He said the first two shots that were fired aroused him, and as he rose up a third shot was fired — someone turned a flashlight on him and fired the third shot at him. In the east wall of the room, north of the window and about eight inches above the bedclothes on Mr. Olthoff’s bed, a .38 caliber bullet was imbedded in the wall, in such a way as to indicate it had been fired from near the door at the southwest corner of the bedroom. The officer could see but one wound on Mrs. Olthoff, and could account for but two shots. Mr. Olthoff insisted three shots had been fired. Although Mr. Olthoff answered the officer’s questions he was non-communicative and volunteered no information. He did not go to his wife, or say anything to her. He stood about the room, or sat on the edge of his bed, his hand, perhaps a handkerchief in it, over his mouth, moaning softly. He was asked about any indications of robbery, if he missed anything. He stated he observed the top was off the jewelry box on the commode, suggesting the intruder might have taken it off in a search of jewels. Later the officers examined the top of the box for finger prints — with what result the evidence does not disclose. Someone suggested to Olthoff that he get dressed. He took his overalls from where they were hanging in the closet, and stated he had been robbed of “two pays,” about $77, which he had in his purse, which also was gone from his pocket. Loose change in a pocket was not disturbed. The two officers, and others who came soon, began an intensive search of the premises for evidence an intruder had been there. They examined the interior of the house; at the suggestion of the daughter an officer examined upstairs ; the outside door of the cellar was locked, no window or door was opened or bore any evidence of having been used for ingress or egress, except the screen door on the north porch and the door leading from that porch into the kitchen. The screen door had been fastened to the casing, when the family retired about ten o’clock that evening, from the inside of the porch by the common hook and staple, or eyelet, fastening, situated near the center of the height of the door. A hole was found in the screen about an inch from its edge and about the height of the hook fastening, apparently made by pushing the screen wires apart, as by an ice pick or a wire— about half the size a lead pencil would have made if pushed through the screen. Almost even with this, as to height, but farther from the edge of the screen door and more toward its center, there was a hole in the canvas cloth fastened over the entire screen door on the inside. This hole was a little larger than the- hole in the screen wire and had the appearance of having been freshly made, as with a knife; and its ragged edges and strands broken at one end hung or extended outward as though the force of making it had been applied from the inside of the porch. One from the outside, attempting to open this screen door by lifting the hook with a wire or similar instrument, would have been fortunate to have located the hole in the screen opposite the hook unless he was familiar with the location of the hook on the door casing and screen. It might have been several inches above or below. Even with a flashlight he could not have seen through the screen where the hook was, for the entire surface of the screen was covered on the inside with a heavy canvas. Had he attempted to place a wire through the hole in the screen, then through the hole in the canvas to raise the hook, the holes were so situated .that the end of the wire would have been pointing away from the hook-instead of toward it. It would have been a peculiarly shaped wire or instrument which it would have been possible to use through these holes to lift the hook which fastened the screen, even if one knew the exact location of the hook. Defendant testified that some months later, and before the trial, while working in the flower bed near the northeast corner of the house he found a short piece of wire bent in such a peculiar shape that he thought it possible for it to have been used through these holes to lift the hook, and he attempted to demonstrate that at the trial before the jury. The door from the porch into the kitchen was locked from the inside, the key left in the lock, and a chair placed against the door on the inside when the family retired about ten o’clock for the night. The officers found this door open, the chair pushed back with it, and the key lying on the floor under the chair. The lock of this door was of a kind in common use, which might have been opened from the porch side with a skeleton key. To accomplish this, however, it would have been necessary to get the key out of the lock, which already was in there. This, it was said, could sometimes be done by shaking the door or the doorknob. Had an intruder attempted to do that it is likely the noise of his efforts would have awakened someone in the house. It was reasonable for the jury to have concluded, as evidently it did, that both of these doors were opened by someone from within the house and not by an intruder from without.
The officers also searched for an intruder, or some evidence of one, outside the house', in the yard, through the neighborhood, at all places in or about town where tramps, sojourners, or the criminally inclined likely would be, also outgoing trains and highways. They barricaded the alley south of the Olthoff house so it could be searched better the next day. None of this disclosed any evidence of an intruder. In the dry, loose earth of the flower bed, near the northeast part of the house, was found a footprint. This was examined by flashlights, covered with a ladder, and examined the next day. It was a clearly outlined imprint of a shoe, or boot, about eleven inches long, located about ten feet directly west of the northwest corner of the house, and about six feet west of the east line of the flower bed, with the toe part of the imprint toward the southwest. It could have been made by one running' from the house taking a long step into the flower bed. Perhaps it could have been made some other way. How long it had been there was not shown, nor was it definitely connected in any way with the homicide. While the officers searched for any clues they did not at first direct special search for a gun, cartridges, or shells used in the homicide, and these never have been found. In a drawer of the commode in the room where the homicide occurred were found several old cartridges or shells not recently fired — some .32 and some .38 caliber — but it is not shown these had any immediate connection with the homicide.
Defendant’s story of the intruder was told at different times with variations. A cousin to Mrs. Olthoff, who was notified of the tragedy, came to the Olthoff home the afternoon of May 10 and talked with defendant, who took her into the bedroom and explained to her how it happened. She testified, when asked to state what he said:
“Well, he said he seen a dark object standing at the foot of his bed and he said slowly this dark object walked between the bed to the dresser and he lifted the jewelry box and it made a little noise and of course Bertha turned and raised on her elbow and the robber shot twice. He said then the robber went to the door and shot at him and his nerves gave way and he jumped up and followed the robber to the alley.”
The witness talked with him about various phases of the matter, and had him repeat the story to her so she could remember it, which he did as many as three times, always the same, or substantially so.
To another witness he showed the hole in the bedroom wall, the key on the floor, the hole in the screen, and blood spots on the bed room ceiling, and said he saw the intruder and followed him down to Laurel street and came back and told Griffin; that the intruder had robbed him and shot his wife, and that he had seen the intruder holding a flashlight down on the floor.
To another he said he was awakened by the shot, raised up in bed and a shot was fired at him from the bedroom door; that the fellow had a flashlight down toward the floor; that he jumped out of bed, followed the fellow through the kitchen, out of the door and down the driveway to the street and to the alley south of the house, looked both ways, but saw no one, and returned and holloed for help.
To another he said he was aroused by a shot or some noise and rose up on his elbow and “that fellow took a shot at me and hit the wall;” that he saw the form of a man standing at the foot of his bed and that the man took money from his overalls hanging on the closet door.
On this point defendant, at the trial, testified that after théy retired for the night he went to sleep; his next conscious moment was when the shots were fired.
“There were two at first which were close together, something like ‘bang-bang,’ then a few moments later there was a third one, fired from' near or about in the entrance that goes to the kitchen. I could see a light from the flashlight onto the floor, pointing down on the kitchen floor about by the door post.”
That he was in bed when the third shot was fired, and not fully awake, but was getting up, excited and without a clear conception of what was going on; that as quickly as he could come to himself and realize enough to get up he started through the bedroom toward the door, feeling his way out and into the kitchen, over to the kitchen door and onto the porch, out of the screen door; that he looked between the garage and the porch to see if anyone was there and then started down the driveway toward the west, where his car was, and looked back of the car to see if there was anybody hid there, and not seeing anyone he started on toward the street; that he went as far as the street, but is not sure how much farther; that he looked in every direction, but saw no one.
“Then, I ran back into the house, switched on the light as I went into the kitchen and into the bedroom and turned on that light and saw where Bertha had been shot. A big bloody spot on her left side. I ran out excited over towards Griffin’s door, their kitchen door, hollering for Griffins and Tuckers and Mr. Griffin answered then and said, ‘What is the matter, John?’ After he had hollered I ran over to his bedroom window and told him. He said, ‘Well, are you shot?’ I said, ‘No, Bertha is shot.’ Then he said, ‘Well, I will be over right away.’ He said, ‘Do you want me to call the doctor?’ I said, ‘Yes, call the doctor and the police quick,’ and he asked me then which doctor. I said, ‘Any doctor.’ I went back then into the house and he was over then before very long.”
That he then called his son Martin and his daughter Helene. He further testified that he never saw any intruder in the house, or out of the house, in any room, or any place. It was shown on rebuttal that he testified at a former trial: “I was wide awake by the time the second one (shot) was fired.”
Defendant, while a witness in his own behalf, admitted his immoral relations with Mrs. Stucker, hereinbefore stated, but contended they were purely commercial in character; that he paid her each time she permitted him to satisfy his sexual desires; that his conduct was not prompted by love for her, or similar motives, nor by lack of love and respect for his wife. As tending to offset this, in part at least, there was testimony to the effect that on the evening after he had been arrested and given bond, about three weeks after the homicide, he was observed following Mrs. Stucker and seeking her company. In this connection we should state, in fairness to Mrs. Stucker, that when confronted by the county attorney with defendant’s story of his immoral relations with her, she positively denied all such immoral conduct, and told a story of her acquaintance and relations with defendant and his family which was entirely consistent with such denials. Although she was not called as a witness by either party, her statements containing such denial were placed in evidence.
Word of the tragedy spread rapidly. Officers, relatives and others came to the Olthoff home. There is testimony that there was some discussion in the presence of defendant about additional investigation, and defendant said: “I won’t spend no money.” His'brother, Henry Olthoff, who was present, spoke and said: “I will give $50 to get the dogs down here.” Defendant said: “I don’t want to have nothing to do with it.”
About two days after the homicide defendant called the attention of his daughter to some blood spots on the right sleeve of the pajamas he wore the night of the tragedy and asked her to wash them out, which she did. There was testimony that these blood spots had the appearance of the blood having been splashed on the cloth.
A witness, to whom defendant explained what had occurred, asked him, “Didn’t you have a gun, John?” Defendant did not answer. The question was repeated, but defendant made no answer to it. A few days later, when the county attorney was interrogating the daughter about the circumstances, among other things he asked her if there was a pistol or gun about the place. She told him that there was a pistol there and the last time she had seen it was when she was putting some clothes in a dresser drawer the Christmas before the tragedy. Defendant, on being interrogated about that, said Mrs. Olthoff owned the gun, which she had inherited from her father, that it had been about the house many years, but that he had sold it about a year before the tragedy to a pawnbroker at Coffeyville. He consented to go with the sheriff to Coffeyville to see if a record of the sale could be found. They found the man to whom defendant said he had sold it, and who had operated a pawn brokerage business, then conducting a merchandise store. While in the pawn brokerage business he had kept a record required by a city ordinance of all firearms purchased. He stated he never had purchased a pistol or gun from defendant, and having later examined his records hq testified that he never purchased any kind of a gun from defendant. Defendant said the man did not look like the one to whom he had sold the gun. He was unable to find the place at Coffeyville where, or the person to whom, he sold the gun. The record reported to the city official, under an ordinance requiring such reports from all dealers, did not disclose a purchase by any dealer in Coffeyville of a pistol or gun from defendant.
A witness called by defendant testified that about 11:30 o’clock the evening of May 9, while riding in an automobile on Sixteenth street past the Olthoff house, he observed what he judged to be a man standing on the step leading to the back door of the screened-in porch. He could see his head and shoulders above the top of the automobile, standing north of the house, and through the screen, but could not distinguish his features, and it may have been the defendant. There also was testimony by a young couple who had attended a dance the night of May 9 and who were walking the few blocks to the young lady’s home about ten minutes after midnight. While walking west on the south side of Laurel street, having passed Fifteenth street, they saw ahead of them, perhaps one hundred feet, a man standing on the sidewalk on the south side of the street. This man crossed to the north side of Laurel street about the middle of the block.' The young couple crossed to the north side of the street and the man then turned and crossed to the south side of the street and walked west to the intersection of Laurel and Sixteenth streets. The young couple proceeded west to that intersection, where they turned north. There was a bright electric light at the intersection and they got a fairly good view of the man, who was about six feet tall, wore dark clothes and a short overcoat. They observed the man walk south on the west side of Sixteenth street to a position almost directly across the street from the Olthoff home and then turn and walk north on Sixteenth street. The young couple were married by the time of the trial and each of them testified to substantially the same facts. This could not have been far from the time the Griffins first saw defendant come out of his house, go west toward the street, and return. It may have been a few minutes before or a few minutes later. The couple who saw the man did not know him and never have seen him since. There is nothing further than what has been stated to connect him in any way with the tragedy.
Mrs. Olthoff died intestate. Defendant proceeded promptly to have himself appointed as administrator of her estate. Respecting this the evidence tends to show that while he left to his attorney the steps to be taken, he urged prompt action. In the application for the appointment, $8,000 was stated to be the approximate value of the personal estate. Defendant was appointed as such administrator, but some time after his arrest he resigned and another person was appointed as administrator.
This statement of facts necessarily omits many details. The testimony was conflicting as to some of them, and as to these we have stated the facts as the jury was entitled to believe them. Many of the facts were not controverted, and as to these the parties seek to draw different inferences. It was, of course, the function of the jury and the trial court to weigh the evidence, pass on the credibility of the witnesses, and to determine the proper inferences to be drawn and conclusions to be found from the evidence. Some further facts may be stated in discussing the legal questions presented, which we now proceed to do.
Appellant first contends that the court erred in permitting to be asked and answered a certain hypothetical question respecting what would be indicated by the fact that Mrs. Olthoff’s muscles were fully relaxed at the time she received the fatal blow of the shot. Doctor Sheppard, the first physician to reach Mrs. Olthoff’s bedside, found her unconscious, but breathing. She was lying on her right side, her muscles fully relaxed, as though she were in quiet sleep. Doctor Hudiburg saw her just a few minutes later and testified to the same fact. Both of these physicians and Doctor Hughbanks, the leading physician and surgeon at the hospital, again examined her at the hospital and found, among other things, that all her muscles were fully relaxed. They not only examined her, but later held an autopsy. Doctor Hughbanks, whose qualifications as a physician and surgeon were conceded, was asked if a shot, such as the one found, were fired into the head and brain of a person at a time when such person’s entire muscular system of the body was relaxed, would he expect the muscles to continue to be relaxed, or to be rigid. He answered:
“Due to the marked amount of destruction of the brain there should be no reflex action of the muscles, and they would remain in the condition in which the patient was when they were shot.”
No serious objection was made to this question and answer. This further question was asked:
“Assuming that a person should be suddenly disturbed out of a sleep by some extraordinary excitement or something, would you expect the muscles to become rigid or remain relaxed?”
Over defendant’s objection the witness was permitted to answer, and said:
“Not all the muscles will become rigid; an individual will naturally go into protection, and those muscles to protect themselves will become rigid.”
Appellant contends this was an improper hypothetical question, and the answer should not have been received. The point is not well taken. A party may propose a hypothetical question, not only for the purpose of bringing out his theory respecting the matter, but to develop an answer against the theory of the opposite party. (See Commercial Travelers v. Barnes, 75 Kan. 720, 90 Pac. 293; State v. Buck, 88 Kan. 114, 127 Pac. 631; State v. Elftman, 116 Kan. 214, 226 Pac. 795.)
Appellant next contends the court erred in admitting in evidence the testimony of the three young ladies to the effect that defendant invited them to take rides with him, at times and under circumstances which indicated his motives were immoral. It was the state’s theory that defendant had grown tired of his wife, whose long and serious illness rendered it impossible for her to satisfy his sexual desires, and that he was turning to or seeking other persons with whom he might consort more to his pleasure. This testimony fitted in with other evidence tending to establish that view. We think it was competent.
Appellant complains that the court permitted counsel for the state to cross-examine one of its own witnesses, Helene Olthoff, daughter of defendant and Mrs. Olthoff. The tide of events had placed her in an exceedingly embarrassing position. When questioned by the county attorney, while he was investigating the homicide, she was frank to state what she knew. The county attorney regarded her information important, and had used her as a witness for the state on the preliminary examination and on the former trial of this case, when there had been a hung jury, and her testimony was in harmony with her statement previously made. When called as a witness on the trial from which this appeal is taken she had not testified long until discrepancies appeared on material matters compared with her former testimony. Perhaps these were occasioned by the fact that for a few weeks directly prior to the last trial she had been living at home with her father. But whatever the reason, more of such discrepancies developed. The county attorney advised the court he was taken by surprise by the testimony the witness was giving and asked permission to cross-examine her. After being advised of the testimony formerly given by the witness the court granted the county attorney’s request. In the course of this cross-examination the witness reluctantly admitted the facts were as stated by her in her former testimony. There was no error in the court’s ruling permitting this cross-examination. Indeed, any other ruling would have been erroneous.
Complaint is made that the court unduly restricted the cross-examination of this witness by defendant’s counsel. He sought to bring out matters not referred to in the direct examination, some of which were wholly immaterial, and the state’s objections were sustained. The court advised defendant he would be permitted to call her as his witness, and if this were done she would be permitted to testify to any material matter. Defendant later called her as a witness and she was permitted to testify to all matters concerning which she was interrogated. There was no error in the court’s ruling in this respect.
Appellant argues the evidence is insufficient to support the verdict. We shall not restate the evidence, and need only to point out that it is not only sufficient, but rather overwhelmingly established: (1) That Mrs. Olthoff was murdered; (2) that the kitchen door and porch screen door were opened from the inside, not from the outside; (3) that defendant is the only person who could have murdered her, since he and the two children were the only persons in the house, and no suspicion of blame is attached to either of the children; (4) that defendant’s right hand and arm were over or near his wife’s head when the bullet crashed into her brain and splashed blood to the ceiling and upon the sleeve of his pajamas; (5) that he had at least two motives which may have prompted his act — (a) to acquire half of her property, apparently considerably more than his own, which he promptly took steps to do; (b) his wife’s illness, which made it impossible for her to occupy his bed, or satisfy his sexual desires, a satisfaction he was finding, or looking for, elsewhere, and which he could do. with less notoriety and less trouble if his wife were out of the way. We are aware it is not every married man who is immoral with other women who has a desire to get rid of his wife — some are more attentive and gracious to her. But that was not true with this defendant; he became more neglectful, sullen and determined. There is an abundance of evidence to sustain the verdict.
On this point appellant cites and largely relies upon People v. Lamson (Cal.), 36 P. 2d 361. Several distinctions between that case and this might be pointed out. We will mention but three of them: (1) There defendant’s story of the tragedy was at all times consistent and was found to be accurate in every detail capable of being checked; here defendant told the story differently every time he related it, and many details of it were controverted by the testimony of witnesses apparently trustworthy. (2) There the principal controverted question was whether defendant’s wife was murdered, or whether her death resulted from an accidental fall; here there is no question about the fact that the wife was murdered —even the evidence of defendant establishes that fact. And (3), in that case, the supreme court of California appears to have weighed the evidence and exercised an independent judgment as to the credibility of witnesses; in this state it is not the practice of this court to do that — we examine the evidence only to see there is sufficient competent evidence to support the verdict. In this case we find an abundance of such evidence.
Finally, appellant contends he was hurried too much in presenting his motion for a new trial. The verdict was returned February 10, 1934, and the motion for a new trial was argued and ruled upon February 16, six days later. He contends the time was insufficient to enable him to get affidavits in support of some of the grounds of the motion, but he does not tell us what grounds of the motion it would have been possible to have supported by affidavits, or what affidavits, if any, could have been procured. There is no showing of error on this point. Trial courts usually are in better position to consider a motion for a new trial soon after the trial is had than weeks or months later, during which many other cases have been tried by them. Appellant’s suggestion that the motion was overruled pro forma seems inconsistent when we are told the court heard his attorneys for as long as they wanted to argue, which was about two hours.
Considering the nature of this case, the legal questions presented may be classified as being quite trivial, although no' doubt they are the most formidable appellant’s counsel found to present. No contention is made that evidence properly admissible was excluded, except as to one question, the answer to' which already was in evidence and concerning which there was no dispute. Neither are any objections made to the court’s instructions, nor any contention made of misconduct on the part of the jury, the prosecuting attorney, or the trial court. It seems clearly to appear that defendant had a fair trial and that a just result was reached. .
There is no error in the record, and the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The Wheeler-Kelly-Hagny Trust Company became trustee in 1928 for the Individualizing Company of Kansas. That company issued bonds for $45,000 as mortgagor, to the Wheeler-Kelly-Hagny Trust Company, as mortgagee. Carrie B. Heskett purchased three of these bonds, totaling on their face the sum of $2,000, which was the amount paid for the same. Her pur chase and'all of her dealings in connection with the bonds were with that company. Her bonds matured on October 1, 1932, and the principal thereof with the interest thereon from October 1, 1932, are unpaid.
The Wheeler-Kelly-Hagny Trust Company sought to have appellant’s bond satisfied in full and canceled by virtue of the purchase of the mortgaged property from the mortgagor by the trust company, for the full amount of the unpaid principal and interest on said bonds. They claim to have the assent thereof from the holders of all the unpaid bonds, except that of Carrie -B. Heskett, who declines to consent to the plan, and who insists that her bonds cannot be satisfied and canceled by any such a transaction.
The court, by its judgment, has approved the plan set out in plaintiff’s petition, and has approved the acts of the Individualizing Company and the trustee, and has decreed that appellant’s bonds be satisfied and canceled by the purchasers.
The petition alleges that a default has occurred in the bonds and the deed of trust has become subject to a foreclosure. It is alleged that with the exception of Carrie B. Heskett, all of the bondholders have agreed to the contract proposed to be made between the Individualizing Company and a mortgage trustee, including provision for a lease and with an option to repurchase. It was recited that default had been made in the mortgage, the sale made and the bonds delivered to the trustee and a warranty deed executed to the trustee. It was provided that a lease should be made by the trustee to the company for $125 per month with the option to repurchase the property at a stated price, and that to avoid foreclosure and redemption the plan was formed providing for the conveyance of the property mortgaged to the trustee in consideration of the cancellation of outstanding bonds.
As a tenant, the Individualizing Company retained the right of occupancy at an agreed rental of $125 per month during the period of two years, when the Individualizing Company was given an option to repurchase the property for an amount sufficient to compensate the bondholders under the deed of trust originally made. The deed of trust contained no provisions for the trustee to make the agreement so the matter was submitted to the bondholders, to whom, with the exception of Carrie B. Heskett, there was $36,000 in bonds outstanding, and they accepted and assented to the plan proposed.
The action was brought to determine whether the trustee had the right to make the agreements with the debtor, claiming that it was better for the bondholders to make the transfer, and this action was really brought to declare and define the rights to make the contract. The petition recited that default had been made on the trust deed or mortgage. The bonds should be delivered to the trustee and a warranty deed executed to it. The $125 of rental money which was made, gave the company the option to repurchase property and to have the rental paid up to the time of the acceptance of the option. Taxes also were to be paid by the trustee, and when this money was collected and paid the trustee would execute the deed. In the event of a failure of the second party to exercise the option, the title should be in the trustee or the first party. It is alleged that all of the bondholders agreed to this plan except Mrs. Heskett and were willing that the contracts planned should be executed. It is further alleged that there is a real controversy as to the right to make the contract between the parties. The plaintiff submits a contract and asks the court to determine the right of the parties to carry out this plan.
Carrie B. Heskett alleged in her answer that she purchased three of the bonds for the sum of $2,000, that she still holds them, that they purport to fall due October 1, 1932; that the plaintiff has no authority and there is no legal authority to require the surrender of the bonds by the plaintiff to anyone whomsoever without reimbursing her for the full amount of her purchase money and damages she may have suffered. The case was tried by the court, and it was held that there was a real controversy on the subject between the parties; that Mrs. Heskett’s bonds, $2,000 in amount, should be delivered and canceled; that the contract made may be enforced, and, when carried out, the bonds of Heskett, who is contending, shall be canceled.
In the trust deed on which the bonds were purchased there was a provision that the obligation of the company to pay the principal of said bonds at maturity with interest thereon, shall continue unimpaired.
No sale of the mortgaged premises shall be made which shall in any manner diminish or impair the rights of the bondholders. One provision of the bond in the trust deed is section five, which is as follows:
“The company covenants that no sale, lease, consolidation or merger of the company, or any of the mortgaged premises, shall be made or allowed to remain in force, which shall in any manner dimmish or impair the lien or security of this indenture, or any of the rights or powers of the trustee or of the bondholders hereunder.”
Then section six which provides that by a vote of two-thirds of the holders of outstanding bonds certain waivers may be effectuated, certain modifications made in the mortgage indenture, and certain other things may be done; but at the conclusion of said section there is the following provision, to wit:
“Provided, always, that the obligation of the company to pay the principal of said bonds at maturity, with the interest thereon, shall continue unimpaired.”
The mortgage itself contains no provision authorizing the trustee to purchase the mortgaged property without a foreclosure suit and thus to satisfy and cancel the bonds secured thereby, including those of defendant Heskett. Again the Individualizing Company covenants with the defendant by the terms of the mortgage that:
“No sale ... of the mortgaged premises shall be made . . . which shall in any manner diminish or impair . . . the rights ... of the bondholders hereunder.”
Not only the established law provides for the foreclosure of the mortgage and the remedies provided by statute, but the stipulations of the bond itself provide that the obligations shall continue unimpaired. To obviate the foreclosure and enforcement of the present contract, a contract was made that she should accept the plan provided by the new contract which gives her a different interest than she already had. She was contending and insisting that the contract already made was binding and she was entitled to have it enforced. It is a violation of the constitution prohibiting the impairment of the obligation of a contract. Mrs. Heskett had the right to collect interest and principal in an action, and that right was impaired by the proposed acts of some bondholders and the trustee making a new contract, against which she protested as being contrary to the constitution. Something is said of the depression causing an emergency, but if there be any emergency in this it is not a ground for modifying or canceling a contract and all the remedies given for its enforcement. In Ex Parte Milligan, 71 U. S. (4 Wall.), 1, 120, 18 L. Ed. 281, 295, the following was said of such a proposition:
“Time has proven the discernment of our ancestors; for even these provisions, expressed in such plain English words that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority.”
In First National Bank v. Neil, 137 Kan. 436, 20 P. 2d 528, it was held that a trustee under a deed of trust might, after a foreclosure, bid as purchaser the amount of the judgment and costs in behalf of the bondholders, and under the circumstances detailed the court did not exceed in jurisdiction or in abuse of its discretion in authorizing the trustee to bid on the property. There are principles of equity entering into the making of a sale and its confirmation which the court may enforce as, for instance, in determining what is an adequate price, whether the confirmation of the sale will be in consonance with equity, and may fix an upset price; but that is all quite different from setting aside and canceling a contract providing the terms and conditions of payment, or the employment of remedies established by law. It affords the opportunity to foreclose with a judicial sale of the mortgaged property, looking to other assets available to satisfy the judgment.
Some of the- bonds, $9,000 of them, had been paid in advance, leaving $36,000 of them still due on which the Individualizing Company is making payment from time to time. A recent decision of the United States supreme court passed on a phase of the subject. In First Nat. Bank v. Flershem, 290 U. S. 504, 78 L. Ed. 465, the National Radiator Corporation issued $10,705,000 sinking fund gold debentures, bearing six and one-half per cent interest, and named the Bankers Trust Company as trustee. At first the radiator corporation was successful, but business slowed up in 1928, and Rudolph B. Flershem and others were appointed a committee for the reorganization of the National Radiator Corporation. It developed a plan for the company, about ninety-six per cent of the security-holders assented, about three per cent stood silent, and one per cent objected. The radiator corporation defaulted on interest payments in February, 1931. On October 1, 1931, the reorganization committee brought a suit in the United States district court for the appointment of receivers, making the National Radiator Corporation sole defendant. The Bankers Trust Company intervened as plaintiff and asked for the appointment of receivers in coordination with the reorganization committee. The United States district court appointed receivers who sold all of the assets of the corporation for $2,550,000, a grossly inadequate price. The sale was confirmed by the district court. On appeal to the circuit court the judgment of the district court was affirmed, and this gave to the holders of the debentures comparatively little for their bonds. On certiorari the case came to the supreme court of the United States, which reversed the lower court in so far as it compelled the dissenting holders of debentures to abide by the judgment of the lower court, and held that the debentures were entitled to the payment of their bonds in full after the conventional sale by the receivers. In the opinion by the supreme court it was said:
“The management, whose competency had been challenged, functioned as members of the reorganization committee. Having failed to obtain the assent of all the security holders to its plan, the committee sought the aid of a court of equity to compel the minority’s acquiescence; and the corporation joined as defendant in the prayers of the bill. Reorganization was the primary relief sought. The appointment of the receivers and the judicial sale were the device employed to effect a transfer of the assets of the existing corporation to a new one, thereby relieving both from the payment of the former’s debts. By these means it was hoped to subject all dissenting creditors to the condition of impotency so frequently occupied by minority stockholders.
“The substantive law affords no warrant for so abridging the rights of individual creditors. ... If, acting upon purported authorizations from the board of directors and all stockholders, the radiator corporation had sought to achieve the purpose of the reorganization committee by a voluntary transfer of all of the assets to a new corporation, the conveyance would have been fraudulent in law as to dissenting debenture holders. . . .
“The sale and reorganization being in law fraudulent as to the petitioners in No. 64, it remains to consider the relief to which they are entitled. . . . The relief and the procedure should be the same here. . . .
“Nothing in the indenture with the Bankers Trust Company, or in its action as trustee thereunder, interferes with affording them this relief. That instrument expressly reserves to the individual debenture holders the right to collect interest and principal in an action at law. If that right was impaired by the acts of the trust company, in declaring the principal of the debentures due and securing judgment thereon, equity will grant relief; because those acts, done at the request of the reorganization committee, were incidents of the plan which we hold was fraudulent in law as to these petitioners. The debenture holders who, by assenting to the plan, cooperated with the corporation and the reorganization committee, are in no position to complain that these petitioners will fare better than they.” (pp. 517, 518, 520.)
While the foregoing case in its facts is not identical with the one at bar yet the principles of law laid down in it are identical with those involved in the present case. The plan appears to have been put into execution by the actions of the trustee, the Individualizing Company and some bondholders. The contract, although ratified by a decree of the court, is invalid. The defendant, Carrie B. Heskett, is entitled to be paid the full amount of her bonds and interest. It appears that the contract sought to be substituted for the one she held under the trust deed is made without authority of law, and it is therefore held that the judgment shall be reversed and the cause remanded with direction to enter judgment for the defendant, Carrie B. Heskett. It is so ordered. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is a compensation case involving mainly the question of the necessity of making a second written claim for compensation within ninety days after the date of the last payment of compensation, when a written claim had been made for compensation within ninety days after the accident which caused the injury.
The claimant was injured in his left foot and ankle October 6, 1932, and on November 15, 1932, he gave to the representatives of the respondent a written statement of his injury, which he denominates a written claim for compensation, and on the same day compensation was paid him in the sum of $48.60 and he signed a release in settlement and satisfaction of all claims for compensation on account of the accidental injury suffered by him. The physician pronounced the claimant as fully recovered, and he resumed his labor about the time of the settlement. Within a year after such settlement, viz., on November 6, 1933, the claimant filed with the compensation commission his motion to set aside the agreement or final receipt, release and report for the reason mainly of a mutual mistake as to the recovery from the injury and that the compensation paid and received was grossly inadequate. The matter was heard by the compensation commission and the award was denied, from which ruling the claimant appealed to the district court, where upon examination of the evidence and proceedings had before the commissioner the trial court made the following findings of fact and conclusions of law:
“That the claimant suffered an accidental injury which has caused the total loss of the use of his foot and ankle. That on November 15, 1932, the claimant made a written claim for compensation upon respondent’s insurance carrier and its adjuster, John Sargent, who then paid to claimant the sum of $48.60, as compensation, and then took a release for said amount. That at the time said release was taken, all the parties herein were mutually mistaken as to the nature and extent of claimant’s injury and thought that claimant had fully recovered, which later facts and conditions arising in claimant’s foot and ankle from his injury clearly disclose was not the case, and the release executed between the parties was made under a mutual mistake of facts as to the nature and extent of claimant’s injury, and the amount of compensation paid to claimant under said release for his injury was grossly inadequate and the release should be set aside because of said mutual mistake and is without merit.
“The court further finds that the claimant must be denied further compensation for his injury for the reason that the claimant did not make an additional written demand for compensation within ninety days after his compensation was paid on November 15, 1932, as is required under the case of Skinner v. Dunn Mercantile Company, 132 Kan. 563, and claimant is therefore denied further compensation for his injuries.”
' From this judgment the claimant appeals, and the respondent also served a notice of cross appeal as to the adverse ruling in setting aside the release.
The injury, as stated above, occurred on October 6, 1932, so the making of a written claim for compensation by the claimant on November 15, 1932, as found by the trial court, was within ninety days after the accident and was in full compliance with the first requirement of R. S. 1933 Supp. 44-520a, and there was sufficient •evidence to support such finding.
We are not furnished with the evidence upon which the district court based its finding of fact that the release was made under a ■mutual mistake as to the nature and extent of the injury and it is not suggested that there was not sufficient evidence to support such finding.
The appellee as well as the trial court, as shown by its conclusions of law, relied strongly upon the decision in the case of Skinner v. Dunn Mercantile Co., 132 Kan. 559, 296 Pac. 341, which involved both the question of the always necessary written claim to be made for compensation within ninety days, either from the date of the injury or from the last payment of compensation, and also the question of setting aside a release by commencing an action for that purpose within twelve months after its date, as provided in R. S. 1933 Supp. 44-527. It was there held:
“Where no written claim or demand has been made for compensation within the ninety-day limit provided by statute, the joining or coupling of an action for compensation with an action to set aside a release, commenced within the twelve months allowed for that purpose, will not obviate the requirement and necessity of making such claim or demand within the prescribed time.” (Syl. 112.)
Appellee also urges strongly the ruling in the case of Fougnie v. Wilbert & Schreeb Coal Co., 130 Kan. 410, 286 Pac. 396, where the claimant failed to recover solely because he did not make a written claim for compensation within ninety days after the payments of compensation had ceased. The later case of Harrigan v. Western Coal & Min. Co., 133 Kan. 573, 300 Pac. 1115, which follows and approves the ruling in the Fougnie case, is cited by appellee, but in neither of these cases had a written claim been made within ninety days after the accident as in the case at bar. In the former case the only reliance by claimant upon a formal demand for compensation was upon the one made about eight months after payments of compensation had ceased, but an excuse for the delay, which was not recognized by the statute, was given. In the latter case the court prefaces its conclusion as to the necessity of making such claim within ninety days after suspension of payment with the comment that so long as the employer pays a sufficient compensation there is no need of making a formal written claim.
None of the many cases cited by the appellee undertake to require the making of a written claim after the payment of compensation ceases when one had been made within ninety days after the accident. The statute requiring such written claim (R. S. 1933 Supp. 44-520a) makes it in the alternative by using the disjunctive “or” instead of the conjunctive “and” between the two requirements as follows:
“No proceedings for compensation shall be maintainable hereunder unless a written claim for compensation shall be served upon the employer. . . 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. . . .”
In the case of Pribbenow v. Meeker, 139 Kan. 325, 31 P. 2d 15, the respondent contended that the requirement of the statute for a written demand for compensation within ninety days after payments ceased applied only in cases of personal injuries and did not apply to claims of dependents for compensation for the death of a workman. In response to which argument the court said:
“We do not so construe the statute. The times are stated in the alternative: within ninety days after the accident ‘or’ within ninety days after payments have ceased ‘or’ within six months after the death of the workman.” (p. 327.)
It was further stated in the same opinion on page 328:
“Parties may agree on compensation and pay it without a demand for compensation having been made. (R. S. 1933 Supp. 44-521.) When that is done it seems clearly to have been the intent of the legislature that no demand need be made as long as payments continued. If they ceased, then the demand should be made within ninety days after the date of the last payment.”
This matter of there being no necessity under the statute to make a second or additional claim for compensation when one had already been made was fully and carefully covered in the opinion in the case of Lenon v. Standard Oil Co., 134 Kan. 289, 5 P. 2d 853, as follows:
“Finally, it was argued by appellant that the compensation payments had been suspended for more than ninety days, and no written notice having been served upon the employer for the continuance of compensation, no further proceedings could be invoked by Lenon to obtain compensation- in view of R. S. 1930 Supp. 44-529a, which briefly provides for a written claim for compensation to be served upon the employer within ninety days after the accidental injury, or after the date of the last payment of compensation. This section applies to proceedings for establishing a claim for compensation. It had been complied with in this case before the claim was heard by the compensation commissioner. The statute does not require a second compliance with it after a hearing and judgment by the district court.” (p. 293.)
Appellee here stresses the reference to a hearing of the case by the commissioner and also a hearing and judgment by the district court, and argues that the rule is limited to such cases only. Such a restricted construction is not in harmony with the quoted paragraph in its entirety nor the third paragraph of the syllabus. This decision in the Lenon case was referred to and approved in the case of Flanagan v. Lux, 141 Kan. 88, 40 P. 2d 458, where claimant attempted to establish the making of two written claims under the statute, one within ninety days after the accident and the other after the payment of compensation had ceased, and it was said:
“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.” (p. 99.)
And again in the concluding sentence of the opinion, on page 96, it was said:
“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.”
After careful consideration the same result has been reached and • is expressed in the -following language in the case of Copeland v. Martin Metal Mfg. Co., post, p. 725, 42 P. 2d 982:
“Where an injured workman makes a sufficient demand for compensation within ninety days after the date of injury, and thereafter receives payments of compensation, it is not necessary that within ninety days after compensation ceases he make another written demand in order to maintain proceedings for compensation.” (Syl. U 2.)
Since a formal written claim was made in the case at bar at the very beginning and at the time compensation was paid.and within ninety days from the date of the accident, as found by the trial court, there was no necessity under the requirements of R. S. 1933 Supp. 44-520a of making a second or additional demand within ninety days after payments of compensation ceased, as the requirement is in the alternative.
The judgment of the trial court is affirmed as far as the setting aside of the release is concerned, but reversed as to the necessity of making a second or additional written claim after compensation payments had ceased.
The cause is remanded with directions to modify the rulings as above indicated and allow claimant such compensation as the evidence may justify. | [
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The opinion of the court was delivered by
Burch, J.;
The action was one by a school district against the surety on the bond of the district treasurer. The court refused to strike a portion of the answer, and the school district appeals.
In April, 1929, at the annual school meeting, J. L. Balia was elected treasurer of the district. W. J. Randall signed his bond as surety. The bond provided for faithful performance of duties of the office. The petition alleged Balia died a defaulter in the sum of $2,507.96, and prayed judgment against Randall for that sum.
At the school-district meeting Balia was elected treasurer to succeed himself. The answer alleged that in his first term Balia misappropriated specified sums of money, and other sums, so that at the end of the first term, he had in his hands as treasurer only $46.88. The answer further alleged:
“That on April 12, 1929, the regular meeting of the plaintiff district took 'place; that said Balia, as such treasurer, presented to said meeting a pretended report, purporting to show a balance of school funds in his hands of $2,925.88; that said pretended report was incorrect, false and untrue; that said Balia did not then have said pretended balance, or any part thereof, save the trifling sum of $46.88, aforesaid; that an auditing committee was appointed at said meeting to examine the treasurer’s report'; that the patrons of said district present at said meeting and the said auditing committee made no inquiry or investigation and exerted no efforts to ascertain the incorrect and false status of said pretended report; that said Balia, as such,treasurer, never at any time produced or exhibited to said meeting, or to said auditing committee, or to the board of said district any money, checks, drafts, certificates of deposit, bonds, notes or other thing of value to evidence his actual and bona fide possession of said purported balance of $2,925.88, or any part thereof.”
The foregoing are the allegations of the answer which the court refused to strike.
The surety contends that if the allegations of the answer should be proved, the surety could not be held for the full amount of money with which the treasurer charged himself at the end of his first term, but only with the amount not misappropriated, $46.88. The school district contends the surety was conclusively bound by the treasurer’s report, showing he had in his hands the sum of $2,925.88.
The statute reads:
“The treasurer shall keep a book in which he shall enter all the moneys received and disbursed by him, specifying particularly the sources from which money has been received, and the person or persons to whom and the objects for which the same has been paid out. He shall present to the district at each annual meeting a report in writing, containing a statement of all moneys received by him from the county treasurer during the year; also, all moneys collected by him during the year from assessments in the district, and of the disbursements made by him, with the items óf such disbursements, and exhibit the vouchers therefor, which report shall be recorded by the district clerk; and at the close of his term of office shall settle with the district board, and shall hand over to his successor said book and all receipts, vouchers, orders and papers coming into his hands as treasurer of the district, together with all the moneys remaining in his hands as such treasurer.” (R. S. 72-1020.)
It seems that in Illinois the report of a school treasurer who succeeds himself, showing the amount of money on hand at the time a surety becomes such, may not be contradicted by the surety. (Cowden v. Trustees of Schools, 235 Ill. 604.) By the weight of authority the bond is not retroactive, and does not cover defaults occurring in the preceding term; and in a suit against the surety, the treasurer’s report to the board or school-district meeting is prima fade evidence only, with respect to actual amount in the treasurer’s hands at the beginning of the second term, and the surety may show the facts. (23 L. R. A., n. s., 131, note.)
This court has held that in an action against a school-district treasurer and his surety for shortage in a fund, the treasurer is not concluded by his report, which is prima facie evidence only against him. (Saville v. School District, 22 Kan. 529.) In this instance, the statute was ignored, and in such a case it is clear the surety is not estopped to contest the treasurer’s report or settlement, which are prima facie evidence only. (See School District v. Herkenrath, 155 Ia. 275, 281.) In the case of Zavesky v. Maryland Casualty Co., 136 Kan. 478, 16 P. 2d 504, the principal and surety on a guardian’s bond were held to be estopped by the principal’s accounting to the probate court. In that case, verified reports were filed in a court of record, and judicial action was based on them.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
Our attention has been called, in the petition of the appellees herein for a rehearing, to the inaccuracy of the following sentence in the paragraph next to the closing one of the opinion, viz., “It was not passed upon by the trial court,” referring to the regularity of the action of the arbitrators in making and reaching an award, and to the fact that such matter was involved in the decision rendered on May 25, 1933, in sustaining a demurrer to the petition, from which ruling no appeal was taken. Leave of court, however, was granted to file an amended petition which repleaded each and every part of the original petition and alleged additional equitable grounds for specific performance and injunction, some of which concerned the making and reaching of the award. The appeal to this court was, of course, limited to matters involved in the amended petition and subsequent pleadings, and therefore the ruling on the demurrer to the original petition was not being reviewed in this court. Strictly speaking, the matter referred to had been passed upon, as appellees state, and therefore the sentence should be and is eliminated from the opinion.
This, however, does not change the result. The sustaining of the demurrer to the original petition was not res adjudicata nor conclusive, because the trial court at once granted plaintiff leave to file an amended petition, which it did, and it contained every allegation contained in the original petition and many additional allegations.
The petition for rehearing is denied. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action against a stockholder in a failed bank to collect the statutory double liability. Judgment was for plaintiff. Defendant appeals.
The petition alleged the bank became insolvent; that defendant owned thirty-five shares of the par value of $3,500 and that defendant had paid $500 on the liability. Suit was brought for $3,000.
The answer was a general denial, except that defendant admitted the bank was being liquidated; that he was the owner of the stock mentioned and that he had paid $500 on the liability.
The defense relied upon is set out in paragraph 3 of the answer. It was there pleaded that about April 25, 1930, and prior to the closing of the bank, defendant, at the demand of the bank commissioner, purchased certain assets of the bank, which were deemed to be of little or no value, for $15,000, and that among these assets was one note for $2,000 and another note for $1,5.00, both secured by mortgages on the building used as a post office in the city where the bank was located, and the $2,000 mortgage and note were kept and held by the receiver, and that collections had been made upon this note and applied to the payment of the debts of the bank.
The answer then contained the following allegation:
“That said note and the mortgage securing the same was and is the property of this defendant, and that by reason of the application of the proceeds of said note to the assets of said bank, this defendant is entitled to have a credit upon the double liability for which he is liable in the sum of $2,000.”
The answer contained some further allegations with reference to other assets. These defenses have been abandoned.
The reply of plaintiff was a demurrer and general denial. With reference to the allegations in paragraph 3 of the answer, the reply alleged that the only connection the bank had with the property mentioned was that the bank owned the mortgage; that under the terms of the mortgage it was being paid off at the rate of $30 a month, the rentals of the property being used to apply on these pay-. ments. The reply alleged that there was still due on the mortgage the sum of $1,073.32. The reply then alleged that the defendant was not entitled to offset any of these payments against his liability. The trial court gave judgment for the plaintiff on the pleadings. From that judgment this appeal is taken.
The position of defendant is that while the notes in question were not indorsed to him, still under the agreement and transaction pleaded, the notes became the property of defendant and were not a part of the assets of the bank. Hence, when the receiver obtained possession of these notes he held them for the benefit of defendant.
We fail to see wherein the facts in this case bring it under any different rule than that announced in the case of State Bank v. Reed, 114 Kan. 216, 217 Pac. 320. What defendant is in effect asking is that he be allowed to offset the indebtedness of the receiver to him against his indebtedness for the benefit of the creditors of the bank. This court held in the above case that a stockholder when sued on his double liability was not entitled to this offset. We still adhere to that view.
The judgment of the trial court is affirmed.- | [
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The opinion of the court was delivered by
Hutchison, J.:
This is a controversy between the lessors and the lessee of an ordinary oil lease as to the amount of the royalty due thereunder to the lessors, where the lease is subsequently modified by a city ordinance limiting the number of oil wells to one in a block and requiring.the payment of certain royalties to all the other lot owners in the block.' The plaintiffs claim the lessee should stand a share of the loss sustained by paying royalty to other lot owners in the block rather than the lessors to stand all of it.
The plaintiffs herein own an undivided six-sevenths interest in four lots in block 5 in the city of Chase, in Rice county, Kansas, a city of the third class. The owner of the remaining one-seventh interest, Dave Robinson, is not a party to this action, but did join with the plaintiffs in executing the lease in question, so it will be practical to consider the plaintiffs as representing the entire ownership of these four lots, although the holder of the one-seventh interest may not be bound by the ruling in this case. The four lots constitute approximately one-third of the total area or square footage of the block. The exact amount is stated in a stipulation filed by the parties during the trial of the case and also in the conclusions of law rendered by the trial court. We will in this opinion speak generally of the interest of the plaintiffs as being one-third the total footage of the block.
The lease on these four lots was executed by all the owners to the defendant company on September 13, 1932, giving it the right to drill thereon for oil within one year from its date and to continue as long as oil is produced from the lots by the lessee. The lessee promised therein to deliver to the credit of the lessors one-eighth of all oil produced and saved from the leased premises.
The lessee within the year allowed by the lease began the drilling of ah oil well on one of these four lots. However, before it began to drill two city ordinances were passed by the mayor and council of the city of Chase, the second ordinance being an amendment of section six of the original ordinance extending the provisions of the ordinance to lot owners in the block who may have signed a community lease, as well as to those not having signed any lease whatever when the drilling of the well in their block had commenced. In this instance, all the other lot owners in this block had signed a community lease in which the defendant herein was the lessee, and it was executed prior to the enactment of the city ordinances.
Both parties concede the right of the mayor and city council in the exercise of their police power to limit the number of wells in a block to one, and to require the driller to deliver to the credit of the other lot owners in the block a share of the oil produced and saved from the only well being drilled on the block, the amended ordinance providing—
“. . . that if parts of a block are included within the terms of a community lease, it shall be a condition of said permit that the permittee, its successors or assigns, shall deliver to the credit of such community lessors a share of all the oil produced, saved or marketed from such well equal to one-eighth of the proportion of the whole production of such well that the square feet of ground covered by such lease in said block bears to the square feet contained in said block, exclusive of streets and alleys. . .”
Section six of the original ordinance provided only for those lot owners whose lots were not under lease, and it required the driller to give to them the proportion of one-eighth of the whole production from such well that the square feet of ground so owned and unleased in said block bears to the square feet contained in such block, exclusive of streets and alleys. In other words, section six of the original ordinance was providing for the owners of unleased lots in the block and giving them a proportionate share of a one-eighth royalty. An ordinance practically the same as this original one in the city of Chase was the one involved in the case familiarly known as the Oxford case, Helmerich & Payne, Inc., v. Roxana Petroleum Corp., 136 Kan. 254, 14 P. 2d 663.
In the trial of the case at bar the court heard and passed upon some matters involved in the pleadings which we think will not materially affect the real question here to be determined, viz., a proper proportion of the oil for the lessors and the lessee, there being no controversy here now as to the share of the oil to go to the other lot owners. In the Oxford case the lessee was a party thereto but was not included in the appeal to this court, and its share of interest in the oil produced and saved was therefore not directly under consideration, and it was there held:
“The ordinance of the city of Oxford regulating the drilling and operation of oil wells within the city interpreted, and held, the provisions relating to distribution of oil produced superseded the terms of a lease between a lessor and his lessee.” (Syl.)
In that case, with the lessee being dropped out of the appeal, the amount given the other lot owners reduced the amount the lessor would have received had it not been for the ordinance. Counsel for appellants puts this proposition in the form of a question, as follows:
“. . . should this burden be borne solely by the lessors, or should it be borne by lessors and lessees proportionately as they are interested in the lease, i. e., % by the lessees and % by the lessors?”
The trial court after making findings of fact in detail, but substantially as heretofore indicated in this opinion, then made the following conclusions of la\v based thereon:
“1. That the plaintiffs in this action are not entitled to the relief prayed for or to any relief in this action.
“2. That the defendant's herein are entitled to the relief- prayed for in their answer. ...
“3. That the provisions of said lease relating to the distribution of oil produced was and is superseded by the terms of ordinances Nos. '116 and 120 of the city of Chase, Rice county, Kansas.
“4. That the defendants are entitled to and should distribute the proceeds from the oil produced from the well on said lot 15 in block 5 of the city of Chase, Kansas, according to the provisions of ordinances Nos. 116 and 120, and the plaintiffs and Dave Robinson and Ella Robinson, his wife, are entitled to receive .3,329,053 of the one-eighth of the oil produced and saved from the leased pi'emises.”
Our attention has not been directed to anything in the opinion in the Oxford case, accepted by both parties in this case as applicable thereto, which would tend to fasten the whole of this burden imposed by ordinance upon either lessor or lessee alone, but there are three expressions which might strengthen the contention of the appellants in favor of a division of the burden or loss sustained by giving shares to other lot owners. The first two relate to the free right of the lessor under the ordinance to contract for the amount,of royalty to be paid with respect to his own land. And concerning this right it was said on page 256 of the opinion:
“This provision related to division between lessor and lessee of apportion-able production, and not to source or quantity of oil to be divided.”
And on page 257 it was said:
“The section was not intended to secure to a lessor on whose lots the single well provided for by the ordinance is drilled, the stipulated royalty, say one-eighth, computed upon oil drained by the well from lots the lessor did not own, and upon which the owner was prevented from drilling.”
Another expression on page 257 is capable of application to the situation and facts in the case at bar. It is as follows:
“Both lessee and lessor were obliged to accept the situation resulting from enactment of the ordinance, and the lessee used the lease to obtain a permit, not merely for his own benefit, but also for the purpose of securing to the lessor whatever accrued to the lessor under the ordinance.”
Section eleven of the original ordinance in the case at bar is as follows:
“That neither this ordinance nor any permit issued hereunder, shall be interpreted to grant any right or license to the permittee to enter upon or occupy in any respect in the drilling or production operations, any land except by the written consent of the owner, nor shall it limit or prevent the free right of any lot owner to contract for the amount of royalty to be paid with respect to his own land.” ' ' '
Appellee in support of the conclusion of the trial court urges that the ordinance nowhere authorizes a different proportionate share for the lessors than for the other lot owners, and that if permitted it would be discriminatory, unreasonable and an arbitrary exercise of police power. Appellee further urges that a different distribution with the lessors from that allowed the other lot owners in the block would be unfair and give such lessors a tremendous advantage over the other lot owners and would be giving them a share of the oil drawn from under the other lots of the block, whereas they should under the ordinance receive in conjunction with the other lot owners of the block only one-eighth of all the oil produced and saved from the entire block.
Appellee makes no allowance for the inconvenience and annoyance of having the work of drilling done on the lessors’ lots and the continued annoyance of having the pumping done and the oil tanks located so near at hand. This is something under section eleven of the ordinance above quoted, which any lot owner can refuse, and only by written consent of the owner can the drilling be done on any lot..
The appellee insists that its seven-eighths should remain undisturbed by the ordinance, and yet by the ordinance the lessee is permitted to draw the oil that is under all the lots by drilling only one well. As this defendant has leases on all the other lots in the block it would have to drill offset wells on the other lots were it not for the ordinance.
Appellee illustrates the unfairness of the proposed division by taking a block containing 24 lots and drilling under a lease on one of the lots. In such a case each of the owners of the 24 lots would, under the ordinance and lease, receive /2i of Ys of the oil produced, whereas under the claim and plan of the appellants the owner of the lot on which the well was drilled would get Ys of all the oil produced except the * of Ys-
Appellants have illustrated the situation as claimed by them to be authorized by their written lease and their written consent to drill on appellants’ lots by using decimals, which are very accurate, but more difficult to comprehend than if expressed in barrels of oil. We said at the beginning of this opinion we would consider the four lots owned by the appellants as covering approximately Ys of the entire square footage of the block, and the balance of the block as being approximately % of the block. Now suppose the well produces 800 barrels of oil a day. On the basis of % royalty 100 barrels would be considered as royalty, and 700 barrels as belonging to the driller or lessee. Then the owners of % of the block would receive credit for % of 100 barrels on the % royalty basis fixed by the ordinance, or about 66 barrels, leaving about 33 barrels of the % royalty. The appellee insists this is all that appellants should have, as it is % of % of the oil produced and saved.
Appellants claim the terms of their lease are modified only so far by the ordinance as it was necessary in the exercise of the police power of the city authorities as would serve the other lot owners to the share allotted them by the ordinance, and that the contract between them and the lessee should remain as it was except only for such necessary modification, which burden should be borne by botli of the contracting parties instead of one of them only. This would leave 733% barrels after giving the prescribed share to the other lot owners and that balance should be divided between the lessors and lessee on the basis of % to the lessors and % to the lessee, or about 92 barrels to the lessors and about 641 barrels to the lessee.
The ordinance fixed the royalty of all other lot owners in the block except the lessors and on a footage proportion of % of the oil produced and saved, but section 11 gave the contracting parties a free right to fix the amount of the royalty in their lease, and if it had been fixed in the lease at Vie of the oil produced, would the lessors here be entitled to the 33 barrels left out of the % royalty? Or take it on the other extreme, suppose the lease had called for a royalty of %, must the lessors be satisfied with the 33 barrels because that was the proportion given to the other lot owners?
Surely the provisions of the ordinance supersede the terms of the lease only so far as is necessary to give the ordinance full force and effect, and both parties should yield and accede to its terms far enough to accomplish the purpose and intention of the governmental authorities in the exercise of their police power, which was to prevent numerous oil wells in the same block and to provide for a reasonable share of the proceeds to go to all the other lot owners in the block. Aside from that, the contract as made by the parties should stand and be enforceable.
Under the heading of “Specific Performance” in 25 R. C. L., at page 247 et seq., it is stated that courts of equity will require such parts of a contract as are possible of performance to be enforced, even if it cannot all be performed. Our own court in such a case held in Herman v. Sawyer, 112 Kan. 6, 209 Pac. 663:
“The action was one by a vendee to compel specific performance of a contract to convey three quarter sections of land. The contract was not signed by the vendor’s wife, and one quarter section was a homestead. Held, a decree should be entered for conveyance of the other two quarter sections, with proper abatements of price.” (Syl. If 1.)
This ruling was followed and approved in an action where damages were sought for failure to perform such a part of a contract that could be performed. (Hughes v. Cressler, 130 Kan. 533, 287 Pac. 271.)
The same principle was followed where the holder of a life and health insurance policy undertook to collect thereon upon the terms prescribed therein after the fraternal insurance company had by appropriate legislation subsequently amended the laws of the order, which materially modified and changed the rights of the policy holder. (Dey v. Knights of Ladies of Security, 113 Kan. 86, 213 Pac. 1066.)
We conclude that the enactment of the ordinances by the city authorities of the city of Chase was such an exercise of police power as to affect the terms of the lease previously executed and the rights and privileges of both contracting parties, but left the contract capable of being enforced as written, except as to the distribution of the oil to the owners of the other lots in the block, and all that remained after such distribution to other lot owners should be distributed according to the terms and provisions of the lease between plaintiffs and defendant.
The judgment of the trial court is reversed and the cause is remanded with instructions to direct distribution to the plaintiffs on the basis of one-eighth of all the oil that remains after making distribution to the other lot owners, as required by the ordinances, observing the fractional relation of the footage as expressed in the stipulation and the conclusions of law. | [
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The opinion of the court was delivered by
Dawson, J.:
This appeal presents the question whether a judgment debtor in foreclosure proceedings on real estate may redeem the property from the sale in foreclosure for less than the amount -of the mortgagee’s bid therefor.
The facts were as follows: James C. Cunningham owned an eighty-acre tract of land near Delia. It was encumbered with a first mortgage of $2,900, and a second mortgage for $2,050, held by the Delia State Bank. The bank was in the hands of Charles W. Johnson as receiver, presumably because of its insolvency.
The receiver brought suit to foreclose the second mortgage. Judgment was decreed in favor of plaintiff; foreclosure was decreed and order of sale issued; and on November 23, 1931, the property was sold by the sheriff and bid in by the receiver for the face of the bank’s judgment, $2,050. The sale was confirmed on December 4, 1931, and the judgment debtor was given eighteen months in which to redeem. Under various moratorium acts and gubernatorial proclamations, whose validity is not questioned, the period of redemption was extended until March 1, 1935.
On September 24, 1932, the certificate of purchase at foreclosure sale held by the receiver was sold by him to E. I. Zirkle for $550. On or prior to'January 23,1934, Cunningham, the judgment debtor, tendered to Zirkle the sum of $550 to redeem the property. Zirkle declined to accept that amount; and this proceeding was brought in an effort to obtain an adjudication that Zirkle is not entitled to exact the full amount of the mortgagee’s bid as evidenced in the sheriff’s certificate of sale issued to the receiver and assigned to Zirkle, and that the latter must content himself with reimbursement in the sum he had actually paid therefor.
Such a contention is untenable. If the purchaser at the sheriff’s sale should be disposed to part with his interest for less than it cost him — for 10 cents on the dollar — or to bestow it as a free gift upon a third party, that is no concern of the judgment debtor. In order to redeem the property he must pay the amount for which the property was sold at the foreclosure sale. Such is the plain letter of the statute, the pertinent part of which reads:
“The defendant owner may redeem any real property sold under execution, special execution, or order of sale, at the amount sold for, together with interest, costs and taxes, as provided for in this act, at any time within eighteen months from the day of sale as herein provided, . . .” (R. S. 60-3439.)
The later amended statute, R. S. 1933 Supp. 60-3439, does not vary from the one just quoted in the matter of present concern. “The amount sold for” at the foreclosure sale (together with costs and taxes) is the amount the redemptioner must pay. (Clark v. Nichols, 79 Kan. 612, 100 Pac. 626; Kueker v. Murphy, 86 Kan. 332, 120 Pac. 362.)
Appellant directs attention to R. S. 1933 Supp. 60-3443, in which, among other matters, it is provided that the terms of redemption in all cases shall include the reimbursement of the amount paid by the then holder of the certificate of purchase, added to his own claim, etc. Appellant argues that Zirkle, assignee of the certificate of purchase from the receiver, is the “holder of the certificate of purchase” contemplated by the statute. In a certain sense that is true, since he is the lawful transferee of the rights of the purchaser at the foreclosure sale; but the statute contemplates that the rights of the original holder of the certificate of purchase may be assigned (R. S. 60-3457), and when transferred they are precisely the same when vested in the assignee as they were in the original certificate holder, no matter what consideration the assignee may have given to acquire them. (Austin v. Ballard, 84 Kan. 619, 114 Pac. 1084.) It is a common fallacy to construe a statutory provision without regard to its context. Here the construction contended for by appellant would vitiate the express language of R. S. 60-3439, quoted above, which declares that the “amount sold for” at the foreclosure sale must be forthcoming to effect its redemption.
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The opinion of the court was delivered by
Thiele, J.:
This is an .appeal in an action to recover damages. After a jury had returned a verdict in favor of the defendant, the trial court allowed plaintiff’s motion for a new trial, and the defendant appeals, the errors specified being the overruling of its demurrer to the plaintiff’s evidence, and the granting of a new trial.
In its brief, the appellant has elected to rely solely on the question of the demurrer. We will notice the matter of the new trial to this extent, however. In ruling on the motion the trial court said:
“In matters of this kind, it is discretionary with the court; in other words, it is a matter of arbitrary decision of the court,”
which is not correct. Discretion and arbitrary decision cannot exist together. They are opposites. If the court decides the matter arbitrarily or capriciously, it is not exercising its discretion. The court continued its remarks and finally said:
“I am inclined to think the jury got confused, and so, while maybe there is no real ground for setting aside their verdict, yet I am not quite satisfied with it. I will give her another trial.”
This indicates an exercise of discretion, even though based on rather weak ground. In view of the number of questions arising from rulings on motions for new trials, the court hearing the motion should be careful to exercise a sound discretion, and not leave ground for a belief that its ruling is based on arbitrary or capricious grounds.
With respect to the demurrer, it may be said that the petition stated a cause of action, as did plaintiff’s opening statement. Briefly stated, it was that an alleyway- entering into an east-and-west street was paved with old brick, and had deep holes and depressions and an uneven surface, which had existed for months, which facts were known to the city; that the alleyway sloped from the south to the north, and where pedestrians were compelled to: use it was on a slight down-grade, which fact, together with the holes- and depressions, made it unsafe for pedestrians to walk; that the alleyway was covered with ice formed by water running down the alleyway collecting in the holes and depressions and over the uneven surface, forming a slick body of ice several inches thick; that plaintiff walked along the south side of the street and while crossing the alleyway she fell and was injured, for which she sought damages. The accident occurred on December 17.
The meteorologist of the United States weather bureau at Wichita testified that on December 8 there was some snow, on December 9 over two inches of snow, and a little more snow on December 10, 11 and 15. On December 14 the maximum temperature was 33° above and on December 17 it was 35° above' and on all intervening days from December 8 on, it ranged from 4° below to 28° above. He also stated snow in the sun might melt at a lower temperature than 32 degrees.
There was testimony, also, that for many months the pavement in the alleyway was rough and that in bad, cold weather it was rough and full of ice, and that on the day of the .accident there were some humps of ice three or four inches high. So far as the record shows, no one'saw plaintiff' fall. Her testimony is that previously in going along the street she walked on the north side of the street because she knew -the south side Was dangerous and she was afraid to cross, but at the particular time she' had ’ crossed over to the south side. While she first said a “hump” tripped her, on direct examination she was asked to tell the jury what caused her fall and answered: ■ ;
“Well, I slipped on the ice and, of course, when you slip- and can’t catch yourself, you are going to go down. Previous to that, just a number of times, I have slipped, but it wasn’t a case of this kind where it was a slant, you know.”
In response to a question to describe the condition of the ice, she said: •
“Well, there were ridges and there were lumps or humps and then there were some places where it was even and slick and I guess that is about all I can say.”
On cross-examination, she testified that she observed there was ice and snow upon the crossing and proceeded the usual way she usually walked along the sidewalk.
“Q. You went straight across on the 'crossing and there was a hump there which you started to cross? A. There was a hump that tripped me. Yes.
“Q. When you reached that hump, I think you told Mr. Ebright that you slipped upon the ice and fell'. Is that correct? A. Yes. I slipped.”
And that her feet slipped forward in the direction she was walking, • and when asked whether she slid-her full length she said: “It wasn’t so slick. It wasn’t-that-it was a large slick place, but it was a' slanting place.”
We have not detailed evidence as t'o claimed, defects in the street independent of the snow and ice, for the reason that there is no connection between them and the injury further than that water might have run into the holes and frozen. As the snow and ice-covered the alleyway, it cannot be said the holes caused the accumulation nor that they contributed to the injury.
Appellee contends that under our decisions in Evans v. Concordia, 74 Kan. 70, 85 Pac. 813, and Speakman v. Dodge City, 137 Kan. 823, 22 P. 2d 485, the-evidence shows conditions -constituting a defect in the street, and it -may be conceded that' there- was testimony which would warrant a jury in finding that ice and snow had been allowed to accumulate and remain and become ridged, rutted and uneven. -But assuming that such -a defect .existed, was. .there any showing that the defect .was the cause of .plaintiff’s injuries? The-evidence showed that at the place of the injury the alleyway sloped toward the street, and while not . clearly shown, we are led to believe that the center portion of the .alley was lower than the sides thereof. Such a condition -is usual, otherwise there would be no drainage. The evidence shows that in this sloping alleyway there were places where the ice and snow were ridged and humped and places where it was smooth.
While it is true that plaintiff said she tripped on a hump of ice, her detailed explanation was that she stepped upon the sloping incline of the alleyway and slipped down. The ruts and ridges in the ice had nothing to do with her fall, and whatever defect there may have been did not contribute to her injury.
But assuming that a jury might have found that she did trip on the ridged and rutted ice, is appellant’s contention that plaintiff was guilty of contributory negligence good? The contention has been raised in many cases involving injuries from defects in streets and sidewalks. In Dunfee v. City of Iola, 92 Kan. 121, 139 Pac. 1029, it was held that—
“It is not contributory negligence per se for one to walk upon a sidewalk which he knows is defective. In doing so, however, he must exercise such care as an ordinarily prudent person would exercise under similar circumstances.” (Syl.)
In Spencer v. City of Kansas City, 92 Kan. 161, 139 Pac. 1029, it was held that—
“The fact that the condition of the walk was apparent did not charge her with negligence in using it, provided she did so with care proportional to the situation, and this was a question for the jury ... It cannot be said as a matter of law that ordinary prudence required the plaintiff to choose one route rather than the other.” (p. 162.)
In Boddington v. Kansas City, 95 Kan. 189, 148 Pac. 252, the syllabus recites:
“While it is the duty of a city to use reasonable care to keep its streets safe for travel; and while one driving over such streets has a right to assume that this duty has been performed, still he must for his own protection exercise such care as ordinarily careful persons would use under like circumstances.”
“What constitutes ordinary care, including the use of one’s senses, must be governed by the circumstances of each case, and what would be carelessness on the part of one driving in the daytime might be prudent and cautious when driving in the nighttime.” (Syl. ¶¶[ 1, 2.)
In Clark v. City of Hutchinson, 114 Kan. 172, 217 Pac. 304, plaintiff stepped in a hole outside the traveled portion of a street on a dark night, and it was claimed she was negligent in not carrying a lantern. The court said:
“If she had even known there was a defect in the street she would not necessarily have been chargeable with negligence. All that was required of her, under the circumstances, was to exercise such care as an ordinary prudent person would have exercised under similar circumstances. (Garnett v. Smith, 72 Kan. 664, 83 Pac. 615; Spencer v. Kansas City, 92 Kan. 161, 139 Pac. 1029.) Not knowing anything about the defect, and having no reason to believe that it existed, it cannot be said, as a matter of law, that she failed to exercise due care. The most that can be claimed, under the evidence, is that it became a question for the jury whether she had exercised ordinary care, care in proportion to the situation, including the darkness of the night.” (p. 174.)
In Weaver v. City of Cherryvale, 102 Kan. 475, 170 Pac. 997, where a plank was used to form a sort of bridge over a gutter, a substitute for a culvert, plaintiff, knowing of the plank and the surrounding conditions, struck her foot on the end of the plank and was injured. An answer to a special question relied on to show contributory negligence was so construed as to be consistent with a general verdict in plaintiff’s favor. It was held that as a matter of law she could not be said to be guilty of contributory negligence because she was familiar with conditions, knew the plank was there and by the exercise of ordinary care could have seen it immediately before reaching it.
And other cases of like import have been decided in this court.
It will be observed that the rule is that use of an apparently defective walk does not charge the user with negligence, provided the user exercises care such as an ordinarily prudent person would exercise under similar circumstances, the question ordinarily being for the jury. However, that does not mean that where the evidence as to the entire situation is undisputed, the court, as a matter of law, may not say that the plaintiff failed to exercise such due care as is incumbent under the circumstances and thus be guilty of negligence. Here the testimony showed plaintiff was aware of the claimed defect and had avoided use of the particular crossing because she knew it was dangerous, yet notwithstanding she proceeded at her usual gait and usual walk to go straight across the crossing. It would seem that with full knowledge of the situation and the claimed dangerous condition with which she was fully familiar, she not only did not affirmatively act with the care an ordinarily prudent person would have exercised in the circumstances, but that she proceeded in utter disregard as to possible consequences.
The trial court erred in not sustaining the defendant’s demurrer to the plaintiff’s evidence.
The judgment of the lower court granting a.new trial is reversed, and the cause remanded to the trial court with instructions to sustain the above-mentioned demurrer. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by plaintiffs, as purchasers of electric current, against defendant, which supplied the current, for overcharges. After a trial the court found for defendant, and rendered judgment accordingly. Plaintiffs appeal.
Plaintiffs operated a marble and granite works in Fort Scott, and used electric current piurchased from defendant. Defendant was a distributor of electric current throughout the territory in which Fort Scott is situated. Plaintiffs’ works was equipped with three motors of thirty, twenty and five horsepower, respectively, making a connected load of fifty-five horsepower.
Defendant had two rate schedules on file with the corporation commission, one known as E-3, and the other as E-5. The E-3 schedule was primarily designed for motor installations of from one to five horsepower, but it was available to all consumers throughout the territory served by defendant. It fixed rates, and contained the following: “The minimum charge shall be $1 per month per connected horsepower.”
The E-5 schedule was designed primarily for large consumers, but was available to all consumers throughout the territory using motor installation of more than five horsepower. The schedule fixed rates, and contained the following: “The minimum monthly charge is the number of contract H. P. times $1.50.”
Between November, 1929, and March, 1932, plaintiffs were charged and paid for current according to the E-3 schedule. Claiming the E-5 schedule was the cheaper, plaintiffs sued for the difference between what they paid and what they should have paid, amounting to $1,013, and interest.
Plaintiffs point to the availability provision of schedule E-3 for small consumers, and of E-5 for large consumers, and say that because they had three motors, of thirty, twenty and five horsepower, respectively, they came within the E-5 schedule. The E-5 schedule was available to small consumers, the E-3 schedule was available to large consumers, and availability did not establish rate for any consumer.
Plaintiffs assert that E-3 is a connected horsepower schedule, while E-5 is a contract horsepower schedule, which is manifestly true. The action, however, is not predicated on any contract horsepower motor installation, which is an installation physically limited to a fixed number of horsepower. Charles W. Bruce, one of the plaintiffs, testified they were free to operate all their motors to capacity at any time, day or night, if they chose to do so, and their full load was fifty-five horsepower. Neis Anderson, chief engineer of the corporation commission, testified that under those circum stances the E-3 schedule was the proper schedule, and that without a fixed horsepower limitation, and with simply a motor installation of connected horsepower, there was no basis other than the fifty-five connected horsepower on which to figure. The chief engineer further testified that for the E-5 schedule to be available, there must be some definitely fixed 100 per cent of horsepower. Whatever the maximum, it may not be exceeded, and to prevent preference and discrimination, there must be an actual physical arrangement whereby the user is unable to connect up with the utility company’s facilities more than the contract horsepower.
The district court adopted the engineer’s interpretation of the schedules as applied to the motor installation in plaintiff’s works, and found for defendant. This court is not authorized to make a contrary finding or to declare the district court’s finding to be illegal.
Defendant undertook to make an arrangement with plaintiffs, whereby they could have the benefit of the E-5 schedule on the basis of an average twenty-horsepower load, which corresponded closely to what plaintiffs used. Defendant’s testimony was the arrangement embraced a definite restriction to twenty horsepower. Plaintiffs deny there was any restriction to twenty horsepower, and contend such an arrangement would be absurd, because plaintiffs’ works were not equipped so that the restriction could be observed. Incidentally, this demonstrates applicability of the connected horsepower schedule. Plaintiffs also contend the arrangement, if made as defendant asserted, was void, a matter with which we are not concerned.
Defendant’s testimony was that the E-3 schedule was in fact cheaper for plaintiffs until consumption reached 3,500 horsepower per month, a quantity which plaintiffs used only occasionally. The fact is interesting, but not important.
The chief engineer for the corporation commission acts in the capacity of adviser to the commission in respect to electric-power rates. In giving his testimony, he sometimes spoke of the practice of the commission, and what the commission would and would not recognize or approve. What he was in fact doing was this: He was testifying as an expert with respect to correct rules and methods “of figuring all those electrical things in connection with rates and installed capacity, and so on.”
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The opinion of the court was delivered by
Dawson, J.:
This was an action on a policy of fire insurance. The defense was a plea of nonliability under its terms.
The facts were these: Prior to the issuance of the policy sued on, one Mrs. Frances Bunn owned the property which was comprised of a dwelling house and a small tract of land. Mrs. Bunn mortgaged the property to the iEtna Building and Loan Association of Topeka to secure a loan of $3,500.
Later, on May 15, 1929, Mrs. Bunn sold the property to one Blanche Baker, subject to the $3,500 mortgage, and took a second mortgage on the property for $2,850 to secure the payment of the purchase price.
Then Blanche Baker obtained the fire insurance policy sued on from the defendant insurance company. It was dated September 27, 1930, and insured the property for $4,000, $3,800 of which specifically covered the dwelling house. A loss-payable clause in favor of the iEtna Building and Loan Association, first mortgagee, was attached to the policy, and the policy was sent to the mortgagee in Topeka.
Mrs. Bunn, the second mortgagee, assigned her second mortgage to her sister, Mary Raney, plaintiff herein. Blanche Baker defaulted in her payments on both mortgages, and at the instance of one Ransdall, local agent of the first mortgagee, and who was also agent for the defendant insurance company at Independence, Mary Raney, plaintiff herein, commenced proceedings on December 24, 1931, to foreclose her second mortgage. Judgment was entered in her behalf on April 29, 1932. Five days later, May 4, 1932, the house burned.
In accordance with the loss-payable clause the defendant insurance company paid the sum of $3,335.88 to the first mortgagee and took an assignment of the mortgage.
On August 30, 1933, some sixteen months after the fire, Mary Raney got an assignment of the interest of Blanche Baker in the insurance policy (already largely discharged by payment to the first mortgagee) and brought this action to recover thereon. Among other matters plaintiff alleged that the policy had been negotiated through one J. W. Sevier, agent for the defendant at Independence, and that after the fire a later agent of defendant, M. D. Ransdall, advised her that defendant had adjusted the amount of the loss at $3,800, and that proper proofs of loss had been furnished. Plaintiff prayed judgment for $3,800 and interest thereon and for an attorney’s fee.
The defendant insurance company answered with a general denial, citing certain provisions of the policy, particularly one which provided that the commencement of foreclosure proceedings would avoid it, and that no officer or agent of the defendant had authority to waive any of its terms except by written indorsement on or attached to the insurance contract.
Plaintiff’s reply raised issues of law and alleged that defendant’s agent, Sevier, and his successor, Ransdall, had actual knowledge that the property was covered by a second mortgage, and that—
“About December-, 1931, [Ransdall] orally requested plaintiff to foreclose her said second mortgage in district court of Montgomery county, Kansas, at Independence, and at the same time orally said to plaintiff that he would look after the said policy of insurance on said property described and keep it in force for insured and plaintiff, and there was nothing for plaintiff or insured to do concerning said policy because of said foreclosure, and that in event of loss he would keep in mind the record of the title as shown by the register of deeds office and court action.”
In her reply plaintiff further alleged that it was pursuant to this request of Ransdall that she commenced the foreclosure proceedings which ripened into judgment on April 29, 1932; that a judicial sale in foreclosure followed on July 16, 1932, at which sale plaintiff bid in the property; that those proceedings were known to Ransdall as agent of defendant at the times they transpired; that Ransdall as agent for defendant—
“Orally waived the provisions of said policy in this action sued on, concerning the foreclosure proceedings and change of ownership as above recited, and defendant company is estopped from enforcing said provisions of said policy in reference to foreclosure and change of ownership.”
Replying further, plaintiff alleged that when the policy was executed and delivered to Blanche Baker, Sevier was the “local general agent” of defendant who had negotiated the insurance contract ; that on October 30,1930, Sevier, with the knowledge and consent of defendant, transferred his insurance business as agent of defendant to Ransdall, and that the latter had conducted defendant’s business as its “local general agent” at Independence ever since, and that Ransdall had waived whatever requirements of the policy had not been complied with by the insured.
At the trial plaintiff adduced evidence which tended to show that Ransdall was quite aware of the existence of the second mortgage, and that he repeatedly urged plaintiff to commence foreclosure proceedings, with the admonition and advice that if she did not do so, “the iEtna company was going to foreclose their mortgage,” and that to save her mortgage she would either have to pay up the overdue installments on the first mortgage or take it up. Plaintiff testified:
“I told him I would foreclose. I asked him if there was any papers for me to sign and he said ‘no, there would be no papera for me to sign to take care of that.’ I asked him about the insurance and he said the insurance and the abstract was with the ¿Etna.
“Q. Give us the substance of what he said to you about what he would do with reference to the insurance policy. A. He said he would see to it and keep it alive for me.”
Mrs. Bunn, sister of plaintiff, gave testimony to the same general effect. The testimony of a third sister, Mrs. Prescott, accorded with the foregoing, except as follows:
“We thought the insurance was with Hunter [another insurance agency] ; but you see Mr. Ransdall had the ¿Etna mortgage for Mr. Baker, and we didn’t know it until after the fire that Hunter didn’t have the insurance, that Mr. Baker had canceled it with Hunter and taken it elsewhere.”
Plaintiff herself had testified that a policy against fire had been taken with the Hunter agency.
There was no evidence that the defendant insurance company had any notice or knowledge of the existence of the second mortgage unless the knowledge of Ransdall, its agent at Independence, had that effect.
Touching the scope of Ransdall’s agency, it was shown that he solicited insurance, wrote policies, countersigned them, collected, made indorsements, issued vacancy permits, mortgage clauses, but he had no authority to cancel policies and did not issue foreclosure permits. Defendant sent him policies in pads ready to be filled out, already signed by the president or secretary of the company.
Defendant’s demurrer to plaintiff’s evidence was sustained, and judgment was entered in favor of defendant.
Plaintiff appeals, contending, first, that the evidence was sufficient as against a demurrer to show that Sevier and, later, Ransdall, were general agents of the defendant; that their knowledge that the insured property was covered by a second mortgage was notice to their principal; that Ransdall’s urging of plaintiff to commence foreclosure of her second mortgage and his assuring her that he would see to the insurance and keep it alive for plaintiff was a waiver of the provision in the policy that commencement of foreclosure proceedings would vitiate it; and that the provision of the policy that its terms could only be altered or waived by written indorsement on or attached to the policy was not binding on the assured or plaintiff as assignee of the assured’s interest.
A provision in a fire insurance policy that the commencement of foreclosure proceedings shall render the policy void is valid. (Hole v. Nat’l Fire Ins. Co., 122 Kan. 328, 252 Pac. 263, 50 A. L. R. 1113 and note; 26 C. J. 238-239; 14 R. C. L. 1126-1127.)
Appellant contends that the provision of the policy that no officer or agent of the defendant shall have power to waive any of its terms except by written indorsement on the policy or attached to it is nugatory, and certain early Kansas cases are cited in support of this contention. (Long Island Ins. Co. v. G. W. Mfg. Co., 2 Kan. App. 377, 42 Pac. 738; Insurance Co. v. Gray, 43 Kan. 497, 23 Pac. 637.) It will not be necessary at this time to reexamine the wisdom of that rule, although its possibilities for the encouragement of perjury are obvious. We note in passing that there are two lines of authority on the subject. (32 C. J. 1318-1320; id., 1339-1341; 2 Couch on Insurance, 1515 et seq.) Appellant likewise contends that Sevier and his successor, Ransdall, were general agents. A specific adjudication to that effect would probably be a surprise to these agents as well as to their company; but it will not be necessary to determine the point.
Let us assume that the provision of the contract against the efficacy of an oral waiver is nugatory, and that Ransdall was a general agent of defendant with authority .to make an oral waiver of the provision in the policy that the commencement of foreclosure proceedings would avoid the policy. What were the facts upon which the claimed oral waiver is predicated? We use the word "facts” rather than the word “evidence” merely because the cause was disposed of on demurrer to the evidence, which assumed that the evidence was true. When Ransdall was urging plaintiff to commence foreclosure- proceedings, giving the reason therefor that otherwise the first mortgagee would foreclose with the consequent likelihood that plaintiff’^ second mortgage would be squeezed out, he was obviously speaking as agent of the mortgage company, not as agent of the insurance company. When Ransdall told plaintiff he would see to the insurance and keep it alive for her, what insurance did plaintiff understand him to be talking about? Certainly not the insurance policy issued by this company. Plaintiff knew nothing about that insurance policy. She supposed it was some insurance policy which had been issued through the “Hunter agency,” and which unknown to her the husband of the mortgagor had canceled. There is not the slightest ground for the assumption that Ransdall was speaking in his capacity as agent for this defendant when he promised to keep the insurance alive for plaintiff’s benefit.
In Cure v. Insurance Co., 109 Kan. 259, 198 Pac. 940, it was said:
“To constitute a waiver of a contract right, there must be a clear, unequivocal and decisive act of the party showing an intention to relinquish the right, or acts amounting to an estoppel on his part.” (Syl. H 2.)
See, also, 27 R. C. L. 908-912.
Let us next consider if plaintiff has ¡-another string to her bow by virtue of the assignment of the mortgagor’s interest in the policy which plaintiff acquired long after the fire. The policy insured the house for $3,800. The defendant paid the first mortgagee the sum of $3,335.88, from which it might superficially appear that the insured had a balance of $464.12 due her, which she could collect or lawfully assign to plaintiff. But the provision of the policy that the commencement of foreclosure proceedings would vitiate it was certainly good against the insured. Ransdall made no promise to Blanche Baker, the insured owner of the doubly mortgaged home, that this insurance policy sued on or any other would be kept alive for her benefit if foreclosure proceedings were instituted against her and her property. She could not recover on the policy. Therefore the assignment of her interest sixteen months later to plaintiff conveyed nothing.
Some other matters urged in appellant’s brief have been considered, but since the foregoing effectively disposes of this appeal they do not require discussion.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action by a user of electricity against the producer and seller to recover some portion of payments, previously made, on the ground the rates charged were excessive. There was a trial by a jury, which answered special questions and returned a verdict for plaintiff for $2,000, on which judgment was rendered. Defendants have appealed.
Since 1920 the city of Holton has owned and operated an electric power and light plant and distributing system and has been manufacturing electric energy and selling it to users thereof within and near the city. The plaintiff creamery company is one of the large users of electric energy, which it purchases from the city. The rate charged by the city and'paid by plaintiff was determined by city ordinance. These rates were changed by new ordinances enacted from time to time. In 1920 the rate in excess of 1,000 kilowatts was 6% cents per kilowatt. In 1922 this'was changed to 5 cents, in 1927 to 3% cents, in 1930 to 3 cents, and in 1932 to 2 cents. Each month the city presented the plaintiff a bill for electric energy consumed by it, computed under the ordinance then in force. Plaintiff paid these bills as presented, except a few times when payments were delayed.
In December, 1931, plaintiff sued to enjoin the city from cutting off its current for nonpayment of its bills, alleging the rates charged were high, oppressive and confiscatory; that it was unable to pay the rates and compete with other concerns engaged in the same business, and notwithstanding this the city threatened to and would cut off the current, to plaintiff’s irreparable loss, for which it had no adequate remedy at law. The city filed a general demurrer to plaintiff’s petition. This was sustained by the trial court, and plaintiff appealed. Our decision was handed down in April, 1933 (Holton Creamery Co. v. Brown, 137 Kan. 418, 20 P. 2d 503). The city, by its demurrer and for the purpose of a ruling thereon, admitted its rates were high, oppressive and confiscatory. That question was not before the court for decision. The question presented was whether the plaintiff’s grievances were redressable by the city, as contended by plaintiff, or through the public service commission, as contended by the city. This court held in accord with plaintiff’s view and reversed the trial court and remanded the cause for further proceedings. We were told on the oral argument on the present appeal that soon after our prior decision a new ordinance was enacted by the city establishing a lower rate. However, we are not concerned on this appeal with any question involving the present rate.
After the cause was remanded for further proceedings, by leave of court plaintiff filed an amended petition in which it denominated its original petition as. its first cause of action and added a new second cause of action in which it sought to recover from the city a money judgment in the sum of $15,000. Plaintiff’s rights to recover such a judgment were predicated upon allegations to this effect: That since 1921 plaintiff has purchased electric energy from the city; that under the laws applicable thereto the city, on plaintiff’s application therefor which it made, was under the duty of furnishing plaintiff electric energy at a reasonable rate; that there was an implied agreement the same would be furnished at a reasonable rate, the same being the legal and lawful rate; and, notwithstanding this, defendant charged and collected from plaintiff illegal, excessive, exorbitant and confiscatory rates, which plaintiff paid under protest, to plaintiff’s damage in the sum named. The trial from which this appeal is taken was upon this new second cause of action.
Defendant’s answer alleged the court had no jurisdiction of the subject matter, denied that its rates charged were unreasonable, that plaintiff had made any payments under protest, and that it had been damaged in any sum.
The evidence presented was of the character ordinarily presented to a public service commission, or similar body, on a hearing to fix reasonable rates of a public utility; the instructions of the court embodied rules of law proper for such a commission to consider in determining a reasonable rate, and the special questions submitted to the jury related to those matters. There was no special finding ■that any rate charged at any specific time was unreasonable; but from the general verdict we may presume the jury concluded that rates charged at some time, or all the time, in the twelve years covered by the inquiry were unreasonable in the aggregate to the amount of $2,000. The jury found some payments were made under protest, but could fix no date or amount of such payments.
Appellants argue several questions. It will be necessary to decide but one of them, namely: Did the court have jurisdiction of the subject matter of this action? They argue:
“The court only has jurisdiction to determine the reasonableness or unreasonableness of a rate. It cannot fix the amount of the rate. Therefore, until a proper rate-making body has fixed a reasonable rate, no action can be brought to recover for alleged overcharges.”
Is this argument sound? If so, plaintiff could not recover any sum, for there is no contention by plaintiff that a rate-making body, which for this case is the governing body of the city, had fixed a rate less than the amount plaintiff paid. The point was raised in this case not only in the answer but by demurrer to plaintiff’s evidence, and by motion for judgment for the city notwithstanding the general verdict.
It is clear, of course, that before the trial court in this case could render any money judgment for plaintiff it in effect would have to fix a rate for a time plaintiff was furnished electric energy by defendants and then determine how much, if any, plaintiff had paid in excess of that rate. Since a public utility, such as the one here in question, is impressed with the public interest, the state has the general power to regulate the utility and to fix its rates charged to consumers, subject always to the.requirement that the rates so fixed shall be reasonable. The state - does this through the legislative branch of its government. This power of the state to fix rates is not a judicial function, but is a legislative one. (51 C. J. 12.) Treating that question in State, ex rel., v. Flannelly, 96 Kan. 372, 152 Pac. 22, this court said:
“Who has the power to fix the rates at which natural gas shall be sold by the receivers of the Kansas Natural Gas Company, the public utilities commission, or the court appointing the receivers? The legislature has said that the public utilities commission shall fix these rates. The courts have repeatedly declared that the courts cannot fix rates, and that fixing rates is a legislative function. When rates are fixed the courts can ascertain whether or not they, are in violation of law or of some constitutional provision. -But courts have not the authority to determine what rates will be reasonable, just, compensatory, or legal, and then put in effect those rates. The commission cannot finally determine what rates will be legal and will not violate constitutional provisions. The commission is the body authorized by law to say in the first instance what rates are legal and will not violate constitutional provisions, but the courts must finally say whether or not the rates fixed are illegal or do violate such provisions. The one function is legislative, while the other is judicial. The commission cannot invade the field occupied by the court; neither can the court invade the field occupied by the commission. The commission must act first, and the courts afterward.” (p. 382.)
This doctrine so well stated has been consistently followed in this state, as shown by the following list of cases dealing with the question, and some of them reannouncing the doctrine: State, ex rel., v. Gas Co., 88 Kan. 165, 127 Pac. 639; Telephone Co. v. Utilities Commission, 97 Kan. 136, 154 Pac. 262; State v. Gas Co., 102 Kan. 712, 172 Pac. 713; City of Hutchinson v. Bell Telephone Co., 109 Kan. 545, 550, 200 Pac. 301; City of Winfield v. Court of Industrial Relations, 111 Kan. 580, 207 Pac. 813; Railroad and Light Co. v. Court of Industrial Relations, 113 Kan. 217, 214 Pac. 797; State, ex rel., v. Telephone Co., 115 Kan. 236, 223 Pac. 771; Gas & Fuel Co. v. Public Utilities Commission, 116 Kan. 165, 225 Pac. 1036; Consolidated Flour Mills Co. v. United Water, Gas and Electric Co., 119 Kan. 47, 237 Pac. 1037; City of Hutchinson v. Hutchinson Gas Co., 125 Kan. 346, 355, 264 Pac. 68; City of Wichita v. Wichita Motor Bus Co., 126 Kan. 677, 271 Pac. 403; Atchison, T. & S. F. Rly. Co. v. Public Service Commission, 130 Kan. 478, 287 Pac. 608; Atchison, T. & S. F. Rly. Co. v. Public Service Comm., 130 Kan. 777, 288 Pac. 755; Wichita Gas Co. v. Public Service Com., 132 Kan. 459, 295 Pac. 668.
It follows, therefore, that the trial court had no jurisdiction of the subject matter presented to it in this action.
Plaintiff has proceeded as though there existed a reparation statute applicable to such rates, such as the one applicable to common carriers before this court in State, ex rel., v. Public Service Comm., 135 Kan. 491, 11 P. 2d 999, and that it had taken the proper steps before the rate-making body, namely, the governing body of the city, and had there had it determined that a certain portion of the payments previously made by plaintiff had been unlawfully exacted. We are cited to no such statute relating to a public utility, and if one existed no contention is made that plaintiff took the preliminary steps to bring itself within such a statute.
The result is, the judgment of the court below must be reversed with directions to enter judgment for defendants. It is so ordered. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action by an administrator de bonis non against a former administrator and his bondsman to recover unadministered assets of an estate, and for conversion in case the assets could not be delivered. Judgment was for plaintiff. Defendant appeals.
Hattie M. Henry died testate on July 13, 1928. No executor was named in her will. At the time the will was drawn she owned the-fee title to a quarter section of land. In her will she devised-a life estate in this quarter section to her husband with remainder-over to his heirs, subject to the payment of $2,800’ to certain of her- brothers and sisters. Another clause made the husband the sole residuary legatee. Before the death of testatrix, however, she sold the land and received cash for it. There was no land upon which the life estate could operate and the husband, R. L. Henry, became the sole legatee under the will.
On September 19, 1928, one of the defendants, R. Boyd Wallace, was appointed executor of the estate of Hattie M. Henry.
On January 19, 1929, Robert L. Henry, the husband, made an assignment in which it was recited that Hattie M. Henry had devised a life estate in the land to Robert L. Henry, with remainder to his heirs, but had provided that before the heirs of Robert L. Henry should receive the remainder the sum of $2,800 should be paid to certain brothers and sisters of Hattie M. Henry; that she had sold the land before her death and on that account all the property of which Hattie M. Henry died seized, which included the money received from the sale of the land, passed to Robert L. Henry absolutely. The assignment then recited that Robert L. Henry desired that the original wishes of Hattie M. Henry be carried out and directed R. Boyd Wallace, executor, to pay to certain named sisters and brothers of Hattie M. Henry the sum of $2,800, share and share alike, and made the sum a charge against the share of Robert L. Henry in the estate .of Hattie M. Henry. This assignment was filed in the probate court on February 12,1929.
On June 21, 1931, the executor filed his final account in the probate court, published his notice of final settlement and filed his application for discharge.
On the 28th day of July he appeared in probate court for a hearing on his application. At that time Robert L. Henry filed a motion to set aside the assignment. The probate court did not pass on this motion.
Here the claims of parties differ. The defendants claim that Robert L. Henry then agreed with Wallace that Wallace should hold the $2,800 and invest it and pay the interest to Henry during his lifetime, and at his death pay the amounts fixed in the assignment to the brothers and sisters. The plaintiff denies this. The trial court found in favor of the plaintiff, that there was no such an agreement. At any rate, R. Boyd Wallace did hold the $2,800 and paid Robert L. Henry the interest on it until the death of Henry on October 4, 1932. At the time the motion to set aside the assignment was filed Wallace paid to Henry all the estate that was in his hands except $2,800. The report of the executor contained the following recitation:
“Balance on hand:
Paid Robert L. Henry................... $1,171.41
Balance on hand ........................ 2,800.00
$3,971.41 $3,971.41
Report examined and approved.
W. T. Buckijs, Judge.”
On April 29,1933, the six brothers and sisters of Hattie M. Henry filed an application in probate court asking that Wallace be compelled to complete his final settlement and make distribution in cash of the $2,800. On the 19th day of May hearing was had and .the court directed Wallace to make distribution. This was not done.
On October 27, 1933, on application of the same parties, the probate court superseded R. Boyd Wallace by appointing A. L. Roberts administrator de bonis non and ordering the payment of the $2,800 to him.
. This action was brought by Roberts against R. Boyd Wallace and the company that furnished his executor’s bond. Trial was had before the court. The finding on the dispute of fact has been noted heretofore. Judgment was for the plaintiff for the $2,800, with interest and attorney fees and costs. The defendant bonding company appeals.
The defendant bonding company contends first, that the orders of the probate court from April 29, 1933, to October 27, 1933, were made without jurisdiction on the part of the probate court. The argument is, that the making of the orders in question constituted the exercising of equity jurisdiction by the probate court, which it could not do.
The court has considered such a question in Proctor v. Dicklow, 57 Kan. 119, 45 Pac. 86. The court held:
“Specific authority is conferred upon the probate courts to settle the accounts •of administrators, and to order the distribution of the estates of deceased persons, and, having jurisdiction to make distribution of an estate, it follows as a necessary incident to the jurisdiction that it can determine who is entitled to the funds, and all questions necessary to a proper distribution of the estate.”
In the opinion it was said:
“In this state probate courts are given complete jurisdiction of all matters connected with the settlement of the estates of deceased persons, and specific authority is conferred upon them to settle the accounts of administrators and to order the distribution of estates.” (p. 124.)
In the case of Keith v. Guthrie, 59 Kan. 200, 52 Pac. 435, this court held:
“When one claiming to be entitled to a distributable portion of a decedent’s estate, applies to the probate court for an order upon the executor for payment of the share claimed to be due, and the executor appears and resists the making of the order, but the court grants the application and orders payment; held, such order is conclusive upon the executor unless appealed from, and he cannot collaterally attack it by injunction proceedings in the district court to restrain the distributee from enforcing it.”
To the same effect is Correll v. Vance, 127 Kan. 840, 275 Pac. 174. In Schmidt v. Simmons, 136 Kan. 666, 17 P. 2d 835, it was said:
“The appellants contend that the order of the probate ■ court was not an adjudication binding on the defendants, and that the trial court should have permitted the introduction of their testimony impeaching the findings of the probate court.
“The probate court is a court of limited jurisdiction, but it is given probate jurisdiction over the estates of deceased persons (Const., art. 3, sec. 8), and while acting within such jurisdiction its judgments are binding and conclusive unless appealed from. The court is given express power by statute to make final settlement and distribution of estates. (R. S. 22-901 et seq.) It may remove an administrator from office for failure to account and settle the estate according to law. (R. S. 22-323.) Where an estate has not been fully administered the court shall appoint an administrator to settle the estate, and it is the duty of such administrator to acquire the possession and control of the assets of the estate and, if necessary, maintain an action against the former executor or administrator and the surety on his bond. (R. S. 22-326.)
“The rule was early established by this court that in an action upon the official bond of an executor the judgment of the probate court concerning the accounting of the administrator and all matters included therein are conclusive as against collateral attack (Smith v. Eureka Bank, 24 Kan. 528; Jones v. Jones, 125 Kan. 403, 408, 265 Pac. 66, and cases there cited), and this adjudication is held to extend to and is binding upon the sureties on the official bond. (Sparr v. Surety Co., 99 Kan. 481, 162 Pac. 305; Oberst v. Mooney, 135 Kan. 433, 439, 10 P. 2d 846.)” (p. 669.)
In this case there can be no doubt that the administrator had not administered the estate according to law. There was $2,800 clearly not administered. In such a situation under the authorities cited when it was brought to the attention of the probate court that the administration was incomplete it was the duty of that court to order a completion of it. When these orders were made the defendants had a right to appeal them to the district court. This was not done, and the defendants are bound.
Defendant bonding company argues that the assignment created the relationship of trustee and cestui que trustent and that Wallace, as executor of the estate, ceased to hold the $2,800 as such. The trouble with that argument is that the assignment.directed'the administrator to pay the $2,800 out of the assets of the estate.- Nothing was said relative to holding the $2,800 for life of Robert, L, Henry for the benefit of the brothers and sisters, until the oral agreement that R. Boyd Wallace claims was made between Wallace and Henry. The court found that no such agreement was made. The same answer may be made to the argument this alleged agreement constituted Wallace trustee for Henry and the six brothers and sisters and not executor of the estate of Hattie Henry and the argument that the handling of the $2,800 was not covered by the executor’s bond. The trial court held that the agreement upon which defendant relies to change his status from that of executor to that of trustee did not take place. In view of this finding of the trial court the case is a simple one, where an executor has money which came into his hands as executor and for which he has not accounted to anybody. All persons connected with the case admit that he had no right to it.
The judgment of the trial court was that he should pay this money to the administrator de bonis non. We are unable to find any error in this record, and the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This was an action by relatives of Charles A. Haldeman, deceased, against the administrators with will annexed of the estate of the deceased and the beneficiaries under the will and codicil of the deceased, to set aside the will and codicil because of the testamentary incapacity of the testator at the times he executed the will and codicil, and because the provisions of the will and codicil are in violation of the rule against perpetuities and restrictions upon alienation.
The will was executed on May 14, 1931, and the codicil on April 29, 1932. The testator died September 4, 1932, at the age of seventy-six. The will and codicil were admitted to probate, and the administrators with the will annexed were appointed by the probate court of Anderson county, Kansas, on September 20, 1932. This action was commenced in the district court of Anderson county on June 6, 1933.
The petition alleged the relation of the plaintiffs to the testator as being, one an adopted sister, five first cousins, one first cousin by marriage and seven second cousins, and that they were the only living relatives of the deceased, who lived and died a bachelor, and that the deceased owned real and personal property in Kansas and real property in Illinois. The petition also pleaded and cited the applicable laws of Illinois, which would apparently exclude the adopted sister from inheritance of lands of the deceased in that state, if he had died intestate, and would apparently have made the cousins eligible to such inheritance.
The petition alleged at great length and in detail the mental and testamentary incapacity of the testator at and prior to the times of making the will and codicil, and also that they were so made and executed as the result of duress, undue influence, coercion and persuasion.
Separate answers, in effect general denials, were filed by the administrators with the will annexed and the two beneficiaries.
The issues were tried by the court without a jury in November, 1933, and a general finding and judgment was by the court rendered on January 5, 1934, in favor of the defendants and against the plaintiffs. After the overruling of the motion of the plaintiffs for a new trial, an appeal was taken by the plaintiffs to this court.
Our attention has not been called to any testimony introduced by the plaintiffs to show duress, undue influence, coercion or -persuasion, but a large number of witnesses testified as to the physical and mental condition of the testator, his forgetfulness, his eccentricities and peculiarities. A summary of such testimony can best be stated' by quoting the hypothetical question that was by the plaintiffs asked of two doctors called by plaintiffs as experts. This question was as follows:
“Q. Now, Doctor, speaking of and considering a man about seventy-six years of age and in failing health, and assuming the circumstances and actions hereinafter related to be true, a man who appears to be childish by asking many questions such as a small child would ask of you; delight in showing post cards gathered several years earlier in his travels and talking about them, especially pictures of an obscene nature such as nude women; who had grown so miserly that when the heels of his socks wore out he would turn them over and wear the heels on top of his feet; carrying a heavy grip full of post cards with him on his travels; start a childish conversation with a complete stranger, asldng a number of questions; who, while carrying on a correspondence with relatives, claimed he had no relatives; that they were all gone; who refused to permit tenants on his farms to make repairs or improvements of any kind because it would increase his taxes; who sold apples on trees, then forgot the sale and sold them over again; who traded lots for an automobile, then couldn’t remember whose automobile it was; who in 1929 or ’30 received payment in one check for a note held by him and rental on property rented and could not grasp the simple transaction and required that the check be explained to him several times; who showed the will to parties and insisted that a person would not need to be an Odd Fellow to go to the Odd Fellows home and benefit by the will; who when taking a prospective tenant to a farm to lease land could not find the farm, and when taken on the land insisted it was not his land, although he had owned the farm for some considerable time; who leased land and then would try to rent it to others; who talked and acted in such a manner that laymen whom he came in contact with classed him as being in his dotage; who when getting ready to take a trip would pack and unpack, put things in his bag and take them out and then put them in again ; pull down all blinds and tack them down; lock all the inner doors as well as the outer doors; who would not or could not carry on a connected conversation, but would, while talking about something, break right off and start asking questions about something — some other conversation — or start in telling about his travels or some matter foreign to the topic; and who, with no preliminary remarks, in the spring of 1931, stopped a lady on the street and asked would she be afraid to die and told her he would be afraid of the devil; who in conversation would ask the same question over and over again, although already answered, but refused to answer questions himself; who expressed himself as having an extraordinary fear of death; who became lost and could not find his way home in Colony, in the daytime, where he had lived many years and when taken to his home insisted that the house next door was his, and his neighbors and friends had to convince him as to his own home; who became slovenly and obscene or vulgar in his habits; who became so drowsy in the daytime he would drop off to sleep while reading or while talking to friends, who, many times, would not recognize friends of long standing; who could transact routine simple business, but became befogged or befuddled when attempting to transact business a little out of the ordinary, it requiring much explaining before he would grasp the same; who expressed his wish that he knew how long he was going to live, so he could convert his property into money and burn all of it except what he could use himself; who wrote a will and on the next day had fifty copies of it made and distributed down around in the town where he lived; who visited his friends and kept asking them when they were going to die, and who had arteriosclerosis; the above and foregoing circumstances extending from the — over a period from 1928 or ’29 up to his death September 4, 1932. I will ask you, Doctor, in your opinion what was this man’s mental condition, or was he afflicted with any known mental disease or disorder?”
Of course this question does not give the intimacy of the witnesses giving such testimony about the testator, but most of them lived in the same town as the testator or in the vicinity thereof, had known the testator for a long time, saw him frequently and had business relations with him. Two of the witnesses were relatives, one living in Illinois, and the other in California. One was a local doctor who gave the testator treatments in December, 1931, for kidney trouble and hardening of the arteries. He did not make a thorough examination of him because he did not seem to want such done. He thought he was mentally defective and eccentric, and the principal thing that made him think so was the way he carried on conversations.
The two expert doctors answered the hypothetical question, above quoted, by giving it as their opinions that the testator was suffering from senile dementia, and then explained the disease by giving symptoms and characteristics thereof. It was said by them to be a progressive and incurable disease, and when the symptoms are developed and observable the patient is not competent to make a will or transact business of any consequence except ordinary routine' matters.
It is urged by the appellants that the instances and circumstances given by the appellants’ witnesses, other than the doctors, are uncontradicted by the testimony of the defendants, and therefore should be accepted as controlling facts. It is true that no witness of the defendants directly or specifically denied, for example, the statement made by a certain witness for the plaintiffs about the testator being lost, did not know the way to go to his home nor recognize his home when he reached it. A successful defense might be made without being .able to-prove such statement to be false and untrue. It is not our duty-on review to weigh the evidence pro and con and determine which is the stronger and more convincing, nor to give credence to ■ the testimony of one witness and discredit that of another. Our duty, as is plainly stated by counsel for appellants in a succeeding paragraph of their brief, is to determine whether or not the finding of the trial court that the testator had testamentary capacity when he executed the will and codicil is supported by substantial evidence. To do this we must review and summarize the evidence given in support of such testamentary capacity.
One of the doctors living in the same town who had known the testator since January, 1930, and had treated him when he had g heart attack,’said that he stripped him and examined him thoroughly and found him to have a very bad heart; nothing else particularly wrong with him physically; never had any occasion to question his mentality and saw nothing to make him think there was anything wrong with him mentally, and who said he had average intelligence.
Another doctor residing in the same town, who had known him from December, 1930, and had talked to him once about his physical condition, said that he had talked to him occasionally on general subjects and about his travels and never saw or observed anything about him that caused him to think there was anything wrong with him mentally, and so far as he could tell, he was a reasonable, intelligent and shrewd business man.
A banker at Iola, where the testator kept a safety-deposit box, had known him for twelve to fifteen years. He had been a customer of the bank for the last twelve years, and during the last four or five years of his life the banker testified that he had seen him thirty-five or forty times, it would hardly average once a month, and he did not notice any particular change in his mental condition ñor any difficulty on his part in understanding business transactions. He talked entirely coherently and connectedly. The witness could not see that he had any trouble in keeping his mind on the business under discussion even in the last few months of his life. The witness saw him about July, 1932, and did not see anything about him to indicate he wasn’t all right at that time.
Three parties who lived in or very near the same town in which the testator lived rented land from the testator during the last few years of his life. One testified that he rented land in 1931 and 1932, and that the testator wrote the contracts of leases. The last one was written on March 24, 1932. The witness said he knew the testator all his life and saw him write the contract, and it was not copied from another one. Another renter of land from the testator during the same years, who said he was thirty years of age and had known the testator all the witness’ life, testified that he had not noticed any change in him in the last ten or fifteen years, that he seemed to be just as capable of handling his business as ever, nor did he seem to be forgetful. The third renter said he had lived near Colony for thirty-nine years and had known the testator all of his life. He rented land from him in 1931. The contract is in the handwriting of the testator. He said he never had any trouble with the testator over any contract, would see him in town frequently, perhaps once or twice a week for the last few years, and the testator never failed to recognize him.
Another witness, engaged in the lumber business in the same town, knew the testator about forty-five years, saw him often, especially during the last five or ten years of his life, and frequently did business with him by selling him lumber to be used on some of his several farms and lately to build a garage. The witness said he never saw anything about him to cause him to think there was anything wrong with him mentally. He did not notice that he was becoming forgetful, and did not notice any change in his mental state, that his mental condition from time to time, as far as doing business with him, the witness, remained the same over the entire time he knew him. Witness said he did not know of his getting lost in Colony in broad daylight, and never heard about it until he heard it in court; neither did he know about his getting lost and not recognizing his home, and witness had not heard of it before.
Another witness who had been in the garage business in the same town for eleven or twelve years was acquainted with the-testator during at least nine of the last years of his life, and sold him an automobile in October, 1931, saw him on an average of two or three time a day as he was going by the garage and had not noticed any change in him. Witness had tried to sell him an automobile for many years past, but testator got rid of him each time by wanting to trade town lots for the automobile. About two weeks before the sale of the automobile to the testator in October, 1931, the testator asked him what he would allow for a certain car for which he, the testator, had already traded his town lots. Witness made the allowance and testator paid the difference and thus closed the deal. Witness further said he had never noticed any change in the testator and he never knew of his having any difficulty in finding his property.
A husband and wife who lived just across the street from the testator for seventeen years before his death, both testified. The husband said he noticed no change in him during the latter years of his life. He had always thought his conversation was jerky, he would ask a few questions, maybe keep still awhile, maybe talk about something else. That was always his custom and habit of talking as far as he had observed it. He noticed no change in his mental condition in the last two or three years, no difference in his conversation, no difference in his dress or personal appearance or actions around his home, nor any change in his mind that was noticeable. He did not notice any physical decline in him any more than in any other man that was getting older, and was never impressed that there was any mental change. The wife testified that she saw him almost every day and talked with him two or three times a week and noticed no change whatever; he was just as mentally alert a week before he died as he was sixteen or seventeen years before.
Another witness, fifty-two years of age, was acquainted with testator as long as he could remember; he stayed at testator’s home two weeks in January, 1930, when testator was ill; talked with him on various subjects; testator took two daily papers and read them. Witness said that testator talked in a connected and intelligent manner. He observed his condition physically from the time he stayed with him and saw him nearly every day and observed no change in his mental condition up to the time of his death. He was just the same in January, 1930, as he was when witness first remembered him, except physically he was slower. He had grown older and slower and was not as strong physically, but there was no change whatever in his mental state in a period of thirty-five or forty years.
A lady, who with her family lived two doors north of testator on the same street for fifteen or sixteen years before he died, said she did not notice any change in his manner of speech or talk in any way. His mind was all right — she would not say perfect.
AnotheT witness who knew testator forty-five or fifty years; talked with him occasionally and saw him nearly every day during the'last four or five years, and thought he was weaker physically and getting older, thought his memory was not quite so good; testator had said his memory was not as good, he did not remember like he used to, but witness thought he was as sound a year before he died as he was five years before.
Another witness who lived one block north and across the street from testator and saw him nearly every day for the last twenty-three years, said there was never any noticeable change in his conversation or his mental condition. This continued up to the time of his death. The witness stated he had seen him Saturday evening before he died Sunday morning, and had not noticed any change in his mental condition since he had known him.
Mr. Jones, one of the witnesses to the will, testified that he thought the testator was mentally competent to sign the will and seemed to understand the nature of the business he was transacting. Witness said he heard the testator tell Mr. Stiles, the lawyer writ? ing the will, that he owned land in Kansas and in Illinois, and had $100,000 in government bonds; that he was going soon to Illinois to look after his property there; that he had no relatives but an adopted sister, and said something about wanting to build an Odd Fellows home south and west of Garnett.
Although this evidence is very much in conflict with the evidence offered by the appellants, we have no difficulty in concluding that the finding of the trial court is supported by substantial evidence', and we adhere to the rule stated in Randall v. Bird, 118 Kan. 341, 235 Pac. 103, as follows:
“The rule again followed that findings of fact, when sustained by evidence, are conclusive on appeal, although there was evidence on which a contrary finding could have been made.” (Syl.)
In Higbee v. Bloom, 108 Kan. 723, 196 Pac. 1080, it was said:
“In an action to set aside a will on the ground of the mental incapacity of the testator . . . held . . . that notwithstanding the testator was seventy-six years of age and suffered through senile dementia, the provisions of the contested will and the findings showing the circumstances under which it was dictated and executed, establish the mental capacity of the testator immediately before and at the time of its execution.” (Syl.)
In Wisner v. Chandler, 95 Kan. 36, 147 Pac. 849, it was held:
“Evidence that a testator clearly manifested the symptoms of senile dementia before a will was made and that afterwards the mental reduction continued until the extreme degree of dementia was reached at the time of ■ his death, which occurred approximately nineteen months later, is not conclusive of incapacity to make the will. (Syl. 112.)
In Klose v. Collins, 137 Kan. 321, 20 P. 2d 494, it was said:
“The fact that the testatrix at an advanced age when she executed a will, was childish, feeble-minded and forgetful, and had never looked after her own business matters herself, is not in and of itself sufficient ordinarily to render her mentally incompetent to make a valid will.
“The extent or degree of mental capacity of a testatrix necessary to make a valid Mil is to be able to know and understand what property she has, know about her relatives and others who may be the object of her bounty, and be able to direct and make disposition of her property with understanding and reason.” (Syl. Iflf 2, 3.)
In Delaney v. City of Salina, 34 Kan. 532, 9 Pac. 271, it was held:
“The law does not require that a testator shall have absolute soundness of mind in all particulars, but only soundness of mind with regard to the particular matters under consideration; nor does the law require that he shall have the greatest or most perfect capacity of mind, but only such an amount and kind of capacity as will enable him to know what he is doing, the ties of relationship, his obligations to kindred and friends, and to whom he is giving his property.” (Syl. ¶ 3. See, also, Goode v. Cummings, 115 Kan. 516, 223 Pac. 317; and Barnhill v. Miller, 114 Kan. 73, 223 Pac. 317.)
Appellants strongly maintain that the will and codicil are in violation of the rule against perpetuities, that they create a trust for bestowing private charity in the future indefinitely. These are purely law points and depend upon the language of the will and codicil entirely, except for one admitted fact at the time of the trial, which is as follows:
“. . . that the rules of the Odd Fellows Home involved in this litigation provide that no one is admissible thereto except Odd Fellows of a certain age who have belonged to that organization for a certain number of years, and widows and orphans or children, the children not being permitted to stay after graduation from high school or after they have passed eighteen years of age.”
It is also admitted in the pleadings that the Grand Lodge of Kansas of The Independent Order of Odd Fellows is a corporation organized and existing under the laws of the state of Kansas; and that the defendant Bethany Methodist Hospital is a corporation organized and existing under the laws of the state of Kansas and that its principal place of business is located in Kansas City, Kan.
The preliminary sentence of the will in question is in the ordinary and usual form, and the first paragraph of the will provides for his burial and the erection of a suitable monument. The last sentence of the will relates to the testator’s desire prior to his death to erect a home on his farm for old folks to be under the supervision of the Grand Lodge of the Independent Order of Odd Fellows of Kansas, which home it is admitted was not erected prior to his death.
The second paragraph of the will calling for a construction is as follows:
“Second: Having no immediate family except an adopted sister who has sufficient property of her own and is not in need of any part of my estate, and having been for more than thirty (30) years a member of the Independent Order of Odd Fellows, and believing that said Independent Order of Odd Fellows can make proper use of my property for the benefit of my brothers in said order, their widows and orphans, I do hereby give, devise and bequeath unto the Grand Lodge of Kansas of the Independent Order of Odd Fellows, all my property of every kind and nature, real, personal and mixed, and wherever situated after the payment of my debts, burial expenses and the provisions of the first paragraph of this will have been all taken care of, to be held by said Grand Lodge of Independent Order of Odd Fellows of the state of Kansas, for use only in maintaining the Old Folks Home for Odd Fellows now being operated by said Grand Lodge and for the building of such additions, annexes or branches thereof as the proper officers of said Grand Lodge may determine upon and for the aid and assistance of needy Odd Fellows, their widows and orphans.
“It is my desire that such real estate as I may leave be held and the income only therefrom used for the purposes above directed so long as it is practicable to do so . . .”
The portion of the codicil calling for a legal construction is as follows:
“I hereby give, devise and bequeath to Bethany Methodist Hospital, a corporation of Kansas City, Kan., for the care and treatment of crippled children, the following-described real estate situated in Macon county, state of Illinois, to wit:
“The northeast fractional quarter of section seventeen (17), township eighteen (18), range three (3) east, containing 159 acres, more or less.
“The said Bethany Methodist Hospital to receive the above-described real estate in fee simple, they to have full right to use said real estate or dispose of it in any manner which in the judgment of the board of trustees of the said Bethany Methodist Hospital shall be for the best interest of the said Bethany Methodist Hospital in the care and treatment of crippled children.”
Appellants call attention to the following expressions in the will to show that a trust was created thereby, first where he states that he believes that the Odd Fellows can make “proper use of my property for the benefit of my brothers in said order, their widows and orphans.” Again where he says it is “to be held” by the Odd Fellows Grand Lodge “for use only in maintaining” the old folks' home, and, lastly, where he states it is my desire that such real estate as I may leave “be held” and the “income only therefrom used for the purposes above directed” so long as it is practicable to do so.
Do these expressions in connection with the rest of the language of the will create a trust? Appellants remind us of it being said in section 36 (2), Tentative Draft No. 1, Restatement, Trusts, page 79, that “No particular form of words or conduct is necessary • for the manifestation of intention to create a trust.” In most definitions of trusts the legal estate must necessarily be in one and the equitable estate in another. (26 R. C. L. 1168.) In 69 C. J. 710, 711, it is said:
“In order to create a trust by will the intention of the testator must be manifest and mandatory. . . . The fact that the testator designated the purpose for which a legacy must be used does not necessarily indicate an intention to create a trust. . . . Where a will leaves it doubtful whether it was intended ro encumber a gift with a trust, or in any way restrict it, the construction most favorable to the beneficiary will be adopted. Thus the mere expression .of a belief that the devisee will do justice with regard to certain persons, of a desire that a certain disposition of the property should be made by the. beneficiary, of an expectation that the testator’s wishes would be followed, of certainty that the beneficiary would aid the testator’s relatives in case of need, or of a suggestion that the property bestowed be used for certain purposes, does not necessarily indicate an intention to create a trust.”
Also, in the same volume, at page 713 it is said:
“Where a gift is made to a certain corporation or association, which is charged under the will to use it for certain purposes, for the accomplishment of which the corporation or association was formed, the gift is construed as absolute, and not in trust, and this has been held to be true even though the devise is technically in the form of a trust. The same is true in the case of a gift to a corporation or association for the benefit of one of its existing departments, or for the benefit of a department to be created.”
It does not seem that the words emphasized above are strong enough or definite enough to show an intention on the part of the testator to create a trust. However, this preliminary question of trust, as well as the other preliminary distinction made in this case between public and private charities, are pertinent only in so far as they affect the ultimate question in this case as to the will or codicil violating the rule against perpetuities. Appellants cite the case of Troutman v. DeBoissiere, 66 Kan. 1, 71 Pac. 286, as sustaining their contention. In that case a trust deed, instead of a will, was the document under consideration. This-instrument was entitled “Deed of Trust.” The second parties were designated therein as trustees for the third party, “The DeBoissiere Odd Fellows’ Orphans’ Home and Industrial School Association, of Kansas,” and it was there held because the gift was to provide a home and school for the maintenance and education of the children of the deceased members of a secret society it was not a gift for purposes of a public charity .and was void as against the rule prohibiting perpetuities of titles in estates.
The case of Washburn College v. O’Hara, 75 Kan. 700, 90 Pac. 234, is also cited along the same line. In that case a benevolent gentleman gave to the trustees of Washburn College, by will, the residue of his estate, the annual interest of which was to be used for higher education (mainly) of young men for the Christian ministry, with many restrictions as to the conduct and habits of the young men and their being members of some Christian church and not members of any oath-bound secret society, with a preference to be given to his own grandchildren and great grandchildren, and it was held that such bequest created an educational trust, which is a public charity.
Another Kansas case cited by appellants is Treadwell v. Beebe, 107 Kan. 31, 190 Pac. 768, where the testator named a trustee and directed him to pay to the city of Anthony, in trust, certain property to be held by said city and to be by it invested and the net proceeds to be used for the purpose of buying food and fuel for needy and deserving persons residing in the city for six months or more, and it was there held to be a public charity and that.the municipality had authority to administer it in perpetuity.
In one of the most recent opinions, written by Mr. Justice Mason, Malmquist v. Detar, 123 Kan. 384, 255 Pac. 42, it was said on page 385:
- “The rule against perpetuities has to do with the beginning of estates, and its object is to restrain the creation of future conditional interests. (Gray, The Rule Against Perpetuities, 3d ed., §595.)”
In Clark v. Watkins, 130 Kan. 549, 287 Pac. 244, it was held:
“A Masonic lodge, a charitable and benevolent organization, is capable of becoming the beneficiary under a will and of the devotion of the property received to charitable uses.” (Syl. ¶ 1.)
It is said in 5 R. C. L. 315:
“There is a broad distinction between a gift direct to a charity or charitable institution already established and a gift to a trustee to be by him applied to a charity. In the first case the court has only to give the fund to the charitable institution, which is merely a ministerial or prerogative act; but in the latter case the court has jurisdiction of the trustee, as it has over all trustees, to see that he does not commit a breach of his trust, or apply the funds in bad faith to purposes foreign to the charity. Gifts to religious and charitable corporations to aid in carrying out the purposes for which they are organized, whether by expending the principal of a bequest or the income of a bequest to be invested in perpetuity, do not create a trust in any legal sense, do not offend against the statutes of perpetuities, and are not to be judged by any of the well-known rules pertaining to the law of trusts as applied to private individuals.”
In 48 C. J. 952 it is said: *
“The rule against perpetuities, which by its express terms relates to interests and estates that may not vest within the period therein specified, has no application to present interests, legal or equitable, in realty or personalty, whether alienable or not.
“Present gifts of real or personal estates to be devoted to charitable uses commencing in prcesenti are often supported as a supposed exception to the rule against perpetuities.. It would seem, however, that they are properly regarded as present interests, -vested in the charitable institution, and consequently not within the scope of the rule.”
In the same volume, at page 986, it is said:
“Trusts for charitable uses commencing in prcesenti or within the period of the rule against perpetuities are not obnoxious to the rule, although they may continue forever and beneficial interests may arise under them at a remote time, so long as the property given in trust vests in the trustee immediately or within the period prescribed by the rule, even though the payment or application to the designated uses may be postponed.”
We conclude that neither the will nor the codicil in this case creates a trust, and the beneficiaries under both instruments are capable of receiving and devoting the gifts to charitable uses, even if such uses may not be definitely classed as purely public charities. And because the gifts commence in prcesenti, the title vests at once and the right of alienation is not postponed or restrained by future conditional interests under either document, the rule against perpetuities is not violated, and therefore both will and codicil are valid.
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover damages for an injury resulting from the negligent operation of an interstate bus. Judgment was for plaintiff. When the judgment was not paid plaintiff instituted garnishment proceedings against the company which carried the liability insurance for defendant. Judgment was entered for the plaintiff against the garnishee. From that judgment the garnishee appeals.
The defendant is an interstate common carrier operating from East St. Louis, 111., to Kansas City, Kan. He had a permit from the public service commission of Missouri to operate as an interstate carrier of passengers through the state of Missouri. Plaintiff was injured while riding as an interstate passenger. She sued and recovered judgment against the carrier. Shortly after the judgment was rendered defendant ceased doing business. An execution was issued against defendant and on the same day an affidavit in garnishment was filed, alleging that the Central Mutual Insurance Company was indebted to the defendant. This company had issued a liability insurance policy to defendant, in compliance with the statutes of Missouri, at the time his permit to do business was issued. The garnishee filed its answer denying any liability to the Daniels Motor Stages. Plaintiff took issue on the answer of the garnishee. Trial was had on this issue. The court held in favor of the plaintiff and gave her judgment against the garnishee. From that judgment this appeal is taken.
The question is whether or not the policy issued by the garnishee covered injuries to passengers on defendant’s bus. The policy itself provided that the company would pay “any final judgment for personal injury ... . to persons other than passengers.” The argument of plaintiff is that the statutes of Missouri required a motor carrier to carry liability insurance which would provide compensation for injuries to persons resulting from the negligent operation of motor carriers, and that, since there is no exception to the law, it requires insurance covering passengers as well as the public generally. We will concede that if the statutes of Missouri require that the carrier furnish-a policy covering injuries to passengers, the policy in this case should be given that interpretation. This sends us then to an examination of those statutes. Section 5273 of the Laws of Missouri for 1931 provides, in part, as follows:
“No certificate of convenience and necessity, or contract hauler’s permit shall be issued by the public service commission until and after such carrier shall have filed with, and same has been approved by the commission of this state, a liability insurance policy or bond in some reliable insurance company or association or other insurer satisfactory to the commission and authorized to transact insurance business in this state, in such sum and upon such conditions as the commission may deem necessary to adequately protect the interests of the public in the use of the public highways and with due regard to the number of persons and amount of property transported, which liability insurance shall bind the obligors thereunder to make compensation for injuries to persons and loss of or damage to property resulting from the negligent operation of such motor carrier or contract hauler: Provided, That any motor carrier or contract hauler coming under the provisions of this act, who shall funish annually to the commission, and at such other times as may be required, satisfactory proof and evidence of such carrier’s financial ability to properly protect the interest of the public and pay compensation for injuries to persons and loss or damage to property, on account of or arising out of negligent operation of such carrier’s business, shall not be required to furnish liability insurance policy or bond therefor: Provided, That subsection ‘b’ of section 5268 of this act, relating to liability insurance policy shall apply to interstate contract haulers. No other or additional policies, bonds or licenses than those prescribed in this act shall be required of any motor carrier to which this act applies by any city, town or other subdivision of this state: Provided, That this section shall not be so construed as to interfere with the right of any county, city, or other civil subdivision of this state, to levy and collect any property tax to which such motor carrier is liable under the general revenue laws of this state within such county, city, or other civil subdivision wherein the property of such motor carrier may be subject to assessment and taxation. No other or additional policies or bonds than those prescribed in this act shall be required of any contract hauler to which this act applies by any city, town or other subdivision of this state.”
It will be noted that this statute required an insurance policy “in such sum and upon such conditions as the commission may deem necessary to adequately protect the interests of the public in the use of the highways and with due regard to the number of persons and amount of property transported.” (Italics ours.)
Plaintiff directs attention to the portion italicized and urges that this language in the statute must mean that the policy was intended to apply to passengers and property being carried. That does not follow, however. There would be good cause for the commission to take into consideration whether the carrier intended to run one bus a day or to run one every hour although the policy was to cover injuries only to persons other than passengers. The carrier which operates over a line that requires a bus every hour needs a policy in a higher amount than a carrier which operates only one bus a day. It is more likely to injure some member of the public while using the roads. The theory upon which the requirement that a motor carrier may be required to carry liability insurance even though it is operating interstate, is that each state has a right to make such a requirement as a public regulation. It is within the power of the state to safeguard the use of its own highways.
The validity of such a statute has been passed on by the supreme court of the United States. The question first came before that court when attempts were made to establish that no state had power to make such a requirement. The statute of Kansas provides:
“. ■ . No certificate . . . shall be issued . . . until and after such motor carrier shall have filed ... a liability insurance bond ... in such a sum as the public utilities commission may deem necessary to adequately protect the interests of the public . . . which liability insurance shall bind the obligors thereunder to make compensation for injuries to persons . . . resulting from the negligent operation of such motor carrier.” (R. S. 1933 Supp. 66-1,102.)
The supreme court, in considering an action wherein it was sought to enjoin the enforcement of that statute, said:
“First, Private motor carriers of property must obtain a license, pay a tax, and file a liability insurance policy. The public service commission has no authority to refuse a license if the described information is given with the application, the liability insurance policy is filed, and there is compliance with the regulations and payment of the license fee. Section 8. It is not shown that either regulations or license fees are unreasonable. The tax and the license fees, over the expenses of administration, go to the highway fund of the state for the maintenance and reconstruction of the highways the carrier is licensed to use. The insurance policy is to protect the interests of the public by securing compensation for injuries to persons and property from negligent operations of the carriers. Section 21. The district court approved an earlier decision, also by a district court of three judges, that this provision was not intended to require ‘security for passengers or cargoes carried, but only to protect third persons from injuries to their persons or property.’ 55 F. 2d, at page 357; Louis v. Boynton, (D. C.) 53 F. 2d 471, 473. This is an admissible construction, and no different application of the provision appears to have been made by either the state court or the commission. . . .” (Continental Baking Co. v. Woodring, 52 Sup. Ct. Rep. 595, 286 U. S. 352.)
It will be noted that the court in that opinion referred to the opinion in the case of Louis v. Boynton, 53 F. 2d 471. The court upheld the insurance requirement because it had been held in the Louis case that the statute did not require a policy that would cover passengers. A requirement compelling interstate motor carriers to carry a liability policy that would cover passengers would be invalid. The result is that a holding that the statute under consideration makes such a requirement would amount to a decision that the statute was invalid. When a statute is being construed it should be given the construction which will cause it to be valid. We will do that in this case. When so construed, the Missouri statute does not require motor carriers to have a policy that will cover interstate passengers.
The judgment of the trial court is therefore reversed with directions to enter judgment for the garnishee. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an action in quo warranto to determine who is entitled to the office of judge of the city court, division No. 2, of the city of Wichita.
At the general election in 1932 plaintiff was elected to the above office, the duties of which he assumed January 9, 1933. At the general election in 1934, plaintiff was again a candidate, and was opposed by defendant,' who received a majority of the votes cast, was declared elected and a certificate of election was issued to him.
Plaintiff’s contention is that by reason of change in population of the city of Wichita in 1930, the city court of Wichita came under the provisions of chapter 180 of the Laws of 1927 (R. S. 1931 Supp. 20-2101 et seq.), and that under section 5 of that act, as amended by chapter 170 of the Laws of 1929 (R. S. 1933 Supp. 20-2105), he was elected for a four-year term; that by reason thereof there was no office to be filled at the 1934 election and the election of defendant is a nullity. We need not notice plaintiff’s claims that he protested, prior to the primary and general elections of 1934, that there was no expiration of term of office, and therefore no occasion for an election, nor defendant’s contention that plaintiff, having been a candidate, is estopped to claim that he held under a four-year term, for whether the city court of Wichita exists under chapter 180 of the Laws of 1927, as amended, or under other statutes, hereafter referred to, is a question of law, and the determination of that question is decisive of the controversy.
Prior to 1906 our constitution provided that all laws of a general nature should have uniform operation throughout the state, and that no special law should be enacted where a general law could be made applicable, the legislature being the judge as to the necessity. In 1906 the constitution was amended, and since then whether a law enacted is repugnant to this section of the constitution is to be construed and determined by the courts of the state (Const. art. 2, §17).
The statutes involved here apply only to the cities of Kansas City and Wichita. In 1897 a special act was passed establishing a city court in Kansas City township, Wyandotte county (Laws 1897, ch. 107). It was subsequently amended in many particulars, the legislative history being shown appended to R. S. 20-1701 and R.-S. 1933 Supp. 20-1701. In 1927 the statute, as it then existed, was entirely repealed by chapter 180 of the Laws of 1927 (R. S. 1933 Supp. 20-2101 et seq.). This last act on its face is of general nature, but by reason of its population requirements applied only to Kansas City. While in many respects it differs from the repealed statute, essentially it provides for a city court establishment, and the machinery under which it shall operate, just as the repealed act did. Section 1 provided that in all cities of the first class now having or hereafter acquiring a population of more than 110,000 there should be a city court, and provided the act should not be construed to abolish any city court of Kansas City township or terminate the office of any officer thereof prior to January 2, 1929. In 1933 this section was amended to make the population requirement 117,000 (Laws 1933, ch. 172, R. S. 1933 Supp. 20-2101). Section 5 of the act fixed the term of office of the judges at two years, but was amended in 1929 to provide that at the general election in 1932 and each four years thereafter, two judges should be elected, each judge to hold his office for a term of four years. (Laws 1929, ch. 170, R. S. 1933 Supp. 20-2105.) Reference is later made to the title of this last act.
In 1899 a special act was passed establishing a city court in Wichita city township in Sedgwick county. (Laws 1899, ch. 130, R. S. 20-2001.) In 1927 an act of a general nature, but applicable only to Wichita city township, was passed, amending R. S. 20-2001, and providing for a city court in every township in the state located in a county having a population not less than 100,000 nor more than 125,000 and then having a city court (Laws 1927, ch. 182, R. S. 1931 Supp. 20-2001). It was again amended in 1933 to make the population requirements 100,000 to 135,000. (Laws 1933, ch. 171, R. S. 1933 Supp. 20-2001.) The original Wichita act fixed the judge’s term of office at two years and it has never been changed.
Such other changes as have been made in both the Kansas City and Wichita acts as need be noticed will be hereafter mentioned.
When the legislature in 1927 amended the Wichita court act, fixing population limits, and repealed the Kansas City court act and enacted chapter 180 applicable only to cities having over 110,000 population, there was no doubt that one act applied to Wichita and the other to Kansas City. After that year both the city of Wichita and Sedgwick county increased in population and since then the census shows the following:
Year City of Wichita County of Sedgwick
1929 ................................... 108,117 130,543
1930 ................................... 114,388 138,293
1931 ...................................' 106,717 130,941
1932 ................................... 104,165 129,275
1933 ................................... 101,566 127,582
1934 ................................... 99,824 125,164
If it be held that for the city of Wichita to have a city court, Sedgwick county must have not less than 100,000 nor more than 125,000 population, then in 1929 the county having an excess popu lation, which until the amendment continued to be excessive, there was no city court in Wichita city township. On the other hand, by the same process of reasoning, if it be held that by reason of the city’s having a population of 114,388 in 1930, it came within the terms of R. S. 20-2101 et seq., then as soon as it dropped below 110.000 population, it ceased to be within the act, and the city was without a city court. Plaintiff argues that when Wichita attained a population of over 110,000 it came within the purview of the 'last mentioned act and there it remained, and in 1932, when he was elected judge it was for a four-year term. If that be true, then the act of the legislature in enacting chapter 171 of the Laws of 1933, and amending the Wichita court act to make the population limits 100.000 to 135,000 population, was fruitless, for we take notice of the fact there would be no field for operation of the act, at least it made provision for no situation not already provided for.
Under the circumstances, it is quite apparent that the legislature did not intend that Wichita township should not have a city court, and under which law it did have such a court is a question of statutory construction.
The books are full of rules for statutory construction, but they were all enunciated with the idea of determining what the legislature had in mind in enacting the acts under consideration. It is a cardinal rule that all statutes are to be so construed as to sustain them rather than, ignore or defeat them; to give them operation if the language will permit, instead of treating them as meaningless. (Lewis’ Sutherland Statutory Construction, §498.)
In Black on Interpretation of Laws (2d ed.) is the following:
“When the interpretation of a statute according to the exact and liberal import of its words would lead to absurd or mischievous consequences, or would thwart or contravene the manifest purpose of the legislature in its enactment, it should be construed according to its spirit and reason, disregarding or modifying, so far as may be necessary, the strict letter of the law.” (§29.)
“When a resort to extrinsic evidence becomes necessary, in the construction of a statute, it is proper to consider the facts of contemporary history, the previous state of the law, the circumstances which led to the enactment, and especially the evil which it was designed to correct, and the remedy intended.” (§91.)
“A construction put upon a statute by the legislature itself, by a subsequent act or resolution, cannot control the judgment of the courts; but it is entitled to weight and consideration in case of doubt or obscurity.” (§ 95.)
Here we have a situation where there is uncertainty as to which -act applies to Wichita city township, and while, perhaps, there is no ambiguity in either statute standing alone, as applied to the undisputed facts, there is an ambiguous situation. In such case, it is proper to consider, in construing one statute, another statute bearing upon the same subject matter, the rule being stated in 59 C. J. 1042 (Statutes § 6201:
“Statutes in pari materia are those which relate to the same person or thing, or to the same class of persons or things, or which have a common purpose, .and although an act may incidentally refer to the same subject as another act, it is not in pari materia if its scope and aim are distinct and unconnected. It is a well-established rule that in the construction of a particular statute, or in the interpretation of its provisions, all statutes relating to the same subject, or having the same general purpose, should be read in connection with it, as ■together constituting one law, although they were enacted at different times, .and contain no reference to one another. The endeavor should be made, by tracing the history of legislation on the subject, to ascertain the uniform and -consistent purpose of the legislation, or to discover how the policy of the legislature with reference to the subject matter has been changed or modified from time to time. In other words, in determining the meaning of a particular .statute, resort may be had to the established policy of the legislature as disclosed by a genez’al couz’se of legislation.. With this purpose in view therefore it is proper to consider, not only acts passed at the same session of the legislature, but also acts passed at prior and subsequent sessions, and even those which have expired or have been repealed.”
“Statutes in pari materia, although in apparent conflict, should, so far as reasonably possible, be construed in haz’mony with each othei, so. as to give force and effect to each, as it will not be presumed that the legislature, in the enactment of a subsequent statute, intended to repeal an eai'lier one, unless it has done so in express terms; nor will it be presumed that the legislature intended to leave on the statute books two contradictory enactments. But if there is an unreconcilable conflict, the latest enactment will control, or ■will be regarded as an exception to, or qualification of, the pz’ior statute.” (§ 621, p. 1051.)
“It has been held that, in the construction of a statute, contemporaneous legislation, although not precisely in pari materia, may be referred to in order to ascei'tain the intent of the legislature in the use of particular terms.” (§ 622, p. 1056.)
See, also, 25 R. C. L. 1060 (Statutes § 285) et seq., treating on the •same subject.
It is apparent that when the various city courts were established it was by virtue of special acts. In so far as Wichita city township is ■concerned, it will be observed that there is a continuation of legislation so far as its city court is concerned. Each act with reference to it is an amendment of some previous section by specific reference, even though since the change in the constitution the amending acts purport to be of general application. Perhaps so far as the Kansas city court is concerned, this is not so clear, for when chapter 180 of the Laws of 1927 was enacted, the former Kansas City court act was repealed, yet even there specific reference is made to the Kansas City court, and the act, although stated as of general nature, was by its terms limited to the Kansas City court as of the date of its passage, and when the last-mentioned act was amended by chapter 172 of the Laws of 1933, to raise the population limit to 117,000, the effect was to make it applicable only to Kansas City township. And as bearing on the question of intent of the legislature to keep the two courts separate and distinct, attention is directed to the enacting clause of chapter 170 of the Laws of 1929, relating to city courts in cities of the first class of not less than 110,000 population in counties “having an assessed valuation of less than $200,000,000,” and amending certain sections of chapter 180 of the Laws of 1927. While the title of the act is broader than its subject matter, it indicated a legislative interpretation that chapter 180 of the Laws of 1927 should not apply to the Wichita court, for the assessed valuation of Sedgwick county for the years here material was as follows:
1929 .............................................. 8209,561,686
1930 .............................................. 221,480,344
1931 .............................................. 228,758,527
1932 .............................................. 213,209,500
In 1933 the valuation of the county was below $200,000,000, but in that year and before assessed valuation was determined, chapter ■ 171 of the Laws of 1933 was enacted.
While in a general way the two series of acts are similar, there are many respects in which they are absolutely different. Judges in Kansas City receive $3,600 per year, in Wichita $3,000, although from 1929 to 1933 they received the same salary, and the salaries of the clerks and marshals also differ. The Kansas City court has parole powers, the Wichita court does not. The Wichita court has a court stenographer, the Kansas City court does not. The Kansas City court has certain powers in aid of execution, the Wichita court does not. In the Wichita court act change of venue may be taken to the district court; there is no similar provision in the act under which Kansas City operates. And other changes might be noted.
From the whole chain of legislation, it is apparent that the legislature meant that in so far as city courts are concerned, Wichita city township was to be governed under one series of acts, and that Kansas City township was to be governed under another series of acts, otherwise there was no point in making separate and distinct provisions for them. It may be conceded that the method of legislation left something to be desired in the way of clarity, and that in so far as population limits are concerned that the legislation did not keep quite abreast of the growth of the city of Wichita and Sedgwick county, but it is clear that whatever may be said, it was never intended that either Wichita city township or Kansas City township should at any time be within the purview of legislation patently enacted for the regulation of the other.
Our conclusion is that when plaintiff was elected to the office of judge of the city court of Wichita city township, division No. 2, at the general election in 1932, it was for a two-year term; that there was an expiring term in the office to be filled at the general election in 1934, and the defendant, having received a majority of the vote of the electorate thereat and having been duly declared elected, is entitled to that office.
The plaintiff is not entitled to the relief prayed for,.and judgment is entered for the defendant. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action on the total and permanent disability provisions of a life insurance policy. The trial court found generally for plaintiff. Defendant has appealed, and contends (1) the evidence does not support a finding of total permanent disability as defined in the policy; and (2) under the circumstances it was plaintiff’s duty to submit to an operation.
The action was brought on a life insurance policy issued by defendant to plaintiff July 25, 1921, and on which the premiums had been paid. In addition to features of the policy not here in "question it contained, or had attached as a part of it, provisions respecting . total and permanent disability benefits which, shortly stated, are to this effect: After one full year’s premium shall have been paid, if insured, before he attains the age of sixty years, furnishes the insurer proofs that he has become totally disabled by bodily injury or disease while the policy is in force so that he is and will be permanently, continuously and wholly prevented thereby, for life, from performing any work for compensation or profit, or from following any gainful occupation, the insurer agrees to pay the subsequent premiums on his policy as they become due, such payments not to be a lien on the policy or the cash or surrender value thereof, and also will pay directly to the assured $25 per month during the continuance of such disability, or until his death. The petition alleged that plaintiff, the insured, while the policy was in force and before he attained the age of sixty years, had become totally and permanently disabled; that the cause of such disability was ventral and umbilical hernia and neurasthenia; that due proofs of such disability had been made to the insurer, and that defendant had failed and refused to pay the $25 per month, or the premiums on the policy, or to recognize any liability therefor.
Defendant’s answer admitted the issuance of the policy and other material allegations of the petition, except it specifically denied that plaintiff after the issuance of the policy became totally and permanently disabled, as set forth in the clause of the policy, and denied that by reason of any bodily injury or disease plaintiff is and will be permanently, continuously and wholly prevented thereby, for life, from performing any work for compensation or profit, or from following any gainful occupation.
Hence, the issue before the trial court was whether plaintiff had become totally and permanently disabled within the meaning of the provisions of the policy. The law governing the matter is quite well settled in this state by the decisions in Maresh v. Peoria Life Ins. Co., 133 Kan. 191, 654, 299 Pac. 934, 3 P. 2d 634, and Thomas v. Liberty Life Ins. Co., 131 Kan. 175, 289 Pac. 414, and authorities cited therein. Later cases from other jurisdictions, some citing and following our decisions, are in accord: Wilson v. Metropolitan Life Insurance Co., 187 Minn. 462, 245 N. W. 826; Cantor v. Metropolitan Life Ins. Co. (Pa.), 164 Atl. 145; Colonos v. Home Life Ins. Co. of New York (Utah), 28 P. 2d 607; Prudential Ins. Co. of America v. Harris, 254 Ky. 23, 70 S. W. 2d 953; Jefferson Standard Life Ins. Co. v. Hurt, 254 Ky. 603, 72 S. W. 2d 23; Banker’s Life Co. v. Green, 256 Ky. 496, 76 S. W. 2d 276; Buis v. Prudential Ins. Co. of America (Mo. App.), 77 S. W. 2d 127; Prudential Ins. Co. of America v. Bond (Ky.), 77 S. W. 2d 373; Equitable Life Assur. Soc. of United States v. Johnson’s Adm’r (Ky.), 77 S. W. 2d 943; Home Life Ins. Co. v. Ward (Ark.), 75 S. W. 2d 379; Clott v. Prudential Ins. Co., 112 N. J. L. 18, 175 Atl. 203; Prudential Ins. Co. of America v. Brookman (Md.), 175 Atl. 838; Gennett v. Jefferson Standard Life Ins. Co. (N. C.), 178 S. E. 87; Metropolitan Life Ins. Co. v. Schneider (Ind.), 193 N. E. 690; Bahneman v. Prudential Ins. Co. (Minn.), 257 N. W. 514; Oswald v. Equitable Life Assur. Soc. (Neb.), 258 N. W. 41.
Under these authorities, whether the insured was totally and permanently disabled within the meaning of the provisions of the policy is a question of fact. In this case there was some conflict in the evidence with respect to the facts, testimony that was to be weighed, credibility of witnesses to be passed upon. These are functions of the trial court. In such a case we examine the facts only far enough to see whether there is substantial competent evidence to support the finding and judgment of the trial court. The evidence disclosed that plaintiff is a tenant farmer; that he had an umbilical hernia for some six or seven years prior to the trial, that a year or more before the trial a ventral hernia developed about two or three inches above the first; that the hernia became strangulated; that plaintiff suffered pain, was in bed several days, a neurasthenic condition developed; that he was unable to do any work of consequence. A number of witnesses testified to his inability to work; that when he tried to work he had to quit and lie down, and appeared to suffer pain, and that he had done no work of consequence for a year or more. Two physicians who had treated him testified to his condition; that he was unable to do more than light work, or a few chores; that he was much overweight; that the muscular wall of the abdomen was thin, and that he was very nervous. The condition was permanent unless it could be relieved by an operation. They advised against an operation for him in his condition. We regard the evidence as sufficient to sustain the finding and judgment of the court.
Appellant argues that the insured should have been required to submit to an operation as a condition precedent to recovery, and we are asked to review the holding of the court in Maresh v. Peoria Life Ins. Co., supra, on that point. Appellant cities the annotations in 86 A. L. R. 354. There are two answers to this argument: (1) We do not find this question was presented to the trial court either in the pleadings or elsewhere in the record. (2) Were we disposed to review the conclusion of the court on this point as expressed in the Maresh case — and we are not here intimating it should be reviewed — there is substantial evidence in this record to the effect that such an operation would be ill-advised in view of the condition of the insured. If the question were before the trial court there is substantial competent evidence to sustain a ruling of the trial court that such an operation should not be required.
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
Smith, J.:
This is an action by a-depositor in a failed bank in which plaintiff asks to have his deposit declared a preferred claim.
On December 27, 1932, plaintiff shipped a carload of cattle to Kansas City. Before shipping he inquired of the State Bank of Grenola the name of its corresponding bank in Kansas City. He was told that the Fidelity National Bank and Trust Company had that relationship. On December 27 the cattle were sold and the check in payment therefor was deposited by a commission firm with the Fidelity bank to the credit of the Grenola bank. The Fidelity bank made a credit slip for the amount and forwarded it to the Grenola State Bank. This slip was received by that bank some time during business hours of December 28. It was not accepted for the reason that just before it was received the Grenola bank was declared to be insolvent by a deputy bank commissioner. The credit slip was returned to the Fidelity bank. That bank forwarded it to the general receiver for failed banks at Topeka. The receiver obtained the money from the Fidelity bank. He is holding it awaiting the outcome of this action. The trial court gave judgment for the plaintiff allowing the amount of the deposit as a common claim and denying the preference. From that judgment the plaintiff appeals. The ground upon which the trial court did this was that the evidence failed to establish the fact that the bank was insolvent at the time the deposit was received, and also because plaintiff was in the same condition as other depositors who put their money in the bank a few days before it closed.
The theory of plaintiff is that when the bank accepted the deposit of plaintiff knowing that the bank was insolvent it was guilty of fraud on the depositor and the depositor may recover from the receiver to the extent the deposit augmented the funds coming into the hands of the receiver.
When met with the finding of the trial court that the evidence failed to establish the fact that the bank was insolvent appellant asks us to examine the record and reach a different conclusion from the evidence. Without deciding that question, we have concluded that there is no evidence that the deposit of Mr. Snodgrass augmented the funds that came into the hands of the receiver or that there was anything about the deposit of plaintiff to distinguish it from the deposits of others of that day or some days prior thereto. There is very little dispute as to the facts in this case. The plaintiff was not the only person who deposited money in the Grenola bank on December 28. Deposits in the amount of $1,154 were made on that day in addition to his. The records show that drafts in the amount of $832.12 on the Fidelity bank were paid by the Grenola bank on December 28. Thus it will be seen that more was paid out by the Grenola bank from the account it had in the Fidelity bank than was received. The deposit of plaintiff was placed in the Fidelity bank to the general credit of the Grenola bank and to the credit of plaintiff as between the Grenola bank and plaintiff. The question of the augmentation of the assets that came into the hands of a receiver was considered in Investment Co. v. Bank, 98 Kan. 412, 158 Pac. 68. There the court said:
“It is not enough to show that the assets of the bank were increased by the deposit to its credit of the money obtained from the plaintiff. That condition necessarily results whenever money is paid to a bank, whatever may afterwards become of it. It is not enough that what may be called the net value of the insolvent estate to be administered has been increased — that the discrepancy between the liabilities and assets is diminished — -that the percentage disbursed in dividends shall be enlarged. The test is whether the money which was wrongfully obtained has been so disposed of as to increase the fund that reaches the hands of the person charged with administering the insolvent estate, to be by him distributed among the creditors.” (p.415.)
The matter of allowing one depositor a preference over other de positors is one that should be viewed from the standpoint of equity. Certainly it is a tragedy for this farmer to lose a large portion of the price he received for his carload of cattle, but it is no more of a tragedy than it is for the other people who deposited in the bank a short time before it closed. The record does not disclose any distinction between them. (See Security National Bank v. Payne, 136 Kan. 372, 15 P. 2d 410; also, Cheney v. Johnson, 135 Kan. 521, 11 P. 2d 709.)
The plaintiff argues here that he should have been granted a new trial on account of newly discovered evidence, but in view of the conclusion we have reached the proffered evidence was cumulative and did not present any ground that would have warranted the granting of a new trial.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
In the opinion reported in 140 Kan. 329, 36 P. 2d 1006, it is stated that notice of appeal in the Anna Hedin estate was filed too late, and this court is without jurisdiction to entertain the appeal, which was from an adverse ruling on a demurrer to plaintiff’s claim. A similar ruling in the Anders Hedin estate was not considered for the same reason.
A petition for rehearing has called to our attention the fact that the certificate of the clerk of the district court to the clerk of this court did not show the date notice of appeal was filed in his office, that actually it was filed within time, and that we misconstrued the certificate. An examination of the facts shows the notice of appeal was filed in time to raise the question as to the ruling on the demurrers in both cases, both demurrers being alike in form.
The substance of the grounds of both demurrers was that the probate court had no jurisdiction to hear and determine the claims made. The question of jurisdiction was fully treated in the opinion under other specifications of error in the Anders Hedin case, and need not be repeated. Under what is there said, it appears that the court’s order overruling the demurrer in each case was correct.
The opinion is modified to state that the demurrer in each case has been considered, and the ruling of the trial court found to be correct.
The order dismissing the appeal in the Anna Hedin case is revoked, and the ruling of the lower court on the demurrer is affirmed.
Other matters presented by the motion for rehearing were fully considered on the original submission of the cause and no reason appears why there should be further comment thereon.
The motion for rehearing is denied.
Burch, J., not sitting. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by Clyde Gardenhire' and Belinda Gardenhire against several oil companies named as defendants, to recover damages for salt water and other deleterious matter which was discharged from oil wells in the vicinity of their land. Plaintiffs’ land consists of a tract of land adjacent to the city of Winfield, a part of which is included in the city limits. They purchased the farm in 1917 and have since used it as a dairy farm. It is watered by Timber creek, a clear stream of water which ran through the farm, cutting off five acres on the east side of the stream and leaving 38 acres on the north and west of it. Some of the wells were drilled a mile or a mile and a half away, and from these wells, it is alleged, salt water was allowed to escape and pollute the water of the stream and destroy considerable property. In February, 1933, the plaintiffs brought an action against the several defendants to recover damages. They alleged that the salt water and oil refuse had been allowed to escape and had poisoned wells which they had used for house and other purposes; that their animals, hogs, cattle and horses, sickened and some of them died from using the water for the two years previous; that it had permeated the soil, rendering it unproductive for the past two years and they asked for permanent damages of $12,500 by reason of damage to the farm, and having been done willfully and unlawfully they asked for $5,000 as exemplary damages.
Special questions were submitted by the court and answered as follows:
“Q. Was the water in Timber creek running through plaintiffs’ premises, and the water wells on plaintiffs’ premises suitable for domestic, livestock and agricultural purposes before March 1, 1931? A. Yes.
“Q. Do you find the pollution first affected plaintiffs’ property shortly after March 1, 1931? A. Yes.
“Q. Did Timber creek continue to be polluted during 1932 and 1933? A. Yes.
“Q. What do you find was the fair, reasonable cash market value of plaintiffs’ entire farm immediately before the spring of 1931? A. $7,800.
“Q. What do you find was the fair, reasonable cash market value of plaintiffs’ entire farm immediately after the pollution? A. $4,700.
“Q. If you find for the plaintiff, then state how much you allow for loss of dairy products. A. None.
“Q. Do you find that defendants, Sinclair-Prairie Oil Company, the Roth and Faurot Oil and Gas Company, the T. M. Deal Oil and Gas Company, and Earl Wakefield, polluted the water of Timber creek and the tributaries emptying into Timber creek and plaintiff’s water supply by permitting and allowing waste crude oil, base sediment, salt water and other minerals and waste products to escape from their oil wells and plants used in operating said wells after March 1, 1931? A. Yes.
“Q. How much damage, if any, do you find plaintiffs sustained to that portion of their premises lying east of Timber creek? A. $500.
“Q. How much damage, if any, do you find plaintiffs sustained to that portion of then- lands other than the portion east of Timber creek? A. $2,600.
“Q. How much damage, if any, do you find plaintiffs sustained on account of their loss of ten hogs? A. None.
“Q. How much damage, if any, do you find plaintiffs sustained on account of loss of cows? A. None.
“Q. How much, if any, exemplary damages have you allowed plaintiffs? A. None.
“Q. If you find that the plaintiffs have suffered actual damage to any extent, in the manner as claimed by them, name such of the defendants, if any, that you find acted in a grossly wanton malicious and willful manner in inflicting such damage. A. Sinclair-Prairie Oil Co., Roth and Faurot Oil and Gas Co., T. M. Deal Oil and Gas Co., Earl Wakefield.
“Q. If you find that the water in Timber creek is polluted, state when the same first became polluted. A. In the spring of 1931.”
The principal objection to the judgment is that plaintiffs had been damaged more than two years before the bringing of the action, and were barred by the statute of limitations.
Wells were drilled in 1926 to gas found at a depth of about 2,900 feet, and little water was discharged from these, but in 1931 the wells were deepened to a stratum in which oil was fouhd, and with the oil there was a plentiful supply of water. Many ponds were made, but it overflowed them. Soon the surface of the water showed a marked characteristic of oil and other refuse of a poisonous nature. Up to that time the family had fished and caught lots of catfish, red horse, bass and black perch, but in the fall of 1931 few could be found there, except an occasional carp, which can live in water that has been polluted to some extent.
Plaintiffs testified that they were not injured or damaged by the water until 1932. One of plaintiffs and a member of his family testified as to his having undertaken to water peas in his garden, and having discovered that they turned brown and died. It continued to affect and damage when defendants increased the number of wells. Six of them, at least, were brought in in 1931. Defendants contend that when they erected the derricks and were producing oil it ,was all in sight of the plaintiffs and they could not help but know of it. Witnesses said that the gas wells were much shallower than the oil wells, and after they had been deepened there was a marked change in the production of water and refuse. There was then an unlawful distribution of salt water and deleterious matter, but it did not give a cause of action to plaintiffs until they had been injured. The defendants had the right to drill for oil, and if they did not bother or damage plaintiffs and the water and oii did not reach the premises of plaintiffs until 1931 plaintiffs would not have been warranted in bringing an action; and if they had brought one on conjecture or speculation prior to that time they might have been challenged for anticipation of injury and be subject to the rule laid down in Kansas by Justice Brewer, in which he said:
“There was here no trespass, no invasion upon the plaintiff’s lands, or his rights, until the actual overflow and injury. Other cases might be cited, but enough have been to show the principle which underlies them, namely, that where the original act itself is no invasion of the plaintiff’s rights, then there is no cause of action until such act has caused damage, and the right of action dates from that time.” (K. P. Ry. Co. v. Mihlman, 17 Kan. 224, 230.)
In Lackey v. Prairie Oil & Gas Co., 132 Kan. 754, 758, 297 Pac. 679, it was said:
“When the erection of an obstruction does not of itself cause injury to land, but subsequently causes injury by flooding the land, cause of action for injury to the land arises when the flooding occurs.”
Plaintiffs had been using water from their wells daily, their stock had free access to and entered the creek daily, but there was no indication of oil, salt water or pollution until May or June, 1931. No witness could be found who would say there was salt water in plaintiffs’ well or creek or that there was any oil or other pollutive substance in either well or creek until the summer of 1931.
This action was brought in February, 1933, and the principal question presented is: Wa's it brought in time? The time is fixed by the statute of limitations, which is two years. While wells had been drilled in 1926, and some.salt water had been discharged, but none that injured plaintiffs, it was well established that the salt water did not reach or injure plaintiffs until late in 1931 or the first months of 1932. When the wells were deepened salt water was developed in such quantities that the ponds provided did not care for it. The drilling of a well is not unlawful. Those doing so may not strike oil; they may not strike a vein of water, or if they do they may be able to take care of the salt water in ponds or by other means, or the salt water may be found in such small quantities as not to be harmful. These wells were some distance from plaintiffs’ land and it was a problem when, if ever, the salt water would reach their property. And after passing through the intervening territory in quantities sufficient to injure the plaintiffs, there was a question of the extent of the damage that would be sustained; it might only be speculative and conjectural.
The result was not like that produced in the case of McDaniel v. City of Cherryvale, 91 Kan. 40, 136 Pac. 899, where the plaintiff knew the property was subjected to the flow of the sewage from a city of fixed population. These facts were established when the sewer was constructed. It was found by the court that the plaintiff knew of the creation of the sewer system; knew there would be a constant and continuous flow of sewage; and knew that the stream would necessarily be polluted and affect the water flowing through his premises. The effect of the discharge of sewage could have been ascertained with reasonable certainty; the stream was polluted when the sewage was thrown into the stream, and therefore he should have brought an action for permanent damages at the beginning. The rule in such a case is stated in City of Hutchinson v. Delano, 46 Kan. 345, 26 Pac. 740, where it was said:
“The apprehended fouling or pollution of a stream of water in the future by the sewage of a part of a city from sewers which have been legally, scientific ally and properly constructed, but which has not yet taken place, and of which there is no immediate or imminent danger, and which depends upon a contingency that may not happen, does not present a case for an injunction.” (Syl.)'
See, also, Brown v. Arkansas Central Power Co., 177 Ark. 1064; McDaniel v. Power Co., 95 S. C. 268; Conestee Mills v. City of Greensville, 160 S. C. 10; Backhouse v. Bonomi, 9 H. L. Cas. 503.
This action was brought in time and was not barred by the statute of limitations.
The defendants had no right to pollute a stream or natural watercourse by prescription. Timber creek and the ravine leading into it were natural watercourses. The pollution of the stream was wrongful and therefore no permanent right can be acquired.
“The pollution of the stream being a wrongful act, no permanent right to continue it can be acquired; and, therefore, the damages to be awarded must be merely for the temporary injuries which have occurred to the time of trial or to the time of bringing the action, if, under the local practice, that is the time fixed for the computation of damages to be recovered in the action.” (2 Farnham on Water and Water Rights, p. 1718, § 527. See, also, Corby v. Ramsdell, 48 Fed. 2d 701; Mayor v. Land, 137 Ala. 538.)
In Clarke v. Boysen, 39 Fed. 2d 800, the court remarked:
“It is settled law that a prescriptive right to maintain a public nuisance cannot be acquired.” (p. 818.) See, also, Fertilizing Co. v. Hyde Park, 97 U. S. 659, 668, and Note in 39 A. L. R. 895.
Something is claimed by defendants of an isolated remark made by plaintiff when he testified in the case. He was asked:
“Q. I understand you to say the water in Timber creek had become bad two years before they started the Dempsey well? A. Yes, sir.”
As a matter of fact, the witness had never said that the water in Timber creek became bad two years before they started the Dempsey well. He had repeatedly stated that the first he ever noticed anything wrong with the water was in May or June, 1931; that he never noticed 'anything wrong with the water of Timber creek or that there was any oil or salt in it until the summer or fall of 1931. The words “two years” were not noticed by counsel for plaintiffs until after the transcript was made. Whether he misunderstood the question or how he came to contradict his detailed evidence, it is in a way a denial of his previous testimony on the question of the time of commencing the action. The most that can be said of it is that it was a question of fact which the jury could and did settle — that Timber creek was not polluted until the spring of 1931.
Some of the instructions given and refused are criticised. One uses the words “material and perceptible” as applied to the statute of limitations. The question that had been tried was whether the plaintiff had a cause of action. Whether the use of the words was unreasonable, and was serious and substantial, or was slight and trivial, was submitted for decision. The words “material and perceptible” have been used in similar cases. (Helms v. Oil Co., 102 Kan. 164, 169 Pac. 208.) The terms used were appropriate and applicable. (Packwood v. Mendota Coal & Coke Co., 84 Wash. 47.)
The court refused to give requested instruction number 13, which was:
“If this plaintiff knew, or should have' known, prior to February 28, 1931, that the defendants or any of them were at that time or had been for some time previous causing oil, salt water, acids, or other deleterious substances to be drained or washed into Timber creek upstream from plaintiffs’ land, then the claim asserted by the plaintiffs would be barred by the statute of limitations.”
The instruction was contradictory of another instruction which the defendants had requested, number seven, and the defendants are in no position to complain if the court adopted one rather than the other. The instruction was covered in instruction number five, and therein the court told the jury that if the pollution of the stream occurred two years prior to February 28, 1933, when this action was commenced, to such an extent as to be perceptible, and that plaintiffs knew or in the exercise of ordinary diligence could have ascertained that such pollution was of an extent to cause them injury, then the verdict should be for the defendant as to any damages to plaintiffs’ land. If the pollution was to the extent to cause them injury, then they could not recover. Nothing was required beyond causing them injury, to start the statute. The given instruction was more favorable to defendants than the law warrants.
Defendants, by their requested instructions seven and thirteen, had requested the court to insert in the instruction the clause, “knew or by the exercise of reasonable diligence should have known,” and the clause “should have known.” Having requested it, they are in no position to complain.
Then they claim that the court erred in refusing to give instructions seventeen, eighteen and nineteen. These requested instructions related to the claim, which there was no evidence to support, that a well on Gardenhire’s place, by a lessee, Dempsey, started on July 30, 1932, and plugged and abandoned that fall, contributed to the pollution which the jury found began in the spring of 1931. The well produced neither oil nor gas. The Dempsey well was started on plaintiffs’ premises July 30, 1932. Before this time — in fact, more than a year before — in May or June, 1931, plaintiffs’ wells had been destroyed by defendants’ pollution; the fish in the stream had been killed, as he saw “a world of dead fish in the fall of 1931, and spring of 1932”; many of the trees had been killed; the boys swimming in the creek in the summer of 1931 and 1932 would come out of the water with their bodies streaming with oil as though they had been painted. In short, the water in the wells and creeks was so polluted that the drillers could not use the water in their boiler, but were forced to buy city water, at a cost of over $700. The ground where the slush pond was dug was “as hard as buck shot, hardpan like.” The ground where the pond was did not slope down to the creek. They used city water for drilling purposes. The water from the pond never went into the creek. When they stopped drilling the well on plaintiffs’ premises it' was not over thirty minutes until one of the drillers walked up to plaintiffs’ house, and called into the city of Blackwell, and only a short while thereafter they began plugging the well. There was no contradictory evidence, nor any other evidence from which any inference could be drawn that the well on plaintiffs’ premises polluted their own wells or creek or land.
Did the court err in submitting to the jury special interrogatories numbered one, two and three? These three questions determined the condition of the water in Timber creek and the wells on plaintiffs’ premises before they were polluted; the time of their pollution and that such pollution had continued after the filing of plaintiffs’ action. No objection was made by defendants to questions numbered two and three. There was no evidence that the waters of Timber creek were polluted substantially for four or five years next preceding the time the lawsuit was commenced.
Did the court err in refusing to submit appellants’ special interrogatories numbered eight, nine and ten? They were:
“8. Did the plaintiffs, during the year 1932, drill or cause to be drilled, a well for oil and gas upon the land of the plaintiffs?
“9. If you answer the last question in the affirmative, state whether salt water produced from said well was deposited upon plaintiffs’ land.
“10. Did the salt water deposited upon plaintiffs’ land, produced from the well dialled on plaintiffs’ premises, pollute or contribute to the pollution of plaintiffs’ land?”
There was no issue as to these matters. It was not disputed that plaintiffs gave an oil and gas lease to Dempsey and that Dempsey, beginning -on July 30, 1932, drilled a well on plaintiffs’ premises. There was no evidence that the drilling of this well had any connection whatever with the pollution of plaintiffs’ land.
Did the court err in refusing to give to the jury appellants’ special interrogatories eight, nine and ten? Did the court err in overruling the separate motion of the Sinclair-Prairie Oil Company for a new trial? The pollution of plaintiffs’ wells and Timber creek occurred in the spring of 1931, after the first of March. This pollution was continued through 1932 and 1933.
The evidence was sufficient to show that the Sinclair-Prairie Oil Company constructed the salt-water pond on the Youle lease in 1930 or'1931, and the large salt-water pond on the Dibbens lease, where the wells were deepened. The jury was not required to believe the bald oral statement of defendants’ witness that the consolidation took place April 1, 1932. Even if they did, the pollution still continued and with increased violence. The Sinclair-Prairie Oil Company was liable for continuing the nuisance and was liable as the consolidated corporation. There was no error in overruling the separate motion of the oil company for a new trial.
There was no material error in the rulings, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a trustee in bankruptcy of a corporation, against persons in possession of real estate under deed of the corporation, to determine interest of the grantees in the real estate. The grantees were directors of the corporation. The petition alleged the deed was made to defraud creditors. The petition further alleged defendants sometimes made one claim and sometimes another, and that an actual controversy existed between plaintiff and defendants. The prayer was that the controversy be adjudicated and that plaintiff be adjudged legal and equitable owner, entitled to possession, and entitled to rents and profits. The defense was, the trustee was barred by adjudication made in the proceeding to determine whether the corporation was bankrupt. The bankruptcy proceedings were exemplified in the pleadings. Judgment was rendered for defendants on the pleadings, and plaintiff appeals.
The corporation made a deed to defendants, dated February 8, 1930. The deed was filed for record on March 28, 1932. A petition in bankruptcy was filed against the corporation on April 23, 1932. Several acts of bankruptcy were charged. One of them was the following:
“And your petitioners further represent that said The Farmers Grain & Mercantile Company, a corporation, is insolvent, and that within four months next preceding the date of this petition the said The Farmers Grain & Mercantile Company, a corporation, committed acts of bankruptcy, in that it did heretofore, to wit:
' “First: Conveyed, transferred and concealed, while insolvent, a portion of its property to P. H. McKenna, S. F. Reynolds, A. Gerber and H. R. Thompson, all of whom were its creditors, with intent to prefer such creditors over its other creditors, by giving to them a deed to certain of its property in Kingman county, Kansas, and which deed was recorded in the office of the register of deeds of Kingman county, Kansas, on March 28, 1932, although such deed was dated February 8, 1930. That such" transfer and deed were given to secure an indebtedness with the intent to hinder, delay and defraud its creditors, and for the purpose of giving such creditors a preference and such creditors not having taken possession of such property prior to the recording of such deed.”
The bankrupt answered, giving the history of the deed. The corporation, while solvent, needed funds which were procured by the grantees on their promissory note for $5,000; the deed was made February 8,1930, and was placed in escrow, to protect the grantees; the grantees were obliged to pay the note, and on March 28, 1932, the deed was delivered to the grantees and was placed of record.
The matter was referred to a special master to “determine the issues presented as to the insolvency and bankruptcy of the alleged bankrupt, and to make his findings and recommendations thereon.”
The matter was submitted to the master on an agreed statement of facts. Paragraph 6 of the stipulation contained several subdivisions. Subdivisions A, B and C related to what was shown by records in the office of the register of deeds. Subdivisions A and B referred to chattel mortgages. Subdivision C referred to the deed, and simply described it, giving date, parties, consideration, description and date and place of record.
Subdivision F of paragraph 6 of the stipulation was that the corporation was insolvent for at least four months previous to date of filing the petition in bankruptcy.
Paragraphs 8 and 9 of the stipulation gave in detail the facts relating to the origin of the deed and fulfillment of its purpose, as stated above.
Paragraph 10 óf the stipulation reads:
“It is further agreed that the matters herein stipulated as facts are for the purpose of the hearing upon the determination as to whether or not the said Farmers Grain & Elevator Company shall be adjudicated a bankrupt, and shall not be treated as binding upon either party hereto for any other purpose or in any other action or proceedings.”
The report of the special master begins as follows:
“The undersigned, special master, to whom the above-entitled matter was referred, in order to determine whether or not an act of bankruptcy had been committed by the alleged bankrupt, now respectfully reports to the court as follows: . . .”
It may be observed here this embodies a correct and accurate interpretation of the authority of the special master, and his conclusions are to be interpreted accordingly.
The special master stated, as a conclusion of law, the following:
“The special master concludes as a matter of law that the transactions set out in agreed statement of fact No. 6, under subdivisions a, b and c thereof, do not constitute acts of bankruptcy.”
The special master found that other transactions did constitute acts of bankruptcy. Adjudication that the corporation was a bankrupt followed, McCarthy was appointed trustee, and in February, 1933, the present action was commenced in the district court of the proper county of this state, pursuant to power conferred on the trustee and the court by 11 U. S. C. A., § 110 (e):
“The trustee may avoid any transfer by the bankrupt of his property which any creditor of such bankrupt might have avoided, and may recover the property so transferred, . . . For the purpose of such recovery, any court of bankruptcy, as defined in this title, and any state court which would have had jurisdiction if bankruptcy had not intervened, shall have concurrent jurisdiction.”
The petitioning creditors and the bankrupt were the only parties to the bankruptcy proceeding, and were the only parties who litigated anything. Defendants were not parties. The answer of the corporation was signed and verified by P. H. McKenna (a grantee in the deed), as president of the corporation. Neither the board of trustees of the corporation nor the trustees of the corporation answered or otherwise pleaded. No defendant in this action filed answer or other pleading in the capacity of an. individual. The special master reported appearances as follows:
“Your special master respectfully reports to the court that several hearings have been had in the above-entitled matter, at which the petitioning creditors were represented by counsel and the alleged bankrupt (was) likewise represented by its counsel, ...”
As indicated, the petition in bankruptcy was filed April 23, 1932. It alleged insolvency, and then alleged commission of an act of bankruptcy within four months next preceding April 23, 1932. The act specified was conveyance of property by deed given with two intentions, to prefer the grantees as creditors, and to defraud other creditors. No issue was tendered with respect to any fraud on creditors generally, committed more than four months before April 23,1932, any more than issue was tendered with respect to preference more than four months before April 23,1932.
The answer of the corporation explained the deed. The explanation pushed the essence of the deed transaction back to February 8, 1930, made the filing of the deed in March, 1932, incidental to fulfillment of purpose for which it was given, and so undertook to meet the allegation of act of bankruptcy committed within four months previous to April 23, 1932.
The issue submitted to the special master was status of the corporation and nothing else, and, as indicated, he so interpreted the order of reference. The special master had no concern with whether the corporation, a year or two before the petition was filed, disposed of real estate in fraud of creditors by deed which then existing creditors might have procured to be set aside.
By express stipulation the evidence before the special master was submitted for the purpose of determining status of the corporation, only — whether the corporation should be adjudged bankrupt.
The approved conclusions of the special master determined that part of the petition to have the corporation adjudged bankrupt was well founded, and part was not.
Now comes the trustee and seeks to set aside the deed as fraudulent, not simply in the right of petitioning creditors, or creditors who, accepting the corporation’s status as bankrupt, filed claims; not in the right of the misdemeanants, the corporation and its fraudulent grantees; but in the same right as creditors who might have attacked the deed if bankruptcy had not intervened.
Should final judgment in the trustee’s action be in his favor, it will not embrace any conclusion of the bankruptcy court that the corporation was or was not, for this or that reason, subject to an adjudication that the corporation was bankrupt.
Under the circumstances which have been stated at length, the defendants, grantees in the deed of February 8, 1930, contend title to the land the trustee seeks to recover was adjudicated in their favor by the adjudication a certain act of the corporation was not an act of bankruptcy — the deed matter. In support of the contention, defendants present an attenuated argument on the subject of privity, which need not be examined.
Defendants contend the question involved has been decided in , their favor by this court in the case of Dedrick v. Bank, 75 Kan. 187, 88 Pac. 883. The syllabus reads:
“The United States district court for the district of Kansas, in proceedings regularly had under the national bankruptcy act, duly adjudged J. H. Shirfey to be a bankrupt, upon the ground that he had within four months prior to the commencement of such proceedings mortgaged his entire property with the intent to hinder, delay and defraud his creditors. Afterward the trustees appointed for the estate of such bankrupt commenced a suit to set aside the mortgage so given and recover the property covered thereby or its value. Held, that in such suit the adjudication of bankruptcy was conclusive against the mortgagees as to the intent of the mortgagor, and that evidence of their own good faith in the transaction was immaterial, even though they were not parties to the bankruptcy proceedings.”
In the opinion it was said:
“An adjudication of bankruptcy upon the ground that the bankrupt sold or encumbered his property with intent to hinder, delay and defraud his creditors is conclusive.” (p. 189.)
It is not necessary to call attention to the manifest distinction between the Dedrick case and this one. Accepting the Dedrick decision as announcing broad conclusiveness of an adjudication made in response to a petition in involuntary bankruptcy, the decision was perhaps sustainable when it was rendered in 1907.
The extent to which an adjudication made in response to a petition in involuntary bankruptcy is res judicata, is a subject upon which federal decisions are controlling. In opposition to the decision in the Dedrick case may be placed the decision in Ward v. Central Trust Co. of Illinois, 261 Fed. 344 (C. C. A., Seventh Circuit) (1919). Morrison was adjudged bankrupt. Within four months previous to filing the petition in bankruptcy he deeded real estate to the trust company. The opinion reads:
“Appellant contends for a right to show that Morrison was not a bankrupt when he was so adjudged, that there were no creditors with valid claims then or since, and that appellee was wanting in legal capacity to be given and to accept the post of trustee, and therefore lacked capacity to sue appellant on account of the fraudulent transfer. ■ These contentions constitute no more than a collateral attack upon the judgment and record of the bankruptcy court; that is, the judge who heard this chancery cause had ho jurisdiction to review the existence of the necessary facts which the judge of the bankruptcy court found and acted upon. But that was the extent of the binding effect of the adjudication as a judgment in rem; and, although the petition in bankruptcy charged that the conveyance from Morrison to the appellant was an act of bankruptcy, appellant was entitled to have (as he did have) a full opportunity to controvert the trustee’s allegations and proofs respecting appellant’s guilty knowledge and fraudulent conduct. Gratiot County State Bank v. Johnson, Trustee, 249 U. S. 246.” (p. 346.)
In the case of In re McCrum, 214 Fed. 207 (C. C. A., Second Circuit) (1914), the following declaration of principles was made:
. . even in contested proceedings an adjudication is res adjudicata and conclusive upon those who have not actually taken part in the contest only as to the status of the bankrupt and not as to the commission of a particular act of bankruptcy, although it be' the one alleged in the petition.” (p. 213.)
In 1 Remington on Bankruptcy, § 525 (4th ed., 1934), the earlier cases taking the broad view of res judicata are referred to, and it is then said:
“But the true rule is that the adjudication of bankruptcy is a judgment in rem or quasi in rem as to the status of the debtor as a bankrupt, and, as such, is binding on the whole world as to such status; but, . . . except, perhaps, as to parties who have actually litigated the issues, the adjudication of bankruptcy is not binding in subsequent litigation on the matter of insolvency, nor even on the matter of the commission of the very act of bankruptcy on which the adjudication is based; that the doctrine of res judicata does not apply, because the subjects of the two proceedings are different, the subject in the proceedings on the bankruptcy petition being the status of the debtor, whilst in the subsequent litigation the subject is the property. . . .” (p. 645.)
An independent review of the decisions will not be undertaken here. The court is in accord with the modern view.
In this instance, the subject of status of the corporation was segregated and insulated from beginning to end of the proceeding. Even the stipulated facts presented the deed transaction for the sole purpose of the inquiry whether the corporation was bankrupt. The stated conclusion was, the transaction was not an act of bankruptcy, and that was all that was adjudicated with respect to the deed matter.
The matter of status of the corporation having been determined, the trustee may now invoke the remedy which would have been available to creditors if bankruptcy had not intervened.
The judgment of the district court is reversed, and the cause is remanded with direction to set aside the judgment rendered on the pleadings. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to compel performance of certain provisions contained in a contract for the sale of corporate stock.
Although the action was against a number of defendants, judgment was rendered only against Chas. H. Smyth and Chas. F. Smyth. Chas. H. Smyth died, and the action was revived against his executrix, and she and Chas. F. Smyth appeal. For convenience the terms appellants or defendants will be used. In order to avoid prolixity of statement, reference to matters not essential to this appeal will be avoided as much as possible.
The petition alleged the making of a contract between plaintiff and one Campbell on behalf of appellants Smyth and Smyth, reciting in part;
“Wituesseth: That first party agrees to sell to second party 125 shares of common stock of The Hartman Theatre Company for..................................dollars and 125 shares of preferred stock of The Hartman Theatre Company for sixteen thousand and no/100 dollars, to be paid as follows: One thousand and no/100 dollars ($1,000.00) cash, receipt of which is hereby acknowledged by first party, the balance of the purchase price of said common stock to be paid on or before Thursday, September 6, 1928. The purchase price of said preferred stock is to be paid on or before October first, 1928. All bills to be paid in cash by the 6th of September.
“Second party agrees to purchase said stock on the terms above stated.
“In Testimony Whereof, we have hereunto set our hands this first day of September, 1928.
(Signed) Geo. H. Siedhoff.
(Signed) Robert Campbell.”
That at the time of making the contract it was the understanding that the phrase “All bills to be paid in cash by the 6th of September” meant that all bills and outstanding obligations of the theater company should be paid by the purchasers of the stock so that plaintiff would be relieved of obligation thereon; that plaintiff had been liable in person, and in making the sale of his stock severed his connection with the company and the parties intended plaintiff should be relieved ; that plaintiff had performed his part, but defendants, undisclosed principals at the time of the making of the contract, had not. A schedule of bills totaling $6,416.54 was attached. The prayer was that defendants be required to pay the listed bills and that plaintiff have judgment for the sum of $6,416.54 and interest and costs, etc.
The verified answer of the Smyths may be summarized as denying the authority of their agent Campbell to make a contract binding them to pay the bills, and if it be found he did make any such contract without authority, they rescinded such contract and offered return of the stock, and asked return from plaintiff of the moneys paid for the stock.
Plaintiff’s reply need not be noticed here.
Although an equitable action, a jury was called in an advisory capacity. Its findings will be referred to in connection with certain claims of error.
The controversy arose out of the erection of a theater by the Hartman Theatre Company. The theater was built by the Siedhoff Construction Company, of which the plaintiff was president and principal shareholder. At the time of the contract for sale of stock here involved, the theater company was indebted for construction bills and perhaps other accounts. Differences arose in the theater company and the stockholders fell into two groups; in one were the plaintiff Siedhoff, a Mr. Workman and a Mr. Stock-man; in the other were the appellants and others. The company had a capital stock of $150,000 composed of $75,000 common and $75,000 preferred shares, the preferred shares being secured by an indenture to the Guarantee Title & Trust Company, with which the defendant Robert Campbell was connected. The above facts seem to be undisputed. The court made no findings of fact, and with the exception of the answers of the jury to special questions, we are without benefit of any finding except such as inheres in the court’s judgment in favor of the plaintiff. There was testimony that on July 18, 1928, there was a meeting of the board of directors at which Mr. Siedhoff stated that $19,000 would pay all bills contracted, and a loan was made for $15,000. The amount was insufficient, and it later developed that it was advisable for one group to buy out the other. Although not then known to Siedhoff and his associates, the Smyths made a written agreement with Campbell to acquire the Siedhoff, Hartman and Stockman stock and authorized payment of fifty cents on the dollar for the common and par for the preferred stock. On September 1, 1928, Campbell made contracts with Hartman and Stockman for purchase of their shares, using the same form as quoted above except that no provision for payment of bills was inserted.
Although the petition alleges that Campbell was acting for undisclosed principals, Siedhoff testified that in his dealings with Campbell he knew whom he represented on September 1, 1928, when the quoted contract was made. Preliminary to the contract, Siedhoff stated if a loan of $30,000 was made, it would pay all the construction bills, and Campbell called Mr. C. H. Smyth, who agreed to make the loan. This loan was subsequently made and Siedhoff was paid $23,941.40. Just why the balance of the bills was not paid does not clearly appear. Siedhoff claimed he was personally responsible for the payment of these bills, and he insisted on the insertion of the claim: “All bills to be paid in cash,” etc., and wrote it into the contract himself. We shall not discuss Siedhoff’s subsequent execution of notes as an officer of either the construction company or the theater company, nor the payment on the bills by the construction company or by Siedhoff individually. About November 23, 1928, Siedhoff, Hall, C. H. Smyth and perhaps others conferred concerning these bills, and Siedhoff wanted Hall to guarantee payment. The contract relied on here does not • seem to have been mentioned. After some conversation, Siedhoff and Smyth agreed that if Hall did not pay, the two would pay them fifty-fifty. We are not concerned with that agreement, for it is not the one sued on, although for some reason the court submitted a question to the jury thereon.
During the course of the trial there was testimony to which appellants objected, concerning the meaning of the inserted clause with reference to payment of bills, and what was intended. The clause was ambiguous, and the testimony was proper. There was also testimony about the various meetings mentioned, what was said and done, etc. At the conclusion the court refused to give appellants’ requested instructions or to submit their requested special interrogatories, and instructed the jury, and submitted to it eight questions, the answers to which, in substance, were:
1. That when Campbell executed the contract it contained the words “All bills to be paid in cash by the 6th of September.”
2. That Siedhoff and Campbell understood what they meant and that was Smyth and Smyth were to pay.
3. That Campbell was not acting for himself, but was acting for Smyth and Smyth.
4. That Siedhoff exercised reasonable care and prudence concerning Campbell’s power to deal in the matter and was justified in believing Campbell had authority.
5. That Charles H. Smyth later told Siedhoff if he would not file mechanic’s liens he would go fifty-fifty on the bills.
6. That Campbell’s copy of the contract, which had the clause "All contractor’s bills to be paid in ten days or earlier,” was executed by Siedhoff and Campbell and referred to the contractor’s bills, and it was understood Smyth and Smyth were to pay them.
7. Siedhoff was to receive all bills due him, including the subcontractor’s bills, out of the $30,000 loan, and
8. At the time of signing the above contracts Siedhoff knew from the facts and circumstances for whom Campbell was acting.
The court denied appellants’ motions to set aside answers, to grant a new trial and for judgment on the special findings, and rendered judgment for plaintiff.
There áre many specifications of error, but we shall concern ourselves first with the one that the court erred in holding there was any evidence of authority in Campbell to bind appellants for the bills referred to in the plaintiff’s petition. It has been noted that Siedhoff had no knowledge of Campbell’s written authority. Campbell testified he had no other or further authority, as did Smyth and Smyth. It is clear from the special question 4 submitted that the court believed that the issue was whether Campbell had apparent authority. During his opening statement, appellant’s counsel said that Campbell, who was an officer of the Guarantee Title & Trust Company, had no personal interest, but was acting as agent, that he owned no stock in the theater company, and that he had no interest except to see the bills were paid and the mortgage lien protected; that Smyths knew nothing about the contract and they never authorized Campbell to bind them-to pay the bills. Later plaintiff’s counsel insisted an admission of general agency was made, and this was denied. At other times the extent of the admission was referred to, and the statement made that if appellants’ counsel had inadvertently made admission of general agency they wished to withdraw it. It is also insisted such an admission is made in the briefs. As some of the court’s rulings seem to indicate it thought a general admission was made, we have examined the abstracts and briefs particularly and conclude there was not, even in the first instance, any admission of general agency.
The court submitted a question to the jury that if they found Campbell was acting as agent then state:
“(a) Whether Siedhoff exercised reasonable care and prudence concerning Campbell’s power to deal in the matter, and
“(b) Whether under all the facts and circumstances in this case Siedhoff was justified in believing that Campbell had authority to sign a contract for his principal or principals.”
To which affirmative answers were given. Assuming the questions, under the instructions, called for answers of fact and not conclusions of law, was there any evidence to support them?
Certain observations may be made. It is admitted that although not then known to Siedhoff, the actual authority of Campbell to purchase was limited. It is not claimed that Campbell had previously represented the appellants in the purchase of stock or any other property. It is not usual for the purchaser of corporate stock to agree, as a part of the purchase price thereof, to pay the corporate debts. At the very time the purchase agreement was made, the corporation made a loan to raise funds to pay the questioned bills and Siedhoff received payment of about $23,000.
In the recently published Restatement of Agency will be found the following:
“§ 8. Apparent Authority. Apparent authority is the power of an apparent agent to affect the legal relations of an apparent principal with respect to a third person by acts done in accordance with such principal’s manifestations of consent to such third person that such agent shall act as his agent.”
“§ 35. When Incidental' Authority is Inferred. Unless otherwise agreed, authority to conduct a transaction includes authority to do acts which are incidental to it, usually accompany it, or are reasonably necessary to accomplish it.”
“§ 39. Inference that Agent is to Act for Principal's Benefit. Unless other wise agreed, authority to act as agent includes only authority to act for the benefit of the principal.”
“§51. Authority Inferred from Authorizing Making of Contract. Unless otherwise agreed, authority to -make a specified contract includes authority: (a) to make it in a usual form and with usual terms or, if there are no usual forms or terms, in an appropriate way; and (b) to do other acts incidental to its making which are usually done or which, if not usually done, are reasonably necessary for making it.”
,‘§ 140. Liability Based upon Agency Principles. The liability of the principal to a third person upon a transaction conducted by an agent, or the transfer of his interests by an agent, may be based upon the fact that: (a) the agent was authorized; (£>) the agent was apparently authorized; or (c) the agent had a power arising from the agency relationship and not dependent upon authority or apparent authority.”
“§ 144. General Rule. A disclosed or partially disclosed principal is subject to liability upon contracts made by an agent acting within his authority if made in proper form and with the understanding that the principal is a party.”
“§ 161. Unauthorized Acts of General Agent. A general agent for a disclosed or partially disclosed principal subjects his principal to liability for acts done on his account which usually accompany or are incidental to transactions which he is authorized to conduct if, although they are forbidden by the principal, the other party reasonably believes that the agent is authorized to do them and has no notice that the agent is not so authorized.”
“§ 198. Contract Unauthorized in Part. If an agent having the power to bind an undisclosed principal by certain terms in a contract makes a contract including such terms and also other terms which are beyond the power which he has to bind the principal, the principal is not liable either upon the contract as made or upon the contract with the additional terms omitted.”
In 21 R. C. L. (Principal and Agent, § 32), p. 853, is the following:
“There is a marked distinction between the power and authority of a general and a special agent to bind his principal. A general agent is usually authorized to do all acts connected with the business or employment in which he is engaged, while a special agent is only authorized to do specific acts in pursuance of particular instructions, or with restrictions necessarily implied from the act to be done.”
And in the same text, section 34, page 854, it is said:
“The liability of the principal is not limited to such acts of the agent as are expressly authorized or necessarily implied from express authority. All such acts of the agent as are within the apparent scope of the authority conferred on him are also binding upon the principal, apparent authority being that which, though not actually granted, the principal knowingly permits the agent to exercise, or which he holds him out as possessing. . . Apparent authority may be and often is derived from a course of dealing, or from a number of acts assented to or not disavowed. . . Indeed, whenever a principal has placed an agent in such a situation that a person of ordinary prudence, eon versant with business usages, and the nature of the particular business is justified in assuming that such agent is authorized to perform in behalf of his principal the particular act, and such particular act has been performed, the principal is estopped from denying the agent’s authority to perform it. . .”
Although there has been some criticism of the use of the terms “general agent” and “special agent” with respect to dealings with third persons (2 C. J. “Agency” § 221, p. 580), it is said at page 583, section 223, that—
“It is a general rule that the authority of a special agent must be strictly pursued, and this authority must be limited to the particular business and particular instructions given, and the agent cannot, by mere silence as to limitations of authority, render them ineffective. Persons dealing with such an agent must at their peril inquire into the nature and extent of his authority and deal with him accordingly, for as in the case of acts and transactions of a general agent, a special agent cannot bind his principal by acts outside the scope of his authority, except perhaps, where the principal’s own negligence has enabled the agent to perpetrate a fraud thereby, and it has been held that the act of a special agent outside of his authority is voidable at the option of the principal. A special authority, like a general authority, confers by implication all powers necessary for or incident to its proper execution, and acts done by a special agent while acting within the scope of his authority are as binding on the principal as those of a general agent.”
In Bohart v. Oberne, 36 Kan. 284, 13 Pac. 388, defendants were engaged in the hide and wool business at various places, their agent at Kansas City being one Eldridge, who had made advances to certain sellers, which practice was ordered stopped. The instruction was violated and further advances made. To settle the account, the sellers and the agent executed an agreement conveying' fixtures and accounts of a meat market to defendant. Later the meat-market fixtures and accounts were sold by the agent to plaintiff under an agreement to protect against claims against the property, the agreement being signed by defendants by Eldridge as manager. Plaintiffs sued to recover on the agreements as to the accounts. In disposing of the proposition of authority of the agent, it was said:
“John Eldridge was the agent of the defendants, and the extent of his authority was to purchase hides, wool, furs, and tallow, and to pay for the same with the funds furnished by the defendants. The power conferred did not authorize him to loan or advance the moneys of the defendants to their customers and others, nor to sell the property and accounts that he received in satisfaction of the unauthorized advances which he had made, much less to guarantee the payment of such accounts. His power was special and limited, and one to be strictly pursued, and the plaintiffs were bound .at their peril to know the extent of his authority. Speaking generally, it may be said that the power given to an agent in such cases includes with it the authority to do whatever is usual and necessary to carry into effect the principal power conferred, but bartering in the property and fixtures of a meat market, and in the unsettled accounts of its former proprietor, was not incidental to the power conferred on Eldridge, nor necessary for its execution. It was outside of the apparent scope of his agency, and the facts in the case fairly justify the finding that the plaintiffs were chargeable with notice that Eldridge acted in excess of his authority.” (p. 289.)
And see the above case on what constitutes ratification.
In Sullivant v. Jahren, 71 Kan. 127, 79 Pac. 1071, it was held a real-estate agent “is a special agent and must pursue his instructions and act within the scope of his limited powers, and those who deal with him, if he exceeds his authority, do so at their peril.” (Syl. ¶ 1.)
In Peddicord, v. Berk, 74 Kan. 236, 84 Pac. 465, it was held that — •
“Authority to an agent to rent land does not authorize him to contract for the erection of buildings or the making of improvements.” (Syl. 113.)
And in Brown v. Gilpin, 75 Kan. 773, 90 Pac. 267, it was held that correspondence between a principal and agent looking to a sale of land did not authorize the agent to make a written contract in the name of his principal.
In Hornick v. U. P. Railroad Co., 85 Kan. 568, 118 Pac. 60, the syllabus reads:
“Where the authority of a claim agent of a railroad company to make a contract embracing unusual stipulations is denied under oath it devolves on the opposing party to prove that the agent had such authority, and neither evidence of the statements of the agent nor the fact that he made that particular contract is sufficient to establish his authority.”
“Proof that he was a claim agent with authority to settle claims against the company is not sufficient to establish that he had the implied authority to contract that the claimant should be employed in the service of the company for life or as long as he might desire to work. Nor is the mere fact that the claimant was given work for a'brief time after the settlement was effected sufficient to prove that the agent was vested with authority to promise him permanent employment by the company.” (¶¶ 4, 5.)
The above case was referred to in Townsend v. Railway Co., 88 Kan. 260, 128 Pac. 389. There it was shown the division engineer had made a contract in connection with work on the right of way. The company denied his authority. It was held:
“An act of an agent which is within the apparent but not within the real scope of his authority is binding upon the principal where otherwise loss would result to one who has in good faith relied upon such appearance.” (Syl. fí 1.)
“An act is within the apparent scope of an agent’s authority when a reasonably prudent person, having knowledge of the nature and usages of the business, is justified in supposing that he is authorized to perform it, from the character of the duties which are known to be intrusted to him.” (Syl. 12.)
Appellee relies, in part, on Aultman v. Knoll, 71 Kan. 109, 79 Pac. 1074, in which it was held:
“A principal is bound by the contracts of his agent made within the apparent scope of his authority notwithstanding limitations of the agent’s power, if the party dealing with the agent be ignorant of such limitations.” (Syl. 113.)
The Aultman Company’s agent, in selling a. threshing outfit, promised to do certain threshing. The company denied its authority. It was held that if, the agent had authority to take a certain note, but no authority to make the promise to do the threshing, it was nevertheless bound because the promise was within the apparent scope of the agent’s authority. A reading of the decision will show many elements not involved in the case before us.
Appellee also relies on White Sewing Machine Co. v. Edwards, 120 Kan. 151, 242 Pac. 129, and Diehl v. Barker, 137 Kan. 255, 20 P. 2d 534, both sewing-machine cases, where it was contended that certain agreements as to sales were beyond the authority of the agents. In the White sewing-machine case the agent omitted from the copy of the contract sent the company a statement included in the buyer’s copy with reference to assistance in selling the machines. It was held the company was chargeable with knowledge and could not repudiate a part of the contract and take advantage of the rest. In the Diehl v. Barker case there were two agreements, one for sale and purchase and one for demonstration to buyers, etc. It was held the two contracts must be construed together. Neither of the above cases supports appellee’s position.
Appellee also directs our attention to Wilson v. Haun, 97 Kan. 445, 155 Pac. 798, and to Hyson v. Bankers Mortgage Co., 136 Kan. 259, 14 P. 2d 726. In the Haun case an agent was sent out to buy cattle and furnished with a book of drafts to be used in paying for them. He was cautioned as to the price he was to pay. He bought Wilson’s cattle and Haun would not honor the draft, claiming it was for an amount greater than the value of the cattle. It was held that the evidence as to the draft book, the purchase by the agent of other cattle, etc., was sufficient to warrant the finding of agency. In the Bankers Mortgage Company case the company sent out an agent to sell bonds, furnishing him with note forms payable to the company or bearer. Plaintiff bought a bond, signing an application form which stated all payments must be made by check to the company. At the time, she expected to sell another bond to raise money to pay, and she gave a demand note on the company’s form. A few days later the agent returned and she signed a check payable to the company or bearer. The agent indorsed the check and absconded. Defendant denied liability on the ground the agent was not authorized to indorse the check. It was shown that agents of the company had sold for cash and the company had delivered the bonds. The plaintiff recovered, this court saying:
“Where a principal has clothed its agent with power to sell its bonds and with apparent authority to complete a sale thereof, a third person dealing with such agent in entire good faith, pursuant to such apparent authority, who purchases and pays for a bond, may rely on such representations and apparent authority, and the principal is estopped to deny the existence of such power.” (Syl. 1Í1.)
Other cases to the same effect as those noted are cited in the briefs.
The contract sought to be enforced here contained a provision not usually incident to a purchase of corporate stock, and the burden of proof to show that it was within the apparent authority of the agent to make it rested upon the plaintiff. There is no- showing that Campbell had represented the Smyths on any other occasion, to purchase stock or to do anything else. When the contract was made, Siedhoff knew whom Campbell represented, but made no inquiry as to the extent of his authority or of his right to bind his principals to pay the construction bills. It is true the jury found Siedhoff exercised reasonable care and prudence concerning Campbell’s power to deal in the matter and was justified in believing he was so authorized. The difficulty in that lies here: the fact the contract was made with no evidence of authority to make it; there had been no course of dealings between the Smyths and Campbell with Siedhoff that gave rise to any presumptions; Siedhoff-knew that Campbell was a special agent, but made no inquiry as to the extent of his powers,'either from Campbell or his principals; the provision about paying bills was foreign to the purchase of corporate stock, at least it was unusual, and the result is there was no evidence to support the jury’s findings. 'Under the circumstances, Siedhoff acted at his peril in not making inquiry as to the extent of Campbell’s authority.
Neither can it be said that Siedhoff is not bound by secret limitations on the agent’s authority. Under the facts here, that Campbell was not authorized to bind the Smyths to pay construction bills of the theater company was not a secret limitation any more than would be his lack of authority to agree to do some other act entirely foreign to the purchase of corporate stock.
Nor can it be said there was any ratification by the Smyths. The extent of the evidence is that they were not informed of that provision of the contract until the petition was filed and they immediately denied the agent’s authority and tendered back the stock. We are not here concerned with the fact the stock may now be valueless.
It may also be remarked that if the agreement be construed as one to pay the debt of a third party, it was within the statute of frauds and Campbell was not sufficiently authorized in writing to make any such contract.
Claims of errors on account of the court’s rulings on admission of evidence, on requiring plaintiff to elect as to recovery from agent or principals, on appellant’s demurrer to plaintiff’s evidence, in giving and refusing instructions to the jury, etc., need not be separately discussed.
The plaintiff having failed to prove the authority of Campbell to make the contract relied on, it follows that the judgment in favor of the appellee was erroneous, and it is reversed, and the cause remanded with instructions to render judgment in favor of appellants. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to quiet title to real estate. Judgment was for plaintiff. Defendant appeals.
This action turns upon the facts in another case. That case will-be designated in this opinion as No. 9110. The facts are simple. In that ease the Union Central Life Insurance Company brought suit against the Irrigation Loan and Trust Company to foreclose a mortgage. Service was obtained by publication on the theory that the defendant was a foreign corporation and nonresident. The defendant did not appear and, eventually, judgment was had. The mortgage was foreclosed, the land was sold, and bid in by the plaintiff, and after the period of redemption had expired a sheriff’s deed was issued, and the plaintiff was put into possession of the land.
Some time subsequent to the time when the plaintiff in that case took possession of the land the Irrigation Loan and Trust Company advised the tenant that the land belonged to it and that rent should be paid to it. When this occurred, the plaintiff in that case, the Union Central Life Insurance Company, filed this suit to quiet title to the real estate.
When this suit was filed the defendant filed an answer that was in effect a general denial. The answer especially alleged that the plaintiff gained possession of the land “by force, subterfuge and misrepresentations, illegally and without authority of law.” The court heard the case and found the facts, and gave judgment for plaintiff. The appeal is from that judgment.
The trouble arises because plaintiff in case No. 9110 thought the defendant, which held fee title to the land, was a foreign corporation. As a matter of fact it was a domestic corporation organized under the laws of the state of Kansas. Acting on the belief that the defendant was a foreign corporation, the plaintiff filed affidavits and attempted to secure service by publication, as is provided for in R. S. 60-2525 and 60-2526. Among other statements contained in the affidavits was one that—
“The defendant, the Irrigation Loan and Trust Company, a corporation, is a nonresident of the state of Kansas, and resides at Kansas City, Mo. That personal service of summons cannot be had upon said defendant within the state of Kansas and that plaintiff with due diligence is unable to procure actual service of summons upon the said defendant within the state of Kansas.”
The question that presents itself to us is whether the judgment in case No. 9110 is void or merely voidable. The attack made on it here is a collateral one. Hence, if it is only voidable, the trial court was correct, and the plaintiff in this case should prevail. If the judgment in case No. 9110 was void, then the title to the-real estate is still in the defendant in this case, and the defendant' should prevail.
Plaintiff argues that the case comes under the rule laid down in many cases, such as Duphorne v. Moore, 82 Kan. 159, 107 Pac. 791. There this court said:
“A judgment based upon a willfully false affidavit for service by publication is not absolutely void.”
There is.no doubt about the soundness of that rule. Were the defect here merely' a mistake or misstatement in the affidavit, then the proceedings would be irregular merely, the judgment voidable only, and it would be necessary to attack it directly in the same' case as is provided by statute.
We have concluded, however, that this case does not fall within that rule. The corporation which owned the land and which is defendant in this case was never made a party to the foreclosure action, No. 9110.
The petition alleged that the corporation was organized and existing under the laws of the state of Missouri. The affidavit made the same statement. The actual owner of the land, and the defendant in this case, was a Kansas corporation and is nowhere- named or referred to in’ the proceedings. This situation was not true in any of the authorities that are cited and relied on by plaintiff here. This case thus resolves itself into a simple one where the real party in interest was not made a party to the action.
The Irrigation Loan and Trust Company, a corporation organized and existing under the laws of Kansas, could not lose any rights in a suit that was instituted against the Irrigation Loan and Trust Company, a corporation organized and existing under the laws of the state of Missouri. No service of summons or service by publication was had or attempted in case No. 9110 against the defendant in this case nor was it ever in court in that case. Having reached this conclusion, it does not require any citation of authorities to establish the fact there was no judgment against the defendant in this case rendered in case No. 9110.
The judgment of the trial court is therefore reversed with directions to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Dawson, J.:
This was a compensation case. It appears that on and prior to October 24, 1933, the late Samuel Ernest Woods, of Clovis, N. M., was a traveling salesman for the Jacob Dold Packing Company of Wichita, Kan. His contract of employment was made in Kansas, although his field of operations was partly in northwest Texas, and included the cities of Amarillo and Dalhart. His compensation included an allowance for traveling expenses, which was calculated on the exact mileage by the most direct-route between points within the trade territory to which he was assigned, but he was privileged to choose his own route of travel.
In the late afternoon of October 24, 1933, Woods had com pleted his canvass of customers in Amarillo and was due to call on the trade in Dalhart the next day. There were three practical routes between Amarillo and Dalhart — one which bore north, west, and angling northwest, a total distance of 90 miles; a second route which ran mainly northward to the south line of Sherman county, Texas, and thence due west into Dalhart, a distance of 125 miles; and a third, but more circuitous route, over a paved road running northeastward from Amarillo through towns or villages named Panhandle, Borger and Stinnett, thence west to Dumas where it merged with the second route — a’’total distance of 150 miles. These latter points en route were not within Woods’ trade territory, but he had a son livin'g in Borger whom It would be convenient for him to visit and with whom he perhaps intended to stay over night. On the shortest route there was a considerable amount of construction and repair going on at two different stretches of the highway, so that there was that additional reason why Woods might choose one of the longer routes.
In the evening of October 24 Woods started for Dalhart on the long circuitous route via Panhandle and Borger. A few miles out of Amarillo, Woods met his death in a collision of automobiles.
His employer resisted the compensation claims of his dependent widow and minor daughter. A proceeding was conducted before the compensation commissioner, where the only contested issue was whether Mr. Woods’ death arose out of and in the course of his employment. The commissioner’s finding constituted an affirmative answer to that question, and claimants were awarded $4,000, one-half to the widow and one-half to the daughter, payable at the rate of $18 per week, together with an allowance of $150 for funeral expenses.
The record was brought before the district court for review. That court made findings of fact and gave judgment affirming the award in toto, but it also decreed that the item of $150 for funeral expenses should bear interest from the date of the court’s decree, April 5, 1934.
Respondent appeals, contending that the evidence established the fact that the death of Woods occurred under circumstances which showed clearly that he was on an errand of his own when he was killed, that his death did not arise out of nor in the course of his employment. We cannot assent to that contention.- Woods was privileged to choose his own route in going from Amarillo to Dalhart, and he was none the less about his master’s business when he was killed, although he had chosen to go to Dalhart by the longest route so as to.call on his son and possibly stay over night with him. If Woods had no other motive for choosing the longest route, it was quite reasonable that he should have selected it in view of the fact that the shorter routes were undergoing repairs and improvements. And since the record contained evidence to support the trial court’s finding, this court may not meddle with it. (Butler v. White Eagle Oil Ref. Co., 140 Kan. 202, 34 P. 2d 120.)
Respondents raise a minor point touching the allowance of interest on the item of $150 for funeral expenses. The compensation act does not sanction the imposition of any interest charges. As heretofore shown in Richardson v. National Refining Co., 137 Kan. 473, 21 P. 2d 307, a provision in the compensation act of 1911 as amended in 1917 did allow interest on payments overdue (R. S. 44-534), but when the act was revised in 1927 (Laws 1927, ch. 232; R. S. 1933 Supp. 44-534) the provision for the allowance of interest was deliberately eliminated by the legislature. Moreover, the statute expressly declares that the reasonable expenses of burial of a deceased workman chargeable to the employer shall not exceed $150. (R. S. 1933 Supp. 44-510, Subdiv. 2 [d].) Since the compensation act is complete in itself and borrows nothing from the civil code or any other statute (Cruse v. Chicago, R. I. & P. Rly. Co., 138 Kan. 117, 23 P. 2d 471, syl. ¶ 1), it seems imperative to hold that the imposition of an interest charge on the item allowed for burial expenses must be set aside. To that end this cause will be remanded to the district court for the elimination of the interest charge, and when that is done the judgment will stand affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action for an accounting between plaintiff and defendant on account of a claimed partnership.
Omitting formal parts, the petition alleged that plaintiff and defendant entered into an oral agreement to become partners in the business of buying, selling and operating oil and gas leases; that each should devote his time to the business, and leases taken in the name of either should belong to the partnership; that all commissions earned by either should be divided, except commissions paid either for securing leases in territories designated by oil companies in advance of securing such leases, and that there was no agreement as to the duration of such partnership; that oil and gas leases were taken and sold and partial division of profits and losses made; that no other agreement was entered into relative to the partnership and there had been no dissolution of it and no final accounting; that defendant by a series of transactions, the exact nature of which was unknown to plaintiff, had secured a lease of certain lands (the Haury lease hereafter mentioned); that while the lease stood in defendant’s name it was in truth partnership property, and defendant had been collecting approximately $1,000 per month therefrom; that defendant had received at least $-over his due proportion of partnership profits and appropriated same to his own use. The prayer was for an accounting. Defendant’s verified answer denied any partnership and that plaintiff was entitled to an accounting; that the transactions between plaintiff and defendant were limited solely to individual instances of purchase and sale, and that plaintiff had received his full compensation therefor. Laches and the bar of the statute of limitations were pleaded. Plaintiff’s reply denied inconsistent allegations of the answer, alleged joint ownership of the property described in the petition; that plaintiff trusted and relied upon defendant as he handled other property of like kind and character and plaintiff had done nothing to waive or forego his interest in the partnership property.
The trial court made findings of fact and conclusions of law as follows:
“Plaintiff and defendant for some years prior to June, 1928, had each been engaged in procuring and selling or otherwise dealing in oil and gas leases and royalties in the state of Kansas. Each of the parties had acted in the capacity of representatives of oil companies or individuals interested in the oil busi ness in procuring oil and gas leases and royalties, and they had also been engaged in such business on their own accounts.
“In the spring of 1928 they began to operate jointly with each other, agreeing that they would take jointly and own and dispose of such leases in the Halstead field as they might agree upon, get an office and divide the expense. One or both of the parties then leased an office and bought some secondhand furniture, each contributing half of the cost. They also had a sign posted on their window reading: ‘E. L. Study and E. L. Laycock, Oil and Gas Leases and Royalties.’ Their arrangement did not contemplate either drilling or operating any wells.
“After leasing this office in July, 1928, each continued to purchase leases for companies they represented individually, bought some leases jointly, each contributing half of the cost, taking some of them in the name of E. L. Laycock, the wife of the plaintiff, and some in the name of E. L. Study. Leases were never taken in the name of the two jointly. They did not maintain a joint bank account and no joint books of account were kept; the only indication as to the ownership of the leases was contained in a wall map. Fifteen or twenty leases were handled in this manner and always after consultation between the parties, and where one or the other was not interested, the lease, if taken, would be handled separately.
“Generally settlement between the parties was made after each lease deal was completed, but where the deal was not completed at once they were carried on a list of leases prepared by one or the other and submitted to the other party.
“During October or November, 1928, a disagreement arose which resulted in a declaration that they would not have any more joint deals and thereafter they dealt individually, and no further leases were obtained or handled jointly, although the parties continued to office in the same.room.
“In August, 1928, one Daniel Haury executed an oil and gas lease covering all his undivided one-half interest in the west half of section 1, township 23 south, range 4 west of the sixth principal meridian, for a consideration of $160 rental per year, leaving the same with the Farmers State Bank of Hal-stead to be delivered to plaintiff upon his paying $160. Nothing further was ever done with this lease and it remained in the bank until, the trial of this case.
“In March of 1929 the defendant, Study, and one D. H. Lehman, after some discussion with Haury over whether it was to be in one piece or in eighty-acre divisions, finally agreed to purchase the lease on the half section in quarter-section tracts for a ten-year term at $1 per acre. The lease was executed by Daniel Haury ■ and left at the bank to be executed by the other owners. Further negotiations were necessary before Carl Haury, guardian of certain minor .owners, consented, but the lease was finally signed in December, 1929, and the consideration agreed upon and paid. While the lease was taken in the name of E. L. Study as lessee, it was owned jointly by Study and D. H. Lehman, Lehman furnishing the capital, apparently. Later the south half was sold to an oil company by Study and Lehman. This oil company made an arrangement with Study to drill upon this south half, which was done. Later Study acquired Lehman’s interest in the remaining quarter section by purchase, which was drilled, oil and gas being found on both quarters.
“Sometime in June, 1929, the plaintiff moved to the state of Colorado, turning over his desk in the office to another, and no correspondence was had between plaintiff and defendant relative to any of the oil leases from then on. Plaintiff engaged in the oil business in Colorado on his own account and apparently lost interest in the Halstead field. Plaintiff never claimed an interest in the Haury lease until after it became valuable.”
"conclusions of law
“1. No partnership was entered into between plaintiff and defendant, the business transactions between the parties being limited to joint ownership of certain oil and gas leases.
“2.' The Haury lease involved herein was not jointly owned by the plaintiff and defendant at any time.
“3. Plaintiff is further barred by laches from obtaining the relief sought herein.”
Judgment was rendered accordingly. Plaintiff’s motion for a new trial was denied, and he appeals, the questions presented depending largely on his contention the undisputed evidence showed a partnership existed.
Space forbids that a complete statement of the evidence, which as abstracted consists of 85 pages of abstract and 50 pages of counter abstract, be made to demonstrate in detail the merit or lack of merit of appellant’s contention. We shall limit the matter. The testimony showed that each party had been engaged in procuring leases for oil companies and others whom they represented, and on occasions taking for himself individually leases which the employer did not want. These leases were sold individually. The parties knew each other, and in June, 1928, they determined to operate together for limited purposes. Neither had much capital. They rented an office and equipped the same with secondhand furniture, the cost of which was divided. A sign was put on the window:
“E. L. Study
E. L. Laycxick
OIL AND GAS LEASES AND ROYALTIES”
They had a telephone installed and the listing in the telephone directory was “Study & Laycock-60.” After the office was opened each continued to represent his former employers, but when available leases were discovered by either he took the matter up with the other. Sometimes they purchased the leases and sometimes not. Those purchased were at least largely sold, and as sold there was a settlement on account of the lease. The gist of the suit pertains to the Haury lease. Daniel Haury owned a one-half interest in certain lands, the other one-half interest belonging to his children and grandchildren. In August, 1928, Daniel Haury came into Laycock’s office and wanted him to buy the lease. As a result, a lease was prepared and executed by Mr. Haury to E. M. Laycock, wife of plaintiff, covering lessor’s undivided one-half interest in the described real estate, the consideration being $160. This lease was deposited in escrow in a bank at Halstead, to be delivered upon payment of the consideration. That was never done. Study does not seem to have been advised of the above lease. To digress, it appears that affairs went along smoothly between Laycock and Study until in November, 1928. About that time Laycock told Study he had bought a piece of royalty of Alfred Seiler, one-fourth of which was for Study. Study said he didn’t want it, as it was “off of the structure”; that he (Study) had bought three pieces of royalty that were close in; they had a disagreement and Laycock said, “After this we will each go his way,” and wanted to know whether he would give or take for his part of the office. Laycock asked permission to leave his desk, and while he was around the office from time to time for the next three months, they had no conversations together and made no more deals together. It is not necessary to review the evidence respecting Study’s claim that Laycock wrongfully appropriated money to pay for the Seiler royalty. Laycock thereafter operated with one Nelligan and they took leases in northern Kansas in March, 1929. We are not concerned with Laycock’s contention that he took them for himself and Study; it must suffice to say he took them in his own name and never mentioned them to Study. In June, 1929, Laycock went to Colorado, where he remained until about the time this action was filed in September, 1932, not communicating with Study in the meantime. To return to the Haury matter, the evidence showed that in March, 1929, Mr. Haury approached Study concerning the lease. Study took time to consider, found a backer, and made arrangements for a lease on the whole interest of Haury, his children and grandchildren. Owing to necessary probate court proceedings this lease was not fully effective until December, 1929.. Thereafter Study sold a part of the lease and under arrangements with others developed the whole property. It proved to be quite profitable and thereafter this action followed.
There was other testimony to support the court’s findings, as there was testimony from which a contrary conclusion could have been reached, but we are now concerned only with whether the testimony warranted the findings of fact the court made, and we conclude that it did. Much space in the briefs is devoted to the law of partnership. We do not find it necessary to discuss this phase of the matter. Even had there been a partnership it was ended by mutual consent of the parties long before the Haury lease was taken by Study. Neither need we discuss the force and effect of the lease on the undivided half-interest which Laycock had prepared and placed in escrow in the bank. Study denied any knowledge of it, and it is conceded by Laycock he never made any attempt to complete the purchase.
Essentially this was a fact case, and the trial court’s findings are conclusive here.
We notice two other claims of error: One that the court erroneously admitted certain testimony; the other that it erroneously refused to admit offered testimony. As to the first, we observe the trial was to the court, no motion to strike out the claimed erroneously admitted testimony was made, nor is there any showing it was prejudicial. It had to do with a showing that Mr. Haury was a forgetful old man, and was offered to show that certain statements in his deposition might be attributable thereto. If it was error to admit it, the error was technical and not substantial. As to the excluded evidence, it is sufficient to say it was not offered on motion for new trial as required by the civil code, and if there was any error it cannot now be urged.
And finally, it is urged that some of the transactions between the parties have not been finally settled, and however we might conclude on the Haury lease matter, still plaintiff is entitled to an accounting. The court found there was no partnership — therefore, there is no accounting to be had. If Laycock and Study still jointly own certain leases, difficulties concerning each lease would constitute separate causes of action. Stripped of all the explanatory matter and dispute about the relation of the parties, essentially this was a suit to determine whether Laycock had an interest in the Haury lease. It has been demonstrated he did not.
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The opinion of the court was delivered by
Smith, J.:
The court permitted a second petition for a rehearing to be filed on account of pendency of other cases involving the same and similar questions. Ruling on the motion has been delayed until the related cases were heard.
The chief complaint respecting the decision was, that certain limitations on the doctrine of liability without fault were not spelled out in the opinion. Thus it was nowhere said that .if a producer of salt water confined his salt water in perfectly safe tanks, and an earthquake should wreck the tanks, the producer would not be liable for escape of the water. Likewise it was not said in the opinion that if escape did occur, there would still be a limitation on liability, which would normally extend only to natural and foreseeable consequences. The limitations were taken for granted, and so were not separately discussed. The producers were not sheltered under any of them, and the general statements of the opinion went directly to liability under the facts. The limitations are sufficiently discussed in the opinion in State Highway Comm. v. Empire Oil and Refining Co., post, p. 161, this day decided.
Not considering the statute, there is good ground for holding ultrahazardous occupations must be conducted at the risk of those who engage in them, without regard to intervention of vis major and the like, but no statement on that subject is called for in this case.
On the subject of legal consequences of misconduct, the general rule is stated in Harper on Torts (sec. 119, p. 270),''as follows:
“The rule may be generalized, that where harmful consequences are brought about by intervening and independent forces the operation of which might have been reasonably foreseen, there will be no break in the chain of causation of such a character as to relieve the actor from liability. The source of the intervening agency is immaterial, whether from nature, animate or inanimate, or from human beings.” (Citing Meecke v. Morguies, 128 Kan. 423.)
The subject of consummation of harm in cases of strict liability is treated by the same author in section 163 (p. 244), in which the limitation to natural and foreseeable consequences is developed, a limitation applied for purpose of the decision in Highway Commission v. Empire Oil and Refining Co., supra.
The subject of nuisance was not necessary to the decision in this case, and the references to that subject are withdrawn.
The judgment heretofore rendered is adhered to, and the motion for rehearing is denied. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for a declaratory judgment to determine the validity of a city ordinance and to restrain the defendants from violating its provisions. Involved with it was a cross action in which defendants alleged that the ordinance was subject to certain vitiating infirmities, and prayed that the city and its officials be enjoined from enforcing it.
The ordinance, No. 11-366, provided that no person should operate a taxicab in Wichita, nor should a license be issued for that purpose under earlier ordinances on the same subject, Nos. 11-180, 11-189, 11-252 and 11-254, until the city government should first decide that public convenience would be promoted thereby. Section 2 provided for the filing of an application for a license, a bond or insurance policy, and the payment of a license fee, before the city government would determine whether the public convenience and necessity required that such license be issued. Section 3 provided for a hearing on the application.
Section 4, in part, reads:
“Every person, firm, or corporation, actually engaged in the operation of taxicabs within the corporate limits of the city of Wichita, duly licensed under the provisions of the ordinances enumerated in section 1 hereof, and furnishing certain and dependable service, shall be presumed to be necessary to public convenience and such persons, firms, or corporations shall in the absence of evidence overcoming such a presumption, receive a certificate to operate a taxicab service within the corporate limits of the city of Wichita.”
Any other provisions of the ordinance which may require attention will be noted as we proceed.
The city’s petition alleged that defendants were engaged in business in Wichita by means of an arrangement whereby they had recruited the owners of a large number of automobiles to engage in the taxicab business and to pay a daily toll of their earnings to defendants in return for a telephone service, insurance, and various other considerations rendered by defendants.
The plaintiff city also alleged that through litigation defendants had stayed the hands of the city to enforce its ordinances regulating the operation of taxicabs and were prosecuting their business in the most congested streets of the city in disregard of the rules promulgated for the safety of traffic and pedestrians; that defendants were neither licensed nor had they paid the prescribed sums or any other sums to obtain licenses; that defendants had declared that they would not apply for certificates or licenses under the provisions of the ordinance.
The city’s petition concluded with a prayer for an adjudication of the validity of the ordinance and for an injunction against its violation by defendants.
In defendants’ answer and cross petition they admitted that they paid no city license taxes. They also alleged that the ordinance in controversy, No. 11-366, violated the statutes and constitution of the state, and likewise violated the fourteenth amendment. Defendants also alleged that the ordinance was discriminatory in that it granted an exception in favor of all taxicab companies operating in Wichita which had ceased to litigate with the city about certain legal questions involved in its earlier taxicab ordinances. Defendants also alleged that the ordinance was designed and intended by the city to coerce defendants into foregoing their right to contest the validity of the earlier ordinances in litigation then pending, which litigation was being prosecuted in good faith to the supreme court of the United States.
In plaintiff’s reply it was denied that any special or favorable discrimination in the exaction of license fees had been extended to the various taxicab companies operating in the city, other than defendants; but it was admitted that formerly existing controversies with such other taxicab companies had been compromised and settled by their payment of $60 for each taxicab license for the year 1933 in lieu of the $100 fee prescribed by the ordinance, and the city further replied that “Defendants were offered the same settlement, which offer was refused on the part of said defendants.”
The trial court of three judges sitting en banc held the ordinance valid, but denied the injunctions prayed for by the litigants.
Defendants appeal, propounding for our review certain legal questions involved in the judgment.
First, it is contended that the city does not have the power to grant one or more companies the exclusive right to operate taxicabs in Wichita. But it does not appear that such right is being exercised by the city. Defendants assume that the city’s only power to deal with such matters as those covered by the ordinance is prescribed by R. S. 1933 Supp. 66-196 and R. S. 13-2801. Neither of these statutes is relied on by the city to sustain its authority to enact the ordinance in controversy. The city’s power to regulate the use of the streets and to regulate, restrict, or license the use of taxicabs for hire is founded on various statutory provisions, including R. S. 12-101, 13-412, 13-413, and 13-910. These sections, under older designations, were cited in Desser v. City of Wichita, 96 Kan. 820, 822, 153 Pac. 1194, as sufficient authority for the regulation and licensing of “jitneys” by a Wichita city ordinance twenty years ago; and surely it cannot be contended that the city’s governmental powers are less potent to-day than they were when the Desser case was decided. The rule announced in that case was followed in Decker v. City of Wichita, 109 Kan. 796, 202 Pac. 89; in Peoples Taxicab Co. v. City of Wichita, 140 Kan. 129, 34 P. 2d 545, and in Home Cab Co. v. City of Wichita, 140 Kan. 451, 36 P. 2d 1012.
Appellants, however, find a talking point against the ordinance' in its use of some of the familiar language of the public utilities •act touching the issuance of “certificates of convenience and necessity.” They argue that this language clearly indicates that such an ordinance as would authorize and govern the issuance of such certificates must be a franchise ordinance which the city could only enact pursuant to R. S. 13-2801 and R. S. 1933 Supp. 66-196. This contention is incorrect. Even a casual reading of R. S. 13-2801 will show that it deals with the granting of franchises to public utilities desiring to serve the city with gas, light, power, street railways, telegraph and telephone lines. It has no concern with ordinances prescribing police regulations for the operation of taxicabs, which is the subject matter of present concern. R. S. 1933 Supp. 66-196 does not limit the city’s authority to deal with traffic problems which arise or are intensified by a superabundance of taxicabs racing about its streets. Both these questions have already been decided adversely to the contentions of defendants. (Home Cab Co. v. City of Wichita, 140 Kan. 451, 36 P. 2d 1012.) R. S. 1933 Supp. 66-196 is a supplement to the general utilities act, and is not concerned with the regulation and control of taxicabs like those of defendants which run anywhere and everywhere-in or out of the city, without having “fixed termini or over a regular route.”
Counsel for defendants cite cases which declare that a certificate of convenience or license is in effect a franchise; and in a sense, of course, that is true; but when used in such a loose or general sense the term is not within the scope of the sort of franchise contemplated by R. S. 13-2801, which requires franchise ordinances to be submitted to a popular referendum.
It is next contended that the ordinance leaves the granting or withholding of certificates of convenience, or licenses, to the unregulated will of the city government, uncontrolled by prescribed rules for its action. The ordinance, section 6, provides:
“In determining whether or not a certificate shall be issued, and licenses issued thereunder, the board of commissioners shall take into consideration the systems of transportation already operating, the probable congestion of traffic with an additional system of transportation, the question whether or not the existing systems of transportation are rendering the service required to meet the needs of the public, and all other facts which are necessary to determine whether or not public convenience and necessity require the operation of additional taxicab service within the corporate limits of the city of Wichita.”
It seems that these prescribed rules to govern the action of the city authorities are about as definite as would be practicable to make them. They accord with the standard prescribed for the granting or withholding of similar certificates under the public utilities act (R. S. 1933 Supp. 68-199), which has withstood repeated assaults upon its terms. (Southern Kansas Stage Lines Co. v. Public Service Comm., 135 Kan. 657, 11 P. 2d 985, and citations.)
Defendants finally contend that ordinance No. 11-366 was designed to coerce one of these defendants into an abandonment of its litigation over some earlier ordinances dealing with the operation of taxicabs within the city. The ordinance does not say so. It is. not fairly susceptible of that interpretation; and so far as the-penalties of $100 per day are concerned, they would not accumulate .while the validity of those ordinances, or of this one, was being-diligently litigated in good faith before any competent court of original or appellate jurisdiction. (City of Marysville v. Cities Service Oil Co., 133 Kan. 692, 3 P. 2d 1060.)
Some other matters are suggested in defendants’ brief, but they are insufficient to establish prejudicial error in the judgment upholding the ordinance or in refusing the injunction prayed for against the city; and as the city does not complain of the trial court’s refusing to grant the injunction it sought against the defendants, the judgment in all its parts will be affirmed. It is so. ordered. | [
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The opinion of the court was delivered by
Harvey, J.:
George J. Lohman was charged with the larceny of a truckload of wheat from the granary of Dennis Harter, a farmer in Stafford county. He was tried, found guilty, and has appealed.
The pertinent facts shown by the record may be stated as follows : The appellant Lohman and his wife lived in Hutchinson. He had been a truck driver, employed by various persons, for about eight years. His side occupation, for part of this time at least, was that of a bootlegger. For this he had been convicted and had served time in jail. J. N. Babylon, a fairly well educated fellow about fifty years of age, had worked for farmers and others in Stafford and nearby counties for about eighteen years. He and Lohman were friends and he sometimes stayed for several days at a time at the Lohman home. Both of them knew Emmett Mackley and his family, who lived on a farm in Stafford county. On a Sunday in November, 1933, Lohman and his wife and Babylon went from Hutchinson to Mackley’s home, where they visited four days, the men hunting part of the time. On Thursday they returned to Hutchinson. On Friday Lohman and Babylon appear to have loafed around home, drinking. Babylon suggested that they go that night and get a load of wheat. Lohman agreed. Soon after dark they went in Lohman’s car to Mackley’s place, left their car in the yard and took Mackley’s old model T truck and drove to the Harter farm, a mile or two away. There, with two scoop shovels, they loaded the truck with wheat from Harter’s granary and drove back to Mackley’s, where they backed the truck into a driveway. Lohman did the driving. They then got into Lohman’s car and went back to Hutchinson. Before leaving the truck, however, Babylon left a note on a small three-cornered piece of paper, torn from a larger sheet, on the steering wheel of the truck under the gas throttle. On this paper was written: “Come down Saturday. Not later than Sunday. Don’t fail me.” Harter had been away from home early in the evening, but when he returned he discovered a truck had been there and hauled away some of his wheat. He notified the officers, the truck was tracked to Mackley’s place, and found with the wheat in the truck. The note also was found on the steering wheel. Lohman and Babylon were arrested the next day. While Babylon was in jail Lohman took his grip there, and from the pocket of some clothing was found the sheet of paper from which the three-cornered piece had been torn and on which the note was left on the steering wheel of the truck.
The principal point urged on this appeal is that the court admitted in evidence this note found on the steering wheel and also the paper from which it was torn. We see no more objection to receiving those in evidence than in receiving evidence of the wheat and scoop in the truck, the kind of tires on the truck, and the tracks they made, and other material things connected with the testimony.
Some criticism is made because the evidence which sustained the verdict was principally that of an accomplice. The court carefully instructed the jury as to how such evidence should be weighed. It is the rule in this state that the uncorroborated testimony of an accomplice, if believed by the jury, is sufficient to sustain a verdict. (State v. McIntyre, 132 Kan. 43, 48, 294 Pac. 865.) It hardly can be said here, however, that the testimony of the accomplice was not corroborated in some material particulars.
There is no error in the recoid, and the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action by the vendees to set aside a contract for the sale of real property, and for other proper equitable relief. The trial court made findings of fact and rendered judgment for plaintiffs. Defendants have appealed. The question presented is one of marketable title.
On June 1, 1929, A. C. Austin and husband as parties of the first part entered into a written agreement with Albert Myrick and wife by which they covenanted to sell and convey to second parties for $500 three certain lots on Michigan avenue and sixteen certain lots on Forest avenue in a certain addition, now a part of the city of Topeka, and upon their payment of the purchase price, and otherwise complying with the contract, to execute, acknowledge and deliver to them a deed of general warranty and furnish an abstract of title showing good title in first parties at the date of the contract, and free and clear of all encumbrances and lien by acts of first parties after the date of the contract. The $500 purchase price was to be paid according to the terms of two notes, of $250 each, executed by second parties and payable to A. C. Austin. The second parties were to retain possession of the premises (it appears they were then in possession under some previous arrangement with someone), and were to pay future taxes. If second parties made default in fulfilling the agreement they were to pay $19 per annum as rent for the period of occupancy under the agreement. It further was stipulated that first parties were not to enforce during the life of the agreement a judgment previously obtained in a certain action in the district court of Shawnee county by A. C. Austin against the second parties, and upon the full performance of the agreement the first parties at their own expense would release such judgment of record.
In their petition in this action, filed November 17,1933, plaintiffs set out this contract, alleged they executed the two notes mentioned therein, that they had paid $90 interest on the notes, $5 in taxes, and had made lasting improvements on the premises of the value of $50; that the notes, by their terms, had become due, and A. C. Austin had sued on them in the court of Topeka; that the written agreement could not be carried out because defendants did not have good title to the property, either at the time the written agreement was executed, or at the time this action was brought; that as to the three lots on Michigan avenue the title never had been in the name of either of the defendants, but stood in the name of one Norton, and that as to the sixteen lots on Forest avenue the title formerly stood in the name of A. C. Austin, but there was an outstanding tax title in one Steele, who was threatening legal action. Plaintiffs tendered the property back to defendants and prayed that the agreement be canceled, that defendants be enjoined from prosecuting the actions on the two notes in the court of Topeka, and that there be an accounting for money paid.
The answer denied the lack of marketable title, and alleged the tax deed to Steele was void and that such possession as Steele got under the tax deed was obtained in a way not to amount to legal possession.
Shortly stated, the court found: As to the three lots on Michigan avenue, that at the date of the agreement the title was in John F. Norton, but prior to that date he had executed a deed to the defendant A. C. Austin, which was recorded December 2, 1933; as to the sixteen lots on Forest avenue, A. C. Austin has been the record owner since 1914, but that on October 2,1924, Shawnee county duly made and executed a tax deed for these lots to R. B. Steele, which deed was recorded the same day, and that the tax-deed holder obtained possession of the real property within two years and leased the same to Albert Myrick, and that on March 20, 1926, R. B. Steele and wife deeded the .property to Miriam Steele, which deed was recorded before the execution of the written agreement between the parties to this action, and that because of the tax deed and tax liens the title was unmarketable. Judgment was rendered in accord with these findings. . i;
In this court appellants argue the validity of the tax deed issued to R. B. Steele and the legality of the possession which he acquired of the property. The trouble, ¡with attempting to determine those matters in this action is that neither R. B. Steele nor his grantee Miriam Steele is a party to this action. We could make no adjudication here with respect to their rights which would be binding on them.
In an action by appellants against the holder of the tax deed it is possible the result would be reached for which appellants now contend, but we do not determine that matter for the reason the holder of the tax deed is not in court. We suggest, however, even if the tax deed were set aside the holder probably would have a lien for taxes with interest; but even that question is not before us.
The question here is one of marketable title. This means such a title as is free from reasonable doubt in law and in fact; not merely a title valid in fact, but one which readily can be sold or mortgaged to a reasonably prudent purchaser or mortgagee; one acceptable to. a reasonable purchaser, informed as to the facts and their legal meaning, willing to perform his contract, in the exercise of that prudence which business men usually bring to bear on such transactions; one under which a purchaser may have quiet and peaceful enjoyment of the property; one that is free from material defects, or grave doubts, and reasonably free from litigation. For a full discussion of the question, see 66 C. J. 862 et seq. Our own cases, McNutt v. Nellans, 82 Kan. 424, 108 Pac. 834; Williams v. Bricker, 83 Kan. 53, 109 Pac. 998; Linscott v. Moseman, 84 Kan. 541, 114 Pac. 1088; Beeler v. Sims, 91 Kan. 757, 139 Pac. 371; Feldhut v. Brummitt, 96 Kan. 127, 130, 150 Pac. 549, and Newell v. McMillan, 139 Kan. 94, 100, 30 P. 2d 126, are in harmony with the text and the many cases cited thereunder. (See, also, 27 R. C. L. 489 et seq. and cases collected in the annotation 57 A. L. R. 1253 and 90 A. L. R. 609.) Under these authorities the court correctly held the title to be unmarketable..
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
Harvey, J.:
This is an appeal from an order of the trial court sustaining a demurrer to plaintiff’s petition in an action by a guest against her host for personal injuries sustained in an automobile casualty. The question presented is whether the petition states a cause of action under our so-called guest statute, R. S. 1933 Supp. 8-122b.
A preliminary question must be considered. Defendant’s demurrer to the petition was at first overruled. Defendant answered. Later defendant obtained permission of the court to withdraw his answer and refile his demurrer. This was done, and the demurrer was sustained. In the meantime plaintiff’s deposition was taken by her counsel, as her home is in Texas. On this appeal appellee, in a counter-abstract, has abstracted this deposition, and contends plaintiff’s testimony is less favorable to her than the allegations of her petition. Appellant contends the counter-abstract is no part of a proper record on this appeal and that it should be stricken. The point is well taken. The only proper record on this appeal consists of the petition, the demurrer thereto, the journal entry of the ruling of the court thereon, and the notice of appeal.
Briefly, it is alleged in the petition that on October 15,1932, plaintiff, then about 55 years of age, and not accustomed to handling automobiles, was riding in an almost new Hudson automobile owned and driven by her nephew, the defendant, and as his guest, from Wichita to Hutchinson, on a paved state highway, on which the traffic was quite heavy. She occupied the left side of the back seat; also, defendant’s wife and his mother were in the automobile. As they neared Hutchinson there were dwellings near the highway with driveways leading to them. Defendant was accustomed to driving along this highway and knew the danger of accidents thereon, especially in approaching and passing other cars. Despite this knowledge, and in disregard thereof, and with total'lack of care and consideration for those riding with him and in other cars on the highway, he intentionally drove his car at the negligent and wanton speed of 60 to 70 miles per hour; that so driving west on the highway a car driven by one Rupard, with a car in front of it and one behind it, approached on the highway from the west; that when about 600 feet from defendant’s car Rupard turned to the left to enter a farmyard driveway on the north side of the highway; that when Rupard had turned far enough to his left to enable him to see past the car in front of him, and to see defendant’s car approaching, he turned back to his right side of the pavement, and practically had his car across the middle line of the pavement and on the south side thereof when defendant’s car came to the point of passing the Rupard car; that defendant had plenty of room on the pavement to pass the Rupard car on the north side thereof, but because of his high speed and reckless driving, hereinbefore stated, defendant was either unable, because of his speed and inattention, to control his car, or else carelessly, negligently and wantonly failed to give any attention or make any effort to control his car, and the left fender came in contact with the left side of the Rupard car, and after passing the Rupard car turned farther to the left and came in contact with the right side of the car following the Rupard car, and went off the highway on the south side, and overturned, and that as a result plaintiff sustained serious described injuries, for which she seeks to recover.
The statute in question reads:
“That no person who is transported by the owner or operator of a motor vehicle, as his guest, without payments for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence of the operator of such motor vehicle.” (R. S. 1933 Supp. 8-122b.)
In Stout v. Gallemore, 138 Kan. 385, 26 P. 2d 573, this statute was construed to relieve the operator of an automobile from liability to his guest resulting from negligence, as that term is- distinguished from wantonness, which terms were used in harmony with prior decisions. Later cases have given the statute the same construction. (Sayre v. Malcom, 139 Kan. 378, 31 P. 2d 8; Ewing v. Edwards, 140 Kan. 325, 36 P. 2d 1021; Aduddell v. Brighton, 141 Kan. 617, 42 P. 2d 555.)
Other cases referring to the statute are: Howse v. Weinrich, 133 Kan. 132, 298 Pac. 766; Hartman v. Orcutt, 139 Kan. 785, 33 P. 2d 133; Pool v. Day, 141 Kan. 195, 40 P. 2d 396.
Appellant argues that by the use of the words “gross and wanton negligence” in the statute (R. S. 1933 Supp. 8-122b) the legislature intended to create a degree of negligence not previously recognized in this state. That specific point was made in Sayre v. Malcom, supra, and was decided adverse to appellant’s contention.
The meaning of the statute cannot be modified by exaggerated terms used to describe conduct; to do so would be to destroy the statute (Stout v. Gallemore, supra, p. 393). Eliminating such characterizing terms, the petition alleges: Defendant, accustomed to driving cars and familiar with the highway, in his almost new car, was driving rapidly on a paved state highway; three cars were approaching on their proper side of the pavement, the second following the first, the third following the second; when defendant was about 600 feet from the middle car it turned to the left to cross the pavement, then turned back toward its right-hand side of the highway, but was not entirely across the center line of the highway when defendant came to pass it; there was plenty of room on defendant’s side of the pavement for him to pass the other car without striking it, but either because of his speed or his inattention he was unable to control his car, or because he failed to give any attention or make any effort to control his car, it came in contact with the other car, starting a chain of events, with the result that his car was overturned and plaintiff was injured. This charges nothing more than lack of due care, which is negligence. The statute relieved defendant from liability for such negligence.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Valentine, J.:
The decision of two questions will dispose of this case, .to-wit: First, Is a judgment against Robert Brimford, quieting title to a certain piece of land, rendered upon a default, and upon service by publication only, valid and binding as against the owner of the land whose name is Robert Binford? Second, Is a sale of land, in Miami county, for the taxes of 1858, begun and held on the 23d day of September 1859, valid and binding as against the owner of the land? Both of these questions must be answered in the negative.
I. The names “Brimford” and “Binford” are not idem sonans. To convert the name of Binford into Brimford, an “r” must be interpolated, and the “n” must be changed into “m,” which is not allowable; and under no rule of orthography or orthoepy can the two names be made to sound alike, or be pronounced alike. (See authorities cited in brief of defendants in error.) If Binford had made an appearance in said case, and defended the action, then this irregularity could have been cured by amendment, even after judgment. But Binford made no such appearance, and therefore the court never had sufficient jurisdiction so as to render any judgment, or make any order, or allow any amendment to be made against him. The notice published in the newspaper, requiring “Brimford” to appear and answer, etc., did not require “Binford” to appear. Hence the judgment founded upon such a service must be treated as a nullity as against Binford, and as against all persons holding under him.
II. There was no law in force in 1859, or indeed at other time, authorizing a tax-sale to be begun and held on the 23d day of September 1859, or on the 23d day of September of any other year. Hence said sale was void. Whether such a provision as may be found in the Comp. Laws of 1862, p. 879, § 10, or in the laws of 1866, p. 284, § 89, or in the Gen. Stat. of 1868, p. 1057, §113, curing irregularities, would have made this sale valid or not, we need not examine, for no such provision was in force in 1859. All the proceedings founded upon such a sale are necessarily void. The principle of law heretofore decided, that a recorded tax-deed, void upon its face, will not of itself and alone cause the statute of limitations to run in its favor, is applicable to this case. Hubbard v. Johnson, 9 Kas., 632. The judgment of the court below is affirqied.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Lewis F. Davis against Andrew Akin and others for damming the Verdigris river on their own land so as to cause the water to rise in the channel where said river flows through the plaintiff’s land. The facts stated in the plaintiff’s petition constitute two causes of action, and are stated in two separate counts. The first count states facts sufficient to constitute a cause of action for the injuries caused by said dam. The second count states facts sufficient to constitute a cause of action for a perpetual injunction to restrain the defendants from further maintaining and continuing said dam. Both causes of action are founded upon the tortious acts of the defendants, the creating of a private nuisance. The first is a legal cause of action, and at common law would have been denominated an action on the ease for damages, an action for a tort. (Angelí on Watercourses, § 395, et seq.) The second is an equitable cause of action brought for the purpose of enjoining the nuisance; for under our code practice all actions brought for the purpose of enjoining or abating private nuisances are in their nature equitable.actions. (People v. Moore, 29 Cal., 427; Angell on Watercourses, 6 ed., § 456a, and cases there cited; Blood v. Light, 31 Cal., 115.) It is claimed that there is a misjoinder of causes of action in this case. We are of a different opinion however. Under our statutes legal and equitable causes of action may be united in the same petition, where they all arise out of the same transaction or transactions connected with the same subject of action, or “injuries, with or without force, to person and property, or either.” (Code, § 83; Harris v. Avery, 5 Kas., 151.) The two causes of action set forth in this case have arisen out of the same transactions, and are connected with the same subject of action; and the two kinds of relief asked are not inconsistent, nor cumulative, nor double — one being for compensation for past injuries, and the other for a prevention of future injuries; and therefore the two causes of action may be joined. The action for the injunction is an equitable cause of action, as all will admit. The action for damages is what would have been denominated at common law an action on the case; and Mr. Chitty says, “An action on the case is founded upon the mere justice and conscience of the plaintiff's case, and in the nature of a bill of equity, and in effect is so." (1 Chitty Pl., 491.)
It is also claimed that said petition does not state facts sufficient to constitute a cause of action, because it does not state that the defendants did not obtain the right to flood the plaintiff’s land by virtue of proceedings under tib-e mill-dam. act. (Gen. Stat., 576, ch. 66.) It is not necessary that any such statement should be inserted in the petition. If it is true that the defendants have obtained any such right by virtue of proceedings under the mill-dam act, it is for them to plead it and prove it. It is wholly immaterial now whether special damages were .alleged in said petition or not, as-no special damages, but only nominal damages, to-wit, five cents, were recovered by the plaintiff in this action. Hence it is also wholly immaterial now whether the court below erred or not in overruling a motion to require the‘plaintiff to make certain allegations in his petition with respect to special damages more definite and certain.
The plaintiff set forth in his petition a certain written instrument signed by all the parties to this suit. This instrument gave the defendants the right to build a dam and to raise the water on a portion of the plaintiff’s r 1 land. But it did not give the defendants the right to build the dam as high as it was built, nor to raise the water in the channel of said river at the place where the plaintiff now complains that the defendants raised it. Whether this instrument created an easement, or a mere license, it is not now necessary to determine. All that it is necessary now to say is, that the defendants paid one dollar for whatever right'they obtained, bqt they did not thereby acquire a right to do anything further, and they did not thereby agree to refrain from doing anything. The pleading of this written instrument on the part of the plaintiff is merely an admission by him of certain rights in the defendants; for by such written instrument the plaintiff deprived himself from recovering for damages for flooding the lower portion of his land for which he might otherwise have recovered; and has deprived himself from obtaining an injunction to restrain the maintenance of that portion of the dam which caused the water to flood the lower portion of his land, as he could have done except for said written instrument. The written instrument therefore merely confers rights upon the defendants, and not upon the plaintiff The plaintiff however abides by the instrument, and does not seek to recover for anything except what he has not granted to the defendants. The plaintiff is willing that the defendants shall maintain the dam at the height that he agreed that they might, and that they may flood his land as he agreed they should; and it is only for the excess in the height of the dam, and excess in flooding his land, above where he agreed-that they might flood it, that he now .complains, or seeks relief; and for this only the court below rendered judgment. The acts of the defendants in flooding the plaintiff’s land above and beyond where they had a right to flood it, that is, in flooding land not included in said written instrument, were unquestionably tortious. These acts were of the same nature as though no such written instrument had ever been made. The plaintiff did not obtain the right to prevent the flooding of these lands by virtue of said written instrument, but he possessed such right prior to the execution of such, written instrument, and independent thereof. Hence this action can in no sense be termed an action on contract, but it is an action founded on the tortious acts of the defendants in flooding land concerning which no contract has ever been made between the parties.
This action was commenced and prosecuted upon the erroneous theory that it was founded upon contract, and not upon the tortious acts of the defendants. And because this erroneous theory the court below committed several errors. But after a careful consideration of the whole case we are satisfied that such errors did not affect the substantial rights of the defendants, and therefore that such errors will not require a reversal of the judgment of the court below. Although the plaintiff sup posed his action was founded on contract, yet he alleged in his petition every fact necessary to render it a good petition for the torts of the defendants, and every fact necessary to obtain the relief he asked for, or that he received. The plaintiff, by commencing and prosecuting his case upon an erroneous theory, was not relieved from introducing any evidence that he would otherwise have been required to introduce; nor were the defendants required to introduce any more or different evidence than they would have been required to introduce if the case had been tried on the correct theory; and the defendants could not have been materially embarrassed in the introduction of their evidence, or in any other manner, on account of said mistaken and erroneous theory. The trial must have proceeded, notwithstanding said erroneous theory, in all respects substantially as it would have proceeded if it had been prosecuted upon the correct theory. Under our code a plaintiff is not required to state whether his cause of action is founded upon con- ^ r tract, or on tort; and generally, if he should make a statement, and be mistaken, the statement would be immaterial. All that a plaintiff is now required to do is to “state the facts constituting” “his cause of action, in ordinary and concise language, and without repetition.” (Code, § 87.) These facts may sometimes constitute both a cause of action on contract, and a cause of action on tort, or two or more of either; and then, if the reliefs for the two or more causes of action are inconsistent, the plaintiff would be required to elect which of the same he would take, and in no case could the plaintiff have a double relief for substantially the same thing. But if the facts of the two or more causes of action are the same, and if the reliefs are the same, and if the plaintiff does not ask for double relief, but only for the single relief which either cause of action would give him, then there can be no good reason given why the plaintiff should be required to elect as to which relief he would take, or whether he would call his action an action on contract or for tort.
It is claimed “that the district court erred in submitting both the causes of action set forth in the petition of the said Bavis to a jury for trial,” the first being a legal and the other an equitable cause of action. We « x . perceive no error however m this. Either party had the right to have the first cause of action submitted to a jury. (Code, § 266.) And with reference to the second cause of action, the court in its discretion had the power to send any or all the issues therein contained to a jury, or to try them itself. (Code, § 267.) These issues, as mentioned in said § 267 of the code, are such as are made up by the pleadings of the parties, and no others are there contemplated. All feigned issues are abolished by our code, but the court may in some cases in its discretion direct the jury to find upon particular questions of fact not put in issue by the pleadings. (Civil code, § 12.) And we suppose the court may even in equity cases in its discretion follow § 286 of the code. (Laws of 1870, p. 173, ch. 87, §7.) The court seems to have followed said § 286 in the present case, for the jury found a general verdict for the plaintiff upon all the issues, and also found specially upon certain particular questions of fact. When all the issues in an equitable cause of action are submitted to a jury, a general verdict for the plaintiff is sufficient. (Blood v. Light, 31 Cal., 115.) And this is true where the jury also find upon particular questions of fact, unless the special findings should be inconsistent with the general verdict. (Id.) Now as it was proper for the court to submit to the jury either of said causes of action separately, and in the manner that each was submitted, we can see no valid reason why both of them should not have been submitted together, and in the manner they were submitted; and especially so as both causes of action arose out of the same facts substantially. But it does not anywhere appear from the record that the defendants made any objection to the court submitting both causes of action as it did to the jury, and it is rather late now to raise the objection.
The defendants set up as a defense to the plaintiff’s action that they had a right to build said dam, and to flood the plaintiff’s land by virtue of certain condemnation proceed-under mill-dam act. (Gen. Stat., 576, 66.) On the trial the defendants offered to }n£rc)(juce the. records of these proceedings to pi'ove said defense, but the court excluded them. And we think they were rightfully excluded, as the proceeding were so irregular that no rights could be founded upon them. Under the statutes the first thing to be done regarding such proceedings is to present the proper petition to the judge of the district court; (Gen. Stat., 577, §2.) The next is the appointment of the commissioners, to assess the damages; (§ 3.) Then the commissioners are to be qualified by taking and subscribing the proper oath; (§ 4.) Then the commissioners, at the request of the petitioners, give the proper notice to the persons named in the petition whose lands it is supposed will be affected by the building of the dam; (§ 5.) This notice must be given at least thirty days before the meeting of the commissioners for the assessment of damages; (§ 6.) The commissioners then meet at the time and place appointed/and make their examination and assessment of damages; (§ 7.) The commissioners then make a report of their proceedings, and return their certificate of appointment and all affidavits and other papers, which must be done within thirty days after completing their examination; (§ 8;) and the damages assessed must then be paid, or tendered, or deposited with the clerk of the district court; (§ 9.) The proceedings however were in fact as follows: The' persons who were afterward appointed commissioners gave the said required notice to the plaintiff and others, May 16th 1871; afterward they took and subscribed an oath, May 17th; afterward they were appointed commissioners, June 11th, but whether any written petition -was ever presented to the judge of the district court therefor is not shown; afterward they met at the time and place appointed, June 16th, and assessed the damages of the plaintiff at $500; afterward they made a report of their proceedings July 28th, but not within thirty days after they completed their examination and made their assessment of damages. "Whether they returned the oath which they took and. subscribed, (it being one of the papers required by § 8 aforesaid to be returned,) and what was the form of the oath, is not shown. And no part of the damages assessed has ever been paid, or tendered, Or deposited with the clerk of the district court.
The court below of course erred in charging the jury so far as it treated this action as one founded upon contract; but as we have before said, such error was immaterial. The court also erred in submitting the t . written instrument set forth in the petition', to the jury, to be by them construed; but this error was also immaterial. The jury did not construe it; and the plaintiff in drawing his petition, and the court in rendering judgment, gave every right to the defendants which they had any right to claim by virtue of said written instrument, and did not give anything to the plaintiff except what he had a right to claim either with or without said written instrument.
The general verdict and the special finding were not inconsistent, and either was sufficient to sustain the judgment. The judgment is affirmed.
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The opinion of the court was delivered by
Valentine, J.:
This was an action for the recovery of certain real property. The property consists of two lots, situated in what was formerly the town of Palmetto, now Marysville, Marshall county. On the trial of the case in the court below, the plaintiff Sherry introduced in evidence a patent from the United States to Joseph E. Clardy, probate judge of Marshall county, for certain real estate, which includes the property in controversy. This patent shows that said real estate Avas patented to said “Joseph E. Clardy, probate judge of Marshall county, Kansas, in trust for the several use and benefit of the occupants of the toAvn of Palmetto, according to their respective interests.” The plaintiff then offered to introduce in evidence a certain deed for said real estate from said Joseph E. Clardy to certain persons named in said deed, “members of the Palmetto ToAvn Com pany.” The defendant Sampson objected to the introduction of said deed. The court sustained the objection, and the plaintiff excepted. The reasons for the objection to said deed are not given in the record, but they are stated in the' defendant's brief. We shall therefore proceed to consider them in their order.
I. We do not understand that the defendant claims that said probate judge had no authority to enter said land. The plaintiff however seems to suppose that this is the only question in the case. The land was entered under the act of Congress of May 23, 1844, entitled “An act for the relief of citizens of towns upon the lands of the United States under certain circumstances.” (5 U. S. Stat. at Large, 657. See also Comp. Laws of 1862, p. 889.) Said act of Congress provides that “it shall be lawful for the judges of the county cow't for the county in' which such town may be situated to enter, at the proper land office, and at the minimum price, the land so settled and occupied, in trust for the several use and benefit of the occupants thereof, according to their respective interests,” etc. Under -this act the government of the United States has universally recognized the power of the probate judge to enter town sites, wherever the judge of a “county court” could so enter them. The “probate court” in one sense is a “ county court.” And it would seem from the action of the government that the words, “ county court,” as used in said act, were intended to mean any county court by whatever name such court might be known, and whether it was a county court for probate matters only, or whether it was a county court for general, common-law, chancery, or other jurisdiction. And now, after the government of the United States has recognized such power of the probate judge to exist, and after such power has been duly exercised in this particular case, we shall not declare in favor of a party who seems from the record to have no possible right, title, or. interest whatever in the property in controversy, that no such power does exist. The court will not allow such a person to raise the question of the want of power of the probate judge.
II. The probate judge after entering said land held it in trust for the benefit of those actually occupying said town site, and according to their respective interests. This has already been so decided in this court, after a careful consideration of the question. (Winfield Town Co. v. Maris, supra, 128.) It is true, the decision referred to was made under the act of congress of March 2d..1867, entitled “An act for the relief of the inhabitants of cities and towns upon the public lands.” (14 U. S. Stat. at Large, 541. See also Gen. Stat., 1073.) Blit the said acts of May 23d 1844, and of March 2d 1867, are,, so far as any question in this case is concerned, identical. It was the duty of said probate judge when he entered said land to make deeds for the same to the actual occupants thereof respectively. The town company may or may not have been an occupant. The individual members of the town company may or may not have been occupants. And other persons, not members of the town company, may or may not have been occupants. It was therefore not necessarily the duty of the probate judge to convey all of said land to said town company, as is claimed by the plaintiff; and it is possible that it may not have been his duty to convey any portion of the same to said town company. When the probate judge has made a deed for any portion of said land to any person it will be presumed in the absence of anything to the contrary that he has made the deed to the proper person; and a person who has no interest in the land will not be allowed to raise any question as to w'hether the probate judge has made the deed to the proper person or not.
III. This deed from the probate judge was acknowledged before the clerk of the probate court, January 3d, 1859. This was sufficient. At that time the probate court had a clerk. (Laws of 1858, page 202, § 34.) The court was a court of record, and had a seal. (Laws of 1855, page 227, §6.) And a clerk of a court having a seal has always had the power in Kansas to take acknowledgments of deeds. (Laws 'of 1855, page 177, §17, and subsequent laws.) The probate judge does not execute or acknowledge this deed as a part of the business of the probate court. The clerk of the probate court does not take the acknowledgment as a part of the business of the probate court. The two- acts are separate and distinct, and neither of them has the slightest reference whatever to probate business. The judge has power to enter lands occupied .as town sites, and to make deeds of conveyance thereto, and the clerk has nothing whatever to do with these acts. The clerk has power to take acknowledgments of deeds, and when the clerk exercises this power the judge has nothing whatever to do with his acts. Each, in these respects, acts independent of the other. Could not the judge of the district court acknowledge the execution of a deed before the clerk of the district court ? If not, could he be sworn before said clerk?
IV. It is claimed by the defendant that said deed was acknowledged before it was executed. This is a mistake. The record shows that the deed was executed October 28th, 1858, and acknowledged January 3d, 1859.
We have now disposed of all the questions raised by the defendant, or suggested by the plaintiff, with regard to the introduction of said -deed in evidence. Others might be raised, but we have not chosen to raise them. There are none of the foregoing reasons sufficient to exclude said deed as evidence. The judgment of the court below must be reversed, and cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Plaintiff sued the widow of Peter Van Norman on some promissory notes executed by him in his lifetime, and claimed a personal judgment against her. Did the petition state facts sufficient to constitute a cause of action? We think not. The defendant did not sign the notes, and is not therefore responsible as maker. It is alleged that she is the sole heir of Peter Van Norman. But that creates no liability. The debts of a man die with him, except so far as his own property will satisfy them. There is no transfer of obligation to the heir. It is also alleged that she has in her possession, and claims to own, personal property which belonged to decedent sufficient to pay this claim, and which descended to her subject to the payment of all just debts. In other words, plaintiff seeks to charge her as executrix de son tort of her husband. The executor de son tort is a person of whom the English law books frequently speak. He was defined to be a person who without authority from the deceased, or the ordinary, does such acts as belong to the office of an executor, or administrator. 4 Bacon’s Abr., 26, B. 3, § 1. He is one who assumed to act as executor and settle up an estate without any authority. In general, he was liable.only for the value of the assets which came to his hands, and in such cases when a recovery was had against him the judgment was de bonis testatoris. Toller on Exr’s, 473; 4 Bacon Abr., 32, B. 3, §3. Though if he pleaded ne unques executor, and the issue was found againsf him, the judgment was for the full amount of the debt without reference to the value of the assets in his hands. Bacon Abr., 30, 32, B. 3, §§ 2, 3. The judgment was executed for the sole benefit of the creditor suing, to the exclusion of all the other creditors. Toller’s Ex’rs, 472, and note 1. Hence in many of the states of the Union in which the statutes have attempted to place creditors upon an equality in the matter of payment, the courts have declared that there can be no such person as an executor de son tort in the sense of the English law. Barasien v. Odenn, 17 Ark., 123; Rust, Exr., v. Wetherington, 17 Ark., 129; Dixon v. Cassell, 5 Ohio, 533; Ausley v. Baker, 14 Texas, 607; Green v. Rugely, 23 Texas, 539. In 2 Redfield on Wills, 13, note 6, the learned author says, speaking of this subject:-“We have devoted no space to the topic in this work because it is so nearly obsolete in the American courts that it would seem unjust to the profession to tax them with the expense of what is only speculatively useful, when so much which is practical has to be omitted.” Our statutes establish a rule of uniformity in the payment of debts. Gen. Stat., 448, § 80. They have provided means for compelling the delivery of any property belonging to a decedent to his personal representatives. Gen. Stat., 471, §§196, 200. It is therefore but a simple application of the reasoning and authority of the decisions cited to our own statutes, to hold that under them no such person exists as an executor de son tort with the liabilities which attached at common law. If a person have property belonging to an estate its delivery to the administrator or executor can be compelled by any creditor, or other person interested, in the manner prescribed in the sections quoted. It would be strange if one creditor could compel a delivery of the property to the administrator, and another obtain judgment for its value.
Another question is discussed by counsel. It is insisted that the defendant is too' late with her objection. She filed no answer or demurrer, but simply objected to judgment when the case was called for trial. This was sufficient. Zane v. Zane, 5 Kas., 134. The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The questions in this case arise upon the construction of § 457 of the civil code. Is notice by posting upon the court-house door, and in five other public places in the county, required in all cases of sale, or only in those cases where there is no newspaper printed in the county? We think the section may fairly be construed to sustain either view, and it is difficult to suggest reasons why either should be preferred. We shall sustain the latter, and hold that notice by posting is necessary only where there is no newspaper printed in the county. We do this because the language of the section as clearly sustains this as the other, and because thus'having been accepted in some parts of the state as correct, and sales made in accordance therewith, the opposite construction might "cast a cloud upon many titles.
Is one insertion of the notice in the paper sufficient, or must it be continued through the successive issues of the paper up to the day of the sale? The language is, “public notice of the time and place of sale, for at least thirty days before the day of sale, by advertisement in some newspaper.” The preposition “for,” as used in the'language quoted, requires, as it seems to us, an insertion in each successive issue of the paper up to the day of sale, the first one being more than thirty days prior thereto. In the authority cited by counsel the language was “at least sixty days,” the preposition “for” being omitted. -The difference is obvious. This case is here upon cross petitions in error to reverse the ruling of the district court upon a motion to retax costs.- As our views upon both questions differ from those-of the district court, the case will be remanded with instructions to decide the motion in accordance with the views herein expressed. The costs in this court will be divided.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The plaintiffs in error brought their action in the district court of Franklin county upon a bond given by Richmond, one of the defendants in error to Jacolj Way-nick. The bond recited that Richmond was held and firmly bound unto Waynick in the sum of $247.50, and was absolute in its terms so far as the obligatory part is concerned. The condition reads thus-: “The condition of this obligation is such, that if the above bounden John C. Richmond, his heirs, executors, or administrators, shall sell and truly execute or cause to be executed a good and sufficient deed of conveyance to said Jacob Waynick, his executors, administrators or assigns, covering the northwest quarter of -the northeast quarter of section three, etc., then this obligation to be null and void, otherwise of full force and virtue.” This bond, was executed September 18th, 1864, and this action was commenced January 16th, 1872. It was admitted by the pleadings that Richmond owned the land described in the bond on the day of its date, that he had never conveyed to Waynick or his heirs, but had conveyed to other parties through whom the legal title had passed to his co-defendants. It was alleged in the petition that Waynick had paid the purchase-money in full for the land, and performed all the conditions on his part, and that he had since died and that the plaintiffs were his heirs. These facts were denied by the answers. The prayer in the petition was for a decree for specific performance, and such further relief as the plaintiffs might in law or equity be entitled to. On the trial plaintiffs proved that they were the heirs of Jacob Waynick, and that he had died intermediate the date of the bond and the filing of the petition, and then rested. Defendants interposed a demurrer to the evidence, which was sustained, and judgment entered in their favor for costs. Was there error in this ruling?
The instrument sued on, though in form a bond with a condition, is in legal effect an agreement to convey. “A bond for money with a penalty for not doing a certain thing will be held to be a contract to do that thing:” 2 Parsons on Contr., 515; Dewey v. Watson, 1 Gray, 414; Plumbsett v. M. E. Society, 3 Cranch, 561. Being a contract in writing it imports a consideration: Gen. Stat., 183, ch. 21, § 7. The agreement then is as though it read, “For value received I hereby agree to convey,” etc. Ordinarily, some conditions of payment and some time of conveyance are specified in the bond; but here is an absolute agreement to convey without any conditions of time or payment. A reasonable time had elapsed for performance by the obligor. No demand was' necessary, as Richmond had already conveyed to other parties. The other defendants, the holders of the legal title, admit the record of the bond, and therefore notice of the plaintiffs’ interest. Under this state of the case we think the plaintiffs were prima facie .entitled to a decree. There is, it is true, a discretion in courts of equity whether to decree a specific performance, or to remand the party to his action for damages for breach of contract, and this though the existence of the contract be beyond doubt, and its terms clear. An unfair advantage, a gross inadequacy of consideration, are either of them sufficient to justify the exercise of this discretion, and prevent a decree. Yet these things are matters of defense. In Wedgwood v. Adams, 6 Beav., 605, Lord Langdale said, “I conceive the doctrine of the courts to be this, that the court exercises discretion in cases of specific performance and directs a specific performance unless it should be what is called highly unreasonable to do so.” And Sir William Grant, in Hall v. Warren, 9 Ves., 608, said: “Supposing the contract to have been entered-into by a competent party, and to be in the nature and circumstance of it unobjectionable, it is as much of course in this court to decree a specific performance as it is to give damages at law.” There is nothing in this ease tending to show any bad faith or unfairness in the contract, or any inadequacy of consideration, and hence we think the plaintiffs were prima facie entitled to a decree, and the demurrer to the evidence was improperly sustained. The judgment of the district court will be reversed, and the case remanded for a new trial.
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The opinion of the court was delivered by
Valentine, J.:
This was a criminal action in which the defendant was prosecuted for murder in the first degree, found guilty thereof, and sentenced to be executed. Three principal questions are raised in the case: First, was the jury legally impanneled? Second, was the charge of the court with reference to insanity, correct? Third, was the sentence correct ?
I. The first question was settled in the case of The State v. Medlicott, 9 Kas., 257. The question as presented in that case made a much stronger case for the defendant than, it does as presented in this case; and as the opinions of the judges of this court with regard to said question have not changed, it is necessary for us now only to refer to that case.
II. Did the court charge the jury correctly with regard to the question of insanity? The court in substance charged, that it devolved upon the defendant to. prove that he was insane, and that he must do so by a preponderance of the evidence in order to be acquitted. This we think is not the law. We suppose it will be conceded that no crimes can be committed by an insane person; or at least it will be conceded, that no act which is the result of insanity, total or partial, the result of an insane delusion, or the result of an insane uncontrollable impulse, can be denominated a crime. Murder at common law is defined to be “ When a person of sownd memory and discretion unlawfully killeth any reasonable creature in being, and under the king’s peace, with malice prepense or aforethought, either express or implied.” (4 Blackstone Com., 195; 2 Chitty Cr. Law, 724; 3 Coke Inst., 47.) And our statutes have nowhere attempted to change the common-law definition of murder. But they have simply taken murder as defined at common law, and divided it into two or-probably three degrees. (Crimes act, Gen. .Stat., 319, 320, §§ 6, 7, 12.) The fact then of soundness of mind is as much an essential ingredient of the crime of murder, as the fact of killing, or malice, or any other fact or ingredient of murder, and should, it would seem, be made out in the same way, by the same party, and by evidence of the same kind and degree, and as conclusive in its character, as is required in making out any other essential fact, ingredient, or element of murder. In every criminal action in this state, “A defendant is presumed to be innocent until the contrary is proved. When there is a reasonable doubt whether his guilt is. satisfactorily shown, he must be acquitted. When there is a reasonable doubt in which of two or more degrees of an offense he is guilty, he may be convicted of the lowest degree only.” This is the statute law of Kansas, (Gen. Stat., 856, crim. code, § 228,) and we suppose will therefore not be controverted. This statute in substance is,, that every defendant is presumed to be innocent of all crime until his guilt is legally shown; that it devolves upon the state to show his guilt; that his guilt must be shown by evidence that will convince the jury beyond a reasonable doubt; and if, upon the whole of the evidence submitted to the jury, there should be a reasonable doubt as to whether his guilt is satisfactorily shown, he must be acquitted. Now, as no insane person can commit a crime it necessarily follows that if the jury have a reasonable doubt of the defendant’s sanity, they must also have a reasonable doubt of his guilt. To doubt his sanity is to doubt his guilt; and to doubt his guilt, (if the doubt be a reasonable one,) is to acquit. The doubt of guilt cannot be of a less degree thap the doubt of sanity; and if the doubt of sanity be a reasonable doubt, the doubt of guilt must also and necessarily be a reasonable doubt.
It has been said that this reasonable doubt goes only to the corpus delicti, the body of the offense. We scarcely know in what sense the words corpus delicti, are here intended to be used. But in whatever sense they may be intended to be used, the proposition is probably erroneous. If it be said that the offense itself, with all its essential ingredients, (and this, in fact, is what constitutes the body of the offense, the corpus delicti,) must be proved beyond a reasonable doubt, but that the defendant’s connection therewith, and his capacity to commit the same may be proved by a less degree of evidence, then the proposition is glaringly erroneous. For if the supposed offense be committed by the defendant alone, then, unless he has capacity to commit an offense, no offense is in fact committed. And if it devolves upon the defendant to prove his want of capacity (where possibly a vast amount of evidence is introduced by both parties, and on each side of the question,) by an equilibrium of the evidence, by less than a preponderance of the evidence, then it follows as a logical necessity that the offense itself may be proved by less than a preponderance of the evidence. "With capacity in the perpetrator, a crime is committed. Without capacity, no crime is committed. The capacity is proved by less than a preponderance of the evidence; therefore the crime itself is proved by less than a preponderance of the evidence. The plea of insanity is not in any sense like the plea of confession and avoidance. The defendant does not say by his plea of insanity, “ It is true, I have committed murder as charged in the indictment, but I was insane at the time and therefore should not be punished therefor” — for if he committed murder he could not have been insane; and if he was insane he could not have committed murder. The two things are wholly inconsistent with each other. But the defendant does say by the plea, “I am not guilty of murder at all, nor of any other offense, because I was insane at the time the supposed offense was committed, and was therefore incapable of committing any offense.” Neither is the plea of insanity an affirmative plea on the part of the defendant. It is merely a part of the negative plea of “not guilty.” All evidence of insanity is given under »this negative plea of “not guilty,” and it is given merely in the rebuttal of. the prima facie case that the state must make out of guilt and sanity. The defendant is never required to prove that he is not guilty by proving that he is insane; but the state must always prove that the defendant is guilty by proving that he is sane. It is true that the state is not required in the first instance to introduce evidence to prove sanity, for .the law presumes that all persons are sane, and this presump-1 tion of sanity takes the place of evidence in the first instance./, It answers for evidence of sanity on the part of the state. ,-' But if evidence is introduced which tends to shake this presumption, the jury must then consider the same, and its effect upon the main issue of guilty or not guilty, and if upon considering the whole of the evidence introduced on the trial, together with the presumption of sanity, the presumption of innocence, and all other legal presumptions applicable to the case under the evidence, there should be a reasonable doubt as to whether the defendant is sane or insane, he must be acquitted; It is also true that when it is shown on the trial of a case, that the defendant has committed an act which would be criminal if he were sane, and no' evidence of insanity has been introduced, a prima fade case of crime and guilt has been made out by the- state against the defendant. But the ■ law does not in such a case, nor in any case require that the prima fade proof of crime and guilt made out by the state shall prevail unless it shall be overcome by a preponderance of the evidence. The state nearly always makes out a prima fade case of crime and guilt before it closes its evidence in chief and rests its case. But the defendant .is never then bound to rebut this prima fade case by a preponderance o# the evidence. He is required only to raise a reasonable doubt as to his guilt. The burden of proof is always upon the state, and never shifts from the state to the defendant. The making out a prima fade case against the defendant does not shift the burden of proof. With the view that we have taken of this question, considering it to be governed principally by our own statutes) it makes but little difference what the common law was upon the subject, or what sundry courts have supposed it to be; but we would refer however to the following decisions of courts as sustaining the view we have taken: State v. Bartlett, 43 N. H., 224, 228; Hopps v. People, 31 Ill., 385, 393; Chase v. People, 40 Ill., 224, 228; Polk v. State, 19 Ind., 170; Stevens v. State, 31 Ind., 485; People v. Garbutt, 17 Mich., 9, 21; People v. McCawe, 16 N. Y., 58, 64; Smith v. Commonwealth, 1 Duvall, (Ky.,) 224, 228. And in this connection see Ogletree v. State, 28 Ala., 693; 1 Bish. Cr. Procedure, § 534. With regard to the common law, we suppose it will be conceded that it was a rule of the common law that it devolved upon the state to prove the guilt of a defendant in a criminal action beyond a reasonable doubt. We will also suppose, for the sake of the argument, that said rule had some exceptions, and that proof of insanity was one of them. If so, then our statutes have re-enacted the rule of the common law without the exception, and by so doing the statutes have unquestionably made the rule general, and abolished the exceptions.
III. Was the sentence correct? The prosecution was commenced under the laws of 1868, while such laws were in Rdl f°rce; aud the sentence was pronounced in accordance with said laws, (Crim. Code, §§ 258, 259, Gen. Stat., 861,) and not in accordance with the laws of 1872, page 336, ch. 166, §§ 1, 2, 3, 4, although the sentence was not pronounced until after the passage of the law of 1872. We perceive no error in this. We know of nothing that will take this case out of the decision made in the case of The State v. Boyle, 10 Kas., 113. There is ñothing in the act of 1872 that expressly shows that it was intended that such act should have a retrospective operation, or that it should apply to proceedings commenced prior to its passage. And if, by giving the act a retrospective operation it would render the act “ ex post faeto, unconstitutional, and void,” as is claimed by the defendant’s counsel, we should hardly presume, in the absence of express provisions so declaring, that the legislature intended that the act should have such an operation. (Shepherd v. People, 25 N. Y., 410.) It is not necessary for us to examine the other questions discussed by counsel.
The judgment of the court below must be reversed, and cause remanded for a new trial and for further proceedings.
Brewer, J., concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Bixby brought his action of ejectment against Bailey to recover the possession of a quarter-section of land. Bailey in his answer claimed title by sheriff’s deed, of record more than five years, by tax-deed, by decree of foreclosure, and sale thereunder, and by estoppel. On the trial a general finding was made in his favor upon all these defenses, except the tax-deed. Such a finding is of ■course equivalent to a finding of every fact necessary for these .several defenses. The question for our determination is, as to the sufficiency of the testimony to establish these various defenses, or at least some one of them. And first.let us examine .the title acquired by the decree of foreclosure, and sale thereunder. Service was made in the foreclosure suit by publication; and objection is made to the sufficiency of this service. That which is claimed to be lacking is the affidavit for publication, and the proof of publication. It appears that all the papers in this case were destroyed by fire some years since. Of course, the parties were then remitted to secondary evidence. Turning to the final r ecord we find the petition, the notice of publication, and the judgment. No affidavit for publication is copied, but there appear just before the notice these words: “And on the necessary affidavit being filed, the following notice was published, to-wit.” No proof of publication is copied into the record; but between the notice and the judgment is entered this recital: “Proof of publication was duly sworn to by the publisher of the Doniphan Cownty Patriot.” If we look to the appearance-docket we find these entries:— “To filing affidavit for publication, and entry, .15; To taking affidavit for publication, and entry, .35; To taking affidavit Patriot, (Printer’s fee $12.00,) .35; To taking affidavit, .15.” Albert Perry testified that he was the attorney of the plaintiff in the foreclosure suit; that he drew up the affidavit for publication; that it was sworn to by the plaintiff; that the affidavit stated non-residence as the ground for publication, and that the action was to foreclose mortgage; and that he had no recollection of ever drawing a defective affidavit. He also testified that he drew up the notice of publication; that it was published in the Doniphcun Cownty Patriot; ihat the then publisher, E. H. Grant, did not now live in the State; that he had looked for a copy of the paper containing the notice, but had been unable to find one; that he did not recollect what day of the week the paper was published, or the day- of week or month the affidavit was filed, or time of the first or last insertion of the notice in the newspaper, or the number of insertions. The appearance-docket shows that the affidavit for publication was filed on the 8th of January, the day of filing the petition, and sixty-three days before the time for answer fixed in the notice. In this it contradicts the witness Perry, who thinks the-affidavit was not filed until two or three days after the petition. There is also a recital in the judgment that the defendant had been duly served by publication in the Doniphan Cownty Patriot. We think this testimony sufficient to sustain a finding of the regularity of the proceedings in the foreclosure suit. The district court is one of superior and general jurisdiction, and as such, at least when acting according to the course of the common law, is presumed to act by right, and not by wrong. The whole record, is presented, and not a fragment merely, as in the case of Hargis v. Morse, 7 Kas., 415. From that record it appears that every step was taken that the law requires to confer jurisdiction. True, by an accidental burning the files and papers in the case are destroyed. But the rights created by those proceedings are not lost by that destruction. True also, that two papers which should have been copied in the final record, were not; but this failure of the clerk will not avoid the proceedings. That such papers existed, is shown by the final record, the appearance-docket, and parol testimony. That the affidavit for publication disclosed one of the statutory grounds for such constructive service, to-wit, non-residence of the defendant, and that it was made by the plaintiff in the action, are shown by the parol testimony. That publication was made, and proof of it filed, is likewise shown. True, the parol testimony fails to show affirmatively that the affidavit for publication alleged that service of a summons could not be made in this state upon the defendant, that the notice of publication was first inserted sixty-two days before the answer-day, or that it was inserted in six successive issues of the paper, or that the proof of publication was full and complete. But on the other hand, there is nothing in the testimony to raise a suspicion that anything was lacking in these respects. Surely, under these circumstances the presumption which exists in favor of the regularity of the proceedings of superior courts of general jurisdiction ought to be sufficient to sustain this decree. Indeed, it would be questionable whether in face of such testimony, the proceedings of a court of inferior and limited jurisdiction could be declared void.
The next objection presented is this: Even though the proceedings of the court in the foreclosure suit were regular on their face, the plaintiff claims that he could ' x show and did show by parol testimony that the defendant in that suit was at the time a resident of this state, and therefore could not be brought into court by publication. Jurisdiction implies jurisdiction of the person as well as of the subject-matter. Jurisdiction of the person is acquired by appearance or service. There was no appearance. Service is made by summons, upon a resident; by publication, upon a non-resident, or one concealed, and beyond the reach of summons. Service in this case was by publication, but the defendant was a resident, and not concealed; therefore the pxxblication was inoperative to bring the defendant into court, and the decree void for want of jurisdiction of the person. There is much dispute, and gi’eat conflict of authority, as to how far the adjudication of a court of superior and general juiusdiction as to the matter of service concludes the parties. We think it unnecessary in this caseto enter into a discussion of that question, or an examination of those authorities. The curious will find the matter fully presented in 1 Smith’s Leading Cases, 816; Halm v. Kelly, 34 Cal., 391; Coit v. Haven, 30 Conn., 190; Freeman on Judgments. For, conceding for the purposes of this case that inquiry may be made beyond the record, and against the adjudication of the court, into the sufficiency of the service, still we think there is not enough to justify us in setting aside the finding of the court below. There was some testimony on both sides, enough to sustain a finding against the plaintiff. The adjudication that service was duly made is prima faeie evidence. That, the strongest opponents of its conclusions will admit. The affidavit of the plaintiff in the foreclosure suit of non-residence is also entitled to some weight. The only parol testimony tending to show residence is that of the plaintiff in this (who was the defendant in that) action. From that it appears that he was a single man, and for two or three years, including the time of the pendency of the foreclosure suit, absent from the state. It does not appear that he had any fixed home, or place of residence. He was for about a year enlisted and serving in the Missoixri State Militia. After that service expired, he enlisted in the 14th Kansas Volunteers, and served with it a couple of years or so. While away in the Missouri militia his trunk was at a hotel in White Cloud; and while with the Kansas regiment his trunk was somewhere in White Cloud. He says he intended all the while to return to Kansas on the expiration of his service. He returns to White Cloud, and remains there for about six years before commencing proceedings to recover this land. During all this time he paid no taxes on, or attention to it. Two conveyances had been made since the sheriff’s deed, and valuable and lasting improvements placed upon the premises. Two •witnesses, Dana Fox arid Albert Perry, testify that Bixby was away during those years, and that they were informed he was a non-resident, and one of them knew of his 'being in St. Joseph, Missouri, and serving in the Missouri State Militia. Upon this testimony we are unwilling to disturb a finding that Bixby had so far lost his residence here that proceedings against him by publication were proper, and an adjudication of a competent court upon such service conclusive.
Again, it is insisted that under the law in force at the time of the decree and sale the debtor had two years to redeem, and therefore the sheriff’s deed was void. The n0£e an(j mor£gage were executed before the redemption-law, and therefore unaffected by its provisions. Bronson v. Kinzie, 1 How., 311. We think no defect is pointed out in the sheriff’s deed which can be taken advantage of in this collateral manner. Paine v. Spratley, 5 Kas., 525. As the decision of these questions disposes of the case it is unnecessary to inquire into the sufficiency of the other defenses. The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Dorman Bloss was arrested on a charge of grand larceny, and committed for trial. Bail was fixed by the examining magistrate at $800. He sued out a writ of habeas corpus before the probate judge, who reduced the bail to $400. Afterward the sheriff took and approved a recognizance in the sum of $400, which was forfeited by the nonappearance of the accused. An action was brought on this forfeited recognizance, judgment rendered in favor of the state, and this proceeding in error instituted to reverse such judgment. The only point made by counsel is, that the bond was void because taken by the sheriff. It is insisted that the judge who issued the writ of habeas corpus, and reduced the bail, was the only officer authorized to take the recognizance. This is a mistake. While the proceedings in habeas corpus were pending before _ the judge unquestionably he had power to take the recognizance. (Criminal code, § 62; civil code, §§ 672, 673.) But after he had rendered his decision and reduced the amount of bail, and returned the accused t'o the custody of the sheriff, that officer then had the power. (Crim. code, §143.) He held the accused under a mittimus. That mittimus fixed the amount of bail. The proceedings before the judge had reduced the amount, but they had not set aside the mittimus. Probably the probate judge could have himself issued a valid mittimus indorsing the bail thereon at the reduced amount, but still the sheriff would have had the power to take the recognizance. Even if such proceedings were without warrant of law, and void, it is doubtful whether either the accused or his sureties could take any advantage of the fact. The sheriff accepted a recognizance for a less amount than that fixed by the committing magistrate. Hodges v. The State, 20 Tex., 493. But so far as the record shows, the action of the judge was legal and valid. Having availed themselves of such action in their favor, they are hardly in a position to contest its validity.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Thurston Chase as plaintiff to recover damages from the St. Joseph & Denver City Railroad company for negligently setting fire to and burning certain hay, etc., belonging to the said plaintiff. The plaintiff seems to have tried the case in the court below upon the theory that the fire was caused by sparks emitted from a locomotive of the defendant; that the smoke-stacks and spark-arresters of said locomotive were old, and not in good condition; that the locomotive was a coal-burner in which it was not safe to burn wood, but that wood was actually burned therein, whereby sparks escaped and caused the fire and the damage complained of. Under this theory we think it was competent for the plaintiff to introduce evidence on the trial tending to show that other fires were Caused by sparks escaping from the defendant’s engines immediately before or immediately after the time that this particular fire occurred. (Sheldon v. Hudson River Rld. Co., 14 N. Y., 218, 222; Field v. N. Y. Cent. Rld. Co., 32 N. Y., 339, 346. See also in this connection Huyett v. Phil. & Read. Rld., 23 Penn. St., 373; Piggott v. Eastern Counties Rld. Co., 3 C. B., (54 Eng. C. L.,) 229; Ill. Cent. Rld. Co. v. Mills, 42 Ill., 407; Ellis v. P. & R. Rld. Co., 2 Ire., (N. C.,) 138; U. P. Rld. Co. v. Hand, 7 Kas., 389.) Such evidence would clearly'tend to show that the defendant’s engines were not in proper condition for arresting sparks — either that they were not properly constructed, or that they were out of repair. It was shown by other evidence, and admitted, that all the defendant’s engines were coal-burners, •and it was also shown “that sparks do not escape from - coal-burning engines when burning coal to amount to anything.” And as all the engines belonging to the defend-an^ were coal-burners it was competent for the plaintiff (a stranger to the company) to show that the defendant was burning wood in all its engines in general, without showing more particularly that wood was burned in the particular engine which caused the fire; for such evidence would clearly tend to show that the defendant was burning wood in this particular engine. This kind of evidence would often be the best kind that a stranger to the company could produce, for it is not probable that strangers could distinguish with any degree of accuracy or certainty between the different engines of the company, and a stranger to the company should not be compelled to rely upon the evidence of the employees of the company alone. If it was more dangerous, as it would seem from the evidence, to burn wood in_a coal-burner than to burn coal therein, then this kind of evidence would be relevant, as tending to show negligence. But if not more dangerous, then the evidence could do no substantial harm to any one. All that we wish now to decide is, that the court below did not err by admitting said evidence, or if so that the error will not require a reversal of the judgment.
The charge of the court to the jury, that if the defendant changed the smoke-stack of the engine that caused the fire after the fire occurred, because the smoke-stack was detective, or tor greater satety, the jury might consider this fact in determining whether the engine was in proper condition or not, was not erroneous as a legal proposition; and there was sufficient evidence-upon this subject to authorize such an instruction. The chapge for such a reason was a virtual admission of the company that the smoke-stack was not in good condition. The court possibly however gave too much prominence to a slight circumstance, such as this was.
It was not negligence per se for the plaintiff to stack his hay on a newly-mown meadow, thirty rods from, the defend-, ant’s railroad. (Cooper v. Champ. Trans. Co., 1 Denio, 91,99; Fero v. Buffalo Rld. Co., 22 N. Y., 209; Kellogg v. C. & N. W. Rld. Co., 26 Wis., 223.) A man who uses his own property lawfully is seldom negligent simply because he has not provided against the negligence of others. He is generally not bound to anticipate the negligence of others. The question of whether the plaintiff was negligent in this respect or not was properly submitted to the jury, (U. P. Rly. Co. v. Rollins, 5 Kas., 181,) and the jury found as a question of fact that he was not negligent. These remarks will also apply to the plaintiff’s hay-rack'and hay-rake.
The defendant certainly has no reason to complain on account of the change made by the court to the fourth instruction asked for by the defendant. The defendant demanded a special verdict, and then asked this instruction, which would apply only to a general verdict. The court changed it so as to make it apply to the special verdict. The court might without committing error have refused the instruction entirely. The court was not bound to change the instruction so as to make it apply to a special verdict.
The fourth, fifth and sixth findings of the jury were not irrelevant or immaterial; but if they were, what harm can ke Jone by irrelevant or immaterial findings? We think none. There was certainly some evidence which sustained these findings.
The railroad company not only claims thát the danger from said sparks was so direct, proximate, immediate and imminent ^at ^ WaS negligence Per se f<>r plaintiff to stack his hay and leave his rack and rake so near the railroad as to be in danger from such sparks, but the company also claims that the damage to plaintiff’s said property was so indirect, remote, and not to be expected, that such damage cannot constitute the basis of a cause of action. It is true that the sparks from the defendant’s engine did not directly set fire to the plaintiff’s said property; but they set fire to certain stubs of grass where the grass had been previously mown, and the fire thus kindled spread until it reached the plaintiff’s said property thirty rods distant, and there consumed the property. And it is also true that the stubs of grass, and the ground over which the fire spread, as well as the hay, the rack, and the rake, for which the plaintiff sued, all belonged to the plaintiff. It was therefore one fire only which was kindled and did all the damage on the plaintiff’s premises. We therefore think that the damage was not too remote to constitute the basis of a cause of action: Field v. N. Y. Cent. Rld. Co., 32 N. Y., 339; Kellogg v. C.& N. W. Rld., 26 Wis., 223; Perly v. Eastern Rld. Co., 98 Mass., 414; Hart v. Western Rld. Co., 13 Metc., (Mass.,) 99 and authorities cited by counsel for defendant in error.
We cannot reverse the judgment in this case on the ground that the verdict is not sustained by sufficient evidence. Upon some of the essential facts in the case, the weight of the evidence may seem to be against the verdiet. But this is not enough to authorize a reversal of the judgment. There was some evidence to sustain every essential fact. The fire was caused by the defendant’s engines. The engines were all coal-burners. It is more dangerous to bum wood in coal-burners than to burn coal therein. The net-work fire-arresters of a wood-burner have finer meshes than the net-work fire-arresters of a coal-burner. There was direct and positive evidence that wood was burned in the very engine which caused the fire; and this wood was put in the engine just before the engine reached the plaintiff’s premises, and just before-this fire occurred; and there was half a cord of wood on the engine at that time. Fires were frequently caused by the defendant’s engines; and generally they were caused by an engine that passed about the time that this engine should have passed. What should be inferred from this fact? These fires were caused by large sparks escaping from the engine. Sparks do not escape from a coal-burner in good condition and properly managed to amount to anything. This fire was caused in October; and the next February the smoke-stack of the engine that caused the fire was changed “because the old stack was worn out,” etc. A great deal of this evidence was rebutted by other evidence, and perhaps in some instances the weight of the evidence was with the defendant; but the jury found against the defendant on this conflicting evidence. And so long as cases are submitted to juries so long some respect must be given to their verdicts. And when the court below has sustained the verdict of the jury, as in this case, such action of the court adds great force and weight to the verdict of the jury. The judgment of the court beíow must be affirmed.
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The opinion of the court was delivered by
Brewer, J.:
Lang brought his action to foreclose a mortgage. Deitrich answered that the mortgage-debt was a balance of the purchase-money of the mortgaged premises, and that there was a covenant in Lang’s deed to Deitrich that Lang “ was well seized of the premises, and had good title in fee for the premises,” which was broken, hence the title of Lang was not good. The only question then was as to the sufficiency of Lang’s title. The alleged defects are these: In Lang’s chain of title appears a mortgage-deed from Andrew B. Miller to Wm. H. Russell, of the firm of Russell, Majors and Waddell, and a foreclosure of such mortgage by Eugene B. Allen and Alexander Street, assignees of Russell, Majors & Waddell. It is claimed that the proceedings in this foreclosure suit were insufficient to transfer title, because, first, the mortgage-deed described the property as “lots 15 and 16 in block 27, in the county of Leavenworth,” without stating in what city or addition the lots were, and the petition alleged no mistake, and asked for no reformation of the mortgage. The original mortgage' was not in evidence in this action, but only the record copy in the office of the register of deeds. The petition in the foreclosure suit described the property as in Leavenworth city proper, and did not contain any copy of the mortgage. This objection therefore is not good, because the original mortgage may have described the lots as in Leavenworth city, the default of Miller admitted the allegation that the mortgage was of lots in Leavenworth city, and there is nothing to show that the description was not complete without the words “ Leavenworth' city,” or that there was any other property in Leavenworth county which could be described as “lots 15 and 16 in block 27.”
A second objection is, that the proceedings do not aver or show title to the mortgage and note, but that, on the contrary, the averments of the petition and the papers cited therein show that no such title was ever in the plaintiffs in said suit. The note and mortgage were to Vm, H. Eussell individually.The petition alleges that “the plaintiffs are the legal owners of said note as the surviving trustees of the said ¥m. H. Eussell, by virtue of a certain deed of trust executed, etc., and recorded in the office of the register of deeds of Leavenworth county.” An examination of that deed shows, it is said, that only the partnership property of Eussell, Majors & Waddell was conveyed to said plaintiff. This objection also is not well taken. The plaintiffs had possession of the note, and filed it with the papers of the case. They alleged that they were the legal owners, and the default admitted the fact. Though the note was taken in the name of Wm. H. Eussell alone, it may all the time have been partnership property, or having been individual property in the first instance it may afterward have been turned into the partnership assets. At any rate, if the payee is willing that it should be treated as partnership property, and turns it over to the assignees, and the payor makes no objection but suffers judgment to go in the names of the assignees, a subsequent purchaser of the title thus acquired, with full notice of all these -proceedings, will hardly be permitted on this ground to avoid the payment of his notes for the purchase-money.
The third and last, and indeed the main- objection is, that Andrew B. Miller, the mortgagor, was never brought into court, so that a valid, decree could be rendered against him; that the affidavit for publication disclosed such a state of facts as prevented the court from acquiring jurisdiction. The only service was by publication, and in the affidavit for publication this is the recital of non-residence:
“And the said Eugene B. Allen further saith that the said Andrew B. Miller has removed from, the state of Kansas, and now lives in the so-called Southern Confederacy, as he is informed, and that service of a summons cannot be made on the said Andrew B. Miller within this state.”
The plaintiffs in error claim that this affidavit shows that Miller was within the limits of the Southern Confederacy, and that by proclamation of the president intercourse was suspended between the citizens of the loyal and those of the rebel states, and that .therefore no contract of Miller’s could be enforced, even by a proceeding in rem. That as a general rule a state of war suspends contracts between belligerents, and prevents any proceedings to enforce them, no one will seriously question, though it has been denied that this rule goes so far as to stay proceedings in rem. Dean v. Nelson, 10 Wall., 158; Dorsey v. Dorsey, 30 Md., 522; Meyer v. Subley, 53 Ill., 61. But we think it also well settled that if a person voluntarily went from a northern state into rebellion, he cannot complain of legal proceedings regularly’ prosecuted against him as an absentee. Ludlow v. Ramsey, 11 Wall., 581; Harper v. Ely, 2 Chicago Leg. News, 350; Foreman v. Carter, 9 Kas., 674. Now we think a fair construction of this affidavit brings the case within this rule. The note on which suit was brought was executed in Kansas. The affidavit alleges a removal. That implies a residence, which by voluntary act has been changed. An involuntary change would hardly be characterized by the active voice of the verb “remove.” But it may be said this does not allege a removal since the commencement of the war, and to aid the rebellion. True; but it does not allege that it was not sincfe that time, nor for that purpose. Residence once acquired is presumed to continue until a change is shown. The affidavit does not show that Miller was entitled to the protection of the president’s proclamation, or the rights of belligerents. It tends rather to show that he was not. And before the courts will declare judicial proceedings, regularly had, to subject property within this state to the payment of debts contracted here, void on the ground’ that the debtor was within rebel lines, and could not be sued, it must be’ made clearly to appear that he was entitled to the rights of belligerents. It is said however that this .objection is not made by the debtor, but by a purchaser, objecting to a doubt ful title. If the objection was made, before the conveyance, to being compelled to complete a contract of purchase, and not after the conveyance to the payment of the balance of the purchase-money, the objection might perhaps be entitled to more consideration. The title of the purchaser as against Miller would be no stronger, even, if the affidavit simply alleged non-residence, and contained no intimation as to Miller’s present residence. For if, as a matter of fact, Miller was entitled to the rights of a belligerent he would not be concluded by the silence of the affidavit.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action brought by plaintiff in error to compel the specific performance of a contract for the conveyance of certain real estate. The contract was made as alleged in 1858. It was never recorded. The instrument itself was not in evidence, but parol testimony was received tending to show the making of such a contract, its deposit for safekeeping with one John W. Henry, its loss and its contents and performance by plaintiff. This testimony was sufficient to make a prima facie case for the plaintiff. But the record fails to show that all the evidence on the trial was preserved. No findings of fact, or conclusions of law, were made, but only a general finding for defendants, and there was no motion for a new trial. Under these circumstances, well settled by prior adjudications, it is impossible for this court to affirm error. A general finding for defendants finds all the issues in their favor and against the plaintiff. How can we decide that the court erred in such finding, without examining all the testimony upon which it was based ? The plaintiff’s claim of title rested upon several facts. It was not conceded by the pleadings. It was not based upon a single instrument, like a patent, making of itself proof. The fact of a contract between the parties named in the petition, the terms as therein set forth, and the performance by- plaintiff of his portion of the agreement, must all appear before any right of recovery is shown. Until we can see from the entire testimony that all these facts were as claimed by plaintiff it would be useless to inquire as to the defendants’ title, or whether the court erred in the admission of their deeds.. For the plaintiff must recover on the strength of his own and not on the weakness of defendants’ title. Upon the rule which decides this case see the following decisions: Major v. Major, 2 Kas., 336; Lacy v. Dunn, 5 Kas., 567; City of Topeka v. Tuttle, 5 Kas., 323; Shelton v. Dunn, 6 Kas., 128; Hefferlin v. Stuckslager, 6 Kas., 166; Hall v. Jenness & Cohen, 6 Kas., 356; Hoffman v. Meyer & George, 6 Kas., 398; Hale v. Bridge Co., 8 Kas., 466; Bancroft v. Chambers, 10 Kas., 364. The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The question in this case arises on the overruling of a motion for a new trial. The grounds of the motion are irregularity and misconduct of the jury. The facts are these: Two of the jurors when called and sworn as to their qualifications were asked whether they had or were interested in any action pending against the defendant, and answered in the negative. They were at the time subscribers to a fund for the support and prosecution of an action then pending in this court wherein certain citizens of Morris county were plaintiffs and the county board, clerk and treasurer of that county defendants. Such action was prosecuted for the purpose of restraining said county officers from collecting any taxes for the payment of interest, and principal of certain bonds issued by said county to, and held by said railway company defendant herein. Neither the jurors nor the company were parties of record) and therefore the answers were strictly correct. But it is claimed that they were only technically so; that the company was the real party in interest, and that substantially the controversy was between certain citizens of Morris county, the two jurors among the number, and the company, the former seeking to avoid certain county obligations held by the latter. Under § 270 of the code, (Gen. Stat., 680,) it is ground of principal challenge that a juror “has an action pending between him and either party.” A statutory disqualification like this is not to be enlarged or diminished by construction. The language is plain, the meaning obvious. Its existence is absolute cause for challenge, and no inquiry is permissible into the condition of the juror’s mind, or its effect upon his feelings or prejudices. His interest in such action may be slight; he may be only a nominal party; he may be utterly indifferent as to its results; he may be the best man in the community, the most discriminating in his judgments, the most impartial between the litigants, yet, if this statutory disqualification attaches, a principal challenge must be sustained. Because it is thus peremptory and absolute, it ought not to be enlarged by judicial construction. An actual unfitness of any juror can be shown on a challenge for cause, and, when shown, will remove him from the panel. It follows from these considerations that no ground for principal challenge existed, and that if one had been made it ought to have been overruled.
Ought a challenge for cause to have been sustained ? There is no pretense that the facts indicate in the jurors any interest or feeling in the present contest, or any friendship or partiality for the plaintiffs. The only possible claim is, that the7 show a hostility, a prejudice, or an unfriendly feeling to the defendant. The sole evidence of this unfriendliness is the fact that they question the validity of certain obligations issued by the county to the defendant, and are contributing to the expense of legal proceedings to test that validity. Impartiality of jurors is essential to the due administration of justice. They should be, in the language of the books, omni exeeptione majares; and we should be unwilling by any decision to weaken the safeguard thrown around the jury-box. Where the trial judge after an examination of a juror is in doubt whether he be impartial, or biased and prejudiced, he ought to give the jury-box and the parties the benefit of the doubt, and excuse the juror. But when the trial is complete and the verdict returned, the verdict ought not to be disturbed by reason of the possibility of prejudice in the minds of one or two of the jury towards the losing party. The proof of prejudice should be clear, otherwise great injustice might be done to the successful party as well as to the juror. Indeed, it has been decided in some cases, and said by some judges to have been the rule at common law, that no verdict should be set aside on account of the disqualification of a juror which existed at the time he was sworn; that if he was then disqualified, and the fact was not elicited on his voir dire, and he was sworn in the case, no advantage could thereafter be taken thereof, though court, counsel, and parties were all ignorant of this disqualification. Gillespie v. The State, 8 Yerger, 507; Magnes v. Stewart, 2 Cold., 309. We do not wish to be understood as endorsing this statement as broadly as it is made. We simply cite it as showing to what extent courts have gone in this direction. It is enough for us now to decide, that before a court is justified in setting aside a verdict, on the ground of a disqualification of one of the jurors which existed at the time he was sworn, the proof of that disqualification must be clear. We do not think the facts in this case are sufficient evidence of prejudice, or unfriendly feeling, toward the defendant to justify the setting aside of the verdict. Hilliard on New Trials, 155, § 66; State v. Wilson, 8 Iowa, 407; Commonwealth v. O’Neil, 6 Gray, 343; Moore v. Cass, 10 Kas., 288.
But it is claimed that the answer of the jurors was untrue, or evasive — that it misled the counsel and prevented further inquiry and formal challenge, and that this amounted to misconduct or irregularity of the jurors which demands a new trial. The answer was true, literally true. Counsel for the company on this point ingeniously says: “But it máy be claimed that their answer was strictly true, inasmuch as that action was not in form against the plaintiff, in error. This, to my judgment, makes the matter really worse for them. They evidently knew the object of the question, and to what point it was directed; that counsel for the company was inquiring as to any interest they might have in the action pending against the county authorities, in which the company was interested. Upon this theory they were clearly guilty of evasion, and substantially of falsehood.” We do not understand how it can be said that “they evidently knew the object of the question,” if by that is meant that they knew something more was intended than was expressed by the terms of the question. We to-day are unable to say, from anything before us, that the counsel for the company at the time had any more in his thought than he expressed in his question, or desired any further informa tion than he actually received. All beyond is mere matter of speculation and guess-work. Before we could affirm misconduct of the jurors we should be compelled to guess that counsel intended more by his question than he expressed, that the jurors knew what he intended as well as what he expressed, and intending to deceive answered only what was expressed and left unanswered what was intended. That is an exercise in metaphysics which is outside the function of any judicial tribunal. We think the motion for a new trial was properly overruled. Counsel has discussed in his brief some questions as to the effect of the mandamus heretofore issued by this court on the rights of his client. We think the decision in the mandamus case disposed of all those questions. The judgment of the district court will be affirmed.
All the Justices concurring.
See Munkers v. Watson, Judge, 9 Kas., 668.
Morris, et al., v. Morris County, 7 Kas:, 576. | [
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The opinion of the court was delivered by
Kingman, C. J.:
This cause came up from a decision of the district court sustaining a demurrer to the petition of plaintiff in error. It appears from the petition that plaintiff in error and the defendant James M. Helm were married on the 15th of April 1871; that James M. Helm was then the owner of eighty acres of land, upon which the husband and wife resided, and which was their homestead. On the 17th of June thereafter, and while they were residing on said land as their homestead, the land was conveyed to William Helm for the consideration of nine hundred dollars by deed signed by husband and wife; and two days thereafter the husband abandoned his wife. She seeks to have the deed set aside on two grounds. One is, that her signature was procured by the false representations of the defendants that her husband had purchased other lands in Shawnee county for a home; the other is, that her signature was procured by the threats and menaces of the defendants, they threatening her life unless she would sign the deed, and in apprehension of great danger if she did not sign the deed, she did sign it. The relief sought certainly could not be granted because the husband made representations that were false to induce his wife to sign the deed. If she relied on them, it was at her peril alone.
The second ground we think is sufficient to authorize the relief asked. Our homestead provision is peculiar. The homestead cannot be alienated without the joint consent of the husband and wife. The wife’s interest is an existing one. The occupation and enjoyment of the estate is secured to her against any act of her husband or of creditors without her consent. If her. husband abandons her, that use remains to her and the family. With or without her husband, the law has set this property apart as her home. It may be difficult to define the estate, but it is one nevertheless. It is not like dower. Dower is only a possible estate, an inchoate interest that, depending on uncertain events, the wife may never enjoy. That the wife’s right under our homestead laws is an existing interest, probably none will deny. She then having been compelled to sign away the interest by duress has a right to come into court and have that act declared null and void, so that her rights shall not be lost by the illegal conduct of those who attempted to profit by their violence. When her signature is declared void, the law comes in and disposes of the deed made by her husband without her consent. (Sec: 1, page 473, Gen.' Stat.) If the wife could not maintain this action, then an estate, to the immediate enjoyment of which she is entitled, and which might finally become hers absolutely, might be wholly lost. For the record shows that she has parted with her estate. It may well be questioned whether an innocent purchaser would not hold the land against her who had stood silent while he purchased for a full consideration the land which the record showed belonged to William Helm. Having then an estate in the land, with a right to immediate enjoyment, and her signature procured by threats being not that consent that the law requires for the transmission of the homestead, it seems to us that the demurrer ought not to have been sustained.
The judgment of the district court is reversed, with directions to overrule the demurrer and for further proceedings.
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The opinion of the court was delivered by
Valentine, J.:
Only one question is presented to us for our consideration: Was the plaintiff’s land subject to taxation for the year 1870? But involved in this are several others of a very difficult and delicate character. It may even be asked, whether the plaintiff has shown that he owns said land, or that he has owned the same at any time between the first day of January 1870 and the present time; and therefore, whether he is liable to pay any tax that may have been levied upon said land for the year 1870, or for any other year; and therefore whether he has a sufficient interest in the' matter to maintain this action. The agreed statement of facts upon which the judgment in this case was rendered shows that plaintiff’s land was originally a part of the Wyandotte reserve; that the United States, under the treaty with the Wyandotte Indians of January 31st 1855, issued a patent for said land to one Harley Coon, an incompetent Wyandotte Indian, and that said patent “contained the usual limitation clause peculiar to all patents of lands to that class of Indians under the treaty” — but what that “usual limitation clause” was, or is, we are nowhere informed. We are therefore left to infer that it was such as was authorized by said treaty of January 31st 1855. The agreed statement of facts also shows that the patentee, Harley Coon, died in 1857, and that the land descended to one Mary Nichols, his half-sister, who wa.4 his sole heir. But whether Mary Nichols was an incompetent Wyandotte Indian, neither the agreed statement of facts, nor any other portion of the record, shows. It must therefore be presumed that, if she was an Indian at all, she was a competent Indian. The agreed statement of facts also shows that Mary Nichols sold said land in 1864 to Timothy McMahon, the plaintiff in error, and plaintiff below, for a consideration then paid, and executed and delivered to him a regular warranty deed therefor; that this deed was approved by the Secretary of the Interior February 17th 1871, in pursuance of article 15 of the treaty of February 23d 1867 between the United States and the Wyandottes and other Indians. The 4th article of the said treaty of January 31st 1855 reads as follows:
“Article 4. On the receipt by the commissioner of Indian affairs of the plot and schedule, lists of persons, and of the first proceedings of the Wyandotte Council, mentioned in the next preceding article, patents shall be issued by the general land office of .the United States, under the advisement of the commissioner of Indian affairs, to the individuals of the Wyandotte tribe, for the lands severally assigned to them, as provided for in the third article of this agreement, in the following manner, to-wit: To those reported by the commissioners to be competent to be entrusted with the control and management of their affairs and interests, the patents shall contain an absolute and unconditional grant in fee simple, and shall be delivered to them by the commissioner of Indian affairs as soon as they can be prepared and recorded in the general land office; but to those not so competent, the patent shall contain an express condition, that the lands are not to be sold or alienated for a period of five years, and not then without the express consent of the president of the United States first being obtained; and said patents may be withheld by the commissioner of Indian affairs so long as in his judgment their being so withheld may be made to operate beneficially upon the character and conduct of the individuals entitled to them. None of the lands to be thus assigned and patented to the Wyandottes shall be subject to taxation for a period of five years from and after the organization of a state government over the territory where they reside; and those of the incompetent classes shall not be aliened or leased for a longer period than two. years, and shall be exempt from levy, sale, or forfeiture until otherwise provided by state legislation, with the absent of congress.” 10 U. S. Stat. at Large, 1161.
Article 15 of the said treaty of February 23d 1867 reads as follows:
“Article .15. All restrictions upon the sale of lands assigned and patented to ‘incompetent’ Wyandottes under the 4th article of the treaty of 1855, shall be removed after the ratification of this treaty; but no sale of lands heretofore assigned to orphans or incompetents shall be made under decree of any court, or otherwise, for or on account of any claim, judgment, execution or order, or for taxes, until voluntarily sold by the patentee, or his or her heirs, with the approval of the Secretary of the Interior. And whereas many sales of land belonging to this class have heretofore been made, contrary to the spirit and intent of the treaty of 1855, it is agreed that a thorough examination and report shall be made, under direction of the Secretary of the Interior, in order to ascertain the facts relating to all such cases; and upon a full examination of such report, and hearing of the parties interested, the said secretary may confirm the said sales, or require an additional amount to be. paid, or declare such sales entirely void, as the very right of the several cases may require.” 15 U. S. Stat. at Large, 517.
" Now under these treaty provisions was not this land taxable in 1870? We suppose it will be conceded that all these lands were taxable in 1870 if they were owned by any one else except the Indians. Then who owned the land upon which the tax in controversy was levied in 1870? The plaintiff claims that he owns the land at the present time, and unless he does now own it he of course cannot maintain this action —for a party who is not liable to pay a tax cannot restrain the collection of the same. But if the plaintiff owns the land now, he certainly owned it in 1870. The deed under which he now claims was executed in 1864. The treaty under which he now claims was ratified in 1868. And he has done nothing since 1870 to make his title better or more perfect than it was before that time, except to furnish evidence to the Secretary of the Interior to show that his purchase of said land was in good faith, and for a sufficient consideration, and according to “the very right of the case” it ought to be his. Under the treaty of 1855 the title conveyed by the United States to the competent Wyandotte Indians for all lands assigned to them was a complete, absolute, and unconditional title, in fee simple. This title the Indians could of course convey, whenever and to whomsoever they chose. No restrictions, limitations, or prohibitions of any kind were imposed upon them. They could sell and dispose of their lands to the same extent, and in the same manner, that other people could sell and dispose of theirs. The incompetent Indians unquestionably held the same kind of title to their lands that the competent Indians did to theirs, except that the incompetent Indians could not sell or convey their lands for five years, and not then without the consent of the president of the United States. This restriction seems to be purely personal to the incompetent Indians, and does not affect their title to the land. It was simply an incapacity to sell, similar to the disability of a minor to sell his lands. Hence, admitting that Harley Coon, the incompetent Wyandotte Indian, could not sell or convey his said land to any one, still, could not Mary Nichols, who must be presumed, to be competent, and to whom the said land descended in 1857, sell and convey it? Can it be possible that this restriction was intended to run with the land, and to rest upon any person and every person who might afterward own the same? Undoubtedly it was intended that those who were “competent to be entrusted with the control and management of their affairs and interests,” should be entrusted with the control and management of their own affairs and interests in every respect; and therefore it must have been intended that if land descended from an incompetent to a competent Indian the competent Indian should have the power to sell and dispose of it as he might choose. But still, supposing the sale and deed from Mary Nichols to the plaintiff are absolutely void, then has the plaintiff any title to said land? Can the president and senate of the United States, by a treaty with the Wyandotte Indians, transfer a title to land which had previously been and is then vested by a patent from the United States in an individual member of the tribe, and vest such title, or any title, in another person, whenever it may be supposed that “the very right of the case” requires the same to be done? If said sale was void, then this very thing is attempted to be done by article 15 of the treaty of February 23d 1867. Now, for the sake of argument we shall assume that said sale and deed from Mary Nichols to the plaintiff were void, and that said article 15 is valid; and assuming such to be the case, then we think the plaintiff became the owner of said land at the time said treaty of February 23d 1867 was ratified, (if not before,) for, according to the subsequent determination of the Secretary of the Interior the plaintiff was according to “the very right of the case” entitled to be held to be the owner of said land by virtue of said treaty at the very time the same was ratified. At that time his right to said land became complete. It is true, the legal evidence of his title did not then become complete. It was necessary for him to make the necessary proof first, and obtain said determination from the Secretary of the Interior, before the legal evidence of his title should become complete. The secretary did not and could not create his right to said land. That was created by the treaty. The secretary merely furnished him with the legal evidence of the right which said treaty had already created. The decision of the secretary was therefore very much like that of any ordinary court of justice. It did not create a right, but merely determined who held the preexisting right, and furnished the legal evidence of that right. Now, as the legal evidence of the plaintiff’s title was not complete until after said determination of the Secretary of the Interior, it may be claimed that the plaintiff held only an equitable title up to that time. But it must be admitted that such equitable title was complete, absolute, and perfect. And land held by such a title has everywhere been held to be taxable. (See defendant’s brief, and cases there cited; also, cases cited in Stone v. Young, 5 Kas., 232, showing that the holder of the land-office certificate, before the patent issues, is the real owner of the land, and that such land is taxable.) And in cases where land has been held not to be taxable this principle has been conceded. (Parker v. Winsor, 5 Kas., 362, 373; U. P. Rly. Co. v. Douglas Co., 5 Kas., 615, 621; K. P. Rly. Co. v. Prescott & Culp, (U. S. Sup. Court,) 9 Kas., 39, 44, note.) But if said sale and deed from Mary Nichols to the plaintiff are void, and if said article 15 of the treaty of February 23d 1867 is void, and if Mary Nichols is still the owner of said land, then the plaintiff in this action has no right to the remedy of injunction to enjoin the collection of the taxes on said land. Therefore, in any case, or from any standpoint, the plaintiff cannot maintain this action. The judgment of the court below must be affirmed.
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The opinion of the court was delivered by
Bkeweb, J.:
This was an action on the bond of a treasurer of a school district. It was brought by the present treasurer in his own name, as such treasurer, against his predecessor, to recover a balance not paid over. The first and main question is, whether such action must be in the name of the district, or may be in the name of the treasurer, as plaintiff. The' money belongs to the district, and not to the treasurer. The district is the real party in interest. Hence, by the general rule of the statute the district should be the plaintiff. Code, § 26. Is there any statutory provision which would take this case out of the general rule ? Section 28 pro vides that a person expressly authorized by statute “may bring an action in his own name,” and also, that “officers may sue and be sued in such name as is authorized by law, and official bonds may be sued upon in the same way.” This of itself throws no light on the question, but simply directs our examination to the statutes authorizing suits generally upon official bonds, and the particular statutes concerning the powers of school district treasurers. Section 686 of the code contains the general provision concerning suits on official bonds; but that does not help the present action, for it simply provides that the “party injured, or who is by law entitled to the benefit of the security,” may bring an action in his own name. This of course in the present .case would be the district. Turning now to the statute concerning school districts, we find by § 24, page 920, Gen. Stat., that every school district is made a body corporate, with power to sue and be sued. By § 36 of same act, in case of any breach of the treasurer’s bond the director is required to commence a suit in the name of the district, and on his failure so to do any householder in the district may cause like action to be prosecuted. Thus far there is no room for question. The remaining section, and that which is claimed to justify this suit, is § 39. That reads thus:
“Sec. 39. If any district treasurer shall refuse or neglect to pay over any money in the hands of such treasurer belonging to the district, it shall be the duty of his successor in office to prosecute without delay the official bond of such treasurer for the recovery of such money.”
The argument made is, that because it is the-duty of the treasurer to “prosecute,” it is his right to prosecute in his own name. We fail to see any force in this argument. The object of this statute is to impose upon one particular officer the especial duty of protecting the rights of the district in this matter. The treasurer is named because it is his duty to receive the balance from his predecessor, and because he of all men would know whether such balance was paid over. It does not attempt to regulate the form of the action,, or designate the party in whose name it must be brought. It does not “expressly authorize” the treasurer to sue in his own name, nor is he an “officer authorized by law to sue” in any particular name. The obvious intention of the legislature was, in all possible cases, to bring the real party in interest into court, and make him responsible for all the consequences of the litigation; and we should frustrate that intention, and mar the harmony of our system of procedure, if in the face of such language as “express authority” we permitted any implications to sustain an action in the' name of other than the real party in interest.
Again, it is insisted that if the action should have been brought in the name of the district the words, “ F. M. Parker, Treasurer of,” may be dropped from the title as surplusage, and then the action will stand in the name of the district. We are cited to some cases in which a party bringing suit in his own name, but describing himself as “executor,” “ administrator,” etc., it has been held that the latter part being a mere desariptio personas, might if necessary be dropped as surplusage. This is familiar; but these cases are far from being in point. In them the change is simply in the capacity in which the plaintiff sues. In this the change is of the party plaintiff. The strongest case cited is that of Harding v. Trustees of New Haven Township, 3 Ohio, 227, where the action was commenced against “Fiseley, Baney, and Palmer, trustees of New Haven township,” and where, it being obvious that the corporation was the party intended to be sued, and the- court holding that the names of the individual trustees ought not to have been inserted, it was decided that the names might be stricken out, and the case stand in the name of the “Trustees of New Haven Township.” This ruling, which it must be conceded goes a great way toward sustaining the claim of the defendant in error, was placed by that court mainly on the ground that the proceedings were commenced before a justice of the peace, and great indulgence should be extended to such cases. We quote from the opinion: “If it be said that this is an unusual extension of the priv ilege of amendment we refer the objector to the consequences that would follow were we to require of justices the same attention to regularity and form which has been considered necessary in the proceedings of courts of record.” The case at bar was in the district court, and therefore outside the reasoning of the court in that case. More than that, the change we are asked to' make- is far more radical than was made by the Ohio court. It involves an actual substitution of one party plaintiff for another.
The judgment of the court below will be reversed, and the case remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
In an action between these parties the defendant in error recovered a judgment against the plaintiff in error in the district court of Douglas county for the possession of certain real estate. Plaintiff in error, purposing to seek a reversal of that judgment, caused a case made to be prepared, signed by the judge, and attested by the clerk. Thereupon the defendant in error, claiming that such case made was fraudulently obtained, brought his action in the same court to restrain the plaintiff in error from using it, and to vacate the order approving and ordering it filed. He obtained a temporary injunction, which is now by this proceeding in error sought to be vacated and set aside. And the question presented is, whether under the allegations in the petition, the relief prayed for can be granted. Since the decision of this court in the case of McClure v. Mo. River, Fort Scott & Gulf Rld. Co., 9 Kas., 373, it can hardly be doubted that a party can proceed by independent action in the district court to have a case-made or bill of exceptions set aside. But in order to sustain such action two things must appear: first, that the bill of exceptions or case made is untrue in fact, and second, that it has been fraudulently obtained. Neither of these is sufficient of itself. It not infrequently happens that error creeps into a bill of exceptions that has been regularly obtained. Through the neglect of the counsel, or misrecollection of the court, something is omitted which should have gone into the record, or something stated which did not in fact take place. To make such error alone the ground for setting aside a bill of exceptions would be the loosest kind of practice, and open the door to untold wrongs. It would be for the interest of the successful party to permit error in the record that thereby he might avoid the bill of exceptions and prevent any review in the higher court. So, on the other hand, if the bill of exceptions or case made be true in fact, and regularly signed, it ought not to be set aside although the signature of the judge was obtained by fraud Or misrepresentation. If it state the truth, neither party is wronged. The upper court can determine the controversy between the parties according to the very right of the case. A plaintiff is not entitled to relief by simply showing that the defendant has done wrong. He must also show that the wrong of the defendant has deprived him of some right. The successful party in the lower court has a right to have the proceedings of that court truly presented to the appellate tribunal. He has no right to have those proceedings falsely presented in his favor. And where the misconduct of the opposite party has only deprived him of the advantage of a false presentation it has deprived him of no legal right. In this case the allegations of the petition are, in general terms, that the signature of the judge was obtained by the false representations of the plaintiff in error. It is nowhere intimated that the bill of exceptions or case made does not state the very truth, or that the additions claimed to have been made intermediate the examination by. the defendant in error and the signature of the judge are not in exact accordance with the facts of the case. Under these circumstances the defendant in error was not entitled to have the case disturbed, or the plaintiff in error restrained from using it.
The judgment of the district court will be reversed, and the case remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action for malicious prosecution, brought by Charles J. Smith against W. W. Marbourg and James H. Lea. The plaintiff Smith recovered a judgment for $75 and costs, and the defendants now seek a reversal thereof by this petition in error. Marbourg and Lea .assign for error, 1st, The admission of the evidence of C. J. .Smith; 2d, The refusal of the defendants’ instructions numbered 1 and 7; 3d, The giving of a certain instruction; 4th, The overruling of the defendants’ motion for a new trial.
I. The evidence of C. J. Smith complained of, is not in the record, and therefore we cannot tell whether any error was committed in receiving it or not.
II. The instructions refused read as follows:
“1. If the jury find that the said action of the defendants against plaintiff was ended by the agreement of the parties or their attorneys that the same was settled, then plaintiff is in no event entitled to recover, and the jury will find for de- . fendants.”
“7. The jury are instructed that the record of this court is conclusive on the parties, and it being thereby shown that the said cause is settled, the plaintiff cannot recover in this •action, and the jury will find for defendants.”
The instruction given complained of reads as follows:
“ The record shows the same as if there had been a trial and a verdict in favor of defendants.”
The record above mentioned, and the record mentioned in the seventh instruction refused, and the record which it is claimed tended to prove a settlement of all questions in controversy, and the settlement mentioned in the first instruction refused, reads as follows:
“ W. W Marbourg and James H. Lea, v. C. J. Smith, defendant. j
No. 52. Slander.
“And now come W. W. Guthrie, C. G. Foster, and J. J. Ingalls, attorneys for the said plaintiffs Marbourg and Lea, and show to the court that this case is settled, and dismiss said case at the cost of said Marbourg and Lea, the plaintiffs. And thereupon it is considered and adjudged, by the court here, that said ease be dismissed at the cost of said Marbourg- and Lea, and it is ordered and adjudged that the defendant C. J. Smith have and recover of and from W. W. Marbourg and James H. Lea, partners as Marbourg & Lea, his costs in this behalf expended, and that execution issue therefor; and it is ordered that said O. J. Smith go hence without day.”
This record is a part of the record in an action for slander-brought by Marbourg and Lea against Smith, which action, for 'slander Smith claims was prosecuted maliciously, and without probable cause, and for which Smith now prosecutes, this action for malicious prosecution.
Before proceeding to consider the' first and seventh instructions refused, and the instructions given, we must answer an objection of the defendant in error. He claims that the exceptions to the instructions given and refused are not sufficient. As an answer to this objection we would refer to the case of the K. P. Rly. Co. v. Nichols & Kennedy, 9 Kas., 235. "We think the exceptions are sufficient. Said record does not show an adjudication of a settlement. The court does not find nor render judgment that there was any settlement. And the-court could not have done so, even if it had attempted it. There was no such issue before the court- raised by the pleadings, or by a motion, or otherwise. The record does not show that either Smith or his attorneys were present, or had any notice that any such record would be made, of that any such proceeding would be had or attempted. The whole thing appears to have been entirely ex parte, and at the most is only binding on the party making it.. The record does not even show the admission of a settlement on the part of Smith or his attorneys. The record is therefore valid only to show a dismissal of the action, for a plaintiff has a right to dismiss his action; but not to make a settlement without notice, and in the absence of the other party. But suppose it be admitted that the record does show a settlement, does it show a settlement that would bar this action? What were the terms of the settlement? Did not the settlement contemplate that this action would be prosecuted ? It is not every settlement of an action that will bar a suit for the malicious prosecution of such action. (Kinsey v. Wallace, 36 Cal., 462.)
III. There was some parol evidence introduced tending to show that there was an agreement between the counsel for the respective parties that the dismissal of the action for slander should be a bar to an action for malicious prosecution. But there is not a particle of evidence in the record brought to this court tending to show that Smith ever made any such agreement, or that he ever authorized his counsel to make any such agreement, or that he ever assented thereto, or had any knowledge thereof, or that he ever in any manner ratified the same. We suppose it will hardly be contended that when counsel are employed to defend in one action they can barter away their client’s rights in another. 'Counsel employed to defend an action have no right to even compromise or settle that action without special authority therefor from their client; much less have they authority to compromise or settle some other action. Such a proceeding does not come within the scope of their employment. (Davidson v. Rozier, 23 Mo., 387; Falker v. Parker, 7 Cranch, 436, 452; Dodd v. Dodds, 9 Penn. St., 315.) Hence said supposed agreement between counsel was a nullity.
IY. In an action for malicious prosecution we suppose that the plaintiff must allege and prove that he has been prosecuted by the defendant; that the prosecution was malicious; that it was instituted without probable cause; that the prosecution has terminated in his favor; and that he has sustained damage. But it is not necessary that there should have been a trial upon the merits of the alleged malicious prosecution. If the action has been dismissed, as in this case, that is sufficient, if the action has not been commenced again. (Fay v. O’Neil, 36 N. Y., 11; Berhauns v. Sandford, 19 Wend., 417; Lear v. Babcock, 2 Johns., 203; Chapman v. Woods, 6 Blackf., 504; Hays v. Blizzard, 30 Ind., 457.) The reasons why an action should be terminated in favor of a defendant before the defendant can commence an action for malicious prosecution would seem to be as follows: First, if the action is still pending the plaintiff therein may show in that actiou that he had probable cause for commencing the suit, by obtaining a judgment therein against the defendant, and he should not be called upon to show such fact in a second action until he has had this opportunity of showing it in the first; second, and if the action has terminated against the defendant then there is already an adjudication against him, showing conclusively that the plaintiff had probable cause for commencing the action. When neither of these reasons apply we suppose the action for malicious prosecution may be maintained, if the other necessary facts can be shown. If the plaintiff has neither shown nor is attempting to show by an action in which he is plaintiff that he had probable cause for commencing his action, then the defendant may show in an action brought by himself that the plaintiff did not have probable cause. But suppose the law were otherwise. Suppose that the party commences an action maliciously, and without probable cause, and then for the purpose of harassing the defendant gives notice that he will take depositions in several remote places in the United States, and thereby puts the defendant to great trouble, inconvenience and expense in attending himself, or employing counsel to attend for the purpose of cross-examining the witnesses, etc.; and then suppose that no such depositions are taken, or were intended to be taken: can the plaintiff relieve himself from liability to an action for malicious prosecution by simply dismissing his action? Will the defendant have no remedy in such a case?
From what we have said we think it will be obvious that the instructions refused were properly refused, because the evidence in this case did not authorize such instructions to be given. And while the instruction complained of given may not be technically correct, yet it was sufficiently correct for the purposes of this action, and certainly did not prejudice the substantial rights of the plaintiffs in error. A dismissal, as well as a verdict and judgment, shows a termination of the suit; and neither a verdict and judgment, nor a dismissal, shows'malice, nor a want of probable cause, or damages.
"V. The motion for a new trial raises no new question. The defendant in error however claims that the motion is not in form sufficient. On the contrary we think it is amply and elaborately sufficient. Instead of merely following the language of the statute, and asking for a new trial on the ground of “ error of law occurring at the trial and excepted to by the defendants,” which is sufficient, (code, § 386, sub. 8; DaLee v. Blackburn, supra, 190,) the defendants specially and very minutely point out the very errors of which they com plain, and' for which they ask a new trial. This kind of practice should be encouraged rather than discouraged.
VI. We suppose the only question of law arising upon the last assignment of error is, whether an action for malicious prosecution can be maintained in a case like the one at bar, where neither the person nor property were seized, nor bail nor security required, and the ordinary costs of defending the alleged malicious prosecution have already been' allowed. Our opinion upon this question has already been foreshadowed. We suppose that an action for malicious prosecution can be maintained in any case where a malicious prosecution, without probable cause, has in fact been had and terminated, and the defendant in such prosecution has sustained damage over and above his taxable costs in the case. (Whipple v. Fuller, 11 Conn., 581; Classon v. Staple, 42 Vt., 209; Pangburn v. Ball, 1 Wend., 345.) At common law the defendant in such a case always had a remedy. Originally it was an action for malicious prosecution. Subsequently it was amercement of the plaintiff pro falso elamore. But now and in this state, as amercement is abolished, the defendant must return to-•his original remedy of malicious prosecution. It is an old maxim ■that there can be no legal right without a remedy. ■ And the legal right in such a case has always been recognized.' Indeed, it would be strange if the defendants in the case we have heretofore supposed while discussing the second and third assignments of error should have no remedy.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The petition in the court below, together with the exhibits attached thereto, state among other things the following facts: The plaintiff in error, Thomas Pierce, (who was defendant in the court below,) and one J. A. Prutsman, who was also a defendant below, entered into a certain written contract as follows: Prutsman was to build a certain frame house for Pierce, for which he was to receive $3,000 as compensation, and Pierce was then to lease the house to Prutsman for a hotel for $1,000 per year. Pierce was also to make certain other improvements on the premises on which the hotel was to be built. After, this contract was made Prutsman and the defendant in error, Bicknell, (who was plaintiff below,) entered into a certain other written contract as follows: Bicknell was to build said house for which he instead of Prutsman was to receive the said $3,000■compen-sation. Bicknell however was to do some extra work on the house; and furnish some extra material, for which he was not to receive any additional compensation. This extra work and material were specified in the written contract entered into between Prutsman and Bicknell. Prutsman also indorsed on the written contract between himself and Pierce the following written order, to-wit:
“ Mr. Thomas Pierce will please make the payments specified in the within contract to I. S. Bicknell when the' same become due and payable according to the terms thereof, and the terms of the sub-contract between said Bicknell and the undersigned. Neosho Falls, April 25th, 1870.
“J. A. Prútsman.”
Pierce verbally assented to and accepted this order. Bicknell built said house in accordance with the said two written contracts, and also with the consent and at the request of Pierce furnished other extra material for said house, and did other extra work thereon, which other extra work and material were not included in either of the said written contracts, and which extra work and material were worth $1,472. Pierce made several payments to Bicknell for building said house, but there is still due thereon $350 on the two written contracts and the written order, and $1,472 on the parol contract between Pierce and Bicknell for the extra work and material. Pierce refused to pay any of this amount, and Bicknell then sued both Pierce and Prutsman 'for the same. Bicknell obtained a judgment against Pierce alone for $525.50, and this is the judgment which Pierce now by this petition in error seeks to have reversed.
The first error assigned is, that the court below erred in overruling the motion of the defendant below to require the plaintiff' to separately state and number his several causes of action. The petition below contained but one count. All the foregoing facts were stated in this count, and in the exhibits attached thereto. This count was divided into separate paragraphs, and the paragraphs were separately numbered. But there is no pretense, that the several causes of action stated’ in said petition (provided more than one cause of action were stated therein,) were separately stated or numbered. No attempt was made to separately state the different causes of action, but portions of different causes of action were blended in the same paragraph. But the main question is, was there more than one cause of action stated in said petition ? If there was, we suppose it will be conceded that the court below erred in overruling the defendant’s motion. Code, § 88; Jackson Co. v. Hoaglin, 5 Kas., 558, 561, 562; Forsyth v. Edminston, 11 How. Pr., 408; Waller v. Raskan, 12 How. Pr., 28. We think there were certainly two causes of action stated in said 'petition in favor of the plaintiff Bicknell and against the defendant Pierce — one for the $350, due on the original contract between Pierce and Prutsman, the order indorsed thereon, and the contract between Prutsman and Bicknell, and the other for $1,472 due on the verbal contract-between Pierce and Bicknell. And these two causes of action should have been separately stated and numbered. It may be that in some cases the plaintiff has an election to treat the transactions constituting his claim as constituting one cause of action only, or as constituting two or more separate causes of action; but this is not one of such cases. The two causes of action involved in this case do not affect the plaintiff alike, or the defendant alike; and each is subject to separate and independent defenses. The first is subject to all the defenses which could be set up against Prutsman, if he had built the house, and were the plaintiff. The second is subject only to such defenses as Pierce might have against Bicknell alone. A certain defense, for instance, -might be good against one of said causes of action, and not good as against the other. In all such cases -the defendant has a right to have the different causes of action separately stated and numbered, so that he may demur or answer to them separately. It is not claimed that the original contract between Pierce and Prutsman was ever abandoned, or cancelled, or superseded by the contract between Prutsman and Bicknell, or by the parol contract between Pierce and Bicknell. Nor is it claimed that-the subsequent contracts were merely modifications of the original contract. Nor is it claimed that the three contracts were by any means merged, or that they all three together formed but one contract, as perhaps they would have done if all the contracts had been between Pierce and Bicknell alone. On the contrary, said original contract was allowed to continue in full force. The two written contracts were not alike, and the parol contract was not like either. Each contained many stipulations that were not in the other. The stipulations for leasing the premises for a hotel, for digging and walling a well, for digging and walling a cellar, for building outhouses, etc., which were in the first contract, were not in the second; and many stipulations which were in the second, were not in the first; and the third was wholly unlike either of the others. Bicknell did not at all suceeed to all the rights and liabilities of Prutsman, but he succeeded to a portion of them only, with other and additional rights and liabilities. With reference then to these two written contracts, and Prutsmau’s order indorsed on the original contract, Bicknell was only a sub-contractor. But with reference to the subsequent parol contract entered into between Pierce and Bicknell for the extra work and material, Bicknell was an original contractor, Prutsman having no connection with said parol contract. Bicknell then sued Pierce really in two capacities, first, in the capacity of a sub-contractor, and the assignee of Prutsman’s claim, for $350; second, in the capacity of an original contractor, for his own claim for $1,472,
It is not necessary to discuss the liability of Prutsman, and we do not think that it is necessary to discuss any of the other questions propounded by counsel. It may be proper however for us to suggest that we think -Prutsman was properly made a party defendant in this action, and that we think it would be proper for the plaintiff below before the next trial to so amend his petition as to make it more definite and certain with regard to the steps taken to procure a mechanic’s lien.
The -judgment of the court below is reversed, and cause remanded for further proceedings in accordance with this . opinion.
All the Justices concurring. | [
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The opinion of the court was delivered by
Beéwee, J.:
The defendant in error brought his suit in the district court upon the following instrument of writing, claiming damages for the breach thereof:
“ Know all men by these presents, that for and in consideration of one hundred dollars in hand paid by the St. Joseph & Denver City Railroad Company, a corporation organized under the laws of the state of Kansas, I do hereby give, grant, bargain and sell unto said Railroad Company the right of way through the following described lands, situated in the county of Doniphan and state of Kansas, to-wit: the northeast quarter of section nineteen, the northwest quarter of section nineteen, and the northwest quarter of section twenty-nine, all in township three, of range twenty; said right of way to be on the route at present surveyed through said land, and commonly known as the "Wolf River route; and said right of way to be eighty feet through said lands, except where the depot hereinafter mentioned shall be located on said land, and at the place of locating such depot said right of way shall be one hundred feet wide for a sufficient distance for all switches and side-tracks required for the use of said depot.
“This conveyance is made upon the express conditions following: Said railroad shall, immediately on the completion of their railroad through said lands, establish a depot for freight and passengers on said land, and shall keep up and maintain the same for all time; and shall not at any time have or yse any other depot within three miles of said depot; and said Company shall, where the route of said railroad passes through timber on said lands, under the directions of the grantor herein, clear said timber off the track of said railroad and pile the same up off the right of way for the use of the grantor in this deed; and the said grantor and the members of his family shall have the right to travel in the cars of the said Company free of char’ge, for all time to come, from the residence of the grantor to Elwood, in Doniphan county, and from said Elwood to said residence; and that so much of the right of way of the route as is known as the Highland route as is not included in this deed, shall by said Railroad Company be abandoned to the grantor herein; and the grantor herein shall have the right to locate the depot hereinbefore mentioned on either of the tracts of land herein conveyed, provided such selection or location shall be on a tangent of at least 700 feet in length.
“Upon the breach of any of the above conditions by said Railroad Company or assigns, then this conveyance shall be utterly void. It is understood and agreed tha‘t the grantee and their assigns shall’-build all cattle-guards and crossings required by the grantor in the use of the lands aforesaid, through which said track passes. Signed, sealed this 24th of August, 1869. Joel Ryan, [seal.]”
The case turns upon the validity of this instrument. Can a railroad company in consideration of the right of way, bind itself to build a depot on the grounds through which the right of way is obtained, and not to have or use any other depot within a given distance ? Is a contract not to build or use a depot within certain limits a valid and binding contract ? Railroad companies are private corporations; yet they are declared to be quasi public agencies, and their roads to subserve to a certain extent public purposes, so much so that the public may be taxed to aid in their construction. (Leavenworth Co. v. Miller, 7 Kas., 479.) It would seem to follow that the public has a right to say that they shall not be permitted, though private corporations, to make any contract which would prevent them from accommodating the public in the matter of transportation and travel. The contract sued upon is a continuing one, to last through all time; and if valid, no matter what may be the changes of population, or the demand of business, the company is festrained from having or using other than the one depot within the limits of six miles. That at the time of the contract there was but a scanty population in the vicinity, cannot affect the question, for no one can foresee where or how population may center in the future. Eighteen years ago, no one could foretell the present size and population of Atchison, Leavenworth, or Topeka; yet like contracts, if valid might to-day operate to deprive each of them of the facilities of depots. And if the present amount of population does not affect the question, can a railroad company contract not to furnish any given community through which its road passes, with the conveniences of a depot, and not to use one if furnished by others ? Can the Missouri Pacific Railroad contract with the town of Delaware, not to build dr use a depot at Leavenworth ? or with the town of Lawrence, not to build or use a depot at Leavenworth; or with the town of Sumner, not to build or use one in Atchison? Can it thus contract to force trade and travel out of its natural and selected channels? The question is an important one, and deserves, as it has received, careful consideration at our hands. That railroad corporations do by the construction and management of their roads alter materially the course of trade and travel, is obvious. That in their management, they come far short of accommodating the public, or supplying its necessities, no one 'will question. In the road they build, the route they select in the purchase of the right of way, the location of depots, the running of trains, the amount and character of the rolling-stock, in short, in the whole organization, construction, management and machinery of railroads, the corporators have an eye to private interests and pecuniary gain. There is nothing in this peculiar to railroad corporations. All corporations, private in their nature, do the same. Self-interest controls all their operations. It so happens that self-interest and the interest of the public, as a general rule, demand the same course of action. The more the wants of the public are supplied, the greater the use it will make, and thus the greater the gains of the corporators. Hence there are not many cases in the books in which the contracts of railroad corporations have been declared void as against public policy. Railroad corporations are, as we have seen, public agencies, and perform a public duty. They are agencies created by the public, with certain privileges, and subject to certain obligations. A contract that they will not discharge, or by which they cannot discharge those obligations, is a breach of that public duty, and cannot be enforced. They are under obligations to use the utmost human sagacity and foresight in the construction of their roads to prevent accidents to passengers. A contact that they will not use such sagacity and foresight, certainly cannot be upheld. They are under obligations to employ skillful and competent engineers to manage their engines, and other competent employees to superintend and take care of the running of their trains. A contract that they will not employ such agents and servants, is certainly void. They are bound to furnish reasonable facilities for the transportation of freight and passengers, both as to the quality and quantity of cars and coaches and the number of trains, and a contract not to furnish such facilities will not be tolerated. So, though one train a day with one freight car and one passenger coach might be at present amply sufficient to do all the business between two given places, yet a contract never to run but the one train a day with the one car and coach, could not be upheld, for the necessities of trade and travel are varying, and it is the duty of the company to adjust its capacities and facilities for business to these varying necessities. Upon the same principle it is the duty of a railroad company to furnish reasonable depot facilities. The number and location of the depots, so as to constitute reasonable depot facilities, vary with the changes and amount of population and business. A contract to leave a certain distance along the line of the road destitute of depots, .is in contravention of this duty. The case of Fuller v. Dame, 18 Pick., 472, is in principle very much in point. In that case a note was declared void whose consideration was an agreement successfully carried out to induce a corporation to locate its depot in the vicinity of certain lands of the payee of the note. In giving the opinion of the court, (page '482,) Chief Justice Shaw makes these very pertinent suggestions: “It is obvious that if one large landholder may make a valid conditional promise to pay a large sum of money to a stockholder, or influential citizen, on condition that a work of great public improvement may be so fixed as to enhance the value of his estate, all other great landholders may make like promises, or similar conditions, and great public works which should be conducted with a view to the public interest and to tlie just rights of those who make advances for the-public benefit, would be in danger of being overlooked and sacrificed in a mercenary conflict of separate local and private interests.” See also the case of the Pacific Rld. Co. v. Seeley, 45 Mo., 212; State v. H. & New Haven Rld. Co., 29 Conn., 538.
We have considered this case as it was considered in the court below, as showing a contract on the part of the plaintiff in error not to build or use a depot within certain limits, for the breach of which damages were awarded by the jury. .It would not be proper for us to inquire at present in what condition the rights of the parties are left by this decision.' The judgment will have to be reversed and the case remanded, leaving each 'party to take such subsequent steps for the enforcement of his rights as may be judged best.
Kingman, C. J., concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Prudence Lee brought an action before a justice of the peace and recovered a judgment for $239.30. The defendant Lee Loveridge filed his petition in error in the district court to reverse such judgment and obtained a judgment of reversal. Plaintiff in error now prosecutes her proceeding in error in this court seeking a reversal of the judgment of the district court, and an affirmance of that of the justice. Two grounds of error were alleged in the petition filed in the district court. First, “that the justice erred in overruling a motion to dismiss, for want of service of summons.” This point is not pressed by counsel in their brief, and the record shows service at the residence. Second, “ Error in overruling a motion for continuance.” It is a sufficient and complete answer to this averment that no exceptions were taken, and therefore if there was any error it was waived: Laws 1870, p. 186, ch. 88, §§13, 14; Small v. Douthitt, 1 Kas., 335; Koehler v. Ball, 2 Kas., 160; Grundstaff v. Scoffin, 5 Kas., 165; Lalonde v. Collins, 5 Kas., 361; Kykendall v. Clinton, 3 Kas., 85. This last case is exactly in point, and decisive of the question.
Counsel for" defendant in error state in their brief that after the judgment of reversal in the district court the case was tried in that court de novo upon all the issues, and judgment rendered in his favor. The record shows no such fact, and of course it were useless to speculate as to the effect of any such judgment.
The district court erred in reversing the judgment of the justice. The case will therefore be remanded to the district court' with instructions to set aside its order of reversal, and to affirm the judgment of the justice.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action between Priscilla Blackburn and John Blackburn, as plaintiffs, and Amon Gr. DaLee as defendant. DaLee, as plaintiff in error, brings the case to this court. The judgment below was in favor of Priscilla Blackburn alone and against DaLee. No judgment was rendered in favor of John Blackburn. Hence any ruling of the court below which was merely too favorable to John Blackburn, or which could not have affected the judgment rendered between Priscilla Blackburn and DaLee cannot be considered as material on this petition in error. The errors complained of are as follows:
First: Plaintiff John Blackburn was examined as a witness on the part of the plaintiffs below, and on his cross-examination by the defendant below was asked the following question: “Did you not tell Mr. H. C. Schell that you wanted him to help you get this thing?” (meaning DaLee’s interest in the Lawrence Roller-Plow Company.) Plaintiffs objected to this question on the ground of incompetency. The objection was sustained, and defendant excepted. This ruling was correct. The question was incompetent on cross-examination, for no part of any such a conversation as this question would have elicited had been given on the examination in chief. It was not competent as laying the foundation for an impeachment of Blackburn’s testimony, as no time, or place, was suggested when or where this supposed conversation occurred. It did not tend to show bias or prejudice, nor come under any of the other rules of cross-examination. And of course the defendant had nd right at this time, except by consent of the parties, and permission of the court, to make Blackburn his own witness, and then introduce original evidence from this witness for the purpose of proving his own side of the case. (Code, §275; Laws of 1872, page 329.) And if the defendant had made Blackburn his own witness, the question might then have been ruled out as leading. Besides, if the evidence had been admitted, how could it have affected the verdict and judgment in favor of Priscilla Blackburn, unless it had also been shown that Blackburn was the agent of Priscilla Blackburn for this particular purpose? Was this shown?
Second: That portion of the testimony of the witness Schell quoted in the brief of plaintiff in error which was excluded by the court was properly excluded because it was not the statement of any fact, nor the statement of any conversation, but was merely conclusions of the witness drawn from facts and conversations. And these conclusions were not drawn from any conversation had with Priscilla Blackburn, or from any conversation authorized by her. Blackburn may have been her agent for all purposes, but the evidence does not show it. It is true he signed her name to one of the instruments in writing for her, but was he an agent of hers further than this, or for any other purpose ? It does not seem from the record that Priscilla Blackburn ever authorized John Blackburn to either trade or talk for hex’, but on the contrary it would seem that she did her own trading and talking, and that the defendant well knew this fact. If this evidence had been competent at the time it was offered as against either of the plaintiffs it should have then' been admitted, and it would have been error to exclude it. But if it was competent as against John Blackburn alone it must now be treated as immaterial. But as we have already stated, we think the evidence was wholly incompetent as against either of the plaintiffs. Schell was the witness of the defendant, and this was a part of the defendant’s evidence in chief.
Third: The plaintiff in error complains of the refusal of the court to give a certain instruction. The record does not purport to contain all the instructions, and therefore for reasons often given by this court in other cases we cannot consider the one refused.
Fourth: The plaintiff in error also complains of the refusal of the court to grant a new trial; and here we shall examine the supposed errors in charging the jury, the supposed error in refusing to-set aside the verdict and grant a new trial, and the supposed error in rendering judgment in favor of Priscilla Blackburn. The court charged the jury among other things the following:
“If the jury believe from the evidence that the Black-burns were induced to purchase A. G. DaLee’s interest in the Lawrence Roller-Plow Company, by reason of the representations made by said DaLee, and if *the jury believe the representations were false, they must find for the plaintiffs.
“It makes no difference whether A. G. DaLee knew these representations to be false, or not. It is sufficient that they were false.
“The Blackburns had a right to rely upon DaLee’s statements as to existing facts, without making inquiry of others as to their truth.”
The jury found a general verdict in words as follows: “We the jury find for the plaintiff, and assess her damages at $1,500.” The jury also made special findings, among which are the following:
“Q.-Did DaLee make any statements to the Blackburns, or either of them, which were known to be untrue or false by DaLee when he made them, or at any time before the contract was concluded, or before Blackburn entered upon the active participation in the business of the company?” A«s.-“No.”
“Q-If DaLee in his negotiations with Blackburn made any statements which were untrue, were such statements made fraudulently by DaLee, and with the intent to defraud the Blackburns, or either of them?” Answer, “No.”
According to the evidence DaLee made substantially the same statements and no more to Priscilla Blackburn that he did to John Blackburn. The defendant DaLee moved the court for a new trial upon various grounds, but the court overruled the motion and rendered judgment in favor of Priscilla Blackburn and against DaLee for $1,500. In all this we think there was error. The charge of the court, the findings of the jury, and the judgment of the court were all based upon the erroneous theory that a party may make himself liable to an action at law for damages by innocently, and in good faith making statements which are in fact not true. Now this is not an action in the nature of a suit in equity, nor is it an action on a warranty. It is purely an action at law, as contradistinguished from a suit in equity, and it is purely an action of tort for deceit and fraud, as contradistinguished from an action on contract for breach of a warranty. Nothing of an equitable nature is claimed, or if remotely claimed in the petition below, it was wholly abandoned at the trial; and there has been no pretense, even, that DaLee ever made any warranty with regard to the property which has not been fulfilled. The record shows that the plaintiffs purchased (by a written contract) from DaLee a one-fourth interest in the Lawrence Roller-Plow Company, and paid therefor $800 cash down, and promissory notes (which have not yet been paid,) one for $200, and the other for $1,500, the last secured by a mortgage. The Lawrence Roller-Plow Company owned at the time of the purchase the patent-right for Johnson’s Patent Roller-Plow, and also owned a small amount of other property worth over debts about $800. This property, including DaLee’s interest in said company, was all transferred and assigned to the plaintiffs by an instrument in writing duly executed by DaLee. DaLee made some statements pending the negotiations with regard to the patent roller-plow, and the assets of the company, which were not true. But under the charge of the court and the findings of the jury these statements must now be considered as having been innocently and honestly made, although we should think from the evidence that the jury must have exercised a considerable amount of charity toward DaLee in making findings of innocence or honesty in his favor. Soon after the sale and purchase the patent-right was found to be almost wholly worthless, and the company became insolvent. But the plaintiffs still retained their interest in the company, and in the patent-right, never offering to rescind the contract, or to return anything that they had received from DaLee. The plaintiffs then commenced this action for damages. And in the action they do not ask to have the contract of sale rescinded, nor do they offer to return anything which they received from DaLee. Neither do they ask to have the notes and mortgage (which are not yet paid) returned and cancelled, and they still retain their interest in the Lawrence Boiler-Plow Company, and in Johnson’s Patent Boiler-Plow. They in fact affirm the contract of sale, and then claim damages under it. 'Under these circumstances we think this action must be governed by the rules of law which govern actions for fraud and deceit in effecting sales. Hence, if there was no deceit or fraud, no moral turpitude or obliquity on the part of DaLee in effecting the sale, the plaintiffs cannot recover. We know of no exception to this rule, and we know of no decision that has ever expressed a different doctrine. (Chandelor v. Lopus, 1 Smith’s Leading Cases, 238, and cases cited in Hare and Wallace’s notes.) We know that courts of equity in granting equitable relief go much further. Equitable relief may often be granted for purely innocent mistakes. But relief can never be granted in such cases as this, where the relief asked is of .a purely legal character. Now if all the other necessary facts were shown, then, if DaLee committed any fraud in making said statements, he was certainly liable for the- fraud. And if he made the statements, knowing or believing them to be false, for the purpose of effecting the sale, and did thereby effect the sale, he cer tainly committed a fraud. Or even if he made the statements as though he knew or believed them to be true, while in fact he had no knowledge or belief upon the subject, he was equally guilty of committing a fraud. And there are many other ways in which a fraud could have been committed, and in which DaLee could have made himself liable. But if he committed no fraud he is certainly not liable in this action.
With regard to the sufficiency of the motion for a new trial we would say, where a motion for a new trial has been made by the defendant upon the ground (among others) alleged as follows, “For error of law occurring at the trial and excepted to by the defendant,” all rulings of the court made during the trial, and excepted to at the time they were made by the defendant, should be again considered by the court.
The judgment of the court below is reversed, and cause remanded for a new trial.
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The opinion of the court was delivered by
Valentine, J.:
In this action Mary Feeney recovered a judgment against the defendants below, plaintiffs in error, for the undivided one-sixth part of certain real estate situated in Wyandotte county. The record brought to this court is very informal, and shows but very imperfectly the various rulings of the court below. Several errors may have been committed; and the plaintiffs in error make fourteen assignments therefor, yet not one error is shown by the record brought to this court.
I. As the record does not purport to contain all the evidence introduced in the trial below, we cannot tell whether the findings and judgment of the court below are sustained by sufficient evidence or not.
II. For the same reason we cannot tell whether the court below erred in permitting a certified copy of a certain deed to be read in evidence by the plaintiff below, as there may have been ample evidence introduced to show that the original was lost, or destroyed, or not belonging to or under the control of the plaintiff below. (Laws of 1855, p. 182, §46; Laws of 1859, p. 291, §25; Comp. Laws of 1862, p. 356, §25; Gen. Stat. of 1868, p. 188, § 27; Laws of 1870, p. 174, § 11; 1 Greenl. Ev., §§ 558,349.) This deed purports to have been recorded November 20th 1858, in Leavenworth county. At that time this portion of Wyandotte county formed a part of Leavenworth county. (Laws of 1855, p. 209, § 27; Laws of 1859, p. 362, et seq.)
III. A sheriff’s deed is prima facie valid, and is of itself prima facie evidence of the validity of everything preceding it, necessary for its own validity. (Shields v. Miller, 9 Kas., 390.) And unless it be shown affirmatively that the court had no jurisdiction to render the judgment upon which such a deed is founded, it will be presumed that the court had jurisdiction. In the present case it seems to be admitted that the sheriff’s deed in controversy was and is valid upon its face; that it showed upon its face everything necessary to be shown, and there was certainly nothing outside the sheriff’s deed that tended to show that the court had no jurisdiction to render the judgment upon which said sheriff’s deed was founded. Indeed, the evidence brought to this court tends very strongly to show that the court had such jurisdiction. Besides, the plaintiffs in 'error have not chosen to bring all the evidence to this court; and that not brought may have amply shown jurisdiction. Said sheriff’s deed is also prima faoie evidence that the transcript from the justice’s judgment was properly filed in the office of the clerk of the district court.
IV. The defendants introduced some evidence tending to invalidate said sheriff’s deed, but how much or how little evidence was introduced on the other side to sustain said sheriff’s deed is not shown. Therefore the points attempted to be made against said sheriff’s deed, and founded upon said evidence, are not in this case. As, the defendants below have not chosen to bring all the evidence to this court it will be presumed against them that there was sufficient evidence to sustain the deed, and to sustain the findings, and the judgment of the court thereon. Eor instance, it appears in one of the executions introduced in evidence by the defendant that the shei’iff in making his return, and in describing his levy used the word “southwest,” instead of the word “northwest,” thereby seeming to make a slight difference in the boundary of the land intended to be levied upon. But as the sheriff and the clerk in every other place used the proper word, it would seem that the sheriff used said word through mistake, and against the real facts in the case. It may have been shown on the trial that the sheriff levied upon the proper land, and that he simply used said Avord through mistake; and it may be that the sheriff Avas then and there allowed to amend his return in accordance Avith the facts.
V. It is not shoAvn that the court below erred in permit ting the plaintiff below to read in evidence the notice of the sheriff’s sale as published in the “ Weekly Western Argus.” Such evidence would have been competent and proper if the proper preliminary evidence had been introduced, and there is nothing in the record showing that the proper preliminary evidence was not introduced. It is not necessary to notice any of the other points in detail. But we would say generally, as we have said in many other cases, error is never presumed; it must always be shown; and if it is not affirmatively shown, it will be presumed that no error has been committed; and it can only be shown by the record of the proceedings of the court below.
VI. Where a judgment was rendered, as in this case, December 13th 1869, and leaye given to make a case for the supreme court within twenty days thereafter, and where such case was not made until more than twenty days thereafter, and not until after the term of office of the judge who tried the cause had expired, and was then signed and settled by such judge, the statement of á fact which was- not inserted in said case made, nor entered in the proceedings of the court, but which was merely certified to by said ex-judge at the time of making said case, will not be considered by the supreme court. See the following statutory provisions for making a case; Civil code, §§ 544 to 549; Laws of 1870, ch. 85. The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.;
This was an action brought by Ortman in the district court of Shawnee county, to quiet title. The case was tried by the court, without a jury. Special findings of fact were made, and a decree entered in favor of the plaintiff, quieting his title to a portion of the property, and refusing him any relief as to the remainder. He thereupon commenced proceedings in error in this court, but we held that there was no error in the record of which he could complain and affirmed the judgment. Ortman v. Giles, 9 Kas., 324. The defendant Giles now alleges error, and seeks a reversal of the judgment so far as it quieted the title of the plaintiff to any portion of the property.
Two or three questions are presented for our consideration. Thé first is this: The court found that Ortman was in possession. It is insisted that the testimony does not sustain this finding. The bill of exceptions recites that it was proved that the plaintiff “used the lot for keeping his wood and buggy on,” that he “built a sidewalk on Kansas avenue in front of said lot, and being two or three inches on said lot, and paid for same; also dug a trench on same for wall, and filled up in front to bring sidewalk to the grade, and dug out in front for area,” etc. This, to say the least, is some testimony tending to show possession, and in the absence of any other, sufficient to sustain the findings. Gilmore v. Norton, 10 Kas., 491.
The plaintiff in error further claims that the court erred in its finding that the property in dispute was, from December 1857 to April 11th 1866, an alley of the city of Topeka. It was proved that the plat, as adopted by the town association, described these premises as a part of a lot, but that before the same was acknowledged or recorded the president, by the authority of the trustees, made the change. It is claimed that no authority was shown in the president or trustees. It was proved that the association had a constitution and bylaws for its government, but neither were in evidence, so that the duties and powers of the defendant officers, as therein prescribed, were not shown. But it was also proved (such is the language of the bill of exceptions,) that the association had “for officers a president, secretary, and seven trustees to manage the affairs of the association.” The management of the affairs of an association is shown to be in certain officers. They perforin an act which is within the scope of the powers ordinarily entrusted to such officers. No limitation on their powers is shown. The association is not questioning either their power or the propriety of the act. In a contest between third parties the district court finds that their act was within their authority. We see no reason to reverse this finding.
It is further claimed that there is not sufficient proof that the president of the town association did make the change, or perhaps more correctly that the acts shown do not amount to a change and a dedication of the ground for public use as an alley. It was proved that prior to the lithograph plat, that is, the plat adopted by the association, a plat had been-prepared, upon which these twenty feet (the strip in controtroversy) were platted as an alley; that by the lithograph plat the twenty feet and five feet adjoining were platted as a lot, and numbered as “Lot 169” on the plat; that at the time the change was made, which was before the acknowledgment of the plat, the president, under the direction of the trustees, with the intention of making room for an alley twenty feet in width, “ erased or run the mark of a pen through the figures £ 169’ on the lithograph plat;” that on the same day the plat was acknowledged, and filed for record; that afterward, and in 1865, the president as special trustee executed a deed for the five feet adjoining the premises in controversy, and forming a part of lot 169 as platted on the lithograph plat, which was described as adj.oining an alley. It was proven that the intention was to dedicate; that this dedication was made, and that afterward it was recognized. We think the grantors themselves might upon such testimony be estopped from denying the dedication. Certainly, as between third parties a finding of a dedication will not be disturbed.
One point more remains for consideration. It is claimed that if this was an alley the city could not convey it away, and that therefore Ortman proved no' title in himself. Whether the ordinance and quitclaim deed of the city transferred the fee, or operated merely as a license to occupy, we do not deem it necessary now to decide, for in either event Ortman had a lawful and actual possession, and a right to have any adverse interest determined. Civil Code, §594; Eaton v. Giles, 5 Kas., 28; Brenner v. Bigelow, 8 Kas., 496. The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
It appears from the record in this case that two actions were commenced in the court below — one entitled as follows: “Amanda Corby, executrix of the last will and testament of John Corby deceased, plaintiff, v. W. J. Vancuren, Henrietta Vanouren, H. W. Boone, and Joseph McCrum, defendantsthe other entitled as follows: “Willis J. Vancuren and Henrietta Vancuren, plaintiffs, v. Joseph McCrum, and Bay less Campbell, sheriff of Doni- . . phan county, defendants. inese two actions were consolidated by order of the court. W. B. Wood was appointed a referee to hear and determine evidence, and to report the amount of money paid by W. J. Vancuren to Joseph McCrum. This was the only question, submitted to said referee. The referee performed his duties, and reported that the amount so paid was $273.47. Other issues were tried by a jury, and the jury found thereon as follows:
“1. $.-Did the defendant H. W. Boone transfer the notes now sued on in this action to John Corby, plaintiff's testator, in his lifetime as collateral security for debts due from said Boone to said Corby? Answer. — Yes.
“ 2. §.-Are the notes still held by said plaintiff under the contract by which said John Corby received them from defendant Boone as collateral security for indebtedness from said Boone to said Corby? Answer.-Yes.
“3. Q — If the plaintiff is entitled to recover, what shall be the amount of his money? Answwr.-$1,995.23.
“4. Q.-Weve the notes sued upon in this action deposited with the said John Corby for safe-keeping by the said Boone? Answer .-No.''
These are all the findings in the case, or rather in the two cases. There is no general finding by either the court, or the referee, or the jury. And these special findings do not cover all nor any great proportion of the issues in the two cases. Can any one tell from said findings, with the aid of all the admissions in the pleadings, whether said notes were indorsed by Boone, or merely transferred by delivery to Corby? Were they transferred before due, or afterward? Did Vancuren have any notice that they were transferred to Corby as collateral security when Vancuren confessed judgment on them to Boone? By what authority was the said judgment rendered against Henrietta Vancuren ? (Moore v. Wade, 8 Kas., 380.) Was the real estate which was mortgaged to secure the payment of these notes the homestead of Vancuren and family? (Morris v. Ward, 5 Kas., 239.) Had Vancuren any notice that Corby held said notes as collateral security when he paid said $273.47 to McCrum? Had McCrum any notice that Corby held said notes as collateral security when he (McCrum) purchased said judgment from Boone, or when he received said money on the judgment from Yancuren ? Hid Boone owe Corby’s estate at the time of the trial in this case more or less than the amount of the said notes? Were the debts that these notes were intended to collaterally secure usu/rious, or not ? Where were these debts contracted ? If in Missouri, what are the laws of Missouri concerning usury? These questions cannot all be material, but any one of them may be material if the fact should be found in a particular way. This case, or rather the two cases, were very carelessly tried in every respect in the court below, if the record brought to this court is correct. As an instance of the careless manner in which the parties submitted interrogatories to the jury to obtain special findings of fact thereon, we would refer to the interrogatory upon which the third finding of the jury is based, to-wit: “If the plaintiff is entitled to recover what shall be the amount of Ivis recovery?” There were three plaintiffs in the two cases, not merely one. In the first case mentioned the plaintiff was a woman, and “his” would not be applicable. In the other case one of the plaintiffs was a man, and the other a woman. It will be obvious to any one who will examine the record now before us that we cannot at the present time determine all the rights of all the parties in this court. W.e shall therefore not attempt to do so, but 'shall decide one or two questions* and send the case back to the court below for a new trial.
The judgment of the court below was in favor of Amanda Corby, executrix of John Corby’s estate, and against Willis J. Yancuren for the full amount of the said notes with interest, and against all the parties who are now plaintiffs in error, to-wit: Willis J. Yancuren,HenriettaYancuren, H. W. Boone, and Joseph McCrum, for the sa]e 0f f[ie mortgaged premises. The plaintiffs in error raised the question in the court below, and now raise it here, that Corby’s estate could at most recover only for the amount of the indebtedness from Boone to said estate.' The court below seemed however to be of a different opinion. The plaintiffs in error asked the court to instruct the jury to make special findings upon the following questions of fact, to-wit: “Were the notes sued upon in this action deposited with John Corby by defendant Boone as a collateral security to said Corby for an indebtedness to him by Boone ? If yea, .how much is now due on suoh indebtedness f” The court refused to so instruct the jury. (Laws of 1870, page 173, §7.) “And the court instructed the jury that they must find for the plaintiff upon the third question of fact the full amount of the notes sued upon with interest.” We think the court erred. This, ruling of the court would perhaps have been correct-in an action brought by said executrix against Vancuren and wife alone. In such an action the executrix could have collected the full amount of the notes and then let Boone and his assignees look to her for any surplus remaining after paying her claim against Boone. But .in this action Boone, and his assignee, McCrum, were also parties; and they were entitled to said surplus. The rights of all the parties should have been determined in this proceeding. The said executrix should have received just enough to satisfy her claim against Boone, and costs, and no more, and the surplus should have gone where in equity it properly belonged. The court therefore erred in refusing to allow the jury to find whether there was any surplus or not, and in requiring that the jury “ must find for the plaintiff,” (said executrix) “the full amount of the notes sued upon, with interest.” Of course, if the notes were not sufficient to pay the amount of the indebtedness from Boone to Corby’s estate, then it would be right for the court to render a judgment in favor of the estate for the full amount of the notes. But this is a question of fact to be determined by the jury, and not a question of law to be de-' termined by the court. It is true, the amount due on the notes, aside from any payments on them, is a question of law; but the amount due from Boone to Corby’s estate, and secured by these notes, is a question of fact, and can be determined by the jury only, as the facts were submitted to the jury and not to the court. These notes with the mortgages given to secure them were probably transferred by Boone to Corby merel7 b7 delivery, and not by any indorsement thereon. If so, then Corby obtained only an equitable interest therein, and must be prepared, whether they were transferred before or after maturity, to meet all equities that may be set up against them. (Story on Promissory Notes, §120; Story on Bills, §201; 2 Parsons on Notes, 52, 53.) At common law no chose in action was negotiable, or even assignable. In equity every chose in action except a tort was assignable, but it was assignable subject to all equities that might be set up against it. Under our statutes every chose in action is assignable except a tort, the same as it was in equity; (civil code, § 26;) and under our statutes (the same as in equity) it is subject, after assignment, to all equities that may be set up against it, unless it be a negotiable bond, or a negotiable bill of exchange, or a negotiable promissory note. And if it be a negotiable bond, bill, or promissory note it can be assigned free from all equities only by being assigned in accordance with the provisions of the statute. Hence, even a negotiable promissory note, if payable to “order,” can be assigned free from all equities only by indorsement, (Gen. Stat. 114, ch. 14, §1, etseq.,) for there is no statute in this state that authorizes a negotiable promissory note payable to “order” to be transferred free from all or any equitable defenses or claims except by indorsement. Of course, the right of the assignee of a negotiable promissory note, or indeed of any note transferred by delivery merely, cannot be defeated, except by a paramount equitable right. The court below evidently entertained the opinion that the executrix must recover the full amount of the note sued on, without regard to any equitable defenses that might be set up against the notes or mortgages. In this we think the court erred. Boone continued to hold the legal title to said notes and mortgage, Corby obtained only the equitable title thereto, and hence the action of Corby’s executrix on said notes and mortgage might well be met by equitable defenses.
The j udgment of the court below must be reversed, and. cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Sec. 1, of ch. 105 of the General Statutes of 1868, authorizes the board of county commissioners upon certain conditions to make an order requiring all persons to keep their stock confined in the night-time. It provides that the commissioners “shall make such order under their hands, .and cause the same to be.entered upon the record of their proceedings.7 Is this satisfied by an .order subscribed as follows: “By order of- the Board of Commissioners, A. G. Miller, Chairman” — or do the words, “under their hands,” require the signatures of a majority at least of the board? ■Oviously the latter, if we follow the letter of the law. For the words, “under their hands,” have in the law a well-recognized meaning, a meaning which is satisfied only by personal .signatures. If the letter of the law requires this, is the provision merely directory, and may it be disregarded without invalidating the order? It is difficult to give any satisfactory rules for deciding whether statutory requirements are directory, or essential. Matters of time, where the act can be done as well after as at the time, are often considered directory. Matters of form, where the form in no ways affects the substance, are also sometimes, though not so often, declared directory. In all these latter cases it must be perfectly obvious that the substance is not in the least modified by the difference in form, or the form will always be held essential. For it must be understood, the court has no power to set aside or change the law as enacted by the legislature. All that we can do is, to ascertain and enforce its will. It follows therefore, that even when a change of form would not seem to affect the substance, yet if it appear that the form was made imperative by the legislature, it must be declared essential by the court. • The case at bar seems to come within this rule. The legislature has prescribed a form for this order. It is not easy to see any good reason why the order should not be made in the same manner as other orders of the commissioners ; yet the power of the legislature is unquestioned, and the fact that it has required an unusual form is evidence that it wished this form to be considered essential. Harding v. Owings, 1 Bibb, 214. The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action for malpractice in performing a surgical operation, brought by Jones against ■Oaks. The action was referred, by the consent of the parties, to three referees, who tried the case, and reported as the final result of their hearing and deliberations, as follows:
“ Court [referees] met pursuant to adjournment, and having heard and duly canvassed the evidence, said referees find as follows — for the defendant, there being no cause of action.”
This report seems to have been filed in the district court; but what then became of it the record does not show. Oaks (the defendant below, and in whose favor the report was made,) brings the case to this court and assigns, for error “that at the October Term 1872 of the district court of Cher.okee county the court set aside the said report of said referees.” Now if it is true that the court did set aside said report, still the court did not commit any error by so doing. The statute requires that the referees in their report “must state the fads found, and the conclusions of law separately.” (Code, § 293.) A general finding for the plaintiff, or “for the defendant,” as in this case, is not of itself sufficient. The facts must be found specifically. Such a finding as the referees made in this case is not good under any law. It would not have been good under the old equity practice. The master in chancery was always required to find specifically. The question of the sufficiency of the report however, in this case is not before us. But we do not understand that the district court “ set aside said report,” as claimed by plaintiff in error. From the record filed in this court it appears that the report of said referees is still pending undisposed of in the district court. And while it is thus pending, neither party can bring the case to this court for the purpose of testing the sufficiency of the report. Especially the party in whose favor the report is made cannot bring the case to this court for such a purpose. The petition in error must therefore be dismissed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action of ejectment in the district court of Marshall county. The facts are these: Plaintiff was the patentee of the land. In 1862 he executed a power of attorney to a former partner, H. D. Williams, to sell and convey all his real estate in the state of Kansas, and “to convey or assign away any and all of his property either real or personal in said.state, either in payment or to secure the payment of debts due or to become due.” Under this power of attorney Williams in the same year made a deed of assignment to J. D. Brumbaugh for the. benefit of creditors. In 1869 Brumbaugh, by virtue of the trust imposed by this deed of assignment, conveyed the lands in question to defendant. ■ The power of attorney described no specific property but contained only the general words heretofore quoted. The deed of assignment in a schedule of property attached contained the property in question. The first and main question in the case is, whether the power- of attorney authorized Williams to execute this- deed of assignment, and thus transfer the title to this property to Brumbaugh. The fact that this property is not specifically described in the power of attorney can make no difference. Authority to sell any or all of plaintiff’s land in the state, includes authority to sell any specific tract therein. So also is the assignment authorized by the power of attorney. The assignment conveys the prop erty to the assignee in trust to sell and apply the proceeds to the payment of debts. Now, the power of attorney expressly authorizes the attorney “to assign away” the property “either in payment or to secure the payment of debts.” He did assign to secure the payment of debts; and we think the act was within his power.
Many other questions are presented and discussed in the briefs of counsel for plaintiff in error, but unfortunately the record is not in such a condition that we can consider most of them. It is insisted that the court erred in refusing a number of instructions asked by plaintiff. The record does not purport to contain all the instructions, and these may have been refused because already once given. Pacific Rld. Co. v. Nash, 7 Kas., 280; Washington Life Ins. Co. v. Haney, 10 Kas., 525.
It is insisted that the assignment was void because no bond is shown to have been given by the assignee. The statute only made an assignment void in such cases as against creditors. The assignor could not avoid his voluntary deed upon that ground. (Comp. Laws, p. 102, ,§1.) But the assignee testified that he éxecuted a bond which was approved by the probate judge, and as he thought given to the deputy register.
It is objected that a copy of the deed of assignment on the record of the register of deeds was admitted without proof of the loss or destruction.of the original. But the defendant testified that the original was not in his possession, nor under his control; hence the record copy was admissible. Code, § 372. A good deal of testimony was admitted over the objection of the plaintiff; yet in no case was the ground of objection stated. Such an objection is too general to be available. Walker v. Armstrong, 2 Kas., 198. This we think covers all the questions made in the case, and no error appearing the judgment must be affirmed,
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer,'J.:
The only question presented by this case is as to the constitutionality and validity of the act of the legislature ’ of this state entitled “An act authorizing School District No. 2, Neosho county, Kansas, to issue bonds to build a school-house,” approved February 22, 1871. (Laws of 1871, page 74.) It is claimed that such act conflicts with two sections of the constitution, viz., §17 of art. 2, and §1 of art. 12. The former provides that “In all cases where a general law can be made applicable no special law shall be enacted;” and the latter forbids the legislature to pass “any special act conferring corporate powers.”
The attention of this court was challenged at an early day by § 17 above quoted,, and its scope and effect determined. It was held that such section was not to be literally and strictly construed, and that the mere fact that certain results could be accomplished by a general law did not necessarily avoid a special law passed to effect them. It was said that it left “a discretion to the legislature,” that “the legislature must determine whether their purpose can or cannot be expediently accomplished by a general law.” State v. Hitchcoak, 1 Kas., 178. Under this construction, and we have no disposition to change it, it is impossible to hold the act to be in conflict with the section. It may be conceded that this is a special law — that it authorizes the issue of bonds in a manner and upon conditions different from those prescribed by the general statute therefor. It is evident also' that the result could be accomplished, by a general law, or, in the words of the constitution, that a general law could be made applicable — for a general law is on the. statute book under which great numbers of' our school districts have issued bonds. Why this distinction was made we do not know, and there is nothing in the record to enlighten us thereon. We may. imagine many reasons, but it is useless to speculate. It is enough, in the absence of any showing as to the facts, that we can see that there may have been good and sufficient reasons. The poverty of the district, the want of school accommodations, the hostility of large numbers of the inhabitants to common-school education, may all have furnished reasons more or less strong. On the other hand, we see nothing in the act — and we have nothing else to examine — to indicate any abuse of the legislative discretion. Ample protection was secured by the .law. An election was required before any bonds could be issued; sufficient notice >of the time and place of election provided for, and a majority vote was necessary. The bonds, if voted, were to be used exclusively for the purpose of erecting suitable school buildings. A limit was fixed to the amount of bonds, the .rate per cent., the time of maturity, and the price' at which they might be negotiated; and this limit, for aught that appears, was in all instances reasonable. We have no hesitation therefore in holding that this act does not conflict with said section seventeen.
Does it conflict with §1 of art. 12? The question here raised is one of more difficulty, and one in the investigation ’ —bich there is little in the briefs of counsel to assist us. of ch. 92 of the Gen. Stat. provides that “every 'strict organized in pursuance of this act shall be a body corporate, and shall possess the usual powers of a. corporation for public purposes.” The act under discussion is a special act conferring powers upon, this body corporate which it did not possess before. It. seems. therefore to conflict with the very letter of the section. A critical examination however leads us to the conclusion that this conflict is seeming and not real, or, perhaps more correctly, leaves our minds so doubtful of the existence of any conflict that according to well-settled rules of construction and decision we must pronounce the law not unconstitutional. State ex rel. Crawford v. Robinson, 1 Kas., 18; Atchison v. Bartholow, 4 Kas., 124; Leavenworth County v. Miller, 7 Kas., 498. Art. 12, in which this section is found, is entitled “corporations,” and wholly devoted to provisions concerning them. As to all organizations covered by its terms its provisions are absolute, and this section binding. No corporate powers can be given to them by special- act. The question is, whether school districts are corporations within the meaning of the term as used in this article. Cities, towns, and villages, municipal corporations proper, are included. This has been already decided in this court: City of Atchison v. Bartholow, 4 Kas., 124; City of Wyandotte v. Wood, 5 Kas., 603. See also the case of The State, ex rel., v. The City of Cincinnati, 20 Ohio St., 18, in which the supreme court of Ohio placed a similar construction on a like provision of their constitution. Indeed, § 5 of this article indicates clearly such a construction. It reads, “ Provision shall be made by general law for the organization of cities, towns, and villages.” Now this section seems intended to limit the reach of this article in the direction of political organizations of the state, as § 6 does in the direction of the individual. That section says “The term corporation as used in this article shall include all associations and joint-stock companies having powers and privileges not possessed by individuals and partnerships.” This is evidently not reaching towards nor aiming at political organizations, public corporations, but private associations, individual organizations. It seeks to prevent the granting of the peculiar privileges and powers of corporations to any gathering of individuals, whether called corporation, association, or stock company. It calls everything above a partnership a corporation, and forbids any special act conferring powers. It places the • lower limit, not the higher. On the other hand, in order that there might be no question whether this article was intended for other than private corporations, section five names certain public corporations to which its provisions extend. It was probably well that these were named, to avoid question, for all the sections other than the fifth have reference, principally at least, to private corporations. Yet, as these are corporations proper, there would be weighty reasons for holding them included, even though not in terms named. But with reference to counties, townships, and school districts, the case is different. True, they are called in the statute bodies corporate: Gen. Stat., p. 253, §1; p. 1082, §1; p. 920, §24. Yet they are denominated in the books, and known to the law, as quasi corporations rather than as corporations proper. They possess some corporate functions and attributes, but they are primarily political subdivisions, agencies in. the administration of civil government, and their corporate functions are granted to enable them more readily to perform their public duties. The legislature have created the regents of the agricultural college, and the regents of the state university, bodies corporate, and given them certain corporate powers; (Gen. Stat., p. 75, §3; p. 1100, §6;) yet are they thereby inhibited from special legislation concerning them ? Giving corporate capacity to certain agencies in the administration of civil government is not the creation of such an organization as was sought to be protected by article 12 of the constitution. This distinction between quasi corporations and corporations proper, is no new thing nor of recent recognition. In Harris v. School District, 8 Foster, (28 N. H.,) 61, Bell, J., says: “School districts are quasi corporations of the most limited powers known to the laws. They have no powers derived from usage. They have the powers expressly granted to them, and such implied powers as are necessary to enable them to perform their duties, and no more.” In the case of School District v. Wood, 13 Mass., 192, Ch. J. Parker remárks concerning school districts: “that they are not bodies politic and corporate with the general power of corporations, must be admitted; and the reasoning advanced to show their defect of power, is conclusive.” In Riddle v. The Proprietors, &c., 7 Mass., 169, Ch. J. Parsons says: “We distinguish between proper aggregate corporations and the inhabitants of any district who are by statute invested with particular powers without their consent. These are in the books sometimes called quasi corporations. Of this description are counties and hundreds in England, and counties, towns, etc., in this state.” In the case of. Comm’rs of Hamilton County v. Mighels, 7 Ohio St., 109, in which an attempt was made to hold the county responsible for damages for injury resulting to a private party by the negligence of county commissioners in the discharge of their official functions, the question was examined at great length by Brinkerhoff, J., and the distinction between municipal corporations proper, and quasi corporations, clearly presented. He thus sums it up: “A municipal corporation proper is created mainly for the interest, advantage and convenience of the locality and its people. A county organization is created almost exclusively with a view to the policy of .the state at large for' purposes of political organization and civil administration in matters of finance, of education, of provision for" the. poor, of military organization, of the means of travel and transport, and especially for the general administration of justice.” Dillon, in his late and elaborate treatise on Municipal Corporations, after noticing the distinction draws attention to one fact which will help to make it clearer: “The primary and fundamental idea,” he says, “of a municipal corporation is an agency to regulate and administer the internal concerns of a locality in matters peculiar to the place incorporated, and not common to the state or people at large. But it is the constant practice of the states to make use of the incorporated instrumentality, or of its officers, to exercise powers, perform duties, and execute functions not strictly or properly local or municipal' in. their' nature, but which are in fact state powers exercised by local officers within defined territorial limits. In theory, the two classes of .powers are distinct; but the line which separates the one from the other is often very difficult to trace. The point ■may be illustrated from the English law: If the king incorporate as town, its officers will have no implied power as conservators or justices of the peace; express words are necessary to confer this power, and when they act in the latter capacity, it is not because they are corporate officers, but because of powers expressly annexed to their corporate offices; and the two capacities remain distinct, although united in the same person.” See also sustaining these views, Russell v. Men of Devon, 2 Dumford & East, 667; Ward v. County of Hartford, 12 Conn., 404; Comm’rs of Gallia County v. Halcomb, 7 Ohio St., 232; Wilson v. School District, 32 N. H., 126; Eastman v. Meredith, 36 N. H., 284; Hedges v. County of Madison, 1 Gilman, 567; Mower v. Inhabitants of Leicester, 9 Mass., 247; Freeholders of Sussex v. Strader, 3 Harrison, (N. J.,) 108; Morey v. Town of Newfane, 8 Barb., 645; Soper v. Henry County, 26 Iowa, 264. The mere fact that these organizations are declared in the statute to be bodies corporate, has little weight. "We look behind the name to the thing named. Its character, its relations, and its functions determine its position, and not the mere title under which it passes. In the last five cases cited the organizations were declared in the statute creating them to be bodies corporate, yet this made no difference in the rule. The conclusion to which these investigations have led us is, that among public corporations only corporations proper are included within the scope of article 12 of the state constitution, and that a school district is only a quasi corporation, and not covered by its provisions. The act of February 22d 1871 therefore, not conflicting with either section of the constitution, must be held constitutional. The judgment of the district court will be .affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
In March, 1870, one Frank M. Tracy, a member of the council of the city of Troy, claiming to be duly authorized by said city, made a subscription to the amount of $50,000 in the name of the city to the capital stock of the A. & N. Rid. Co. In payment of half the subscription, $25,000 of the bonds of said city were issued. Thereafter, and on the 21st of October 1870, the city an(j company made a contract by which the city agreed to sell its stock and pay $6,000, in five-annual payments, on being released from its obligations to issue the $25,000 remaining due on the subscription; provided that $25,000 of its bonds should be placed in the hands of trustees as security for the $6,000. As the time for the first annual payment drew near the city brought its action to restrain the treasurer from making such payment, to have the contract adjudged void, and the trustees enjoined from transferring the bonds to other parties, and required to return them to plaintiff for cancellation. A preliminary injunction was allowed by the district court, which was thereafter, set aside by this court. (A. & N. Rld. Co., et al., v. City of Troy, 10 Kas., 513.) On the final trial judgment was rendered in favor of the defendants, and now the city alleges error and. asks a reversal of this judgment.
Subscription to stock. Validity; requisites. Finding of court. 1. Records of city council; parol proof of proceedings. 2. Record and parol proof to be considered; effect. The question which first meets us is as to the validity of the original subscription. It is insisted that the subscription was void because unauthorized. As prerequisites are named, an ordinance, prescribing terms of subscription, and ordering a submission of the question to the voters; an election, resulting favorably to the subscription; and some act or resolution of the council designating the party to make subscription. Were these wanting ? Attached to the answer of the defendant Joy is what purports to be ordinance No. 48 of the city of Troy, certified by the city register under the seal of the city, and attested by the mayor to be a true and correct copy of such ordinance, as the same appears of record, which ordinance prescribed the terms of subscription and provided for an election; also, a similarly attested copy of the record of the city council showing a canvass of the votes cast at the election called by the ordinance; also, a similarly attested copy of the same record appointing Frank M. Tracy to make the subscription. The district court in its findings found that this ordinance was duly passed, and was legal and valid; that an election was duly and resulted in favor of the subscription ; that a canvass was duly made, and the result declared; that Frank M. Tracy was duly appointed to make, and did make, the subscription; that H. Boder was duly appointed to vote and did vote the city stock at the annual stockholders’ meeting. It also found that duly certified copies, attached as above stated to the defendant Joy’s answer, were made out by the city register, attested by the seal of the city and given to defendant. On the other hand it found that ordinance No. 48 had never been recorded in any book, but was simply filed in the office of the city clerk, as was the custom of the city, at the time. Also that no record was ever made showing Tracy’s or Boder’s authority, or showing that an election was ever ordered .or held except that minutes of the proceedings showing the above were kept by the register on slips and pieces of paper, but never entered in any books, and also that there was and is no' copy or record either on slips of paper or otherwise showing that ordinance No. 48 ever passed the city council, though the ordinance itself is on file in the office of the city register, and was by him brought into court. It also found that the Railroad Company was induced in part b} said subscription to change the original location of its road at an extra cost of $28,000. Turning now to so much of the testimony as is preserved in the plaintiff’s bill of exceptions, we find that one Leonard Smith who had been mayor of the city was permitted to testify over the objection of the plaintiff that at the time of the supposed passage of the ordinance the city had no book deemed suitable for recording the ordinances, and so they were kept on file until one should be purchased, and that the register was accustomed to keep the minutes of the council meetings on slips of paper. He further testified that ordinance No. 48 was passed unanimously by this council, that it was approved and published, and a certified copy furnished the Railroad Company; that an election was held, notice thereof having been given, and that the council met and canvassed the votes, and that a large majority was favor °f the subscription. Under these circumstances the question is presented by counsel, ag ^at constitutes the records of a municipal corporation, and how far parol testimony is admissible to prove the acts of such corporation. As the record does not purport to contain all the testimony no question can be raised here as to its sufficiency to support the findings. They must be taken as proven. The record is the best evidence of the proceedings of a city council, and yet it is but evidence. It may be evidence of such high order that it cannot be contradicted, it may import absolute verity like the records' of a court. But nevertheless it exists only as evidence of acts done, and not as the acts themselves. If it be lost or destroyed, the rights created, the duties imposed, and. the responsibilities assumed by the acts of the council, are not lost or destroyed. They exist, and can be enforced; and all that has resulted is a change in the kind and manner of proof. It was the duty of the register to make and preserve a record of all the proceedings of the council, a duty imposed by the charter of the city. (City charter, Private Laws 1860, p. 220, § 15.) It was a duty which he could have been compelled to perform at the instance of any party interested, or for the refusal to perform which any person injured thereby could maintain an action for damages. He exercised no supervisory or restraining power in behalf of the corporation or the public over the council, nor could they be prevented from managing the affairs of the corporation according to their judgment by his omission or refusal to record the evidence of their acts. If he omitted, they could require the omission to be corrected. If he refused, it was ground for removal. (State v. Allen, 5 Kas., 213.) Yet this is the record of the corporation, made by its own officers, and under its own control. If the council may not be thwarted by the omission or refusal of its clerk, a fortiori should a stranger dealing with it in good faith, and influenced to a large expenditure on the strength of an actual vote, not suffer in consequence of a like omission. It must be borne in mind that there is no attempt to show by parol that something was not done which the record shows was done. Dillon in his work on Municipal Corporations, p. 262, § 237, says: “But a distinction has sometimes been drawn between evidence to contradict facts stated on the record, and evidence to show facts omitted to be stated upon the record.. Parol evidence of the latter kind is receivable unless the law expressly and imperatively requires all matters to appear of record, and makes the record the only evidence.” And in the next section he adds: “Where the records of a municipal corporation have been so carelessly and imperfectly kept as not to show the adoption of a resolution, or other act of the city council, and there is no written evidence in existence, parol testimony may be admitted; e. q., to show that certain work was done by authority of the city, by proving the passage of a resolution of the council, the appointment of a committee to make the expenditure, their report after the work was done, and its adoption by the council.” See also Ross v. Madison, 1 Ind., (Carter,) 281; Bigelow v. Perth Amboy, 1 Dutch., N. J., 297; Bank v. Dandridge, 12 Wheat., 64; Hutchinson v. Pratt, 11 Vt., 402. In this last case Williams, C. J., uses this language: “When there is an omission to make' record, the rights of other persons acting under or upon the faith of a vote not recorded ought not to be prejudiced.”
In this case it must be noticed that there is not an entire destitution of written evidence. Copies of the ordinance, the proceedings of the council in the canvass of the votes, and the appointment of Tracy to make the subscription, duly certified by the register under the seal of the city,, and attested by the mayor to be true copies of the record, are made out and given to the railroad company at the time of the subscription. These certified copias are by statute made evidence both for and against the corporation. (Code, Gen. Stat., p. 701, § 379.) Among the files in the register’s office are found the original ordinance and the minutes of the proceedings of the council, written out on slips of paper. These correspond with the certified copies furnished the railroad company. These fragments may not come up to the true legal idea of a record, but they are certainly important items of testimony, when the city is seeking to impeach and have set aside the evidence ’of the proceedings of its council furnished by its own officers under its own seal. We think the court did not err in permitting the railroad company to support the certificate of the register, as against the silence of the record, by the files and papers of the register’s office and the parol testimony.
Again, it is claimed that the ordinance provided as a con dition of the subscription that the depot should be located at or near the center of a certain named quarter-section and never removed further from the court-house than that. The findings show that it was in fact over one-eighth of a mile further. But the ordinance also provided that the depot should be at the junction with the St. Joseph and Denver City Railroad, and it does not appear from the findings or testimony that this junction could have been made at any point nearer the center of the quarter-section, or the court-house. It also appears that the city after the location ratified and approved it.
It is also claimed that the law under which the ordinance was passed, (§§ 51, 52 and 53, pp. 203, 204, Gen. Stat.,) was repealed ten days after the passage of the ordinance, and a law wholly different went into effect, (Laws 1869, p_ 108,) that left no power or authority to sustain the ordinance, and therefore the election, and all proceedings done under it were void. Since the decision in Gordon v. The State, 4 Kas., 489, the legislature has established a new rule as to the effect of changes in the statutes. The last sentence of the first paragraph of §1 of ch. 104, Gen. Stat., .999, reads: “The provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.” Now, the law of 1869 contained substantially all that was in the law of 1868, and also some additional provisions. The effect therefore of the statutory rule just quoted, if valid, was to continue the law of 1868 in force, with the additions made by the amendment of 1869. Now, ordinance No. 48, though drafted under the law of 1868, contains nothing which would conflict with or be superseded by the additional provision of the amendment of 1869; at least nothing which counsel have deemed of sufficient importance to call to our attention. It would seem therefore that the ordinance was not superseded or repealed by the amendment of 1869, and that an election under it might properly be held, and bonds issued. "We have heretofore considered the power of the legislature to establish such rules of statutory construction, and the effect of them. Gilleland v. Schuyler, 9 Kas., 569; The State v. Boyle, 10 Kas., 113; The State v. Crawford, supra, 32. It does not appear to us that § 16 of art. 2 of the constitution conflicts with this rule. The purpose of that was to make the amended section or sections contain the whole law as it was thereafter to exist, and not to prevent the legislature from continuing in force the unchanged portions of the amended law. The rule in effect says the amended law shall be retrospective in its operations so far as it is the same as the prior law. This, in a question like the one at bar, is within the legislative power.
One question more deserves notice, and that - is as to the power of the city to make the contract of October 1870. It was really considered and decided when the case was nere beiore. (Jounsel press the points again, , , & ; and a single word or two may not be mappropriate. The subscription, as we have seen, was valid. The company had performed all the conditions required of it, and the city could have been compelled by mandamus to issue $25,000 of its bonds. The city relieved itself of this liability by the payment of $6,000 and the sale of its stock. The city had, by the terms of its charter, power to sue and be sued, to contract, and be contracted with, to purchase, hold ■and receive, and to sell, lease or otherwise dispose of, property, real, personal and mixed, within and without the city, and all other powers and privileges usually granted to incorporated bodies. (Private Laws 1860, p. 217, §§ 1, 2; Laws 1855, p. 838, § 1.) These powers were vested in the mayor and council; (§ 3, charter.) That a contract and settlement like that is within the scope of the ordinary powers of a private corporation, none will question. And it seems to us .that under the sweeping grants of the charter, without any trespass on the rule that a municipal corporation takes nothing by implication, a like power was vested in the plaintiff. See as to the powers of a municipal corporation in the settlement of claims, Dillon on Munic. Corp., § 398, and cases cited in the notes.
The judgment of the district court will be affirmed.
AH the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This action was commenced in the court below by William Billson and W. Jones, as Billson & Jones, against James C. Hodgson and others to recover for materials furnished and work done on a certain house, and to foreclose a mechanics’ lien on the house for the value of said work and materials. A personal judgment was rendered against said Hodgson and in favor of the plaintiffs below for the value of said work and material, but the mechanics’ lien was dismissed. Hodgson brought the case to this court on petition in error, but he has obtained service of summons on Billson only; and there has been no appearance in this court for either Billson or J ones. From an inspection of the record we are inclined to think that the judgment below should be reversed for errors which we do not think it is necessary to mention, but we cannot reverse the judgment as against Jones, for he has not been brought into court. (Ferguson v. Smith, 10 Kas., 394.) He is a necessary party to the determination of this petition in error, and must have an opportunity to be heard before we can decide against him.
The plaintiff in error should have continued the case until he could have obtained service on J ones. But as he has not done so, and as he has submitted the case to us for a decision upon its merits, the only proper course left for us is to dismiss it for the want of one of the necessary parties. The petition in error is therefore dismissed.
All the Justices concurring.
[* Since the filing of this opinion plaintiff in error has commenced his action anew in this court, by filing a new petition in error, and obtaining proper service on both defendants; and the action is now pending on its merits.—Reporter.] | [
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The opinion of the court was delivered by
Kingman, C. J.:
The district court instructed the jury to find for the defendant Auld, on the ground that the action was barred by the statute of limitations. This instruction was manifestly correct unless the right of action was preserved by some of the saving clauses of the statute.
It is claimed by the plaintiff in error that two errors were made by the court in its rulings, either of which ought to reverse the judgment. First, the court erred in excluding evidence to show the commencement of a former action in due time, and a failure otherwise than upon its merits, and the commencement of the present action within a year from the failure upon the first. Second, in refusing, after the evidence was closed, to permit the plaintiff to amend his petition as offered, the' amendment being in substance that plaintiff did not discover the frauds, conspiracies and partnership charged in his petition until within two years next preceding the filing of his petition, and until within two years of the time of making the motion for leave to amend. The difficulty upon the first of these alleged errors does not so much grow out of the law, as to its application to the facts. The first petition with the amendments thereto is against David Auld alone, stating that one George W. Taylor had bought work oxen of the plaintiff of the value of $4,675, and gave his note therefor dated September 18th, 1865, and made payable in seventy-five days from date, and that afterward Auld bought the train of which these cattle were a part and undertook to deliver the freight in Colorado, a,nd agreed in writing to pay the debt of Taylor to plaintiff. It also contained a count for money had and received by Auld for the plaintiff. During the progress of the trial of the action on this petition, it was dismissed by plaintiff. This was a failure otherwise than upon the merits under the code, as this court decided in McWhirt v. McKee, 6 Kas., 412. Immediately on the dismissal of the first action plaintiff commenced the present action, which seeks to hold- Auld responsible for the amount of the note of Taylor by alleging in substance that the purchase of the oxen from plaintiff was fraudulent; that Auld participated in it, and contrived it; that he was a secret partner of Taylor in the purchase, and had made large gains out of it. It would be impossible to state all that there-is in the petition without copying its eighteen pages. Still, if Auld is to be held responsible on the facts alleged in the petition, it must be on the grounds that he was a secret partner of Taylor in the purchase of the oxen, and their further use, and the disposition made of them for his benefit. Is-this the same cause of action? We think not. The first was a sufficient cause of-action; the fiicts necessary to support it are alleged, and Hiatt claims to recover because of the existence of those facts. The second claims to recover the same amount of money, but on the ground of the existence of a wholly different state of facts. The first action was on a contract of a special character between Auld and Taylor. The second on a contract between Auld and Taylor on the one part, and Hiatt on the other. The one is not only unlike the other, but inconsistent with it. The first alleges that Taylor bought the cattle and gave the note, Auld becoming subsequently liable. The second makes Auld liable as secret partner from the beginning. The first was a perfect complaint for one cause of action; the second was a cause of action not even suggested by the first. It is contended that the last petition might have been used by way of amendment to the first cause of action, had application been made before the first trial began. We do not think so. If a party has two notes on another, both due, he can bring his action on both notes in one petition; but if he brings his action upon one, and then continues the case until the statute has run upon the other, can he, by way of amendment, make the note on which the statute has run a part of his action, and thus by its relation back to the commencement of the action avoid the statute of limitations ? Surely not. The supposed ease is not stronger than the one under consideration. The two causes of action did not arise from the same transaction. The first grew out of agreements made after Taylor bought the cattle. The second grew out of the purchase of the cattle. In the first, the plaintiff had but to prove the agreement and the consideration. In the second, no such' proof could have been admitted under the pleadings. The plaintiff, it is true, was trying in both cases ■to make Auld pay him for his cattle, but this settles nothing. If Auld had stolen the cattle from plaintiff, he could have sustained an action against him for their value. Had Auld bought them he could also have sustained an action against him for their value; and had he brought his action for the first, and after failure otherwise than upon the merits, had brought his action on-the second,1 it is possible this might have brought the last case within the statute, though that would certainly be a strained construction, but the right of action in either case might have grown out of the same transaction, and arisen from the same state of facts. But could a party thus keep alive one cause of action by instituting a different one, and when witnesses are gone, and facts are forgotten, dismiss one and then bring another ? Such at least is not the policy of the law. It is frequently said that our statute of limitations is so short that it should not be applied except in clear cases; but when the rapid movement of affairs, and the changing character of our population is considered, our statute of limitation, viewed as a statute of repose, is not relatively shorter than that of 21 James I., which was generally adopted by the American Colonies. We are aware that the statutes authorizing the bringing of a second suit upon a failure in the first, on any of the grounds enumerated in the statutes of the different states, have received a construction quite favorable to the plaintiff. The cases are referred to in the brief of plaintiff in error; but none of the cases go so far as to take a case out of the operation of the statute, where the cause of action was different. In Virginia it is held that a chancery suit for the same cause of action would save the operation of that statute in a suit at common law: Gray v. Berryman, 4 Munford, 181. So in Alabama, 18 Ala., 307. In Mississippi it is held that this saving does not apply to a suit brought by the assignee, where the action on the note by the assignor had abated within a year. As very analagous to the principle in this case, though wholly unlike as to the facts and circumstances, reference is made to Dudley v. Price, 10 B. Monroe, 84, where the court decided that when during the pendency of a suit in chancery any new claim is set up by the plaintiff the defendant may have the benefit of the statute up to the time when the new claim is presented. In North Carolina the same decision has been made, where the new claim is founded upon papers previously made exhibits in the case. Christmas v. Mitchell, 3 Wedell’s Ch., 585. To hold that the first action operated to save the second, would be in our opinion to engraft another exception upon the statute not warranted by. its letter, nor coming within its policy. The two actions, to bring the second within the operation of the statute, need not be in the same form, and only additional facts -may be stated, or facts that have been stated may be omitted; but it must substantially be the same cause of action. Another point remains on this branch of the case: The first case was dismissed upon a stipulation signed by the attorneys of both parties that it should be “without prejudice of service or otherwise to the action commenced this day by Joel Hiatt v. David Auld and George W. Taylor.” It is claimed that this stipulation prevented the defendant from being allowed the benefit of his plea of the statute of limitations, on the ground that the two actions were not the same. If such was the intention of the parties they certainly failed to make it appear in the writing. It does not in terms, nor by any possible implication, prevent the defendant from setting up any defense he may have had to the action. It was simply what is known as a dismissal without prejudice, and the stipulation that no advantage should he taken that one action had been commenced while the other was on trial. The court properly refused to permit one of the attorneys to testify as to 'what was the real intention of the parties in the written instrument. It is not susceptible of an explanation consistent with the claim of plaintiff in error.
The second point remains to be decided. The answer of the statute of limitations had long been filed. On that, as one of the issues, the case had been tried. After all the evidence was in the plaintiff offered to file an amended petition containing allegations that plaintiff had not discovered the fraud until within two years. Such an amendment at such a time comes too late. It raised another issue which would have to be tried, which might have led to a necessity for a retrial of the whole case. The facts should have been used as a reply to that part of the answer setting up the limitation. There was no abuse of discretion in refusing to allow the amendment to be made at that point of the trial. The omission to make it earlier does not appear to be the result of inadvertence. The answer had long been filed setting up the statute as a defense. Neither the affidavit nor the offered amendment showed when or how the fraud was discovered. See Stearns’ Adm’r v. Page, 7 How., 819. Upon the whole case we think the court correctly held that the action as to Auld was barred, and that the instruction to that effect was correct. This settles the whole case, and renders it ixnnecessary to examine the other rulings as to the admission or rejection of evidence, because with the exceptions noticed none of them would have affected the case on the question of limitation. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
"Valentine, J.:
This was an action brought by Isaac Foltz against Simpson Merrill to recover the S.W.J of Sec. 14, township 7, range 16, Jackson county. On the trial the plaintiff introduced in evidence a patent from the United States to himself for said land, and then rested. The de-. fendant then introduced three tax-deeds, two deeds from the county commissioners, two other deeds, and some other evidence. Each of the parties then introduced some rebutting evidence. It does not appear from the record whether all the evidence is brought to this court or not. The judgment of the court below was for the defendant.
The plaintiff brings the case to this court. It is the opinion of each member of this court that the judgment of the court below should be affirmed, and therefore it must be affirmed, although we differ with respect to the reasons therefor; And as we differ in regard to the reasons for our decision we have concluded it is not necessary to (give any reasons. The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
On the 23d of October, 1871, plaintiff in error insured McLanathan against loss or damage by fire to the amount of $2,000, on property described in a policy then issued to him as “his two-story frame dwelling, occupied by him, situate southwest corner Second and Nine streets, Leavenworth, Kansas, and $300 on frame barn in rear of same.” On the 24th of April,' 1872, McLanathan commenced an action in the district court of Leavenworth county against said company, and in his petition in substance claimed that on ^e ^9th of January, 1872, the dwelling-house specified in said policy was damaged $2,500 by fire — and that the company had immediate notice thereof, as required by the policy — and that immediately thereafter, and upon full knowledge of the facts above mentioned, the company gave notice of intention to repair the property, and proceeded, with his consent^ to make preparations to do so, and undertook to do so, and that relying thereon he refrained from proceeding to repair, but that the company refused to repair, and that by reason of the damaged condition of the dwelling, caused by the fire, said building by delay became additionally damaged $1,000 — and that he performed on his part every act required by the terms of the contract of insurance, and asked judgment for $3,000 and interest. After answer and reply, the case was tried by a jury, which returned • the following special verdict:
•“We, the jury, find as follows: 1st.-That the dwelling-house described in the policy of insurance, was built by the plaintiff in the year 1859, on lots which had before that time been conveyed to Lucy B. McLanathan, wife of plaintiff, and the fee-simple title to which lots was then in the said Lucy B. McLanathan, also continued up to and including the date of the fire hereinafter mentioned. Said dwelling-house rested upon a stone foundation, built with mortar, and entering the ground at least a foot and-a-half.
“2d. — That at the time the said policy of insurance was made, the plaintiff applied to Daniel R. Anthony, who was the duly authorized agent of the defendant to issue policies of insurance, for a policy of insurance on said house, and that the said agent having made out this policy, the plaintiff informed him that the lots on which the house was situated were deeded to the wife of the plaintiff, but that he (the plaintiff) had built the house; and the said Anthony then stated to plaintiff that it would make no difference whether the policy was made to him or his wife, whereupon the plaintiff paid his insurance-money and took the policy.
“ 3d.-That the plaintiff with his family had occupied said house from the time it was built till the time of the fire herein referred to, and the said Anthony, the agent of the defendant, knew the facts as to the title to said property at the time he made said contract of insurance.
“4th.-That as to all interest, legal or equitable, in said house, owned by the said Lucy B. McLanathan, the said plaintiff, in making said contract of insurance, made the same for, and in behalf of him and wife, and took said policy of insurance to himself for the benefit of himself and wife, the said McLanathan then acting in the procuring of said policy for himself, and as the agent of his said wife.
“5th.-That on the 29th of January 1872, said house accidentally took fire, and a part thereof was destroyed by fire, and the building greatly damaged both by fire, and. the efforts to extinguish the same, without fault of the plaintiff.
“ 6th.-The plaintiff immediately notified the agent of said loss, and the agent of the defendant (Mr. Mosier) told the plaintiff that it was unnecessary to furnish proofs of the loss, because the defendant had elected to repair the building. On the 28th of February 1872, the defendant served on the plaintiff another notice, of which the following is a copy:
‘Leavenworth, Kansas, Feb. 28, 1872.
H. L. S. McLanathan, Esq,., Leavenworth, Kansas:
Sir: You are hereby notified of the determination of the American Central Insurance Company, of St. Louis, Mo., to repair your late residence, situated in the southwest corner of Second and Elm streets, Leavenworth, Kansas, which was on or about the 29th of January, 1872, damaged by fire and water, and that the said company will commence the said repairs immediately on the receipt of proper proofs of loss, as per your policy of insurance in said company, on said building. Yours very truly,
Dave Korick,
Special Agent Am. Gen. Ins. Go., St. Louis’
“ 7th. — That on the 7th of March 1872, the plaintiff delivered to defendant the notice and proof of loss, of which copies are inserted in the answer of defendant, to which proofs no objection was made by the defendant at any time.
“ 8th. — That after the expiration of one month from the date of delivery of said proofs of loss, said defendant, having failed to make any objections thereto, or to repair said building, informed the plaintiff that said defendant would not repair said loss; and thereupon said plaintiff made a portion of the necessary repairs and took possession of said house.
“ 9th.-That the plaintiff in making his proof of loss did not intend to defraud defendant.
“ 10th. — That the foundation of the kitchen attached to said house was moved by plaintiff onto the west side of said house on the 4th of March 1872, the defendant agreeing thereto on plaintiff’s paying the cost of said removal and whatever additional sum it might cost to make the repairs by reason of the location of said kitchen on the west side of said house.
“ 11th. — That the agent of defendant, in making the policy made a mistake in describing the location of the building, as at the southwest corner of Vine and Second streets, instead of at the southwest corner of Elm and Second streets.
“12th.-That there was at the date of said insurance policy a street in said city called Vine street, and a street called Second street, and the street called Elm street, and that the agent of the defendant, at the time of the execution of the policy knew that the dwelling-house aforesaid was located on the southwest corner of Elm and Second streets, said Vine street being one street north of Elm.
“ 13th. — That at the time of the execution of the said policy there was erected on the southwest corner of Second and Vine streets a frame dwelling-house, the north part of which was two stories in height, the upper story being a half-story, but the south part of same was one story, and that there was also then, in the rear of said dwelling-house, a barn or stable, and that neither of which last-named dwelling or barn was injured by fire.
“ 14th.-That the dwelling described in said policy is and was the same which is now, and was occupied by the plaintiff and his family, and was then and now, situated on the southwest corner of Second and Elm streets.
“ 15th.-That the injury to said dwelling-house by said fire, and the amount it then would have cost to repair the same was $1,600.
“16th .-That at the time said defendant informed said plaintiff that said defendant would not repair said house, the injury to the same, by reason of the action of the weather thereon, and the additional amount it would cost to repair the same, in consequence of such exposure to the weather, was $400.
“On the above facts, we the jury assess the plaintiff’s damages at two thousand dollars, as follows: By fire, $1,600 damages; by exposure to weather, $400 damages. Total amount, $2,000. Jas. Bauserman, Foreman.”
Upon this special verdict judgment was entered in favor of McLanathan for $2,000, and the insurance company now brings the case here on error. A lengthy and elaborate brief has been filed by the learned counsel for plaintiff in error, and many questions presented and discussed in it. We shall not be able to notice many of these in detail, nor will it be necessary, as the determination'of two or three will decide the ease, the principles involved in those controlling the remainder.
The first question we shall notice is as to the description of the property insured. It is described in the policy as “his two-story frame dwelling, occupied by him, , , J \ , Tr, situate southwest corner becond and Vine streets, Leavenworth, Kansas, and frame barn in rear of same.” As a matter of fact the dwelling occupied by McLanathan and which had been occupied by him for a dozen years, as was well known to the agent of the company at the time -he drew up the policy, was on the southwest corner of Second and Elm streets. The jury found that the agent knew the location of McLanathan’s residence, and simply made a mistake in writing “Vine” instead of “Elm” street. This is not a case of an entire misdescription, but simply one of repugnant calls. The dwelling occupied by McLanathan was not on the corner of Second and Vine streets; and vice versa, the building on the corner of Second and Vine streets yvas not and had never been occupied by McLanathan. In such a case the contract is not void, for uncertainty, nor is there any need of applying for a reformation of the contract, provided it appear either from the face of the instrument or extrinsic facts which is the true and which the false description. Falsa demonstratio non nocet, cwm de eorpore constat. “The rule is clearly settled that where there is a sufficient description set forth of premises, by giving the particular name of a close or otherwise, we may reject a false demonstration.” Doe, d. Smith, v. Galloway, 5 Brad., 43, 51. In 1 Greenleaf on Ev., §301, it is said: “If there be a repugnant call, which by the other calls in the patent clearly appears to have been made through mistake, that does not make void the patent. * * * So if lands are described by the number or name of the lot or parcel, and also by metes and bounds, and the grantor owns lands answering to the one description, and not to the other, the description of the lands which he owned will be taken to be the true one, and the other rejected as falsa demonstratio.” Now upon the face of this policy no repugnancy is apparent, and it is only in attempting to apply the description to the property that the repugnancy appears, and in the very application is disclosed that which clearly determines which is the true and which the false description. For that McLanathan should insure his homestead, is reasonable ; that he should insure property in respect to which he had neither possession, claim, nor title, is improbable. According to the last citation from Greenleaf, if McLanathan and wife conveyed “their dwelling occupied by them on the corner of Second and Vine streets,” and it appeared that they owned and occupied the dwelling on the corner of Second and Elm streets, and did not own that on the corner of Second and Vine, the conveyance would be good of that which they did own; a fortiori, when the instrument is not a conveyance of title, but only a contract fdr indemnity, will the repugnancy be resolved in favor of that property which alone it-was the interest and therefore the evident purpose of the parties to secure. We think therefore that there is nothing in the description to prevent the defendant in error from recovering on this policy. Loomis v. Jackson, 19 Johns., 449; 1 Greenleaf on Ev., §§300, 301, 302, and notes; 2 Hill, on Real Prop., 358, 368.
We come now to a question or questions far more difficult than the preceding, and which are of vital importance. It appears from the first finding that the fee of the lots upon which was the building insured was conveyed to the wife of the defendant in error prior to the erection of any building, and has so remained ever since. The questions then arise, Had MeLanathan any interest in the building that he could insure, or such as would enable him to maintain an action on this policy for injury? If he had, did the failure to state the exact nature and extent of that interest avoid the policy? How far may the company raise these,questions, and how far is it estopped, and how much has it waived, by its own acts or the acts of its agents? The policy in this case was not issued upon the strength of a written application, or based upon representations therein. It, in and of itself, states and embodies the entire contract between the parties. It is provided in it that “if the interest of the assured is not one of absolute ownership, and the nature of the interest is not clearly defined in writing hereon, * * * then this policy shall be void.” The interest of defendant in error was not one of absolute ownership, and the nature of that interest was not stated in the policy.' As against this, the jury find, (and the findings are well supported both by the testimony of the assured and the agent,) that the true nature of the-interest of defendant in error, and the exact condition of the title, were stated by the assured to the agent, and known by him at the time of the issue of the policy, and that the agent told the assured that it made no difference, and that thereupon the assured paid his premium and took the policy. Was the act of the agent a waiver of the stipulation in the policy, and could the agent bind the company by such waiver? The bulk of the fire insurance business of this state is done by eastern com-Panies> who are represented here by agents, These agents are authorized to issue policies of ;nsurancej an(j the entire consummation of the contract is intrusted to them. Blank policies, signed by the home officers of the company, to be filled up and issued, and to be binding when countersigned by the agent, are placed in their hands. It is a matter of no small moment therefore that the exact measure and limit of the powers of these agents be understood. All the assured knows about the company, is generally through the agent. All the information as to the powers of and limitations upon the agent, is received from him. Practically the agent is the principal in the making of the contract. It seems to us therefore , . , , ■, , , that the rule may be properly thus laid down: That an agent authorized to issue policies of insurance, and consummate the contract, binds his principal by any act, agreement, representation or waiver, within the ordinary scope and limit of insurance business, which is not known by the assured to be beyond the authority granted to the agent. See as sustaining these views the following late cases: Miner v. Phenix Ins. Co., 27 Wis., 693; McBride v. Republic Fire Ins. Co., 30 Wis., 562; Anson v. Winnesheik Ins. Co., 23 Iowa, 84; Viele v. Germania Insurance Co., 26 Iowa, 9, and notes; Miller v. Mutual Benefit Life Ins. Co., 31 Iowa, 216; Franklin v. Atlantic Fire Ins. Co., 42 Mo., 456; Columbia Ins. Co. v. Cooper, 50 Penn. St., 331; Manhattan Ins. Co. v. Webster, 59 Penn. St., 227; Insurance Co. v. Wilkinson, 13 Wall., 222.
The stipulation in the policy that the nature of the assured’s interest if less than an absolute ownership must be stated, is one exclusively for the benefit of the insurer. It makes no difference to the.assured whether his interest be limited or absolute, partial or total, providing the insurer will insure that interest. It is important for the insurer to know the nature and extent of that interest that he may judge of the safety and expediency of the risk. Being a stipulation for the insurer’s benefit, he may waive it. But it may be said that all prior talk and negotiation is merged in the written contract, and that this represents the entire agreement between the parties. The testimony shows that the policy was all prepared, signed, and . ready for delivery at the time of this conversation between the agent and McLanathan. It is not therefore prior but contemporaneous. It is part of the agreement. A case almost exactly in point is that of Franklin v. Atlantic Fire Ins. Co., 42 Mo., 456. In that case the policy was issued without any written application. The exact state of the assured’s title and interest was made known to the agent. He made no note of it on the policy, and told the assured it would make no difference. The policy contained a stipulation similar to that in this. Mr. Justice Holmes, in giving the opinion of the court, says: “The actual state of the case then is, that the agent receives a verbal application for insurance, and before the policy takes effect by delivery the interest of the assured in the property is truly stated to his satisfaction, by which his attention is called-to the circumstance that the specific character and extent of the interest ought to be expressed in the written instrument, and he answers, ‘it will make no difference — it is all right,’ re-' ceives the premium, and' delivers the policy. The policy is accepted, and the premium paid, on the faith of this assurance. The party insured goes away relying upon its validity to protect him against loss during the time specified. He acts upon a state of things represented to him by the agent to be sufficient, and it would work a fraud upon him if the company should now be allowed to avail itself of this defense.” Language more appropriate to the facts of this case could hardly be found elsewhere, and it meets our entire approbation. See also the case of Anson v. Winnesheik Ins. Co., 23 Iowa, 84, where both the application and the policy were made out, at the instance of the agent who had full knowledge of the facts, in the name of Jane Anson, the former owner, but then deceased, and the heirs were held entitled to recover. More than this, the company after. the loss, and with full knowledge of the facts elected to repair the loss, and served notice upon defendant in errorj 0f gncli election. This it would seem ought to be a waiver of any such omission in the policy as that claimed in this case. Bersche v. Globe Mutual Ins. Co., 31 Mo., 546.
Had McLanathan any insurable interest? He built the house on his wife’s lots, and with her occupied it as their ioint homestead for many years. He acted as his .~ ~ _ wiie s agent, so iar as she had any interest, legal or equitable, in making this contract, and took the policy for the benefit of himself and wife. The company had full knowledge of the condition and title at the time of the policy and the notice of election to repair. No one has as yet succeeded in giving an entirely satisfactory definition of the term “insurable interest.” Angelí in his work on Eire and Life Insurance, § 56, says, “that it would be extremely difficult to afford any accurate definition of ‘insurable interest;’” and in the same section: “Accordingly it is recognized in this department of the law, that almost any qualified property in the thing insured, or even any reasonable expectation of profit or advantage to be derived from it, may be the subject of this species of contract; certainly if it be founded in some legal or equitable title.” And again: “ It is very clear that, the term interest, as used in applications to the right to insure, does not necessarily imply property.” It is also well settled that a trustee or agent, having no personal pecuniary interest in the property, may yet effect an insurance on it. Lacena v. Crawford, 3 Bos. & Pull., 95, and 5 id., 289; Angell on Insurance, §73; Ins. Co. v. Chase, 5 Wall., 512; Goodall v. N. E. Fire Ins. Co., 25 N. H., 169; 2 Grreenl. on Ev., § 379; Multenberger v. Beacon, 9 Penn. St., 198; Siter v. Morris, 13 Penn. St., 218. It has also been decided that a husband has an insurable interest in buildings situate on his wife’s realty: Franklin Ins. Co. v. Drake, 2 B. Mon., 47; Angell on Ins., § 64; Mutual Ins. Co. v. Hale, 18 Ind., 27; Harris v. York Mutual Ins. Co., 50 Penn. St., 341. In this last case Woodward, C. J., speaking for the court, says, “ If there were more doubt than there is about the insurableness of the husband’s interest, we think his purchase of the policy could be supported on the ground of agency for his wife.” And again: “When he has effected an insurance on houses on their joint possession, but which belong to her, the law will presume her ratification of his act, if not her precedent authority to perform it, and will support the insurance for her benefit.” While perhaps it may be doubted whether these authorities are entirely applicable in this state, owing to the statutory changes in the relations of husband and wife to the separate property of each, yet we think they fully justify us in holding that where a husband erects a dwelling on his wife’s lots, and with her occupies it as a mutual homestead, and as her agent effects an insurance for their mutual benefit, though in his own name, and the insurer, aware of these facts, issues the policy and receives the premium, he may recover on the policy in case of a loss.
One or two more questions remain for consideration. It is earnestly insisted that the reply is bad for departure, and several motions were made to strike out portions of it. These motions were overruled and exceptions x duly taken. The substance of the petition has been already stated. The defendant answered setting up among other defenses that the property insured belonged to Mrs. McLanathan, and not to defendaDt ;n errorj an(j that the policy was void because the nature of his interest was not stated. For reply McLan athan admitted that the fee of the lots was in his wife, and then alleged substantially the facts found in the verdict. The facts, as we have seen, entitle him to recover; and in the manner of pleading those facts we see no error. In his petition he sets out the contract, alleges performance by him, and a loss by fire, and asks judgment for the amount of his damage. The defendant answers that the plaintiff cannot recover on this contract because the property was not his, and because the contract was void. The reply sets up facts which destroy these defenses, and leave the plaintiff to recover upon the contract. The reply does not set up a different basis of recovery from that.presented in the petition. The petition does not allege an absolute ownership, and the reply a limited interest and an agency, for the petition is silent as to the nature and extent of McLanathan’s title and interest. All the facts as claimed by either party were fully presented in the pleadings. There was no surprise, and no concealment. The case was fairly though hotly contested, and we should be slow to disturb a verdict, which seems to fairly respond to. the testimony, upon what is at best a mere technicality.
It will be seen that the jury find that the damage done by the fire directly was $1600, and that the damage done by exposure to the weather through the delay of the company to repair was $400. It is claimed that this item x 0f j$400 is not covered by the. policy, nor sustained by the evidence. Neither of thesé objections are well taken. The policy stipulated that the company might repair, giving notice of its intention so to do. It gave such notice on the 28th of February, and then after more than a month' had elapsed it declined to do anything about it. During all this time the plaintiff in error waited on the company, and the property remained exposed to the weather. If finally the company had repaired it would have been compelled to restore the building to as good condition as it was before the fire, and could not have asked McLanathan to pay for the extra expense caused by its delay to immediately repair. So, refusing finally to repair, it must pay what it would cost to make the repairs at the time of its refusal. The witnesses fixed the amount of this damage at different figures, some above and some below $400.
Many objections were made during the trial to the admission of evidence, and the rulings thereon are now assigned for error. Complaint is made of the manner of preparing the special verdict, of the remarks of the court to the jury, and of the refusal to give certain instructions. It is enough to say in reference to these various matters that we see no error working substantial injury to the rights of the plaintiff in error.
The judgment of the district court will therefore be-affirmed.
All the Justices concurring.
[*Substance-of “answer,” and “reply,”post. p. 552.] | [
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The opinion of the court was delivered by
Valentine, J.:
This is an original proceeding in mandamus, brought in the name of The State of Kansas on the relation of the Atchison, Topeka and Santa Fe Railroad Company against the Board of County Commissioners of Jefferson County, to compel said county .commissioners to issue certain bonds of said county to said railroad company. The defendants move to dismiss the action, because the affidavits, motion, and alternative writ show that The State of Kansas has no interest in the result of the action, and because it does not appear from any of the proceedings that the railroad company have any right to prosecute the action in the name of the state. It is admitted on the part of the railroad company that the state has no interest in the result of the action, and that the railroad company have no right to prosecute the action in the name of the state, or to use the name of the state as plaintiff, unless they have such right by virtue of this being a proceeding in mandamus, and by virtue of the railroad company being the relator therein. We think the motion to dismiss the action should be sustained. The action of mandamus, as well as every other civil action, should under the statutes of Kansas, where no special provision is otherwise made, be brought and prosecuted in the name of the real party in interest. [The State, ex rel. Wells, v. Marston, 6 Kas,, 524, 532.) It will be conceded that this was not the rule with regal’d to mandamus at common law. At common law the proceeding by mandamus was in no sense an action by the relator. Neither the writ nor the return was in any case nor in any sense a pleading. No issues of fact were raised by the writ and the return. No trial could be had in the case; and no final judgment could be rendered therein between the parties — the relator and the respondent. The writ, whether alternative or peremptory, was merely a writ, and nothing more. It was purely a prerogative writ, solely within the discretion of the court, (never a writ of right,) and was issued in the king’s name, or in the name of the sovereign authority, commanding some particular act to be done. The return was merely an answer made by the respondent to the writ, stating that he had performed the act, or giving some excuse or justification why he had not performed it. It was never a pleading, and could never be traversed or controverted by the relator, or by any one else, but was always taken as absolutely true, however false it might be in its statements of fact. The only remedy that the relator had when he wished to controvert the truth of the return was to institute a separate and- independent action on the case for a false return. In such an action the relator became the plaintiff, the respondent became the defendant, the proper pleadings were filed by the parties, the proper issues were made up, the proper trial was had, and the proper judgment was rendered in the action between the parties. If the judgment was for the plaintiff, he recovered his damages and costs, (Tidd’s Practice, 949,) and the court then issued a peremptory writ of mandamus, against the defendant. If the judgment was for the defendant he recovered his costs. The law of mandamus‘as herein-before stated, and the subsequent action on the case for a supposed false return, was the law in England down to the passage of the statutes of 9 Anne, c. 20; which statutes, together with the subsequent statutes passed in England regulating the proceeding by mandamus, form no part of the common law in this country. (K. P. Rly. Co. v. Nichols, Kennedy & Co., 9 Kas., 252; Comp. Laws of 1862, page 678; Gen. Stat. of 1868, page 1127, §3. For the common law of mandamus see Bacon’s Ab., Mandamus; Comyn’s Dig., Mandamus; Jacob’s Law Dic., Mandamus; Stephen’s Nisi Prius, Mandamus.) But this old common-law mode or procedure for mdndamus has been materially changed- by statute, not only in Kansas but in nearly every other state, and in England. The present action of mandamus is not only the old common-law proceeding of mandamus, but it is also the old common-law action on the case for the false return. It is the two proceedings combined. The alternative writ is now not merely a writ, as formerly, but it is also a pleading. The return is now not merely a response to the writ, as formerly, (which return could not formerly be traversed or denied,) but it is also a pleading; and the facts therein stated may now be controverted the same as they may on any other pleading. Issues are now made up by the writ and the return. A trial may be had on such issues, and judgment -rendered for the plaintiff, or for the defendant, the same as in any other civil action; and the action is now considered almost as much an action of right as any other civil action. But little now rests in the discretion of the court. (Napier v. Poe, 12 Geo., 170, 178; Harrington v. Berkshire Co., 22 Pick., 263, 268.) In fact, the proceeding by mandamus is now under existing statutes nearly everywhere in England and America considered as a civil action by and between the real parties thereto — the relator and the respondent, (Kendall v. Stokes, 3 How. U. S., 100; Arberry v. Beaver, 6 Texas, 457, 464; Wells v. Marston, 6 Kas., 524, 532,) who are denominated the plaintiff and the defendant. (See the reports of nearly all the states.) In the most of the states the action is now entitled by making the relator the plaintiff, and the respondent the defendant, and the action is prosecuted-in the name of the relator as plaintiff, and not in the name of the state, as formerly, if the reports of adjudicated cases are correct. The states of Illinois, Michigan, New York, South Carolina, Wisconsin, and possibly a few other states, constitute an exception to the general practice of the present day. Oúr statutes everywhere seem to recognize the present proceeding by mandamus as a civil action, with the relator as the plaintiff, and the respondent as the defendant. See the statutes cited in 6 Kas., 532, 533, and also the following section of the civil code:
“Sec. 698. A recovery of damages, by virtue of this article (mandamus,) against a party who shall have made a return to a writ of mandamus, is a bar to any other action against the same party for the making of such return.” (Gen. Stat., 767.)
And as -our action of mandamus has absorbed and swal lowed up the old common-law action on' the case for the supposed false return to the writ, such action on the case is now abolished by said § 698, and a respondent is now no longer liable to a separate action for making such return.
But even if our statutes did not expressly recognize the present action of mandamus as an action, could it even then be contended that it was not an action ? We think nót.' Will it be contended that the action on the case when united with the proceeding of mandamus is dwarfed down to a mere special proceeding ? Will it be contended that the two proceedings, when united, are not entitled to the rank or dignity that one of them alone possessed before the union? We think not. As one of them alone before the union was an action, we think the two together, after the union, are undoubtedly entitled to the rank of an action, and constitute an action. Now as the principal and substantial portion of our action of mandamus is the same as the old common-law action of case for a false return, which mode of procedure should we follow, that of mandamus, or that of ease? In the absence of statutory provisions prescribing which mode we should follow we should probably follow that of case where the two differ. But we are not left to grope our way in the dark in this respect. The statutes provide that “ every action shall be prosecuted in the name of the real party in interest,” etc.; (code, § 26;) that the writ of mandamus “may issue on the information of the party beneficially interested;” (code, §689;) that “the party complaining shall he Tcnown as the plaintiff, and the adverse party the defendant;” (code, §11.) And all our statutes, whenever they mention the relator, and respondent in an action of mandamus always mention them as plaintiff and defendant and never as relator or respondent; (code, §§ 690, 693, 695, 697;) and the state is never anywhere in all our statutes mentioned as the plaintiff in such an action. But we can and do substantially follow both modes of procedure. The writ of mandamus, as we have heretofore stated, was formerly considered merely as a writ; but now the alternative writ is considered both as a writ and as a pleading. As a writ it must still issue in the name of the state, (the sovereign authority,) for all processes both civil and criminal, such as summonses, attachments, subpoenas, executions, warrants, etc., must so issue. That is, “ The style of all process shall be ‘ The State of Kansas.’ ” (Kas. Const., art. 3, §17.) But as a pleading, said writ is governed by the rules which govern all other pleadings in civil actions. (Code, § 696.) It is so pre-eminently a pleading that the plaintiff himself must prepare the writ'before it is allowed by the court, or issued by the clerk. (Jones v. The Auditor, 4 Ohio St., 493.) The alternative writ must run in the name of the state, like a summons in. an ordinary civil action, for such writ performs the office of a summons, summoning the defendant into court. The peremptory writ must also run in the name of the state, for it performs the office of an execution, being the final process in the case, and being issued to carry out the final determination of the court. But the alternative writ, as a pleading, should be entitled showing who are the parties to the action, making the prosecutor or relator the plaintiff, and the respondent the defendant. The action, and all the proceedings therein, should also be entitled in the same manner, except possibly where the peremptory writ of mandamus is asked for and, allowed in the first instance. This would seem to be the practice in the most of the states of the Union. (See reports of adjudicated cases.) In Iowa and California it has been expressly decided that the action of mandamus must be prosecuted in the name of the real party in interest, and not in the name of the state where the state has no interest in the result of the action. (Bryan v. Cattell, 15 Iowa, 538, 541, 542; People v. Pacheco, 29 Cal., 210, 215.) The California case is a strong case. Under the statutes of this state ' no private person has any right to use the name of the state to prosecute any civil action. Neither has any public officer any such right, unless specifically authorized so to do by statute. (State v, Anderson, 5 Kas., 90.) And in every action or proceeding, civil or criminal, prosecuted in this court, in which the state is a party or interested, the attorney-general is bound by law to appear, and prosecute or defend for the state. (Gen. Stat., 986, § 64.) Therefore, if this action or proceeding is rightly brought in the name of the state as plaintiff, then the attorney-general is bound by law to prosecute the same, although the state may have no possible interest whatever in the controversy. If this action is rightly brought, then the state furnishes or may furnish 'counsel for one of the litigants in a purely private controversy. In this state no judgment can be rendered in favor of the relator in mandamus in any case unless the relator is also the plaintiff. Every judgment in mandamus must be rendered in favor of either the plaintiff or the defendant. In the case at bar the relator is neither the plaintiff nor the defendant. The state is the plaintiff, and the county of Jefferson is the defendant, and the judgment must be rendered in favor of either one or the other. It cannot be rendered in favor of the relator. But as the state has no interest in the result of the action, the judgment cannot be rendered in favor of the state. Therefore, in whatever aspect we may view the case, the judgment must be rendered in favor of the defendant. Section 697 of the code provides for rendering judgment in mandamus as follows: “If judgment be given for the plaintiff, he shall recover the damages which he shall have sustained, to be ascertained by the' court or jury, or by referees, as in a civil action, and costs, and a peremptory mandamus shall be granted to him without delay.” (Gen. Stat., 767.) Wóuld such language be used if the state (were always to be made the plaintiff in an action of mandamus? On the one hand it is not very proper to use the personal pronouns “he” and “him” for the state to grant a peremptory mandamus to him (the state,) when the state is in no need of such a writ, and in fact not entitled to it, and to speak of “the damages which he (the state) shall have sustained” in an action in which the state could not possibly have sustained any damages. On the other hand, it would not be very proper to speak of the relator as the plaintiff in an action in which, as it is claimed, the relator can never possibly be made the plaintiff. For a further and equally improper use of language, if the relator is in fact never to be made a plaintiff, (as the relator in this action claims,) see civil code, § 695, Gen. Stat., 767. In Ohio the practice is not uniform. It has there been decided that an action of mandamus may be prosecuted in the name of the state on the relation of some private person. (State, ex rel. Huston, v. Comm’rs of Perry County, 5 Ohio St., 497.) This decision has been followed by counsel in Ohio in many instances. But in many other cases the action has been prosecuted in the name of the relator, the real party in interest, the party beneficially interested, and not in the name of the state. Some of said last-mentioned cases may be found as follows: 1 Ohio St., 30, 77, 149, 322; 4 Ohio St., 493; 5 Ohio St., 589; 6 Ohio St., 319; 7 Ohio St., 278, 450; 8 Ohio St., 201; 16 Ohio St., 38; 21 Ohio St., 311. Neither has the practice been uniform in Kansas. In some of the cases counsel seem to have followed the old common-law rule for mandamus, without reference to our statutes, or to have followed the decision in 5 Ohio St., 497, or to have followed the practice in the state from which such counsel emigrated. But in other cases counsel have followed our own statutes. In some of the most important cases of mandamus that have ever been brought in this court, in. fact in the two most important of such cases, in which able counsel were employed on both sides, the actions were prosecuted in the name of the relator as plaintiff and not in the name of the.state. (The Land Grant Rly. & Tr. Co. v. The Board of Comm’rs of Coffey County, 6 Kas., 245; and The Land Grant Rly. & Tr. Co., and The U. P. Rly. Company, Southern Branch, v. The Board of Comm’rs of Davis County, 6 Kas., 256.). The motion of the defendants must be sustained and this action dismissed.
All the Justices concurring.
[After this order of the court was made the title to the action was amended by consent of the parties, and further proceedings were had, and the action is still pending in this court.]
[* There is one exception. Actions of mandamus authorized by chapter 79, laws of 1871, “providing for contesting county-seat elections, and all elections other than those held for choosing public officers,” are, by §4 of said ch. 79, required to be prosecuted in the name of The State. Laws of 1871, pp. 190,192.—Reporter.] | [
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The opinion of the court was delivered by
Valentine, J.:
The petition in the court below shows that the plaintiff Hiram Foster, in February 1871, settled upon and afterward occupied and improved ascertain eighty-acre tract of land situated in the Osage diminished reserve, with the intention of purchasing it from the government of the United States; that afterward one John Brost, one of the defendants in this action, also claimed the right' to purchase said land, and instituted a contest therefor in the proper land-office, which contest was to be heard on the 29th of October 1871; that prior to the hearing of said contest, to-wit, on September 12th 1871, the said Foster and Brost .compromised their matters of difference by agreeing with each other that Foster should purchase the whole of said land from the government and then convey the west-half thereof to Brost, Brost paying therefor fifty dollars; that at the time of said compromise Brost executed a quitclaim deed for said land to Foster; that Foster, relying upon said compromise, did not appear at said land-office at the time said contest was to be heard, but Brost did appear, and then fraudulently, and in violation of his said agreement, purchased the whole of said land from the government; that afterward Brost conveyed said land to his wife, and mortgaged it to one John H. Ellinger, both of whom are defendants in this action, and both of whom had full knowledge of Foster’s rights in the premises. The plaintiff asks to be allowed to pay the defendants the sum of fifty dollars, the entrance fee for the east-half of said land, and then to have a decree in his favor giving to him the east-half of said land. The defendants demurred to this petition on the ground substantially that tbe petition does not state facts sufficient to constitute a cause of action. The court below sustained the demurrer,- and the plaintiff excepted, and now brings the case to this court for review.
Does said petition state facts sufficient to constitute a cause of action? We think it does. The only objection that seems to be urged against it, is, that it shows upon its face that the plaintiff made an illegal contract with reference to said land, and thereby forfeited his right to purchase the same or any part thereof from the government; and we are referred to the act of congress of September 4th 1841, (5 Stat. at Large, 456, §§12, 13,) concerning pre-emption entries, in proof thereof. We think however that said act of congress of September 4th 1841 is not applicable to this case. The plaintiff?s rights, as we think, are not necessarily determined by that act, but are governed by § 12 of the act of congress of July 15th 1870, (16 Stat. at Large, 362.) If we are correct in this, then the plaintiff made no illegal contract or agreement. Under the act of July 15th 1870 the plaintiff had a perfect right, before he purchased his land, to make a contract to sell and convey a portion of the same or all of it, if he so chose, without forfeiting his right to purchase any part thereof from the government. We do not wish however to be understood as deciding that persons cannot pre-empt lands within the said Osage diminished reserve under the act of September 4th 1841. All that we desire to say is, that they are not bound to do so; that if they comply with all the provisions, fulfill all the conditions, and satisfy all the terms of the act of July 15th 1870, regarding settlers purchasing lands from the government, they may purchase their lands under said act, whether they could pre-empt the same under the act of September 4th 1841 or not. But if the act óf September 4th 1841 is applicable to this case, then how did the defendant John Brost, after executing said deed of conveyance for all of said land to the plantiff, purchase the land from the government? Did he commit perjury? If said compromise was not illegal, we suppose it will hardly be claimed that it was so much against public policy that the plaintiff forfeited his right to purchase his land by making the contract. The record does not disclose what the rules or the practice of the land-office were with reference to settlers purchasing lands on the Osage diminished .reserve, from the government. But that makes but little difference; for neither the officers of the local land-offices nor the commissioner of the general land-office, nor even the Secretary of the Interior, have any power to make laws. They are all governed by the laws of the United States made by proper authority, as much as other people are, and are bound to allow settlers to purchase their lands in any manner which the law may prescribe.
The judgment of the court below is reversed, and cause remanded, with the order that said demurrer be overruled.
All the Justices concurring. | [
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The opinion of the court was delivered by
Kingman, C. J.:
The plaintiff in error brought its action against the defendant in error to recover damages for cutting down three telegraph-poles, forming part of a line along the plaintiff’s railroad, and other offenses of a like nature. As the defendant threatened to cut down other poles if the plaintiff put them up, an injunction was asked restraining defendant from interfering further with the building of the telegraph line. A temporary injunction was granted, which on motion was afterward dissolved. This order dissolving the injunction is the one brought to this court for review. The propriety of granting an injunction depends upon whether the plaintiff has the right-of-way over the land, as claimed in its petition. If it has the right-of-way one hundred feet wide, as claimed, it has a right to build its telegraph line within that limit as an adjunct to the railroad, and a most convenient, if not necessary aid in operating the road; and it has also a right to have its legitimate business protected from the wrongful acts of defendant. The injunction was granted on plaintiff’s petition, duly verified by affidavits, and was dissolved on affidavits which were evenly balanced as to whether plaintiff has the right of way. Under- these circumstances we think the injunction ought not to have been dissolved. The plaintiff was in possession; was operating a great public highway; the telegraph was necessary to its safely doing its business. The traveling public, as well as the plaintiff company, was interested in the building of the telegraph line. Under these circumstances we think the injunction should have been continued until the rights of the parties could have been determined upon a final hearing of the case. At present the rights of the parties do not sufficiently appear to authorize any decision therein; but one or two remarks seem necessary to avoid misconstruction. The plaintiff in error insists that defendant in error is estopped from denying that the company had the right-of-way. With the imperfect presentation of the facts in the record we do not feel willing to pass upon this ques tion, for, conceding that the estoppel exists, still the facts only-go so far as to give the plaintiff the right-of-way for a railroad and the right to erect a water-tank, but in in no way indicate that the right-of-way is 100 feet wide, as was claimed in the argument. The order dissolving the temporary injunction is reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Plaintiff brought his action in the district court to recover damages on account of having been unjustly expelled from the railroad train of defendant. A demurrer to his petition was sustained, and the question presented for our consideration is this ruling on the demurrer.' The petition alleges in substance that plaintiff went to the station to purchase a ticket; that the agent had no tickets; that the price of a ticket was seventy cents; that he entered the train, and, when called upon by the conductor, tendered him seventy cents, which was refused, and one dollar and five cents demanded ; and upon his failure to pay this he was compelled by the conductor to leave the train. Upon these facts was the demurrer properly sustained? We think not. The learned counsel for defendant in error has discussed at great length in his brief the right of a railroad company to make a distinction between train-fare and ticket-fare; to charge more for passage when paid on the train than when paid at a station. This is no new question in railroad law, and has been before the courts of several states for consideration and decision. (See the cases cited in the briefs of counsel.) But we think this question not fairly in this case as it now stands before us. There is no intimation in the petition that any such distinction had been attempted by the company. The allegation is, that the price of a ticket was seventy cents, and that the conductor for the purpose of robbing and oppressing plaintiff demanded one dollar and five cents. The plain inference from this is, that the only rate of passage fixed by the company was seventy cents, and that the conductor availing himself of the position in which the defendant had placed him was attempting to plunder plaintiff of fifty per cent, extra. The plaintiff tendering the regular fare was entitled to ride, and can recover damages for expulsion. We cannot assume that the company had established a different rate of passage when paid on the train, and that the conductor removed plaintiff for not complying with that rule, any more than we can assume that plaintiff was behaving indecently and violently and was removed for that cause. If such facts exist they must be set up by answer. The judgment of the district court is reversed.
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The opinion of the court was delivered by
Kingman, C. J.:
Eor-the reasons given in the preceding case of Winfield Town Company v. Enoch Maris, et al., the peremptory writ in this case must be refused. Another reason quite as conclusive may be given. If the plaintiff were entitled to the relief sought, it would find ample remedy in a court of equity, where the trust, if it existed, could be ^properly enforced, and the equities of all parties be considered and protected, which cannot be done in this proceeding. A court of equity is the appropriate tribunal to determine such a case, and its power to grant suitable relief ample and complete. Peremptory wilt refused;
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