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Per Curiam,-.
On May 31, 1983, the petitioner, Nancy J. Schmidt, voluntarily surrendered her certificate to practice law. On the 21st day of June, 1983, the surrender was accepted by this court, her certificate to practice law was voided, and petitioner’s name was stricken from the roll of attorneys. In re Schmidt, 233 Kan. 724, 665 P.2d 1108 (1983).
On December 9, 1988, Ms. Schmidt filed a petition with this court pursuant to Supreme Court Rule 219 (1989 Kan. Ct. R. Annot. 139), seeking reinstatement to practice law in Kansas. The petition was referred to the disciplinary administrator for consideration by a panel of the Board for Discipline of Attorneys. Hearings were held on September 7, 1989, in Topeka, and on September 18, 1989, in Wichita, Kansas.
On December 12, 1989, the panel filed its report summarizing the evidence presented, together with the panel’s findings and recommendations. The panel unanimously recommended that the petition for reinstatement to the practice of law in Kansas be denied. The petitioner filed exceptions to the report and, pursuant to Supreme Court Rule 219(d), the matter is deemed submitted for consideration by this court.
The reason for Ms. Schmidt’s surrender of her certificate to practice law in Kansas are set out in the petition for reinstatement and in the report of the panel and need not be reiterated in detail here. The panel found that petitioner (1) forged a deceased client’s signature to his will, (2) forged the signatures of the witnesses to the will, (3) notarized the forged signatures, (4) offered the forged will for probate, (5) transported witnesses to testify in support of the will, and (6) attempted to settle the matter in part to avoid disclosure of the forgeries.
In State v. Russo, 230 Kan. 5, Syl. ¶ 4, 630 P.2d 711 (1981), this court set forth eight factors to be considered in a reinstatement proceeding. Those factors are not all-inclusive but were noted by the hearing panel in reaching its recommendations in the present case. The petitioner took exception to several of the findings by the panel. Although there was conflicting testimony as to those particular findings, we find there was substantial evidence to support the findings of the panel. Because the panel found that the petitioner had committed very serious ethical violations, it unanimously recommended that the petition for reinstatement be denied.
The court, after carefully considering the record, accepts the recommendation of the panel and finds that Nancy J. Schmidt’s petition for reinstatement should be and is hereby denied. | [
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The opinion of the court was delivered by
McFarland, J.:
Hizey Well Service and Supply (employer) and U.S.F.&G. Insurance Company (workers compensation insurer) appeal from the decision of the district court denying their motion to intervene in the medical malpractice action brought by David E. Roberts (employee) against John J. Krupka (physician) and other health care providers. The Court of Appeals reversed the district court (Roberts v. Krupka, 13 Kan. App. 2d 691, 779 P.2d 447 [1989]). The matter is before us on petition for review.
On November 2, 1982, Roberts and other Hizey employees were dismantling an oil tank battery. During the course of the work Roberts fell from a catwalk. On June 22, 1983, he underwent a posterior cervical laminectomy performed by Dr. John J. Krupka with the assistance of other physicians. On June 21, 1985, Roberts filed a medical malpractice action against Krupka and eleven other health care providers contending that as a result of medical malpractice he had sustained a permanent spinal cord injury.
Roberts had previously filed a workers compensation claim and, as of August 22, 1988, had received $55,808 in compensation and $120,424.32 in medical expenses. On August 19, 1988, Hizey and U.S.F.&G. moved to intervene in the medical malpractice action seeking to assert a lien against any malpractice recovery for all compensation benefits attributable to the malpractice. They also sought to implead the Workers Compensation Fund to recover from it any sums attributable to the malpractice in the event they could not recover the same in the malpractice action. It should also be noted that Hizey and U.S.F.&G. were under an order of an administrative law judge to pay Roberts $204 per week and his medical expenses until such time as he was medically released to return to substantial and gainful employment.
Most of the defendant health care providers were dismissed from the action herein during the summer of 1988. On September 2, 1988, the district court approved the settlement of Roberts’ claim against Krupka and Neurological Surgery, P.A. Jury trial of the case had been scheduled to commence September 20, 1988.
On the day of settlement, Hizey, U.S.F.&G., Roberts, and the settling defendants entered into a stipulation that the settlement hearing should proceed and that any payment received should be held in trust by plaintiffs counsel pending the outcome of the motion to intervene. On September 13, 1988, the court ordered plaintiffs counsel to hold $150,000 in trust for Roberts and U.S.F.&G. The remaining three defendants were dismissed from the action on September 19, 1988.
On November 4, 1988, the motion to intervene was denied and this appeal resulted.
Essentially, two questions are involved:
1. whether the motion to intervene was timely; and
2. whether the movants had a right to intervene.
The district court answered both questions in the negative. The Court of Appeals answered both questions in the affirmative. The matter is before us for decision.
In the usual situation it would be appropriate to determine the question of the timeliness of the motion first as it could be dis-positive of the appeal.
As the Court of Appeals correctly noted in its opinion herein, the main thrust of the district court’s decision was that there was no possibility the would-be intervenors could claim a subrogation interest in the settlement proceeds; hence, intervention was not allowed. Under these circumstances, we believe it appropriate to determine the substantive question first.
The district court’s rationale in concluding that the employer and its insurance carrier could not prevail upon intervention rests upon two grounds:
1. Ruth v. Witherspoon-Englar Co., 98 Kan. 179, 157 Pac. 403 (1916), specifically holds that benefits are not payable under the Workers Compensation Act for aggravated injury arising from negligent medical care; and
2. no right to subrogation is granted by K.S.A. 1989 Supp. 44-504(a) and (b) as the statute is limited to situations where the primary injury was caused by a third party as opposed to being aggravated or added to by a third party’s subsequent negligent act.
In Ruth, plaintiff was injured during the course of his employment with the defendant. He filed two actions: (1) against his employer for benefits under the Workers Compensation Act; and (2) against his treating physician for malpractice and against his employer for failure to employ a competent physician. The workers compensation case was tried first and to a jury. The jury awarded Ruth $4,509.20, and the employer appealed. In reversing the judgment and remanding the case for a new trial, this court stated:
“The plaintiff was entitled to recover compensation based only upon such disability, total or partial, as resulted from the injury received in the course of his work, without the intervention of an independent agency. The matter is not confused by the need of determining what results might have been anticipated, or by any refined distinctions between proximate and remote causes, for whether and to what extent disability in such a case as the present has been increased by want of proper surgical care admits of ascertainment with reasonable definiteness and certainty. If it should be proved here, for instance, that the whole effects of the plaintiff’s injury would under proper treatment have disappeared within a year, that would obviously be the limit of the period for which he could recover compensation in this action. His judgment here could not be increased by the fact that through the incompetent or negligent handling of the case by physicians a disability which would otherwise have been merely temporary was rendered permanent. (Della Rocca v. Stanley Jones & Co., [1914] W. C. & Ins. Rep. 33, annotated in 6 N.C.C.A. 624.) Even if circumstances had been shown sufficient to charge the defendant with responsibility for the fault of the physicians, the rule would not be altered, for liability under the compensation act cannot be made to depend upon the degree of care exercised. A part of the loss occasioned by an accidental injury to a workman is cast upon the employer, not as reparation for wrongdoing, but on the theory that it should be treated as a part of the ordinary expense of operation. So much of an employee’s incapacity as is the direct result of unskillful medical treatment does not arise ’out of and in the course of his employment’ within the meaning of that phrase as used in the statute (Laws 1911, ch. 218, § 1). For that part of his injury his remedy is against the persons answerable therefor under the general law of negligence, whether or not his employer be of the number. It was doubtless desirable that the malpractice issue should have been distinctly presented in the pleadings, but in any event it was incumbent on the plaintiff to show what degree and duration of incapacity was the direct result of the original injury received in the course of his work, without the intervention of an independent cause.
“2. The injury which the plaintiff received while at work for the defendant was the breaking of his leg between the hip and knee. A skiagraph shows a diagonal fracture, the ends of the bone having slipped past each other, a reunion taking place in that position, shortening the leg by about three inches. There was evidence that without a further operation, which would be attended with some danger, the plaintiff can make no use of his leg. But it can hardly be said that a finding was warranted that this condition was caused by the original injury. In his petition in the malpractice case (which had been dismissed as to the doctors, but was still pending as to the company) the plaintiff pleaded explicitly that the permanent character of his disability was due to the unskillful surgery to which he had been subjected. This allegation, being made in another case, was not absolutely conclusive upon him as an estoppel, but was quite persuasive as evidence. It seems clear that the jury did not attempt to distinguish between the effects of the original injury and those of the surgical treatment. The instructions referred in general terms to the disability incurred by reason of the accident, but submitted the issue of its duration without suggesting the possibility of this having been affected by malpractice, although the defendant, having asked no instruction on the point, is not in a position to rely on the omission as specific ground of error. We do not think there was a fair basis for a finding that the accident (apart from the results of malpractice) produced a permanent total disability, or that the jury intended so to find. In this situation a new trial is necessary.” 98 Kan. at 181-82.
The holding in Ruth was followed in Cooke v. Bunten, 135 Kan. 558, 11 P.2d 1016 (1932).
As the Court of Appeals correctly noted, the Ruth case could be distinguished from the one before us. In Ruth, the employer was defending on the basis that its liability to plaintiff under the Workers Compensation Act was limited to the original injury and any disability naturally resulting therefrom. This court agreed and held it was error to permit the jury to consider aggravated disability arising from the alleged negligent treatment received by plaintiff. It should be noted that plaintiff Ruth had a second lawsuit pending against his employer seeking recovery for damages arising from employing an incompetent physician. In the case before us, the employer and its carrier have paid, under an administrative law judge’s order, all medical expenses and weekly compensation throughout the disability without regard to the effects of the alleged malpractice. By their attempted intervention, they are seeking to recoup from the settlement proceeds sums paid which are attributable to the malpractice. Nevertheless, the bulk of the 24-page Court of Appeals opinion is concerned with Ruth and the opinion concludes as follows:
“We have no express authority to overrule a decision of the Kansas Supreme Court, and emphasize that only that court may overrule its prior decisions. We believe in the doctrine of stare decisis and, by and large, that doctrine controls our decisions, governs our deliberations, and results in consistent applications of the law. However, the doctrine of stare decisis is not and cannot be an unbreakable chain to which we are bound forever. If it is that, the law cannot and will not grow or change, and cannot be modified to fit modem society.
“If we desired, we could easily distinguish Ruth on the facts since an entirely different factual scenario was presented here than was in Ruth. It could be pointed out that in this case the appellants are simply trying to recover funds which were ordered paid by an ALJ’s order, while in Ruth, the employer was seeking to establish that it was not responsible for malpractice-induced aggravations. These factual distinctions are made in many instances and many times are made simply to avoid an absurd result dictated by an ancient decision.
“On due consideration, however, we choose not to rest our decision on some factual or technical distinction of facts between the cases. We are, on occasion, required to anticipate, and we do anticipate, what our Supreme Court might do or say if presented with an incongruous result based on an aging precedent which had not been considered for 57 years. We do so in this case and anticipate that the Supreme Court, if presented with this case, would overrule Ruth and place Kansas back in the union insofar as malpractice subrogation under workers compensation cases is concerned. We cannot imagine that the Kansas Supreme Court, upon hearing this appeal, would uphold the doctrine in Ruth, and would allow Kansas to stand alone of all the 50 states in the application of that doctrine. Accordingly, we choose not to apply Ruth to the facts of this case, and hold that the district court erred in refusing to permit appellants to intervene. We further hold that appellants have a hen on the proceeds of the malpractice settlement to the extent of the compensation, medical, and disability benefits they have paid to Roberts for disabilities and medical conditions caused and aggravated by malpractice.
“This case is reversed and remanded to the district court to permit the intervention of appellants. The district court is instructed to determine the appropriate subrogation and lien rights of appellants in the proceeds of the malpractice settlement in a manner consistent with this opinion.” 13 Kan. App. 2d at 704-05.
The Court of Appeals was incensed over what it perceived to be an impossible dilemma the Ruth decision placed upon injured workers like plaintiff. Here, plaintiff hired separate attorneys to represent him in each of the actions. The Court of Appeals believed this was the result of plaintiff being required to take inconsistent positions. In the workers compensation proceeding, plaintiff had to seek to tie all of his disability to the fall, and, in the malpractice action, to attribute his disability to the malpractice. Concern was also expressed over the double recovery the district court’s decision permits.
The Court of Appeals reasoned:
“In the typical tort case in Kansas, it is not considered a defense to the tortfeasor that the physician, whose services plaintiff sought as a result of the tortfeasor’s negligence, was likewise negligent and guilty of malpractice in his treatment of plaintiff, thereby increasing the damages. Even in workers compensation cases in Kansas we have taken the approach, and our Supreme Court has stated numerous times, that every consequence which flows from the injury, including a new and distinct injury, is compensable under the Act if it is a direct and natural result of the primary injury. See Chinn v. Gay & Taylor, Inc., 219 Kan. 196, Syl. ¶ 1, 547 P.2d 751 (1976); Bergemann v. North Central Foundry, Inc., 215 Kan. 685, Syl. ¶ 1, 527 P.2d 1044 (1974); Jackson v. Stevens Well Service, 208 Kan. 637, Syl. ¶ 1, 493 P.2d 264 (1972). We believe that the only exception to this well-established rule in Kansas is where the aggravation of the original injury is caused by the malpractice of the physician whom claimant has consulted and retained to treat his on-the-job injuries; this exception is based upon the holding in Ruth.
“To illustrate the state of the law in our sister jurisdictions, we quote from 1 Larson’s Workmen’s Compensation Law § 13.21 (1989):
“ ‘It is now uniformly held that aggravation of the primary injury by medical or surgical treatment is compensable. Examples include exacerbation of the claimant’s condition, or death, resulting from antibiotics, antitoxins, sedatives, pain-killers, anesthesia, electrical treatments, or corrective or exploratory surgery.
“ ‘Fault on the part of the physician, such as faulty diagnosis, improper administration of anesthesia, or a slip of the surgeon’s knife, even if it might amount to actionable tortiousness, does not break the chain of causation.’
“That statement by Larson is largely correct but should contain a disclaimer. The statement should properly read that ‘it is now uniformly held, everywhere but in the State of Kansas.’
“In 82 Am. Jur. 2d, Workmen’s Compensation § 37, it is stated: ‘According to most authorities, unskillful or improper treatment, or malpractice, does not constitute an independent, intervening cause within the operation of the foregoing rules, but some hold to the contrary.’
“In the footnote in Am. Jur. 2d supporting the statement that some cases hold to the contrary of the general rule, Ruth is the only case cited as taking a position contrary to most authorities. In short, Kansas stands alone in its application of the rule laid down in Ruth.” 13 Kan. App. 2d at 701-02.
The Court of Appeals then traced the evolution of a holding similar to Ruth through the Minnesota Supreme Court, where it was ultimately rejected, stating:
“The Minnesota trilogy ended with the decision in Williams v. Holm, 288 Minn. 371, 181 N.W.2d 107 (1970), which is very similar to the case at bar. In Williams, the employer-insurer had paid additional benefits and medical expenses for an employee’s injury which was caused by the malpractice of the physician in treating the original injury. The issue in that case was, as it is here, the right of the employer-insurer to intervene and subrogate to the malpractice recovery. The stumbling block in Minnesota was the McGough [v. McCarthy Improvement Co., 206 Minn. 1, 287 N.W. 857 (1939)] decision to the same extent as the Ruth decision is the stumbling block in the case before this court. The Minnesota Supreme Court, in deciding to end the duplicity and the distinguishing of cases on facts in order to get around absurd results dictated by McGough, stated:
“ ‘The Workmen’s Compensation Act makes no distinction between the tort of malpractice and any other tort in allowing subrogation to a compensation carrier who is required by law to pay benefits and medical expenses to and for an employee who has received an aggravation of an old injury or additional injury under the circumstances present in the instant case or those present in Thibault [v. Bostrom, 270 Minn. 511, 134 N.W.2d 308 (1965)]. Nor do we see any reason for distinguishing this case from Thibault.
“ ‘Consequently, we overrule the McGough case and join the majority, if not all, of the courts in the United States, in holding that there is a right of subrogation under statutes and fact situations similar to the applicable statute and facts in this case. To rule otherwise would be inequitable and would permit double recovery by the employee.’ 288 Minn, at 374.” 13 Kan. App. 2d at 703-04. .
The second ground relied on by the district court is related to the Ruth decision.
K.S.A. 1989 Supp. 44-504(a) and (b) provides:
“(a) When the injury or death for which compensation is payable under the workers compensation act was caused under circumstances creating a legal liability against some person other than the employer or any person in the same employ to pay damages, the injured worker or the worker’s dependents or personal representatives shall have the right to take compensation under the workers compensation act and pursue a remedy by proper action in a court of competent jurisdiction against such other person.
“(b) In the event of recovery from such other person by the injured worker or the dependents or personal representatives of a deceased worker by judgment, settlement or otherwise, the employer shall be subrogated to the extent of the compensation and medical aid provided by the employer to the date of such recovery and shall have a lien therefor against such recovery and the employer may intervene in any action to protect and enforce such hen. Whenever any judgment in any such action, settlement or recovery otherwise is recovered by the injured worker or the worker’s dependents or personal representative prior to the completion of compensation or medical aid payments, the amount of such judgment, settlement or recovery otherwise actually paid and recovered which is in excess of the amount of compensation and medical aid paid to the date of recovery of such judgment, settlement or recovery otherwise shall be credited against future payments of the compensation or medical aid. Such action against the other party, if prosecuted by the worker, must be instituted within one year from the date of the injury and, if prosecuted by the dependents or personal representatives of a deceased worker, must be instituted within 18 months from the date of such injury.”
The right to subrogation thus is limited to situations where “compensation is payable.” The district court reasoned that, inasmuch as Ruth held compensation was not payable for the aggravation arising from the alleged malpractice, subrogation did not exist to recover the compensation actually paid herein. Further, the district court construed “the injury” in K.S.A. 1989 Supp. 44-504 to be limited to the original on-the-job injury. Inasmuch as the malpractice injury occurred later, it was not included in the statute.
We conclude the district court was too restrictive in its statutory interpretation. The on-the-job injury was the cause of plaintiff being exposed to the risk of malpractice. As we held in Chinn v. Gay & Taylor, Inc., 219 Kan. 196, Syl. ¶ 1, 547 P.2d 751 (1976):
“When a primary injury under the workmen’s compensation act is shown to have arisen out of the course of employment every natural consequence that flows from the injury, including a new and distinct injury, is compensable if it is a direct and natural result of a primary injury.”
Granted, Chinn involves an employee who had injured a knee and his resultant limping gait created a back problem. No ad ditional negligent acts by third parties were involved. We do not believe the result in Chinn should be different if a negligent diagnosis had been made and the permanent back injury could have been avoided by early medical intervention, or if it had been made worse by a negligent surgical procedure. In any of these three Chinn scenarios, the initial job-caused injury set the causation ball rolling which resulted in the additional permanent injury.
There are practical reasons for avoiding the statutory interpretation made by the district court. The employee who is injured on the job and becomes a victim of medical malpractice is off work and accumulating medical bills. His or her economic needs and that of his or her family continue on a daily basis. Roberts was injured on the job on November 2, 1982. The malpractice suit was concluded in September of 1988. Had the case not been settled and gone to jury trial, the time period including determination of an appeal could have been considerably extended. If the employer cannot recoup benefits paid for disability arising from the malpractice from the settlement or judgment, then it behooves the employer and its carriers to cut off benefits as soon as possible. To do this the claims of malpractice would, in essence, have to be determined initially in the workers compensation proceeding — a highly impractical procedure which could result in the employee being shorted or granted a double recovery if inconsistent results were obtained in the two types of proceedings. We have long held workers compensation statutes are to be liberally construed to effect legislative intent and award compensation to a worker where it is reasonably possible to do so. If the district court fails in its application of this rule of construction, this court has the duty to correct that failure. Poole v. Earp Meat Co., 242 Kan. 638, Syl. ¶ 3, 750 P.2d 1000 (1988).
After careful consideration, we conclude:
1. Where an injury is compensable under the Workers Compensation Act (K.S.A. 44-501 et seq.), any aggravation of that injury or additional injury arising from medical malpractice in the treatment thereof is a consequence of the primary injury and compensable under the Act. Any language in Ruth v. Witherspoon-Englar, 98 Kan. 179, and Cooke v. Bunten, 135 Kan. 558, inconsistent with this holding is overruled.
2. Where an employer has paid workers compensation benefits to an injured worker which are attributable to aggravation of the primary injury or an additional injury arising from medical malpractice in the treatment of the primary injury, K.S.A. 1989 Supp. 44-504 grants subrogation rights to the employer and its insurance carrier to recoup such sums from any recovery by the injured worker from the negligent health care provider.
3. The district court erred in holding Hizey and U.S.F.&G. had no subrogation rights to recoup from Roberts’ settlement benefits paid herein which are attributable to the malpractice.
We turn now to the question of the propriety of the district court’s determination that the motion to intervene filed by Hizey and U.S.F.&G. was untimely.
K.S.A. 60-224(a) provides:
"Upon timely application anyone shall be permitted to intervene in an action: (1) When a statute confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter substantially impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”
K.S.A. 60-224(a) should be liberally construed in favor of intervention. In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1, 11, 687 P.2d 603 (1984); Campbell American Legion v. Wade, 210 Kan. 537, Syl. ¶ 1, 502 P.2d 773 (1972).
We have previously held Hizey and U.S.F.&G. had a valid right of subrogation which gives them a right to intervene unless their application is untimely. The district court held that the passage of nearly 38 months between the filing of the action herein and the filing of the motion to intervene rendered the motion untimely. As previously stated, the bulk of the district court’s decision related to its conclusion the would-be intervenors had no right of subrogation.
There was no evidence the delay in filing prejudiced the plaintiff in any way. The situation herein is not one where late intervention would result in additional discovery or delay of trial. The intervenors’ only interest was in any recovery made and did not concern the issues between plaintiff and defendants. Had the intervenors come in at the beginning of the litigation, their role would have been one of passive attendance at discovery proceedings, hearings, etc. Their counsel would have just been one more individual to notice up as to proceedings. There is no indication in the record plaintiff or his counsel was unaware of the intervenors’ claims or that the delay in formal intervention affected, in any way, the handling of plaintiffs case. In fact, the evidence in this regard is to the contrary. Practically speaking, the intervenors had no reason to seek formal intervention until such time as recovery by plaintiff was approaching realization. They filed their motion on August 19, 1988. The trial was scheduled to commence September 20, 1988.
Under the circumstances herein, we conclude the district court’s determination that the motion to intervene was not timely filed was arbitrary.
The judgment of the Court of Appeals is affirmed and the judgment of the district court is reversed. The case is remanded to the district court for further proceedings consistent with this opinion.
Six, J., not participating. | [
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The opinion of the court was delivered by
Six, J.:
At issue in this appeal is the termination date of district court jurisdiction over the Shawnee County Jail; we must decide whether the district court retains jurisdiction over the Shawnee County jail after April 1, 1989. The case presents legal questions relating to consent judgments (decrees), jurisdiction, and contract interpretation.
The Shawnee County Commissioners and the Kansas Secretary of Corrections appeal from the district court’s denial of their motion to confirm the end of the district court’s jurisdiction. The trial judge reasoned that district court jurisdiction continued. We reach the opposite conclusion and reverse the district court.
Facts
This case originated as two separate habeas corpus actions filed in 1974 by the plaintiffs, Winslow Beaver and Kenneth E. Goodman, inmates of the Shawnee County Jail. Beaver and Goodman challenged the conditions of their confinement. The Legal Aid Society of Topeka was assigned to represent them.
Beaver and Goodman subsequently filed a new petition in which they purported to represent all past, present, and future inmates as a class pursuant to K.S.A. 60-223. The petition sought declaratory and injunctive relief. The district court initially dismissed the action, finding that it did not have subject matter jurisdiction. The district court reasoned that because Beaver and Goodman were no longer in jail they could not represent the class and that the nature of the action was such that it could not be certified as a class action. The dismissal was reversed by the Kansas Court of Appeals in Beaver v. Chaffee, 2 Kan. App. 2d 364, 372-73, 579 P.2d 1217 (1978).
The Court of Appeals categorized the complaints of the inmates into six different areas:
“(1) The physical facilities were alleged to be inadequate, resulting in overcrowding and conditions hazardous to health and safety. (2) The jail’s personnel are said to be inadequate in number, training and ethnic mix, resulting in beatings and sexual assaults among the inmates. (3) It is claimed that the inmates are not properly classified and segregated, particularly by age and sex, and are not afforded proper exercise or programs aimed at vocational training or other types of rehabilitation. (4) The food is said to be of poor quality, poorly prepared, and infested with insects and vermin. (5) The policies and procedures for governing the jail are alleged to be vague, and not properly followed anyway, resulting in harsh and arbitrary discipline. (6) It is alleged that inmate mail is improperly censored, and facilities for attorney-client conferences are inadequate.” 2 Kan. App. 2d at 365-66.
On remand, the parties entered into a consent judgment which was approved and signed by the assigned district judge, the Honorable Robert L. Gernon, on May 6, 1983. It is this consent judgment that is now before us for review.
The consent judgment required the Shawnee County Commissioners to construct a new county jail and to comply with the minimum standards for administrative operations set forth at K.S.A. 75-5228(a). A new policy and procedure manual and a population control plan were subsequently drafted, approved by the district court, and made part of the consent judgment. The consent judgment also contained provisions dealing with specific problems in the existing jail (e.g. overcrowding and inadequate staffing).
Paragraph 43 of the consent judgment stated: “This court shall retain continuing jurisdiction concerning all matters covered by this Consent Judgment and Order until one year from the date of occupancy of the new jail facility.”
The parties disagree as to the interpretation of paragraph 43.
The parties stipulated that the date of occupancy of the new jail facility was March 31, 1988. The Shawnee County Commissioners and the Kansas Secretary of Corrections moved the district court to confirm that its jurisdiction over the lawsuit would be terminated on April 1, 1989. Judge Gernon was appointed to the Kansas Court of Appeals in April 1988. The case was then assigned to the Honorable Paul E. Miller. Judge Miller, in ruling against the motion to terminate jurisdiction, made the following comments:
“Clearly, the history of this case indicates that neither the parties nor the court contemplated that one year after occupancy the Court would walk away from this case and never look back. This would be the net effect if the Court no longer had ‘jurisdiction’ over the lawsuit as of that date. The law does not contemplate this result. It is apparent that what was contemplated by the consent decree was that this Court would no longer be involved in the exercise of direct supervisory authority over the operation of the jail nor would matters relating to operations require court approval after the ‘expiration’ date.
“IT IS THEREFORE BY THE COURT ORDERED, ADJUDGED AND DECREED that defendants’ [Shawnee County Commissioners and Kansas Secretary of Corrections] motion to confirm the end of jurisdiction BE and IT IS HEREBY denied insofar as it relates to jurisdiction. IT IS FURTHER ORDERED that it be sustained insofar as the request relates to termination of direct supervision by this Court. After April 1, 1989, this Court will only entertain matters herein which relate to violations of or applications for modification of the orders previously made herein.”
The Consent Judgment
The Shawnee County Commissioners and the Kansas Secretary of Corrections argue that, by the terms of the consent judgment, the jurisdiction of the district court terminated one year from the occupancy of the new jail facility. They contend the district court erred in not terminating its jurisdiction as of April 1, 1989. We agree.
A number of federal cases have discussed the nature and interpretation of consent decrees.
“It is clear that consent decrees are construed according to precepts of contract construction. [Citation omitted.] Thus, the interpretation of consent decree provisions, like the interpretation of contract provisions, is a matter of law and subject to plenary review on appeal. [Citations omitted.] The district court’s views on interpretation, however, are entitled to deference.” United States v. Board of Educ. of City of Chicago, 717 F.2d 378, 382 (7th Cir. 1983).
“It is well-settled that consent decrees once entered are not inviolate. [Citations omitted.] Where a court is supervising a case involving continually changing conditions, the court retains the power to modify a consent decree. . . . The decision to modify or not to modify a consent decree lies within the discretion of the district court. [Citations omitted.]” Ruiz v. Lynaugh, 811 F.2d 856, 860 (5th Cir. 1987).
“A consent decree is essentially a settlement agreement subject to continued judicial policing.” Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir. 1983).
Unless the consent judgment has an expiration date written into its terms, it remains in effect for an indefinite period until it is dissolved. Consent judgments (decrees) are a hybrid in the sense that they are at once both contracts and orders. They are construed largely as contracts but are enforced as orders. A consent judgment represents a compromise between parties who have waived their right to litigation. The parties, in the interest of avoiding the risk and expense of suit, have given up something they might have won had they proceeded with litigation. For these reasons the scope of a consent judgment must be discerned within its four corners and not by reference to what might satisfy the purposes of one of the parties. The court is not entitled to expand or contract the agreement of the parties as set forth in the consent judgment. The explicit language of the judgment is to be given great weight. Deference is to be paid to the plain meaning of the language of a judgment and the normal usage of the terms selected. Berger v. Heckler, 771 F.2d 1556, 1568 (2d Cir. 1985). A consent judgment should be strictly construed to preserve the bargained for position of the parties. Williams v. Vukovich, 720 F.2d at 920. Court jurisdiction, absent a breach of the terms of the consent judgment by the party seeking termination, terminates on the expiration date written into its terms.
Our interpretation of the consent judgment at issue in this appeal, which includes paragraph 43, is that the district court’s jurisdiction terminated a year after occupancy of the new jail.
The trial judge reasoned that the parties contemplated that, a year after occupancy of the new jail facility, the district court would no longer need to approve day-to-day operations. The trial judge attempted to terminate his direct supervision over the Shawnee County Commissioners and the Kansas Secretary of Corrections while still retaining jurisdiction should Beaver and Goodman allege any additional violations of the consent judgment.
This court has previously stated, “[A] court may not abdicate its duties by relying upon a stipulation of the parties.” In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1, Syl. ¶ 6, 687 P.2d 603 (1984). The parties in the instant case agreed to end court jurisdiction one year after the occupancy of the jail. The Shawnee County Commissioners and the Kansas Secretary of Corrections argue that they relied on this agreement. The question remains whether the parties had the authority, upon receiving court approval of the consent judgment, to terminate the court’s jurisdiction. We believe that they did.
The Shawnee County Commissioners and the Kansas Secretary of Corrections assert that the alleged unconstitutional acts which created the district court’s jurisdiction have now been corrected by compliance with the consent judgment and the construction of the new jail facility. They emphasize that there are no reasonable grounds to anticipate future injury to the plaintiffs and, therefore, there is no justification to continue the consent judgment. There is no evidence in the record before us that the Shawnee County Commissioners and the Kansas Secretary of Corrections have breached any of the provisions of the consent judgment. On the contrary, in his March 21, 1989 order, the trial judge made the following findings:
“The evidence presented during the year of this Court’s personal involvement indicates that Shawnee County authorities have built an award winning facility that meets or exceeds all state, federal, and industry standards. As a general rule operations have run smoothly since occupancy. All persons who have been involved in this litigation either as a party, an employee of a party, or in an advisory capacity have for the most part worked diligently to see that the terms of all orders made during this litigation have been carried out. Now Shawnee County wants to run its jail without having this Court looking over its shoulder. Suffice it to say that this Court is convinced by what it has seen and heard in the last year that it should be allowed to do so.
“It is not the function of this Court to be in the business of overseeing the operation of a jail on a long term basis. That is the job of the Shawnee County Department of Corrections and the County Commissioners. It is time that those entities and people went about their business without further judicial involvement.”
We agree with the rationale of the Seventh Circuit Court of Appeals: “[F]ew persons are in a better position to understand the meaning of a consent decree than the district judge who oversaw and approved it.” United States v. Board of Educ. of City of Chicago, 717 F.2d at 382 (quoting Brown v. Neeb, 644 F.2d 551, 568 n. 12 [6th Cir. 1981]).
During the hearing below on the motion to terminate jurisdiction, the trial judge who succeeded Judge Gernon stated:
“I’m satisfied that Judge Gernon thinks that his jurisdiction over this case ended on — in this case March 31st because he told me- so. I’ve talked to him about this. He thinks — he thought and he suggested to me that the biggest mistake that he ever made in this whole lawsuit was approving the termination of the court’s jurisdiction a year after the case was [over] or after the jail was occupied because he lived with it for a lot longer than I did, and he probably felt the need to have continuing court supervision over this case .... At some point in time this ship is going to have to sink or swim on its own, and it’s a question of when.”
Reaver and Goodman contend that paragraph 43 provides for an end to the trial court’s active and ongoing role in the formulation, supervision, and monitoring of the provision of the consent decree, but does not require the dissolution of the decree itself. They reason that the court’s inherent jurisdiction to enforce its order is unaffected by paragraph 43. Consent decrees, they argue, are subject to continuing supervision and enforcement by the court which has an affirmative duty to protect the integrity of its decree.
Counsel for Beaver and Goodman, during oral argument, in response to a question from the bench, stated that he was not aware of any case construing a consent judgment containing an agreed date for termination of court jurisdiction.
Written consent judgment expiration dates have received comment in the literature dealing with consent judgments. Court jurisdiction over consent judgments is usually retained for an indefinite period, and, unless the judgment has an expiration date written into its terms, it remains in effect until it is dissolved. Welling and Jones, Prison Reform Issues for the Eighties: Modification and Dissolution of Injunctions in Federal Courts, 20 Conn. L. Rev. 865, 886 (1988).
The language of paragraph 43 is persuasive. The parties agreed that following one year from the date of occupancy the district court would no longer retain continuing jurisdiction over matters covered by the consent judgment. The presiding trial judge approved the one-year period. The parties are bound by it.
The Shawnee County Commissioners and the Kansas Secretary of Corrections advance additional arguments which, in their view, support reversal of the district court. They contend the continuing jurisdiction of the district court violates: (a) the law of injunctions; (b) the separation of powers doctrine; and (c) the guarantee of a republican form of government.
We have determined that the language of the consent judgment terminates the district court’s jurisdiction as of April 1, 1989; consequently, we need not address additional arguments advanced on appeal.
Reversed. | [
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The qpinion of the court was delivered by
Bkewek, J.:
This was an action commenced in the district court of Shawnee county by plaintiff in error, plaintiff below, to recover of the defendant for professional services as an attorney and solicitor. He claimed in his petition ten thousand one hundred and eighty-six dollars and thirteen cents. The case was tried before a jury, which returned a verdict in his favor of thirteen hundred and thirty-seven dollars. Upon this verdict judgment was entered, and plaintiff now brings this case here for review. The record is very voluminous, but still the questions presented are few and easy of solution; and after all, the case involves mainly matters of fact and questions of value which are to be determined by a jury. In a general way it may be stated that the defendant was a company receiving funds from eastern parties, and loaning them on note and mortgage in this state; that in case of any default in the payment of the interest or principal of such loans, the mortgages were sent to it for foreclosure. It employed the plaintiff as its counsel to conduct these foreclosures, and for his services in this respect this action was brought. There was no dispute as to the fact that the services were rendered. The controversy turned on the question whether the compensation was fixed by a special contract, and if so, its terms, or whether plaintiff was entitled to receive on a quantum meruit. There was some preliminary skirmishing between counsel upon the pleadings, and several amendments were made thereto. It finally ended in this way: The plaintiff filed a third amended petition in two counts. In the first he claimed for services as an attorney and solicitor, attaching thereto an account in which were itemized the different cases in which he had been employed, and the amounts ■ claimed for each. The second count was a general claim for money had and received, the amount stated therein being the same as that claimed in the first count. Upon the filing of this petition the court sustained a motion to make the second count more definite and certain, and gave plaintiff leave to amend his petition. No amendment was however made, the second count was unchanged, and no further action was had or order made by the court in respect to such second count until on the trial the plaintiff had finished his testimony, at which time the court sustained a demurrer to the evidence offered in support of such second count. This ruling is the first and principal error assigned. Counsel argue that upon a demurrer to the evidence no question can be considered as to the sufficiency of the pleading, at least that all mere formal defects are waived; that the second count had not been stricken out, and that while a motion to make it more definite and certain had been sustained, neither the motion nor the order of the court in any manner indicated wherein it lacked precision and certainty, or in what respects or to what extent it required correction. We deem it unnecessary to follow the line of counsel’s argument, or determine whether there were any technical errors in these rulings, for we think it clear that there was nothing that worked to the substantial injury of plaintiff’s rights, or prevented the jury from fully passing upon plaintiff’s entire claim, and for these reasons: There was but one cause of action, and that the claim on account of the professional services. There was no intimation in the testimony, not the first scintilla of evidence, of any other transaction between the parties. There was no pretense of any receipt of money by the defendant belonging to the plain-tiff, independent of the matters contained in the first count. If the claim of the plaintiff was correct, that he had been employed to render these professional services with any specific contract as to the amount or mode of compensation, then the single question for the jury was as to the value of these services, and of course the second count was mere surplusage. On the other hand, if the claim of the defendant was correct, still, full recovery could be had under the first count. The defendant’s claim was substantially this: Receiving from time to time certain mortgages-for foreclosure, all or nearly all of which contained a stipulation for 10 per cent, attorney’s fees, it employed the plaintiff to conduct these foreclosures, agreeing to give him as compensation therefor a certain per cent, of the net amount of the attorney-fees actually collected. Now under either claim, the single question was as to the amount of compensation, and in either event full recovery could be had under the first count. To say that because the defendant had collected the-full amount of attorney’s fees in any given case it was therefore liable to the -plaintiff for his per cent, thereof on a count for money had and received, is only a different way of stating that it was liable to him for such per cent, as his compensation for services it had employed him to render. In other words, proof that he had rendered the services, that he was to receive a certain per cent, of the net amount of the attorney-fees collected, and that such attorney-fees had been collected, establishes his right to recover that per cent, as his compensation for services; and all this was sustainable under the first count for services. Such testimony simply shows a different mode of determining the amount of compensation. The plaintiff had but one cause of action; was entitled to but one compensation; and whether the amount of that compensation was to be determined in one way or the other, is immaterial. He could prove either way under the first count, which, as before stated, was a general count for the value of services rendered. Under it he could prove either a special contract or recover under a quantum meruit. (Emslie v. City of Leavenworth, 20 Kas. 562.) Duplicating his counts does not double his-causes of action, or increase the amount of his recovery. The whole of his cause of action being provable and recoverable under the first count, it is entirely immaterial how many other counts were in the first instance connected with it in the petition, or what disposition was made of such other counts. Entertaining these views, we see no reason for disturbing the judgment on the ground of this ruling.
The only other errors alleged are, in the giving of certain instructions. These might be disposed of. by the simple observation that no sufficient exceptions were taken. The court gave a series of instructions, some eight in number. At the close it is stated: “To the giving of all which instructions the plaintiff by his counsel then and there duly excepted.” This is insufficient to bring before us anything but the general scope and effect of the charge. Counsel cannot now single out any portion and challenge that as error. (Wheeler v. Joy, 15 Kas. 389, and cases cited; Fullenwider v. Ewing, 25 Kas. 69; Hunt v. Haines, 25 Kas. 214.)
We have examined the instructions, and their general scope is beyond criticism. Further than that, we fail to see in the specific matters pointed out by counsel any material error. The third instruction they say is “absolutely meaningless.” If this be true, was plaintiff injured? Does it mean less for one party than the other? Upon this counsel are silent, and yet this is the essential question in determining whether the judgment should be reversed. But the instruction is' not meaningless. In this case it may not have been important; in some cases it would be. And it is clearly correct. It instructs the jury to decide “from the evidence” the plaintiff’s right of recovery.
The fourth instruction is said to be abstract, inapplicable, and incorrect. We disagree entirely with this, claim. No jury could have been misled by its language, and it must have been understood. It stated the law correctly, and was applicable to the case. It was in substance, that in the absence of a special contract as to the compensation, plaintiff was entitled to recover the value of his services.
The fifth was the appropriate counterpart of this, and in substance stated that if - there was a special contract as to the compensation, plaintiff was bound by its terms, and must prove the amount which according thereto he was entitled to recover. We see nothing else which .requires comment. As-heretofore stated, the questions in this case are essentially questions of fact, and upon them the verdict of a jury is final and decisive.
The judgment will be affirmed.
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The opinion of the court was delivered by
Horton, C. J.:
Upon the findings of fact, the judgment of the trial court must be. reversed. Todman acknowledged satisfaction of his mortgage, and released in writing the record in the presence of Levi Robbins, the agent of S. P. Robbins, and then handed his notes and mortgage to Cowdin. After Todman had executed his release on the record, the subsequent mortgage from Cowdin to S. P. Robbins was signed and acknowledged. Thereupon Levi Robbins, as agent of S. P. Robbins, gave Cowdin the money mentioned therein, and upon the delivery of the note and mortgage to him, he, as such agent, handed the mortgage to the register of deeds to be filed for.,"record, by whom it was duly recorded. It is true that Cowdin induced Todman to execute the release and hand him his notes and mortgage by false pretenses and without consideration; but as Todman confided in him and his promises and acted thereon, and as Robbins loaned his money and accepted the subsequent mortgage upon the faith of the release of the prior mortgage by Todman, the latter'is now estopped from asserting as against S. P. Robbins the priority of his mortgage. Todman released and satisfied his mortgage in accordance with the prior arrangement between him and Cowdin, with the expectation that. Cowdin would- turn over to him the money that he was loaning from Robbins; and Robbins did not part with his money or accept the note and mortgage of Cowdin until the release of Todman’s mortgage had been entered of record. He paid over his money to Cowdin with the full reliance on his part that Todman’s mortgage had been satisfied and released, and the conduct of Todman fully justified him in thus believing and acting. After Robbins had thus parted with his money, Todman cannot be heard as against him to say that'the release is void because obtained by false pretenses and without consideration. Todman by his release did not relinquish as against Cowdin the lien of his mortgage; but as Robbins loaned his money and accepted the subsequent mortgage upon the faith that the prior mortgage had been discharged, the lien of such mortgage cannot have priority to the mortgage from Cowdin to Robbins. The doctrine of equitable estoppel is applicable with great force against Todman, and although the conduct of Cowdin was criminal, for which he deserves to be severely punished, yet Todman rather than Robbins must be the sufferer thereby. The confidence of Todman was betrayed by Cowdin, and Todman, not Robbins, is entitled to -the recovery of tlie money which Cowdin held in his hands when he left so suddenly the room of the register's office and galloped away on his horse. As between Todman and Robbins, although each acted in good faith, there was not the like care and prudence. The former acknowledged satisfaction of his mortgage and delivered his notes and mortgage to the mortgagor before he had received any money or other payment, evidently trusting to the mortgagor to carry out his agreement and promise to him. The latter trusted no one. Before he loaned his money or accepted the note and mortgage from Cowdin, he saw that the release of the Todman mortgage was properly executed on the margin of the book of records. Had Tod-man been equally as careful, he would have required the payment of the agreed sum from Cowdin to him before the release of his mortgage was executed. Had he acted thus prudently, Cowdin could not possibly have succeeded in his scheme of fraud. Had Robbins parted with his money and accepted the note and mortgage of Cowdin in the office of the register of deeds prior to the release of the Todman mortgage, and then Cowdin had fled with the money, Robbins, not Todman, would have been the sufferer. Robbins was too vigilant and watchful to do this, and therefore the law protects him rather than Todman.
The judgment of the district court must be reversed, and the case will be remanded with direction to the court below to enter judgment upon the findings of fact that the mortgage of S. P. Robbins be decreed the first lien on the land therein described.
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The opinion of the court was delivered by
Horton, C. J.:
As none of the testimony produced upon the trial is preserved in the record, the substantial question presented in this case for the consideration of the court is, whether the pleadings filed by the parties authorize the findings of the court below and the judgment rendered thereon. It is contended that no notice was given by ■Otis to his co-defendants of any purpose to establish on the trial that Wm. F. and Harriet M. Turner were principals and himself only surety upon the note, or that he would seek •equitable relief against his co-defendants. Neither of these •objections is well taken. It was not necessary that Otis should have designated his answer as a cross-petition and caused a summons against his co-defendants to be issued and served. Wm. F- and Harriet M. Turner were parties to the action, and the answer of Otis disclosed his defenses to each of the parties, and the court thereon had the power to render such judgment as the facts might require under the pleadings. When the original summons is served, the defendants are in court for every purpose connected with the action, and the defendants served are bound to take notice of every step taken therein. (Kimball v. Connor, 3 Kas. 414.)
The answer of Wm. F. and Harriet M. Turner was not filed until some days after the answer of Otis, and therefore they have not the excuse even of having been ignorant of its contents at the time of making their defense. Upon the question between the defendants in the court below as to surety-ship, no pleadings or other formalities were required by the code to bring the question before the court. Only the production of testimony was needed to make the fact appear. If then it was made to appear to the trial court, by parol or other evidence, that Wm. F. and Harriet M. Turner signed the note declared on as principals, and Otis as surety, it became the duty of the clerk in certifying the judgment to certify that accordingly. (Code, §470; Kupfer v. Sponhorst, 1 Kas. 75.)
Counsel challenge the decision of Kupfer v. Sponhorst, supra, as one not well considered, and without authority to sustain it. To all of this it is a sufficient answer that the decision was rendered in 1862, and thereby gave a judicial interpretation to §461 of the code of 1859. In the revision of 1868, this section was readopted, and now appears in the code as §470. (Gen. Stat. 1868, p. 720; Comp. Laws 1879, p. 664.) Being readopted in the revision of 1868, the section must now be read in the light of the judicial interpretation given to it prior to its readoption.
Counsel for plaintiffs in error argue that the findings are contrary to the averments of the pleadings, and assert that upon the allegations in said pleadings the note was the obligation of the copartnership, and that a part of the members of the firm could not be principals and a part surety. We do not concur in this view, as upon the allegations of the answer of Otis, if the plaintiff had not assented to the arrangements entered into between the co-defendants, and discharged Otis from all liability upon the note, the relation of' the latter to the note, as therein stated, was that of a surety. At least, if Miller does not object, the co-defendants of Otis cannot complain of the decree of the court ordering a sale of the real estate transferred to secure the note, or of the direction to the clerk in issuing the execution. Miller is the only one who can complain of the order of the court which drives him to the necessity of foreclosing the mortgage in order that the surety may be protected. Yet Miller is not prosecuting any proceedings of error to this court, nor has he made any argument to us against the affirmance of the judgment below.
At the hearing of the motion in arrest of judgment, and for' a new trial, the affidavit of Wm. F. and Harriet M. Turner was read, stating- that though Wm. F. Turner was a witness in the case, the defendants made no appearance on the trial,, by counsel or otherwise, and that the defendant Harriet M. Turner was not present during the trial, and also setting forth and showing the pendency of an action between Wm, F. and Harriet M. Turner against Otis for a full and complete- settlement of all matters in dispute between them, including the questions attempted to be passed upon in the trial-of this case. The trial court did not commit error in ignoring this affidavit. There was nothing in the answer of the-Turners of another action pending between them and their co-defendant Otis. If they were absent from the court at the-trial, they stayed away at their own peril. Everyone having-a matter in litigation before a- court must, in order to protect his rights, attend while the controversy is being determined. (Masters v. McHolland, 12 Kas. 17; Mehnert v. Thieme, 15 Kas. 368; Green v. Bulkley, 23 Kas. 130.)
It is finally urged that there is a material variance between the relief granted and that asked. This objection is good as-to the order of the sale of lots not mentioned or referred to in-any of the pleadings. The answer of defendant Otis alleges-that his co-defendants had conveyed three hundred and twenty acres of land and one lot to secure the note; that afterward Miller reconveyed to said co-defendants one hundred and sixty acres thereof, together with the lot, and that he held-the balance as security. The court in its decree ordered the sale of the said described one hundred and sixty acres of .land, and, in addition thereto, two certain lots, viz., eight and nine,, in block fifty-four, in the city of Independence, which are not in any wise referred to in the pleadings. This part of the-judgment is erroneous. The judgment, therefore, so far as it attempts to decree a sale of real estate not mentioned in any of the pleadings, is entirely outside of the case, contrary to law, and has no foundation upon which to rest. This conclusion would strike out of the judgment the order of sale of lot-s eight and nine, in block fifty-four.
The case will be remanded, with direction to the court below to modify the judgment in accordance with the views herein expressed.
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The opinion of the court was delivered by
Brewer, J.:
The facts in this case are as follows: Plaintiff in error (plaintiff below) was the owner of lots 211, 213, 215, in Crane’s addition to the city of Topeka — an addition duly platted in the year 1863. These lots are situated on the southwest corner of Adams street and First ave’nue east, the former street running north and south, and the latter east and west, the width of the former being 100 feet, and of the latter 130 feet. These lots face on First avenue east, and are each 25x130 feet. On the 3d of September, 1881, the council of the city of Topeka passed an ordinance vacating the portion of First avenue east lying east of Adams street, and also the east half of Adams street lying north of the center of First avenue, east. This ordinance was passed at the instance of the defendant, which owned or claimed to own the lots adjacent to the vacated territory. Immediately thereafter the defendant proceeded to occupy this vacated ground, and to commence laying tracks and erecting buildings thereon. Whereupon plaintiff brought this action to restrain such occupation by the defendant, and to have the ground adjudged still a public thoroughfare and left free to public travel. The temporary injunction asked was refused, and from the order of the district court refusing such temporary injunction, plaintiff in error brings the case to this court. She claims, first, that the city council has no power to vacate a street; second, that if it has the power under any circumstances, the streets in question cannot be vacated until she has received compensation for the injuries done to her property by such vacation; and third, the plaintiff, as the beneficiary of the trust created by the dedication of said streets and by her purchase of said lots after such dedication, has a vested interest in the trust which no legislature can destroy. It will be observed that no portion of First avenue east, or of Adams street in front or on the side of plaintiff’s lots, is covered by the vacating ordinance. Both streets to their full width are here left untouched; so that plaintiff has not only access to her lots, but the use of the full width of either street for the purposes of such access. But as further facts for the purpose of showing her special injury and her right to maintain this action, plaintiff alleges that she purchased these lots after the dedication of the addition, and thus possesses all the rights to the free use of all the streets therein, given by virtue of the filing of the plat of the addition and ■ the dedication of the streets. Second, that after her purchase she erected on the lots buildings of the value of $1,000, that such buildings had for the past two years been occupied for business purposes, to wit, the grocery business; that at the time of the purchase, and since up to the commencement of this action, there was more travel on said First avenue east by said lots than on any other street in that part of the city. Third, that between said First avenue east and the Kansas river there was but one street running east and west, to wit, Crane street; and that about two years prior to the passage of this ordinance the city council, at the instance of the defendant, had vacated Crane street, and the defendant had closed the same to public travel; and that now if First avenue east be closed, as is attempted, all approach and travel from east of the city will be thrown upon streets south of plaintiff’s lots; that there is a large and increasing amount of travel which will thus be diverted from plaintiff’s property, and it will cease to be of any value for business purposes, and of small value for residence purposes. Upon these facts, did the court err in refusing a temporary injunction? We think not, and mainly for the reason that the plaintiff has shown no such special interest as entitles her to challenge the action of the municipal authorities. We suppose it will not be doubted that, in the absence of constitutional limitations, the legislature has the power, either directly or by any municipal corporation, to vacate a road or street. Dillon, in his work on Municipal Corporations, § 527, says: “ The plenary power of the legislature over streets and highways is such that it is in the absence of special constitutional restriction sufficient to vacate or .discontinue them, or invest municipal corporations with this authority;” and cites in support offthis several authorities. It is true there may be limitations on this power. Special rights may have been vested and special interests created, which in some cases may place a limit upon its exercise, and in such cases courts of equity will interfere at the instance of' any party so interested. But still, the general power unquestionably exists, and the statutes of every state contain provisions for vacating roads and streets. Now with the exercise of this power in any particular instance no one may interfere unless he has a special and direct interest; The fact that as an indirect consequence injuries may result gives no cause for interference. Only when the injury is direct, when the individual suffers some special wrong, something different from that experienced by other members of the community, may the party injured challenge the action. It is not always easy to draw the dividing-line between those cases in which the injury is direct and special, and those in which it is indirect and general. No one would for a moment suppose in the case at bar that a citizen of Lawrence, owning no property in Topeka, could challenge this action, whether right or wrong. It is a matter which does .not concern him. Equally plain is it, that one in the remote part of the city of Topeka has no such interest as justifies his interference; but as we come closer to the^ vacated streets the question becomes more doubtful. Where a party owns a lot which abuts on that portion of the street- vacated so that access to the lot is shut off, it is clear that the lot-owner is dir rectly injured, and may properly challenge the action. The closing up of access to the lot is .the direct» result of the vacating of the street, and he, by the loss of access to his lot, suffers an injury which is not common to the public; but in the case at bar, access to plaintiff’s lots is in no manner interfered with. The full width of the street in front and on the side is free and undisturbed, and the only real complaint is, that by the vacating of the street away from her lots the course of travel is changed. But this is only an indirect result. There is nothing to prevent travel from coming by her lots if the travelers desire it. The way to the heart of the city by her lots is a little more remote than it was before, but still free passage is open to all who wish to pass thereby. No one is compelled to stay away. Access to the lots is the same that it was before, so that the injury is only the' indirect result of the action complained of, and it is an injury which, if it exists at all, is sustained by all other lots along the street west of the parts vacated. Travel by those lots may be diminished, travel on streets south may be increased, and to that extent property on such southern streets may be benefited thereby. The same result would follow if some other avenue of approach to the city were specially improved. Public travel naturally seeks that which is the best route, but surely that thus the tendency of travel in front of her lots was diverted would give her no cause of action. The benefits which come and go from the changing currents of travel are not matters in respect to which any individual has any vested right against the judgment of the public authorities. In the case of Smith v. City of Boston, 7 Cush. 254, Chief Justice Shaw thus laid down the law:
“The damage must be the direct and immediate consequence of the act complained of, and remote and contingent damages are not recoverable. The petitioner has free access to all his lots by public streets. The burden of his complaint is, that in going to some of his houses in some direction he may be obliged to go further than he otherwise would. The inconvenience was not such an injury done him in his property as to entitle him to damage.”
And further, at the close of the.opinion:
.“We do not mean to be understood as laying down a universal rule that in no case can a man have damages for the discontinuance of a highway unless his land bounds upon it; although as applicable to city streets intersecting each other at short distances, it is an equitable rule. A man may have a farm, store, mill or wharf not bounding on a street, but communicating with it by a private way, so situated that he has no access to his property but by the public way. If this is discontinued, he must lose the benefit of his estate, or open a way at his own expense, which might be a direct and tangible damage consequent upon the discontinuance of the public way.”
See also Gray v. Iowa Land Co., 26 Iowa, 389; People v. Kerr, 27 N. Y. 188; Coster v. Mayor, &c., 43 N. Y. 414, in which the court of appeals uses this language:
“And if in the exercise of this right [i. e., the right to vacate] a street be discontinued, and the value of the lands abutting on the other parts of the street and neighboring streets is lessened, it is not such an injury to the owner as to entitle him to damages.”
Also, Fearing v. Erwin, 55 N. Y. 486, in which it is said:
“ Though one public way to property is closed, if there is another left, the property-owner sustains no actionable damages.”
Also, Castle v. Berkshire, 11 Gray, 26; Ingram v. Rld. Co., 38 Iowa, 669; Burr v. Oskaloosa, 45 Iowa, 275; Petition of Concord, 50 N. H. 530; Lutterloh v. Mayor, &c., 15 Fla. 306.
Counsel for plaintiff refer to the case of the Comm’rs of Franklin County v. Lathrop, 9 Kas. 453, as sustaining the plaintiff’s right of action, but the difference between the two cases is marked. In that case it appeared that the original proprietors had dedicated a block of ground in the city of Ottawa to the public for the use of a court-house square; thereafter the plaintiffs purchased lots facing on such public square, and improved them. Obviously they had a special interest in’ having such public square remain open, and they would receive a direct injury if the block was abandoned to private possession and use; hence, we sustained their action to enjoin such private possession and use. But we did not decide that any lot-owner in the city of Ottawa, irrespective of his special and direct interest, could challenge the attempted action -of the public authorities, or that the legislature, as the representative of the public, could not abandon such public use prior to the vesting of any private and special interest.
Again, it may be remarked that while the legislature as the general representative of the public has equal control of all public properties, yet in the very nature of things, and ■owing to the intrinsic difference ■ between public squares and highways, the greater number of the latter, the greater facility in multiplying them, and the purposes to be attained by them, there is perhaps a larger scope for- legislative discretion in opening, managing and vacating them. Further, it may be. noticed that at the time of the laying-out and platting of this addition, there was a special statute in force providing for the vacating of streets, (ch. 108, Laws of 1862,) while no such statute existed in reference to public squares and other public grounds; so that parties must be held to have platted and purchased with reference to an existing assertion of the legislative control over them. Further than that, in one form or another, the statutes have contained ever since, legislative assertion of control over highways to the fullest extent. We think therefore there is nothing in that case inconsistent with the views herein expressed., and for the reasons heretofore given, we think that the judgment of the district court is correct, and must be affirmed; and it is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This action is based upon the railroad stock law of 1874. It is urged that the court erred in overruling the demurrer to the petition. This upon the ground that the petition did not allege that the railroad was not fenced where the cow first went upon the track. The petition among other things alleges “that the defendant’s line of railroad runs through the county of Greenwood, state of Kansas; that on the 8th day of February, 1881, while operating its railway in Greenwood county, defendant ran its train of cars over and against one Durham cow, the property of this plaintiff, thereby wounding and crippling the cow, and thereby causing the death of the cow; that said Durham cow so killed by the defendant was of the value of $150; that the defendant’s line of railroad through Greenwood county at the place where the cow was killed was not fenced with a good and sufficient fence; and that the place where the cow was killed on defendant’s railroad was not on the crossing of a public road, or within the limits of an incorporated city, town or village.”
I. Within the decisions of Railway Co. v. Wood, 24 Kas. 619-626, and K. C. L. & S. Rld. Co. v. Neville, 25 Kas. 632, the general allegation that the defendant’s line of railroad through Greenwood county and at the place where the cow was killed was not fenced, and that the cow was killed at a place where the road could be fenced, was sufficient to make the company liable, and the court properly overruled the demurrer.
II. On the trial, over the objection of defendant, plaintiff below was permitted to prove that the calves of the cow were worth from $30 to $35 each. This was admitted as tending to prove the value of the cow. It was proper to admit all evidence tending to prove the good qualities of the animal killed which would in any way affect her market value, and this evidence tended in some degree, perhaps remotely, to show that she was a blooded animal. The evidence therefore was not wholly irrelevant. (Rld. Co. v. Nichols, 24 Kas. 242.)
III. It is assigned as error that there was no proof offered that the railroad was not fenced at the place where the cow went upon the track. The petition charges and the evidence shows that at the place where the cow was killed the road was not fenced, and yet that it could have been. (Railway Co. v. Wood, 24 Kas. 626.) This was sufficient.
IV. It is assigned as further error that the railroad ran through inclosed premises where the cow was killed, and as the owner of the cow was not the owner of the premises, no liability attached to the railway company, and the case of Berry v. Railway Co., 65 Mo. 172, is cited as decisive. In that case it was held, in interpreting a statute requiring every railroad corporation to erect and maintain good and substantial fences on the sides of its road where it passed through inclosed and cultivated fields, that the duty is imposed by the statute upon the railroad company for the benefit of adjoining proprietors, and not for the benefit of strangers. But giving this decision full force, it has no application here, as the plaintiff below testified that he rented the privilege of keeping his cow in the field where it was killed; therefore he was entitled to the same rights as the adjoining proprietor, because his stock was upon the premises with the permission of the proprietor. Even if our statute were identical with the Missouri statute, and subject to the interpretation given to that statute by the'supreme court of the state of Missouri, the cow of plaintiff below being in the inclosed field with the permission of the owner, and therefore being within the field ■of right, was clearly within the protection of the statute.
V. It is also asserted that the execution of a written release was set forth in the answer, and as this was not denied ■under oath, that it was error to render judgment against the railway company. The allegations about the written instrument are very informal. No motion was made for judgment ■upon the pleadings; no objection was made to the introduction of evidence upon the ground that the company was entitled to judgment upon the pleadings, and it does not appear that this particular point was presented upon the trial. No written release or instrument was attached to the answer, .and the case was tried as though no written release had ever been executed. Under this condition of the case, this court will limit its inquiry as respects the pleadings to the objections made on the trial. Had the defendant below objected to the introduction of evidence for want of verification of the reply, the court below in furtherance of justice would undoubtedly have permitted such verification the moment its attention was called thereto., (Gaylord v. Stebbins, 4 Kas. 42; Bashor v. Co., 25 Kas. 222.)
YI. Complaint is made that the fee allowed to the attorney for the prosecution of the action was excessive. The cow was valued by the trial court at $80, and an attorney’s fee of $50 was allowed for prosecuting the claim. We think the allowance exorbitant; but as two witnesses testified positively that said sum was a reasonable fee in the case, and as the defendant below did not contest upon the trial this evidence by other and different testimony, we do not feel like interfering with the allowance.
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 case comes to us on error from the ruling of the district court of.Cowley county, sustaining a demurrer to plaintiff’s petition.
The plaintiff sought to charge the railroad company for failing to take the bond required by § 35, ch. 84, Comp. Laws of 1879. Counsel for defendant in error claim that the ruling of the district court must be sustained on two grounds: First, because it is not affirmatively shown that the labor on account of which this action is brought is of a kind within the protection of the statute; and second, because the employés of a sub-contractor are not within the statute. The bond required by the statute is to be conditioned to pay all laborers, mechanics and material-men. In the case of Railroad Company v. Baker, 14 Kas. 563, we held that a time-keeper and superintendent was not a laborer within the scope of the statute; that that term refers to those engaged in manual labor in accordance with its common acceptation. From this it is argued that the petition should affirmatively state that the services sued for are those of a manual laborer. We think the objection is not well taken. The petition, after alleging the contract, the sub-contract, and that the railroad company failed to take a bond conditioned for. the payment of all laborers, mechanics and material-men, alleged that the contractor “drew certain orders in favor of the laborers . . ; that said orders were drawn for work done by the payees named in said orders respectively in and about the road of defendant;” and again, “that said orders were given for labor performed by the persons named as payees therein respectively on the road of defendant.” The orders themselves, copies of which are attached to the petition, on their face (many of them at least) recite that they are given on labor account. One or two are even more specific, as for instance the sixty-third, which reads: “Jerry Curtis has worked 14.1 days in the month of November, as a laborer, at $1.25 per day.” Now when a party copies in his petition the words of a stat ute upon which he bases his cause of action, and then in describing such cause of action uses the same words, it must be presumed that they are used in the same sensé in the one case as in the other, and this notwithstanding the words may sometimes be used in a broader sense than is contemplated in the statute.- Thus the statute names laborers; he quotes from the statute, and then alleges that he sues for the services of laborers. Obviously, the only fair construction is to give the term laborer the same construction wherever used in the single pleading. Counsel contend that in an action given wholly by statute, every probative fact must be clearly and affirmatively pleaded. But this does not require that the pleader, when he uses the language of the statute, shall further allege that he uses this language in the same sense that it is used in the statute, and that he means to exclude any broader meaning which the term sometimes has. The very fact that suing under the statute he uses the language, is an affirmation that he uses that language in the same sense that it is used in the statute.
Second. The other contention of counsel is equally untenable. The construction claimed by counsel would practically destroy the statute. So much of the work in constructing railroads is done under sub-contracts, that if only the laborers and mechanics directly employed by the contractor are within its protection, very few would be benefited by the statute. We had occasion to examine this section in the case of Wells v. Mehl, 25 Kas. 205, and it was only with some hesitation that we there reached the conclusion that persons furnishing provisions and supplies to sub-contractors are not within its protection. The statute is entitled: “An act to protect laborers, mechanics and others in the construction of railroads; ’’ and the condition of the bond required is, that the contractor “shall pay all laborers, mechanics and material-men, and persons who supply suoh contractor with provisions or goods of any kind.” Now in the case last cited, we held that the words “and persons who supply such contractor,” etc., constitute a separate clause, of themselves a complete descriptio personarmi. Leaving those words out as of themselves constituting a separate and independent clause, and there is a bond conditioned to pay all laborers, mechanics and material-men. The only fair and reasonable limitation to be placed upon the words all laborers, etc., is the limitation imposed by the work which is to be accomplished, to wit, the construction of the railroad. If a sub-contractor’s employés are not within its terms, it would be a very easy matter in the building of any railroad to avoid the statute entirely, and the evil which was designed to be remedied by this, would continue the same as before. In the case last cited, we said: “The bond binds the contractor to pay for all labor done upon and materials used in the construction of the road, so far as his contract with the company calls for labor and materials, no matter how many sub-contracts therefor may be made. In this respect it is a quasi mechanics-lien law, the lien being upon the bond instead of upon the road.”
The authorities cited in that opinion support this construction, and it gives substantial force and value to the statute. They hold that the word “ contractor,” as used in a somewhat similar statute, includes sub-contractors as well as the immediate and principal contractor. We cannot agree with counsel that this construction renders the statute obnoxious to the objection that it is in conflict with § 17 of article 2, which provides that “All laws of a general nature shall have a uniform operation throughout the state.” In support of that view they cite three authorities: McAunich v. Rld. Co., 20 Iowa 338; Deppe v. Rld. Co., 36 Iowa, 55; Cooley’s Const. Lim. 90. As we read these authorities, they uphold rather than make against the statute, even as we construe it. In the two cases from Iowa a statute was upheld which made the railroad company liable to one of its employés for injuries caused by the neglect of another, although the same rule did not obtain in cases of ordinary employment, the court holding that the particularly hazardous nature of railroad operations justified different legislation in respect to the liability of the company. Now the particular point of counsel’s criticism is that this statute fails to provide for any notice by the laborer to the company, and specifies no period of limitation within which the company can safely pay its contractor, and this while the general mechanics-lien law provides that notice must be given, and that within a short period of time. They say that the company may pay the contractor, the contractor may pay the sub-contractor, and long after such payment, at any time indeed within the statute of limitations, some employé of such sub-contractor may enforce his claim against the company or the contractor. This they contend prevents that law from having uniform operation throughout the state.
It may be conceded that the law is a stringent one, but the experience which has been had throughout the country in the building of railroads justifies the use of stringent means to prevent irresponsible contractors from engaging in the building of railroads and defrauding the men whose labor and material go into the construction of the road. Yet, while, the law is stringent, its operation is uniform. Territorially it extends and has operation throughout the state; it reaches to all railroads and all parties engaged in building railroads, and is uniform in its application to them. The difference which exists in the very nature of things justifies a different lien law from that applying to ordinary buildings. The road is often many miles in length, extending through many counties and requiring years for its completion. To apply to such a work the same limitations and the same proceedings as are reasonable and just when applied to a single building, which is generally completed within a comparatiyely short time, and where all parties in interest are located in the same neighborhood, would give to the laborer on the railroad a remedy of most doubtful value. This very difference in the nature of things justifies, if it does not compel, a different proceeding in order to secure an adequate remedy; nor is the remedy as provided, however stringent, one that can be pronounced harsh and unjust. A railroad company can always protect itself by taking the statutory bond, and in .this it occupies the same position as it does in reference to the statute of 1874 in respect to the killing of stock. It c?n guard against liability under that statute by fencing its road, and this as a precautionary measure it owes, not only to the adjacent farmers, but also to its own passengers.
Again, the contractor by his contract engages to do the work, and he ought to see that the men who perform the labor and furnish material are paid. If he chooses to sub-let, he ■can protect himself by taking a bond from his sub-contractor; and if he prefers to make his money out of the contract by sub-letting it and so doing none of the work himself, it is no more than fair to the laborers, mechanics and material-men, that he take suitable measures to protect them in their 'Pay\
Still again, while the general mechanics-lien law gives but a brief space of time in which to notify the owner, the legislature has the power, if it deems best, to enlarge such time; it might even make it coextensive with the statute of limitations, and that is in effect what it has done in respect to this lien law. The commencing of an action is notice, and if the legislature in a general mechanics-lien law may provide that notice may be given at any time within three years, it can also say that an action can be commenced within three years, which of itself is notice. In conclusion, without going further into a discussion of this question, we may remark that the statute is a remedial one, and while not to be extended beyond the fair import of its terms, is to be construed so that it will furnish a remedy and protect those whom it was intended to protect. The ruling of the district court was wrong, and its judgment will be reversed, and the case remanded with instructions to overrule the demurrer.
All the Justices concurring. | [
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The opinion of the court was'delivered by
Valentine, J.:
This action was originally instituted in the district court of Shawnee county, by the county .attorney of such county, in the name of the state, for the purpose of perpetually enjoining the further continuance of an illegal liquor saloon, in which intoxicating liquors were illegally, continuously, and persistently sold, to be drank on the premises as a beverage. G-. N. Boutell, the keeper of the saloon, and Lester M. Crawford, the owner of the building in which the saloon was kept, were made parties defendant. Other kinds of business, not illegal, were also carried on in the same building, and in the same room; but there was no intention or desire on the part of the county attorney to interfere with or disturb any of these other kinds of business.
It must be admitted that this is a novel proceeding — so novel as to startle old and experienced practitioners; and yet, if it were ascertained, after a careful examination of all its elements, to be founded in reason and justice, and to come within the acknowledged principles of long-established equity jurisprudence, it should not be dismissed unceremoniously, or denied a respectful hearing, simply because of its unquestioned and admitted novelty. Valid and legitimate remedies often lie dormant for years, simply because no fair opportunity is presented to.put them in operation. There has probably never been a prosecution in this state for putting a dead animal in a well, or for allowing -a candle factory to become unclean; aud yet there can be' no question as to the criminality of such acts, or the remedy for their suppression. (Comp. Laws of 1879, p. 374, §§316, 318.)
Probably a sufficient reason why this proceeding is novel is, that no fair opportunity has ever before existed for putting such a proceeding into operation. No such state of affairs as now exists has ever before existed in Kansas. Such vast numbers of illegal drinking saloons as now exist were never before known in Kansas. During the last year, in several of the great centers of population in this state, numerous illegal drinking saloons have been openly and publicly operated, in utter defiance of the constitution and the statutes of the state; and counsel for plaintiff say in substance in their brief, that there is no other adequate remedy than this for their suppression. Under the old laws, as they existed prior to the passage of the present prohibitory law, in communities where public sentiment was sufficiently strong (and that was in a very large proportion of the state), no drinking saloons of any kind, legal or illegal, were allowed to exist; and in communities where public sentiment was not sufficiently strong to suppress and prohibit all drinking saloons, a few saloons were licensed and regulated by law, and no illegal saloons were tolerated. Hence, under the old laws, as they existed prior to the passage of the present prohibitory law, there was no fair opportunity for courts of equity to reach out to enjoin or suppress illegal drinking saloons. It is perhaps true that prior to the passage of the present prohibitory law, and under the old laws, intoxicating liquors were occasionally sold in violation of law; and it is perhaps also true that upon the frontiers, where no laws were rigidly enforced, a few illegal drinking saloons obtained a temporary but precarious existence; but these apparent exceptions to the general proposition that no fair opportunity was presented to courts of equity under the old laws to suppress illegal drinking saloons, do not in any essential particular constitute any real exception to the truth of such general proposition; for courts of equity never reach out to suppress or enjoin things- which have already occurred, and do not, as a rule, reach out to suppress or enjoin things which necessarily can have only a temporary existence; and on the frontiers, no laws of any kind have ever been rigidly enforced. I
It has been suggested, however, that this proceeding is novel, simply for the reason that no lawyer of any eminence, or otherwise, has ever before supposed that courts of equity had jurisdiction, under similar circumstances, to suppress or restrain illegal drinking saloons, by the mere remedy of injunction. We shall not stop to consider this suggestion now, but will consider the same further on in this opinion, when we come to consider the question whether or not any other plain and adequate remedy exists for the suppression of illegal drinking saloons.
We shall now proceed to consider the question whether this proceeding is founded upon any well-recognized principles of equity jurisprudence. That courts of equity will sometimes restrain nuisances, we suppose all will admit; but the further questions arise: Are illegal drinking saloons nuisances? And if they are, then are they the kind of nuisances which courts of equity will under any circumstances take jurisdiction of and enjoin? And if they are the kind of nuisances which courts of equity will under any circumstances take jurisdiction of and enjoin, then what are the circumstances? Will courts of equity take jurisdiction of and enjoin ordinary illegal drinking saloons, notwithstanding the various remedies given by statute for their suppression and extirpation, and for the punishment of all offenders who may have any connection with them, and where no peculiar circumstances exist, or surround the particular case, which might render the statutory remedies abortive or inadequate?
That illegal drinking saloons are nuisances, we suppose all will admit, for our statute laws, almost ever since Kansas has had any existence, have declared them to be such. As far back as February, 1859, the legislature of the then territory of Kansas enacted that they were nuisances. Section 7 of the dramshop act of February 11, 1859, reads as follows:
“All places where intoxicating liquors are sold, in violation of this act, shall be taken, held and declared to be common nuisances; and all rooms, taverns, eating-houses, bazaars, restaurants, groceries, coffee-houses, cellars, or other places of public resort, where intoxicating liquors are sold in violation of this act, shall be shut up and abated as public nuisances.77 (Laws of Kansas of 1859, p. 555.)
This section of the statute remained the law until 1868, when it was reenacted verbatim, and continued the law down to the passage of the prohibitory law of 1881, when it was substantially reenacted, though in different language. It now reads as follows:
“All places where intoxicating liquors are manufactured, sold, bartered or given away in violation of any of the provisions of this act, or where intoxicating liquors are kept for sale, barter or use in violation of this act, are hereby declared to be common nuisances; and upon the judgment of any court having jurisdiction, finding such place to be a nuisance under this section, the sheriff, his deputy, or under-sheriff, or any constable of the proper county, or marshal of any city where the same is located, shall be directed to shut up and abate such place, and the owner or keeper thereof shall, upon conviction, be adjudged guilty of maintaining a common nuisance, and shall be punished by a fine not less than one hundred dollars nor more than five, hundred dollars, or by imprisonment in the county jail not less than sixty days nor more than ninety days, or by both such fine and imprisonment.77 (Laws of 1881, p. 241, §13.)
But aside from the express terms of the statutes declaring illegal drinking saloons to be nuisances, are they not nuisances from the necessary implications of the statutes? It may be true, that aside from the express terms of the statutes, many places where intoxicating liquors are sometimes illegally sold, but sold only occasionally, or incidentally to some other business, as in drug stores, for instance, and many places even where they are so sold, with the unquestioned understanding that they are to be drank on the premises where sold, are not necessarily nuisances. But such places are not the kind of places ^hich we are now considering. The places which we are now considering are illegal drinking saloons, where intoxicating liquors are sold, not only illegally and not merely occasionally or incidentally, but are sold openly, publicly, repeatedly, continuously, persistently, and in direct defiance of the constitution and statutes of the state. This we think makes them nuisances by the necessary implications of the statutes, and by the necessary but indirect force of the statutes. The repeated, continuous and persistent violations of the statutes, are what makes them nuisances, independent of the express terms of the statute declaring them to be such. Indeed, we would think that every place where a public statute is openly, publicly, repeatedly, continuously, persistently and intentionally violated, is a public nuisance: Smith v. The Commonwealth, 6 B. Mon. 23; Wilson v. The Commonwealth, 12 B. Mon. 3, 6; Meyer v. The State, 42 N. J. Law (13 Vroom.), 145, 157, 158, and authorities there cited; The State v. Ellar, 1 Dev. (N. C. Law), 267; The State v. Paul, 5 R. I. 192, 193; The State v. Fagan, 22 La. An. 246, 247; Attorney General v. Rld. Cos., 35 Wis. 425; The Commonwealth v. E. & N. E. Rld. Co., 27 Pa. St. 339; The People v. Third Ave. Rld. Co., 45 Barb. 63; The Queen v. Foxby, 6 Modern, 213; The King v. Greggory, 5 Barn. & Ad. 555; Attorney General v. Cockermouth Local Board, 18 Law Reports, Equity Cases, 172, 176, 179; The United States v. Prout, 1 Cranch C. C. 203; The United States v. Coulter, id. 203; The United States v. Lindsay, id. 245.
Probably, even independent of the statutes and of the constitution, all saloons where intoxicating liquors are sold to be drank on the premises as a beverage ought to be considered as nuisances. Under the present laws, they must be so considered; and under all laws, they probably ought to be so considered. Though where they are legalized, the courts cannot so declare. Probably no greater source of crime and sorrow has ever existed than social drinking saloons. Social drinking is the evil of evils. It has probably caused more drunkenness and has made more drunkards than all other causes combined; and drunkenness is a pernicious source of all kinds of crime and sorrow. It is a Pandora’s box, sending forth innumerable ills and woes, shame and disgrace, indigence, poverty, and want; social happiness destroyed; domestic broils and bickerings engendered; social ties sundered; homes made desolate; families scattered; heart-rending partings; sin, crime, and untold sorrows; not even hope left, but everything lost; an everlasting farewell to all true happiness and to all the nobler aspirations rightfully belonging to every true and virtuous human being. If all drinking saloons and all social drinking establishments were utterly overthrown and destroyed, all sales and uses of intoxicating liquors at other places might probably be left comparatively free, with but little danger to the general welfare of society. If these views with respect to the natural and ordinary consequences of drinking saloons are correct, then there are certainly very strong reasons for considering all drinking saloons as public nuisances. But of course, courts of justice can declare only such saloons nuisances as are illegal.
But the question still remains: Are illegal drinking saloons the kind of nuisances which courts of equity will enjoin? Perhaps it would be proper here to state, before proceeding further, that courts of equity never attempt to enjoin past occurrences, or already consummated wrongs; but only such crimes and wrongs as may be fairly expected to occur in the future unless enjoined. Neither do courts of equity attempt to enjoin all anticipated crimes or wrongs, but only such as would be likely to be permanent in their character, existence, or effects; such only as would be materially and peculiarly injurious if not enjoined; and such only for which no other adequate remedy is given. For,these reasons, courts of equity have seldom, if ever, attempted to enjoin the anticipated commission of single crimes or single public wrongs; and have seldom, if ever, attempted to enjoin even the anticipated commission of aggregated crimes or aggregated public wrongs, unless these aggregated crimes or wrongs amounted in the aggregate to a nuisance. But courts of equity will not even enjoin all nuisances. Generally, they will enjoin only such nuisances as appear to be permanent in their character or effects, or such as are likely to be of long duration in the future, either in existence Or effects; and such only as would produce irreparable injury to the party asking for the injunction unless enjoined; and such for which no other adequate remedy exists. And the public can obtain an injunction to restrain a nuisance only when the nuisance is injurious to the public.
Two principal objections are urged against enjoining the present liquor saloon: (1) The keeping of the same is a criminal offense; (2) another plain and adequate remedy is afforded by the statute.
As to the first of the above-mentioned objections, we would say, that while it is unquestionably true that the keeping of the saloon in question is a criminal offense, and its operation involves the commission of many criminal offenses, yet we cannot think that these facts can possibly take away any of the jurisdiction which courts of equity might otherwise exercise. It would seem to us that all sound reason and the great weight of authority is against the objection. (2 Daniell’s Chancery, ch. 36, §1, p. 1636; 2 Story’s Equity Jurisprudence, § 923, et seq.; Adams’s Equity, p. 427 [211]; The People v. City of St. Louis, 10 Ill. 351, 367; Minke v. Hopeman, 87 Ill. 450, 453, 454; Attorney General v. N. J. Rld. Co., 2 Green’s Chancery [N. J.], 136, 140; Mayor of Columbus v. Jaques, 30 Ga. 506, 512, 513; The State v. Mayor of Mobile, 5 Port. [Ala.] 280, 307, et seq.; Citizens of Raleigh v. Hunter, 1 Dev. Equity [N. C.], 12; District Attorney v. L. & B. Rld. Co., 16 Gray [Mass.], 245; Hamilton v. Whitridge, 11 Md. 129; Sparhawk v. U. P. Rly. Co., 54 Pa. St. 401, 404, et. seq.; Attorney General v. C. & N. W. Rly. Co., 35 Wis. 425, 449, 450.)
On the other side of this question, see the following cases Sparhawk v. U. P. Rly. Co., 54 Pa. St. 401; Att'y Gen. v. Utica Ins. Co., 2 Johns. Ch. 371, 375, et seq.
In the case last cited, Chancellor Kent seems to express an opinion, among others, that courts of equity do not have jurisdiction to restrain the commission of nuisances or other acts' which are at the same time criminal offenses. Now with all due deference to the vast learning and the eminent ability of the great chancellor, and with all proper veneration for his memory and his name, we cannot follow this decision to its full and entire extent; for, unquestionably, the great weight of authority as well as of reason, is against the doctrine seemingly enunciated therein. We think that courts of equity certainly have jurisdiction to enjoin public nuisances, although such nuisances and all their constituent facts may at the same time be public offenses. Indeed, the fact that public nuisances, with all their constituent facts, are public offenses, is a very strong reason why courts of equity should take jurisdiction of such nuisances, and suppress and enjoin them; provided, of course, that no other adequate remedy exists. Indeed, at common law, all public nuisances were public offenses; and if the proposition is sound that no nuisances can be enjoined, except such as are not public offenses, then, where the common law has full force, no public nuisance could ever be enjoined. This we think will not be insisted upon in its. entirety, even by the defendants in error. A single offense, or several isolated offenses, may not constitute a nuisance, and may not, for any reason, be enjoined or enjoinable; but when the offense is repeated continuously and persistently, without any immediate prospect of a final termination, the aggregate of such offenses will finally become, and will constitute, a public nuisance, which may be enjoined by the public, unless some other adequate remedy is given for its complete suppression and extirpation.
The next question to be considered is, whether any other adequate remedy than injunction exists for the suppression of such nuisances as illegal drinking saloons. The statutes of Kansas make all sales of intoxicating liquors, except for medical, scientific and mechanical purposes, criminal offenses; and even sales of intoxicating liquors for “medical, scientific and mechanical purposes are criminal offenses, unless such sales are made by the original manufacturers or by druggists; and they are even then criminal offenses, unless the original manufacturer's or druggists have first obtained permits therefor from the probate judge; and even then manufacturers and druggists are very much restricted in their sales. Druggists can sell only upon affidavits or prescriptions, showing for what purpose the liquors are to be used. (Laws of 1881, p. 235, etseq.) Section 13 of the prohibitory act declares that all places where intoxicating liquors are manufactured or sold or kept for sale, in violation of law, are common nuisances; and provides that the owner or keeper of any one of such places shall be considered guilty of a criminal offense, and be liable to fine and imprisonment. It may be conceded thus far the statutes do not furnish any adequate remedy for the suppression of illegal drinking saloons, for they provide only for punishing offenses after they have been committed, and do not provide any direct means for preventing future or anticipated offenses, as an injunction issued in such a case would necessarily do. Such a remedy — that is, punishment to be inflicted upon wrong-doers after they have committed the offenses — is often held to be a complete, adequate and sufficient remedy; but sometimes it is held not be a sufficient remedy. But said § 13 also makes further provisions. It also provides with reference to every place where intoxicating liquors are manufactured or sold or kept for sale in violation of law, that “upon the judgment of any court having jurisdiction, finding such place to be a nuisance under this section, the sheriff, deputy, or under-sheriff', or the constable of the proper county, or marshal of any city where the same is located, shall be directed to shut up and abate such place.” Now is nQt this a plain and adequate remedy for the prevention of all anticipated violations of the law in keeping an illegal drinking saloon ? A saloon, after it has been “ shut up and abated,” certainly has as little power to do harm as a saloon which has been enjoined. Besides, is not the remedy under the statute for the suppression of the illegal traffic in intoxicating liquors a much more extensive and comprehensive remedy than even injunction? Injunction, as we have before stated, does not attempt to restrain the' commission of, or to interfere with past offenses or past wrongs, nor even to restrain the commission of, or to interfere with all anticipated offenses or anticipated wrongs. There are many illegal sales of intoxicating liquors, as we have before stated, which it will not attempt to restrain. There are even many nuisances which it will not attempt to restrain; but under § 13 we have a remedy that will prevent not only every anticipated illegal sale of intoxicating liquors, whether such liquors are kept for sale in a saloon or in a drug store or elsewhere, and whether they are sold openly, publicly, repeatedly, continuously or persistently, or not; or are sold only once, or occasionally, with long intervals of time between sales, and as privately and secretly as the nature of the case will permit; but we also have a remedy that will prevent every illegal keeping of such liquors for sale, and every illegal manufacture thereof; and the guilty party may be punished by fine and imprisonment. Now this is certainly much more than will be done under any circumstances, by the mere remedy of injunction. Mr. High, in his work on Injunctions, uses the following language:
“§745. Notwithstanding the well-established jurisdiction of equity to enjoin the erection of nuisances, and the fact that in some cases the relief is even extended to the abatement of the nuisance, the existence of a legal remedy will be held sufficient ground for withholding an injunction. Thus, when a full and complete legal remedy is provided by a statute authorizing courts of law to give judgment of abatement in actions for damages incurred by private nuisances, a court of equity may refuse to entertain an action to enjoin and abate such a nuisance. So when a summary remedy is provided by statute for the abatement by the municipal authorities of cities of all nuisances, public and private, a court of equity may properly refuse to interfere by injunction, when no obstacle is shown in the way of proceedings at law. And it may be said generally, that the aid of an injunction will not be extended for the prevention of a nuisance when it does not satisfactorily appear that the person aggrieved is without adequate remedy at law.” (1 High on Injunctions, § 745.)
It will be seen from the above quotation from Mr. High, that he thinks that abatement is a more extensive remedy than injunction. After speaking of the jurisdiction of courts of equity to enjoin, he says “that in some cases the relief is even extended to the abatement of the nuisance.” See also in this connection the following authorities: Wood on Nuisances, § 780; Remington v. Foster, 42 Wis. 608; Powell v. Foster, 59 Ga. 790; Parker v. W. L. C. & W. Co., 67 U. S. (2 Black) 545; Att’y Gen. v. Utica Ins. Co., 2 Johns. Ch. 371, 378, et seq.
It must be remembered that the statute does not give the remedy of injunction to restrain illegal drinking saloons or to restrain public nuisances of any kind. The jurisdiction to grant injunctions in such cases is simply assumed by courts of equity where no other adequate remedy exists. Hence where the legislature, after making the thing illegal, and after creating it a nuisance, then gives some other adequate remedy therefor, courts of equity will not assume such jurisdiction, and will not furnish to litigants the extraordinary remedy of injunction.
The following suggestions were made by the court below in delivering the opinion in this case. These suggestions have reference principally to the proper construction or interpretation to be given to said section 13. The suggestions are as follows:
“This is not a new statute. In 1859 the legislature declared that all places where intoxicating liquors are sold in violation of law shall be taken, held and declared to be common nuisances, and shall be shut up and abated as public nuisances. This provision has been on the statute book for twenty-three years. During all that time an earnest warfare has been carried on against the illegal sale of intoxicating liquor. It is hardly complimentary to members of the,bar who have been engaged earnestly in that contest, that they failed to perceive that under that statute they could apply to a court of chancery for a remedy for this great and acknowledged evil. . . .
“The safest way to construe a law is to assume that the legislature knew what it was doing when it enacted it. When it- declared that the keeping of a place where intoxicating liquors are sold in violation of law should be regarded as a common nuisance, and provided that upon the conviction of the keeper, the executive officer of the court should be directed to shut up and abate the place, it seems as if it provided for an efficient, prompt and exclusive method, not only to punish the offender, but to prevent the repetition of the offense by the same person, in the same locality. Similar provisions exist in the statutes of many other states, and yet this is the first instance in which an injunction has been applied for under such a law. Under some other penal statutes application has been made, but it is believed that it has been uniformly denied. If there is an exception, it is believed to have been in cases where public corporations — the creatures of the legislature — have exceéded the powers granted to them.
“ It seems to be the theory of the law that when a full and legal remedy is provided by statute, authorizing judgment of abatement in courts of law, no injunction will be granted.”
'With reference to the suggestion that this is the first time that an injunction has ever been applied for, for the purpose of perpetually enjoining an illegal drinking saloon, and that the application should therefore be looked upon with disfavor, we think it may be answered, so far as this state is concerned, as heretofore suggested, that up to the time of the passage of the prohibitory law in 1881, illegal drinking saloons were extremely rare in Kansas; and that therefore there was but little opportunity in this state to make such an application. Perhaps, however, a few illegal drinking saloons may have existed prior to the passage of such law; and undoubtedly a large number of illegal drinking saloons actually did exist after its passage, and prior to the commencement of this action; hence, to the extent that illegal drinking saloons existed in Kansas from 1859, when they were first declared by statute to be public nuisances, and to be subject to be “shut up and abated,” down to the time when- this action waá commenced, in May, 1882, the suggestion that this is a novel proceeding, and consequently to be looked upon with disfavor, has force.
It would seem that one of the main objects of the prosecu tion in instituting this proceeding in a court of equity in contradistinction to a court of law is, to obtain a judicial determination enunciating the doctrine that an adequate remedy exists and will be exercised, in equity and by injunction, for the suppression of all illegal traffic in intoxicating liquors, independent of juries and of the jury system. It is not to avoid judges that this action was commenced, for the same judge that administers law in this state also administers equity. In this state law and equity are blended, so far as they can be blended, and both are administered by the same court. It would seem that the prosecution has a very great distrust of juries, and would wish wholly to ignore them in all prosecutions for the suppression of the illegal traffic in intoxicating liquors. Juries may not be perfect, but we can hardly ignore them until our entire system for the administration of justice is wholly revolutionized and changed. It has often been said that juries are the palladium of all our rights and liberties. And the value of juries is recognized by courts of equity as well as by courts of law. In many states .of this Union, courts of equity will utterly refuse to take jurisdiction in cases of nuisance until the plaintiff’s right has first been established in a court of law. This is presumably for the reason that they think that the questions of fact should be first determined by a court of law with a jury. And courts of equity in their discretion often submit questions of fact to a jury for their’ consideration and determination. In Kansas, a court of equity, in a proper case, will undoubtedly take jurisdiction of a nuisance, although the plaintiff’s right has not yet been established in any other court. But even in Kansas, we would think that where the’ facts are extremely .doubtful, or are difficult to be ascertained, a court of equity in its discretion would not grant relief until all the questions of fact had first been submitted to a jury and been determined by them. And if this be so, then but little can be gained by commencing prosecutions for the suppression of nuisances or of illegal drinking saloons in a court of equity rather than in a court of law.
We think the statutory remedy of abatement is ordinarily a sufficient remedy for the suppression of illegal drinking saloons; and that it and the other remedies furnished by statute are really the only remedies which should ordinarily be resorted to. Of course, instances might be found where the statutory remedy of abatement might not be sufficient. The place to be suppressed, for instance, might be not merely an illegal drinking saloon, but it might in fact be a combination of various kinds of.illegal employments and transactions. It might, in connection with the illegal sale of intoxicating liquor, be a gambling house, or a bawdy house, or a place where other illegal and disorderly practices might also be carried on and indulged in. Now the statutory remedy of abatement reaches only to the suppression of the illegal manufacture and sale, and keeping for sale, of intoxicating liquors; and hence the abatement of those things only might not be a complete and adequate remedy for the whole combination of illegal and disorderly things which might be carried on in the same building. Other cases might be supposed, wherein the statutory remedy of abatement might not be sufficient; and wherever it is not sufficient, wherever it and all other remedies furnished by the statutes are not complete and adequate, then injunction may be resorted to for the purpose of furnishing a complete and adequate remedy. We should not assume, however, that the statutory remedies are not sufficient for any ordinary case. The legislature has attempted to furnish adequate remedies, and it would certainly not be modest in us to declare that it has not done so until after a fair trial of its remedies has been had, and such remedies found to be insufficient. We should give to the legislature credit for possessing wisdom enough to provide for all ordinary cases; and we should always hold the express remedies given by the legislature to be sufficient until after a fair trial, and until after they were found to be insufficient, except perhaps in a few extraordinary and unanticipated cases, where the express remedies provided for by the legislature might be found to be insufficient. There does not appear to be any necessity for any remedy in the present case except the statutory remedies. There certainly does not appear to be any necessity for an injunction. The court below so found, and we think correctly. If the saloon in controversy had been “shut up and abated,” under the statute, it would, in all probability have remained “shut up and abated.” Indeed, we know from information received outside of the record, that it has been closed for some time. This knowledge, however, can have no influence in the decision of this case.
We cannot say that the court below erred in refusing the injunction in this case; and therefore the judgment and order of the court below in this case will be affirmed.
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The opinion of the court was delivered by ■
Valentine, J.:
This was a criminal prosecution on information, for robbery in the first degree. The defendant was found guilty, and sentenced to imprisonment in the penitentiary for the term of ten years, from which sentence he npw appeals to this court.
The defendant in this case assigns the following grounds • of alleged error, to wit:
. “1. The court below erred in permitting the .county, attor-ney to file a substituted information on March 27, 1882, for the original lost information, and ip forcing defendant to go to trial on such substituted information, over his objections, and exceptions.
“ 2. The court below erred in compelling defendant to close his evidence without the testimony of the witnesses W. H. Hart and G. C. Eeeves, over his objections and exceptions.
“ 3. The court below erred in giving its first instruction to the jury, and in refusing special instruction No. 2, asked by defendant.
“ 4. The court below erred' in overruling the defendant’s motions in arrest of judgment and for a new trial.
“ 5. The court below erred in proceeding with the trial at the March term, 1882, of this court, after continuing the case, and in failing to render formal judgment against defendant.”
I. We do not think that the court below erred in permitting the county attorney to file a substituted information for the original information, which was lost or destroyed. Such a practice is specifically authorized by §118 of the criminal code-, which reads as follows:
“Sec. 118. In case of the loss or destruction of an information, the prosecuting attorney may file in court another information, and the prosecution shall proceed, and the trial be had, without any delay from that cause.”
Nor can the fact that no preliminary examination was had in the present case make any difference, for the defendant was a fugitive from justice, and the information was filed against him in accordance with § 69 of the criminal code without such preliminary examination having first been had. We think that § 118 of the criminal code will apply to this case, and will apply to all other cases where the original information has been duly and legally filed and has afterward been lost or destroyed, whether any preliminary examination has been had in the case, or not, and whether any copy of the original information has been preserved, or not.
II. We do not think that the court below erred in .compelling the defendant to close his evidence, without the testimony of the witnesses W. H. Hart and G. C. Eeeves; and for two reasons: First, the evidence, as appears from the record, was incompetent, and, second, the county attorney admitted it. The question arose in the following manner: When the case was called for trial the defendant asked for a continuance, in order to obtain the testimony of these two witnesses, which testimony he embodied in an affidavit; and the county attorney thereupon agreed to admit their testimony as embodied in the affidavit, and the trial was. then proceeded with in the absence of these witnesses. The testimony of’ these witnesses was in substance, that Mrs. McGowen, the party injured, and her little son, aged about ten years, did not inform certain persons of the fact of the robbery until about three or four days after the robbery had been committed, and that the robbery was not known at the county seat of the-county in which the robbery had been committed, until about three days afterward. Reeves’s testimony was that he and Mrs. McGowen lived about one mile apart, and that she did not communicate the facts of the robbery to his (Reeves’s) wife until about four days after the robbery had occurred. It is not shown how Reeves knew that Mrs. McGowen did not communicate these facts to his wife; nor is it shown how Hart knew that neither Mrs. McGowen nor her son communicated the facts of the robbery to certain other persons. The defendant had these witnesses subpenaed, and claimed that they would be present in the court room at some time-during the' day of the trial-. They did not appear, however, during the trial.
III. By the third assignment of error, the defendant intends to raise the question of the sufficiency of the information. It is true that the information is not very artistically drawn; but we think it is sufficient. The principal objection urged against it is, that it does not state what the thing or article of property was of which the injured party was robbed. "We think it does. We think it sufficiently'states that she was robbed of a sum of money, consisting of bank bills and United States treasury notes, of the aggregate value of $34.
IV. The questions attempted to be raised by the fourth assignment of error are included in the questions attempted to be raised by the third and fifth assignments of error. As a part of the fourth and as a part of the fifth assignments of error, it is claimed that this action was not triable at the March term of the court, 1882 — the time when it was tried — and this claim is made upon the following facts; When the case was called for trial, the defendant made a motion for a continuance on account of the absence of testimony, and supported his motion by affidavits stating what the testimony would be, and the court below sustained the motion. The county attorney, however, immediately afterward consented that the testimony as set forth in the defendant’s affidavits might be read to the jury, and the court then overruled the defendant’s motion and ordered that the trial should proceed. The defendant now claims that‘when the court below sustained his motion for a continuance, the case wholly passed beyond the jurisdiction of the court for that term, and that the court below, could do nothing more with the case dhring that term; and therefore that all proceedings had after that time were erroneous and yoid, and should be set aside by this •court. We think the defendant is mistaken. Possibly it would have been better if the court had required the county attorney to elect whether he' would admit the testimony or not, before the court announced its decision. But still we do not think that the action of the court in sustaining the motion of the defendant for a continuance removed the case beyond the jurisdiction of the court for that term. The sustaining and the overruling of the motion for a continuance were all done at substantially the same time, and nothing intervened between the two except the agreement of the county attorney to admit the testimony embodied in the defendant’s affidavit for a continuance. The final overruling of the defendant’s motion for a continuance placed the case back for trial at just where it was prior to the hearing of the motion, except that after the hearing of the motion the defendant had the right to introduce in evidence his alleged testimony of the alleged absent witnesses, which right he did not have before.
V. The jury found the defendant guilty of robbery in the first degree, as before stated, and the court below, without making any further finding, rendered a judgment sentencing the defendant to imprisonment in the penitentiary for a term of ten years. The defendant now claims that as the court below did not make any finding of its own adjudging that the defendant was guilty, that the judgment rendered merely upon the verdict of the jury is a nullity, and should be set aside by this court. In this we think the defendant is mistaken. The’ finding of the jury was sufficient of itself to. authorize the court to render the judgment it did, without making any additional finding of its own.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The judgment of T. J. Stout against Elizabeth H. Hook was rendered before a justice of the peace of Leavenworth county in 1878, and in the same year an abstract of that judgment was docketed in the district court of Leavenworth county, under §119 of the justices’ act. The garnishment proceedings against R. B. Soper were commenced on March 21, 1881, before the justice rendering the judgment, and long subsequent to the docketing of the abstract in the district court. It was held in Treptow v. Buse, 10 Kas. 170, that the filing of an abstract in the district court has the same force as the filing of the transcript of a judgment. (Comp. Laws of 1879, ch. 81, §119; id., ch. 80, §518.) The filing of an abstract of a judgment rendered before a justice of the peace obviously contemplates a transfer of the judgment from the justice’s court; and after the judgment is so transferred to the district court, it becomes subject to the same rules and vested with the same powers as though originally rendered in that court. (Treptow v. Buse, supra; Comp. Laws 1879, ch. 81, § 188.)
Section 138 of the justices’ act reads:
“It shall be the duty of the justice, if the case be not appealed, taken up on error, docketed in the district court, or bail has not been given for the stay of execution, at the expiration of ten days from the entry of the judgment, to issue execution without a demand and proceed to collect the judgment, unless otherwise directed by the judgment creditor.”
Within the express terms of this section, after a case has been docketed in the district court, it no longer becomes the duty of the justice to issue execution in the absence of a demand. As the docketing of the judgment in the district court transfers the judgment to that court, and as by such transfer it becomes subject to the same rules and vested with the same powers as though originally rendered in that court, the judgment creditor after such transfer must look to that court for the means of enforcing the collection of the judgment, and cannot demand execution under § 137 of the justices’ act. This certainly was the intention of the legislature, and this construction of the statute renders the provisions of the code and the. sections of the justices’ act concerning this subject-matter harmonious. If a different view were entertained, a plaintiff would have the privilege of process on the same judgment from two courts within the same county at the same time. If the judgment creditor is not deprived of the right to an execution before the justice after he has transferred his judgment to the district court by filing an abstract, the provisions relating to revivor in § 522 of the code are without much significance, as the plaintiff might keep alive his judgment before the justice and from time to time file new abstracts. As in our view, the justice after the filing of the abstract of the judgment in the district count had not jurisdiction to issue process in the case, all of the garnishment proceedings after the transfer of the judgment to the district court must be regarded as nullities.
Counsel for defendant refers to § 154, ch. 42, Laws of 1858, and to the substitute therefor of §137 of the justices’ act, and argues that as the reenacted section leaves out the excepted cases when an execution could not issue, the justice must, under §137, issue an execution at any time, upon demand of the judgment creditor, within five years. This argument is not altogether sound. Clearly, the legislature never intended by the substitution of §137 for §154 to compel the justice to issue execution upon a judgment after an appeal had been perfected or a valid stay taken. Yet, if the argument of counsel be followed out, this would be the logical conclusion. Furthermore, the legislature, in view of the provisions of the code making a judgment after it has been transferred subject to the same rules as though originally rendered in the district court, may have deemed it unnecessary, in readopting §137, to embrace in it all of the provisions of §154. It must be conceded that nothing was lost or changed by omitting therefrom the excepted cases of appeal or stay, and in our opinion no change occurred in omitting the provision concerning the docketing of the cases. All of the clauses omitted were supererogatory.
The judgment of the district court must be reversed, and the case'remanded with direction to the court below to enter judgment upon the agreed statement of facts for plaintiff in error.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
It appears from the testimony of Noel, the., plaintiff, that after repeated interviews and conversations, on or about July 25, 1880, Drake, the defendant, agreed to sell Noel one hundred and fourteen shares of stock owned by him in the First National bank of Fort Scott, Kansas, at $140 per share, and to give Noel employment as cashier at the bank, at a salary of $1,500 per annum. This evidence supports the allegations of the petition. The trial court held as a matter of law that the contract was void for two reasons: First, that it was impossible of performance; and second, that it was against public policy.
In this ease the last objection to the contract embraces the first, because, if the consideration was void on the grounds of public policy, we must declare the contract impossible of performance, and affirm the ruling of the district court in refusing to.entertain any action for breach of the alleged contract against the promisor. Drake had not the legal authority, either as a director or as the president of the bank, to make an arrangement to remove the cashier of the bank without the consent of the board of directors, or enter into a contract for a sale of the cashiership; and the contract between Noel and Drake for such removal and sale must be held to be contrary to public policy. The purpose and effect of the contract were liable to influence Drake in the decision of a question affecting the private rights of others, by considerations foreign to those rights. The national bank act authorizes the board of directors of a bank to appoint a president, vice president, cashier and other officers, and permits the directors of a bank to dismiss such officers or any of them at pleasure, and appoint others to fill their places. (Sec. 513, U. S. Rev. Stat. 1873-4.) Each person appointed a director of a national bank is required to take an oath that he will, so far as the duty devolves upon him, diligently and honestly administer the affairs of the association, and will not knowingly violate, or willingly permit to be violated, any of the provisions of the national bank act. (Sec. 5147, U. S. Rev. Stat.)
In the relation of trust and confidence which Drake occupied as a director and president of the bank, which required him to look only to the best interests of the bank and .its stockholders, it was improper for him to be influenced by agreements with or considerations from a stranger to the association in the selection of a cashier, or in the discharge of any of his other official duties. The appointment of officers by the directors of a national bank ought not to be made a matter of bargain and sale between applicants and members •of the board. (Guernsey v. Cook, 120 Mass. 501; Noyes v. Marsh, 123 Mass. 286; Merchants’ National Bank v. State Bank, 10 Wall. 604-650; Railroad Co. v. Ryan, 11 Kas. 602; Haas v. Fenlon, 8 Kas. 601; Tool Co. v. Norris, 2 Wall. 45.)
The ruling and judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
At the general term of this court for 1880, proceedings in quo warranto were brought, to determine by what authority A. J. Buckland attempted to hold the office of justice of the peace of Great Bend township, in Barton county. It was therein decided that Buckland was not entitled to the office, and judgment of ouster was rendered against him. (The State v. Buckland, 23 Kas. 259.) Prior to this decision, and while Buckland had full charge of and control of the books, papers and docket pertaining'to the office, defendant in error (plaintiff below), on June 28, 1879, appeared before him as justice of the peace of Great Bend township, in said Barton county, and voluntarily confessed judgment on a promissory note in favor of plaintiff in error (defendant below) for $176.55, and $4.80 costs. On August 10th, following, an execution was issued on the judg-; ment by Buckland, as his own successor in office, he having been subsequently elected to the office, directed to M. Gilmore, one of the plaintiffs in error, as sheriff of Barton county. The sheriff levied upon certain wheat of plaintiff below, and this action was commenced August 16, 1880, to perpetually enjoin the judgment upon the ground that it was absolutely void, for the alleged reason that Buckland was neither de facto nor de jure a judicial officer. It appears from the record that Buckland was appointed by the governor on March 19,1-877, justice of the peace of Great Bend township, and thereafter duly qualified and entered upon the discharge of the duties of the office, and was placed in full possession of the books, papers and docket appertaining to such office. At the November election, 1877, W. H. Odell, A. J. Buckland, C. Goit and T. C. Polk were candidates for the office of justice of the peace in Great Bend township. Upon a canvass of the returns of the election, the canvassers 5 issued to W. H. Odell and C. Goit certificates of election. Goit, to whom was issued the certificate as successor of Buck-land, demanded of the latter the records and dockets of his office, but he refused to deliver them up; hence the quo warranto proceedings above referred to. Up to the issuance of the certificate to Goit after the general election in November, 1877, Buckland was both a de jure and a de facto justice of the peace. After the issuance of the certificate of election to Goit, he was a de facto officer only, for though he was not a good officer in point of law, yet he had the possession of the books, papers and records of the office of justice of the peace, and continued to act as a justice of the peace until the rendition of the judgment in this court, and was recognized by a part of the public where he held the office, as a justice of the .peace of the township. His acts, while acting as a justice of the peace de facto, upon principles of policy and justice, must be held valid so far as they involve the interest of the public and third persons.
Some of the special findings of the trial court seem to conflict with our opinion that Buckland was' a de facto officer at the time of the rendition of the judgment attempted to be •enjoined; but we think that the evidence in the record clearly •establishes the position we have taken. The finding that Buck-land was generally recognized as a justice of the peace of Great Bend township by a portion of the public at the time' of the rendition of the judgment of June 28, 1879, and that he had not been ousted by the process of any court after his qualification under his original appointment at the time of the rendition of such judgment, justifies our conclusion. (2 Kent’s Com. 295; 1 Abbott’s Law Dict. 343; State v. Carroll, 38 Conn. 449-479; Braidy v. Theritt, 17 Kas. 468; 19 Am. Decisions, 61.)
“The reasons of public policy upon which it is held that the acts of an officer de facto are not to be called into question collaterally, but are valid as to third persons, may apply ■even to the case where such officer is a usurper and intruder. . . . Third persons, from the nature of the case, cannot always investigate the right of one assuming to hold an important office, even so far as to say that he has color of title to it by virtue of some appointment or litigation. If they see him publicly exercising its authority, if' they ascertain that this is generally acquiesced in, they are entitled to treat him as such officer, and if they employ him as such should not be subjected to the danger of having his acts collaterally called into question.” (Petersilia v. Stone, 119 Mass. 467.)
While the acts of officers defacto are valid and binding as to the' public and third persons from considerations of public policy, yet as to the person exercising the duties of the.office they are invalid, and afford him no protection whatever.
The judgment of the district court will be reversed, and the case remanded with direction to enter judgment in favor of plaintiffs in error (defendants below).
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The defendants in error file their motion in this court asking to have the “case-made” in this case returned to the district court for correction, so “that on page 58 of the case-made, and at the close of the pretended copy of the journal entry, there be stricken out and erased the words and figures written in pencil, and which are as follows, to wit, ‘February 11, 1882.’” These words and figures which the defendants in error wish to have stricken out really amount to nothing. If they show anything, they merely show that the time when the motion for the new trial was overruled, and when judgment was rendered, and when sixty days were given within which to make a case for the supreme court, was “February 11, 1882.” All this is elsewhere shown by the record brought to this court. The record shows that the case was tried on February 6, 1882; that the verdict of the jury was rendered on February 7, 1882; that the motion for the new trial was filed on the same day, and that it was overruled and judgment rendered, and sixty days given within which ,to make a case for the supreme court, on February 11, 1882. The record in this respect reads as follows:
“Which motion for a new trial'was, on February 11, 1882, at and during the said regular term of said court in Rice county, heard, argued, and overruled by the court; to which ruling the defendants then and there excepted, and were given sixty days from said February 11, 1882, to make and serve a case for the supreme court.”
Afterward, but just when is not shown, the case was duly made for the supreme court, and was duly served upon the plaintiffs (the present defendants in error), and on May 23, 1882, the case was duly settled and signed by the judge of the district court, the judge certifying that the ease had been “ made and served in proper time;” and that the plaintiffs (the present defendants in error) had suggested amendments thereto, also in proper time. The words “Febfy 11, 1882,” where they occur on page 58 of the “case-made,” being wholly immaterial, will be considered as stricken out, and the motion of the defendants in error (plaintiffs below) will be overruled.
The plaintiffs in .error (who were defendants below) contend in this court that the court below committed error in giving the following instructions to the jury, to wit:
“This is an action on account, by plaintiffs against the defendants. The defendants deny the account, and plead a settlement. The burden of proving the account as charged, is on the plaintiffs; and the burden of proving a settlement is' bn the defendants.
“1. I instruct you, that if the evidence shows that plaintiffs had a settlement with defendants on November 14,1879, which included the account for flour, meal, etc., that plaintiffs are bound by that settlement, unless it was fraudulent, and you cannot go behind it to consider any matter which was included in it which the plaintiffs have included in their bill of items, unless, as before stated, such settlement was fraudulent.
“2. The court instructs the jury that the settlement, if one was made, made on November 14,1879, is conclusive between the parties, and that if the car-load of flour and meal, etc., was included in it, that the plaintiffs cannot recover in this action therefor, unless such settlement was fraudulent.
“3. The court instructs the jury that if a man pays an obligation which he was in law not bound to pay, voluntarily, fye cannot afterward recover back the money so paid. In other words, if Porter & Porter voluntarily paid the defendants, the debts of A. T. Rogers and others according to a verbal promise to do so, they cannot recover back such payments, unless such payments were secured to be made through the fraud of the party to whom they were made.
“4. Any settlement in which usurious interest is counted is unlawful and fraudulent as to such usurious interest, ,and the party in the settlement against whom the usurious interest is counted is not bound by such settlement so far as such-usurious interest is concerned; but this can only extend to the portion of interest that is usurious.”
“1. If Porter & Porter did not agree in writing to pay the note of A. T. Rogers to defendants, and they did not voluntarily pay the interest thereon, defendants are not entitled to credit for it in this suit.
“2. If defendants collected or exacted of plaintiffs more than 12 per cent, per annum on the Rogers note, they are not entitled to credit for the extra amount over and above 12 per cent.
“3. If defendants obtained judgment in the district court on the Haybarker & Rogers note for legal interest, that is, 12 per cent., and the additional, the full amount of the principal of said note, and a decree of court subjecting plaintiff’s property to the payment thereof, they are not entitled to credit in this suit for it.
“4. The jury is instructed that if the evidence shows that plaintiffs never agreed in writing to pay the note of Rogers & Huling to defendants, of $146.54, and never voluntarily paid it, then plaintiffs are not-liable for it, and defendants cannot have credit for it in this suit.
“5. If the defendants received from plaintiffs on the Rogers & Huling note interest at a greater rate than 12 per cent, per annum, they are not entitled in this suit for the surplus amount so collected or received.”
The first three of these instructions were given at the request of the defendants below, but with material modifications made by the court. The fourth instruction seems to have- been given upon the court’s own motion; and the last five instructions were given at the request of the plaintiffs below. Some portions of these instructions we think are erroneous in the abstract; and if the facts were such as they are claimed to be by the defendants below (plaintiffs in error), they would also be erroneous in the concrete, and materially erroneous. But if the facts are such as they are claimed to be by the plaintiffs below (defendants in error), then we would think that no portion of the instructions is materially ■or substantially erroneous. About November 14, 1879, the plaintiffs and defendants had a settlement of their affairs, and in this settlement it was found that the plaintiffs below owed the defendants below $47.53. Thus far the facts are unquestioned, and are admitted by both parties. But the defendants below claim that the parties had a further settlement, and that other and additional items were included in such further settlement; and that by such inclusion of additional items, it was found that the defendants owed the plaintiffs $8.06. And this is all that the defendants are now willing to admit as being due to the plaintiffs below, or for which they could rightfully recover any judgment.- The plaintiffs below, however, in fact recovered a judgment for $398.07. The items which the defendants below claim were included in this second or additional settlement, were as follows, in favor of the plaintiffs: One car-load of flour, chopped feed, and meal, furnished by the plaintiffs to the defendants, amounting to $376.68; and in favor of the defendants, two promissory nptes, with interest, legal and illegal, due thereon — one of such notes ,due from Haybarker & Rogers to the defendants, and the other due from Rogers & Huling to the defendants, all of which notes and interest the defendants claim the plaintiffs agreed to pay, amounting to $321.06. The question with reference to this second' or additional settlement was submitted to the jury, and the jury unquestionably found that there was no such settlement. If they had found that there was any such settlement as is olaimed by the defendants below, they could not possibly have rendered a verdict in favor of the plaintiffs below and against the defendants below, for a sum exceeding $51. But as we have before stated, the jury in fact rendered a verdict in favor of the plaintiffs and against the defendants, for the sum of $398.07. This verdict was rendered for the amount of the car-load of flour, chopped feed, and meal, with possibly some interest due thereon, and also for some other small items, such as cash, chopped feed, and boarding.. Evidently nothing was allowed by the jury for the notes of Hay barker & Eogers and Eogers & Huling. Not only no usurious interest was allowed upon these notes, but no interest of any kind was allowed upon them, nor even any portion of the principal. Hence, all instructions of the court below with reference to usurious interest or fraud in connection therewith are wholly immaterial. Also all instructions with reference to the payment by the plaintiffs below to the defendants below of these notes, or any portion thereof, whether principal, legal interest, or usurious interest, are wholly immaterial. For as the jury evidently found, the plaintiffs did not pay these notes,-either directly or indirectly, nor any interest thereon, and did not even agree to pay them, or any interest thereon, by allowing them to be charged to their account and credited to the defendants’ account, upon such supposed second or additional settlement. With reference to this second or additional set-, tlement, we think the verdict of the jury is correct. We do ■not believe that any such settlement was ever made.
After an examination of the entire case, it is our conclusion that no substantial error was committed by the court below; and therefore the judgment of the court below will be affirmed.
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The opinion of the court was delivered by
Brewer, J.:
This action resembles in many things that .of Yeamans v. James, 27 Kas. 195, and is, like that, a controversy respecting certain lands in Wyandotte reserve No. 1, which were patented in 1857 to Silas Armstrong. It appeared in that case, as in this, that there were several settlers occupying different portions of this reserve, between whom and Armstrong, the patentee, a dispute arose as to title. One David E. James was employed by the settlers as an attorney to look after their interests. They all signed a power of attorney to James, giving him full authority to make any compromise and arrangement he might deem best with Armstrong. He did in fact make a compromise with him by which he received a conveyance of an undivided three-eighths of the land, subject to a mortgage of fifty dollars an acre. This conveyance he took to himself personally. This was in 1859. As to the particular tract of land involved in that case, as well as to that in this, the claim of defendants is, that James, subsequently to the giving of the power of attorney, obtained title from the settler, and the contest in each case is as to the validity of the conveyances by which these titles are claimed. In that case the controversy was between the grantee of the settler and the heirs of James, now deceased, and others. In this case it is between the heirs of the settler on the one side, and the heirs of James, and purchasers from him, on the other. We shall not attempt, in this opinion, to review the whole history of the transaction, but refer to that case for its general features. Here we shall notice briefly what seem to be pivotal questions and matters in which this case differs from that. The power of attorney above referred to from the settlers to James was dated July 8,1858, and was signed by all the settlers, Willis Wills, the ancestor of the plaintiffs herein, included. It was never acknowledged by Wills, but was acknowledged by the others within from ten to fifteen days after its date. The reason of the omission of this acknowledgment by Wills is found as alleged by defendants, and we think justly, in the execution, two days after its date, and on the 10th of July, of a quitclaim deed from Wills and wife to James. If this deed is genuine and valid, plaintiffs have no cause of action— and this they concede. This deed, as stated, was dated July 10, 1858, and was signed in the presence of George B..Wood as a witness. The acknowledgment is of date July 22,1859, before Luther H. Wood, a justice of the peace, and recites a personal acknowledgment by Mary Wills, and certifies to proof by George B. Wood, the witness, of an acknowledgment by Willis Wills, then deceased. This deed was recorded July 23, 1859. This action was commenced July 21, 1874. Willis Wills died October 14, 1858, leaving as his heirs a widow and children, who are the plaintiffs in this action. The plaintiffs in. their petition copy this deed of July 10, and allege that it is a forgery. They further allege that shortly before the death of Willis Wills, Janies, the attorney, and George B. Wood, the medical attendant of Wills, who had theretofore joined and confederated to obtain title to the lands, came to the house of Wills, where he was lying sick, and by fraudulent representations obtained from him and his ' wife .a title-bond and article of agreement to the effect that, after the perfecting of Wills’s title, James should pay him $5,000, and should then be entitled to a deed of the property, and not before, and that at the same time James delivered to Wills a counterpart bond conditioned to pay $5,000, the consideration named. On the trial, the bond" above named was admitted in evidence, which was simply a bond from James to" Wills to pay $5,000 when James should procure from the government of the United States a perfect and valid title to the land, which bond was dated July 10, 1858, and indorsed, with receipts, as follows: One of $2,200, dated August 10, 1858, signed Mary Wills for Willis Wills; one of $800, November 10, 1859, signed Mary Wills; one of $50, February 30, 1860, signed Mary Wills; one of $90, April 8, 1860, signed Mary Wills; and then one dated April 30, 1860, acknowledging the receipt of an obligation of $1,500 and a promissory note for $360 in full satisfaction of the bond, signed Mary Wills. The identity of this bond was established beyond dispute. We shall not attempt to review all the testimony, which is very voluminous, nor discuss the various propositions of law, as they .rest upon the same general principles involved in the ease of Yeamans v. James.
We shall content ourselves with stating in a general way the reasons which induce us to sustain the ruling of the district court in favor of the genuineness of the deed and the validity of the transaction. And first, as to the lapse of time: The deed was dated and signed July 10, 1858, and was recorded July 23, 1859; this action was not commenced until July 21, 1874, two days less than fifteen years from the recording of the deed. While Mrs. Maples (formerly Mrs. Wills.) testified that she did not know that the instrument signed by herself and husband was a deed until a year before the commencement of this action, yet it is abundantly shown by the testimony of her daughter and present husband, that at least in 1860 she knew that James claimed to hold a deed of the land. No excuse is given for this long delay — neither ignorance, absence, nor inability. She and her family, with the exception of one son, lived in the vicin - ity for two or three years after the deed. Where they have since resided is not affirmatively shown, except that it appeared that they were residents of Kansas City at the time of the trial, and also that once during the prior years she had called upon Mr. James at his residence. Further, she had possession of the bond given by Mr. James, for quite a length of time after its execution, and then at Mr. James's request gave it to him. She subsequently, through proceedings in the probate court, once more obtained possession of it, and thereafter again surrendered it to him. There is abundant testimony that by direction of Mr. James some money was paid to her. One witness'testified that she admitted the correctness of the indorsements upon the bond, and that she had received the money as therein indicated. She commenced an action on that bond, which suit was apparently settled by the agreement indicated in the last receipt indorsed on the bond. The bond itself on its face suggests that the instrument given to Mrs. James must have been a deed. The bond is conditioned to pay $5,000 when title is perfected, and not when title is perfected and deed made. The deed is dated of the same date as the bond. She admits that the two instruments were executed on the same day. The date of the bond shows that it was not two or three weeks- before the death of Willis Wills, as she testified, but months prior thereto. The fact that Willis Wills, who signed the power of attorney, did not acknowledge it with the others ten or fifteen days after its date, is fairly explainable only upon the theory that he had conveyed and had therefore lost all interest in the land. The signatures to the deed were witnessed by Geo. B. Wood, and the acknowledgment was made before a justice of the peace, and this acknowledgment of her execution was of a date more than a year after the signing of the instrument. We are aware that some of the matters above referred to are contradicted by plaintiffs’ witnesses, and some sought to be explained, but the testimony is there, and is sufficient to sustain the finding of the court; and notwithstanding the testimony of Mrs. Maples, we think her conduct and the conduct of the plaintiffs is far more in harmony with the facts as claimed by the defendants, than against them. No reason is given or suggested why during all these years the plaintiffs were silent. Having abandoned the land, left it in possession of defendants, and permitted sale after sale, the only reasonable theory is, that the plaintiffs all these years knew that the facts were as now claimed by defendants, and never moved in the matter until prompted by unexpected changes in value or suggestions of ingenious counsel. Counsel criticise, and perhaps justly, some of the language used by the district court in its findings, as well as the findings themselves, but, notwithstanding, we think the general conclusions of the district court were correct and must be sustained. It will be borne in mind that these transactions between Wills and James took place nearly a score of years before the trial; that both Wills and James, the two main parties therein, were dead, and it is not to be expected that the exact details of those negotiations and transactions could be disclosed as fully as though the actors in them were still living. While it is doubtless true that an attorney, to uphold a purchase from his client, must proye the transaction fair, yet' that rule does not exclude the weight which is to be given to presumptions arising from long acquiescence, lapse of many years, and death of parties and witnesses. We think upon the record as it stands before us the conclusion of the district court was right, and it must be sustained.
Before closing this opinion we will notice a few objections made to the rulings of the court upon admissions of evidence. Rebecca M. Forbes, one of the plaintiffs, a daughter and heir of Willis Wills, was a witness in the case, and testified to being present at a conversation of David E. James with her mother. She was asked to give that conversation, but the testimony was objected to and ruled out. It is not claimed that the mother would be a competent witness as to this conversation, because it would be a communication had personally by her with the deceased person, in a ease in which the adverse parties are the administratrix and heirs-at-law of such deceased person. But it is claimed that though the party carrying on-the conversation is incompetent, any party who heard the conversation is a competent witness thereto, and the cases of McKean v. Massey, 9 Kas. 602, and Simmons, Adm’r, v. Sisson, 26 N. Y. 264, are cited. As a general proposition, this is correct. The inhibition of the statute is only on the party having the communication or transaction with the deceased — but this case presents peculiar _ . , . ¶ , . ieakures> which we think justifies the ruling of the district court. Mrs. Forbes, as well as Mrs. Maples, was plaintiff, each claiming as heir of Willis Wills,, and each seeking to recover from the administratrix and heirs of David E. James. Neither could testify under the Statute as to any transaction or communication had personally with David E. James. Can it be possible that when the two are present with James and a conversation is carried on, that while neither could testify as to what James said to herself personally, she could testify as to what he said to the other? We think not. Such a ruling would be forbidden by the spirit, at least, of the statute. That statute, plainly contemplates preventing one party from introducing in evidence conversations had with the ancestor of the adverse party, and this because the lips of such ancestor, closed by death, cannot be heard to give his version of the conversation; and where there are two persons on the one side, having like interests,, they should, for the purpose of giving force to the statute, be considered as one, and neither be permitted to give her -version of-the conversations and statements of the deceased to the other in her presence. ' Counsel for defendants in their brief well expose the injustice of the ruling asked by plaintiff when they say:
“For instance, James might have conversed with the mother for five minutes about the bond, in the presence and hearing of the daughter, and then turned around and conversed with the daughter upon the same subject, in the presence and hearing of the mother, and while neither would be allowed to testify as to the conversation had with herself, either could testify as to the conversation heard by her between James and the other.”
The ruling of the district court was correct.
Again, plaintiffs urge that the court erred in admitting the testimony of Geo. B. Wood, as to admissions made by Mrs. Maples, concerning certain indorsements on a bond showing receipts of money by her. No ground of objection was presented to the district court, but we think the testimony was competent anyway. Mrs. Maples was plaintiff, and denied ever receiving any money on'the bond. It was competent to impeach her testimony by proof of statements to the contrary. As widow of Willis Wills, she inherited one-half of his estate, (Laws of 1858, p. 328, § 7,) and admissions against her interest were admissible. We see no error in this ruling of the district court.
Again, Mrs. Maples was a witness, and on her direct examination denied her execution of the deed of July 10th, 1858. Afterward, on motion of. the defendants, this denial was stricken out from the testimony. This is alleged for error, and counsel urge very forcibly that the mere fact that the grantee in a deed is now deceased, does not of itself prove that the execution of the deed was a transaction had personally with decedent; for as they say, he may have been a resident of the east, never in Kansas, and the transaction had personally with an agent or representative of his. Unquestionably this is true, but the question in this case was, whether this deed was the instrument executed by Mr. and Mrs. Wills at the time both in their petition and the testimony of the plaintiffs state that some instrument was executed. They allege in their petition, and also state in their testimony, that James, the decedent, brought the instrument to the house of Wills, and that the whole transaction was in his presence and with him personally. Now the single question being, not whether Mr. and Mrs. Wills ever executed a deed to James, but whether the instrument which the plaintiffs admit was executed to James was the one offered in evidence, and it being admitted that whatever instrument was executed was executed at the solicitation and in the presence of James, it does- not seem to us that the court erred in ruling out the testimony. It is true she stated generally that that was not her signature, and that she neither signed nor acknowledged that deed; but still the question was, was that the instrument she signed in James’s presence and under his solicitation? If she could not testify affirmatively as to the character of the instrument she did sign, she could not testify negatively that the instrument offered was not the one that she did sign. In this view of the question, and these limitations that the disputed facts place around it, we think the ruling of the court must be sustained. We may add further, that in view of all the other testimony in the case we think the court should have found as it did, even with her testimony before it that she néver signed nor acknowledged that deed.
One other question remains. The deed, as heretofore stated, was witnessed by George B. Wood. The acknowledgment was before Luther H. Wood, a justice of the peace. The court in in its fifteenth finding finds “that the said George B. Wood and Luther H. Wood had some claim to and interest in said land at the time said David E. James acquired title thereto in his own name, and which claim and interest they derived through and from said David E. James.
Now counsel argue that by reason of interest George B. Wood was incompetent to prove the execution and Luther H. Wood incompetent to take the acknowledgment of the deed; that therefore the deed was inadmissible in evidence, without direct proof of its execution. Whatever may have been the rule under the statutes of 1855, and at the time of the signing of this deed, at the date of the acknowledgment the laws of 1855 had been repealed; and under the laws of 1859, then in force, Geo. B. Wood was a competent witness to prove the execution of the deed: (Laws of 1859, ch. 89, p. 544, § 1; ch. 30, §17, p. 291; ch. 25, p. 131, §320.) Sec. 321, ch. 25, does not not change this rule. (McCartney v. Spencer, Ex’r, 26 Kas. 62.)
Again, while it may be conceded that Luther H. Wood, if interested in the land, was incompetent to take the acknowledgment of a deed in relation thereto, on the principle that an acknowledgment is a quasi judicial proceeding, and that no man can sit as a judge in a case in which he is interested; (Beaman v. Whitney, 20 Me. 413; Groesbeck v. Seeley, 13 Mich. 329; Goodhue v. Berrien, 2 Sandf. Ch. 630; Wasson v. Connor, 54 Miss. 351;) and while the district court finds that he was interested with George B. Wood and James in the land, we have searched the record through for any evidence to support this finding. He testified that at one time he had a lease of the ferry at the Kaw river, which in some way seems to have been connected with "these real-estate interests, and that he sold it to George B. Wood and David E. James. Aside from that, we fail to see anything that shows he had any interest in or connection with this land, or any of the transactions involved in this case. We are inclined to think, as there were several cases pending in the court at about the same time, involving different portions of this reserve No. 1, that the trial court must have confounded the testimony in some of those cases with that in this, and that there was nothing apparent in this case showing that Luther H. Wood was interested or disqualified from acting as a justice of the peace.
But further, independent of the testimony afforded by the acknowledgment, we think it was right for the court to admit this deed in evidence. The question before it was not, whether any instrument had been executed by Wills and wife, because the plaintiffs in their petition admitted the execution of'some instrument; the only question was, whether this was the one they had executed. The petition set forth a copy of the deed, and all that was necessary was to identify the instrument offered as the original, of such copy. It was right to admit it as evidence, and then on all the testimony, direct and circumstantial, determine whether this was the instrument which they in fact had executed. We think therefore the ruling of the district court in this matter must also be sustained.
These are the only questions which we deem it important to notice, and in them we see no error; and upon the whole record we think the ruling of the district court was right, and that it must be sustained.
The judgment will therefore be affirmed.
All the Justices concurring; | [
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The opinion of the court was delivered by
Brewer, J.:
The matter complained of in this case is, the refusal of the district court to fix a time for the settlement of a case-made. The facts are as follows: On the 25th day of May, 1881, defendant in error obtained a judgment in the district court of Franklin county for the recovery of the possession of certain real estate. May 26, 1881; a motion for a new trial was made and overruled, and sixty days were given in w'hich to make a casa On July 21, the case-made was duly served. On July 25, amendments were suggested. On September 27, plaintiffs in error applied to the court for an order directing the service of notice of the time at which the case should be presented for settlement. The court overruled this application, and did so by reason of a rule of practice adopted by the district court of that district on March 12, 1877, and ever since in full force, which rule reads as follows :
“Rule 25. Whenever a party shall have duly made and served a case, and the opposite party shall have served amendments thereto, the party preparing the same shall notice the same for settlement within ten days after the service of such amendments, or he shall be deemed to have abandoned his case, and the same will not thereafter be settled or allowed.”
■ As more than two months intervened between the service of amendments and this application to the court, if this rule is valid and applicable obviously there was no error in the decision of the court. Counsel challenge both its validity and its application. They claim that as by § 725 of the code express authority is given to the judges of the supreme court to make rules of practice not inconsistent with the provisions of the code and applicable to all courts of record, it was the obvious intent of the legislature to refuse to the district courts the power of prescribing rules, and to secure uniformity throughout the state in all matters of practice by vesting the power of making rules alone in the justices of the supreme court. We cannot agree with counsel in this contention. We regard it as one of the inherent powers of a court of record to prescribe rules for the transaction of business before it, providing such rules in no way contravene or are inconsistent with the provisions of the statutes; and while doubtless by § 725 the legislature contemplated such action by the justices of the supreme court as would secure uniformity in the practice throughout the state, and while also doubtless any rule prescribed by said justices would supersede and set aside any rule by any district court in respect to the same matter, yet in the absence of any action by the justices of the supreme court or in respect to any matter in which they have taken no action, we do not doubt the power of the district court to prescribe rules regulating and controlling practice before it. We think a rule in respect to the time at which cases-made should be noticed for settlement is within the power of the district court, and that the rule prescribed in this case is a reasonably one; for it is not to be supposed that a district court will be able to bear in mind for a great length of time all the proceedings and testimony in cases tried before it; and in case of a difference between counsel, the settlement of such difference should be presented to the district court within some reasonably short time.
Again, § 549 in terms authorizes the court to direct notice to be given of the time at which a case is to be presented for settlement, and if the court has power to make a special order in each case, it of course has the power to make a general order applicable to all cases. We conclude therefore that the rule was valid. It is also applicable to the case at bar. Counsel argue that the rule only applies to cases made under § 548 — cases in which the time for making the cáse is not ex tended by the court — and does not apply to cases made under § 549, in which an extension of time is granted; and for this reason, because in § 549 it is expressly provided that the court may direct notice of the time of settlement, while § 548 is entirely silent in respect thereto, the rule being therefore intended to supply the omission in said section. The argument is not good. The language of the rule is general; the purpose is to direct the notice of the time and place of settlement in all eases, and whether the case is made under either section, and with or without an extension of time. The court so interpreted its own rule, and we think correctly.
Again, counsel seek to evade the force of this rule by a showing of conduct on the part of opposing counsel, such as they claim estopped them from relying on this rule. It appears from the affidavit of one of the attorneys, that at the time the case-made was served, John W. Deford, counsel for defendant in error, stated that he would necessarily have to go to Colorado, and if the suggestions of amendment which he should make were not satisfactory, that there might be some delay in the time of settlement; that he (Deford) expected to go to New York city after returning from Colorado, but would be present at the September court of Franklin county, and that he was anxious to settle the case after his return from Colorado, and before going to New York city. Further, that upon the receipt of the suggestions of amendment, plaintiff’s counsel wrote to said Deford stating that the amendments were not satisfactory, and requesting him to fix the time at which the parties should appear before the judge, to which said Deford replied by postal, that he would let them know in a day or two upon what day he could go before the judge; that they relied upon his statement, and expected said Deford to name the time until a few days before this application, when they were informed by J. F. Maxwell, Fsq., that said Deford had been discharged from further service in the case. The postal sent by plaintiff’s counsel to said Deford contained this language: “When shall we meet you before the judge? Please fix time, and we will-sign stipulation to send to judge. Why not put it for September term, Ottawa court? Can’t get. case in supreme court until January, anyway.”
Another rule of practice in said district court, adopted at the same time as the one heretofore cited, was read in evidence: “Rule 7. Admissions or agreements about proceedings in an action will not be enforced unless reduced to writing, and signed by the parties or their attorneys, and filed; or unless the same be made in open court at the time the court is required to act upon them.”
We need add nothing to what has already been said as to the power of the court to make a rule of this kind, or as to its validity. Obviously the rule was not complied with. No stipulation in5 writing was signed and filed, nor does it appear even that the minds of the respective counsel ever came to an actual agreement. The plaintiffs asked the defendant to name the time, but suggested a postponement to September, and the defendant, acknowledging the receipt, simply said he would inform them in a day or two when he could attend before the trial judge. It would seem from the conversation had at the time the case-made was served, that defendant was opposed to a delay till September, and preferred to have it settled sometime intermediate his trip to Colorado and that to New York. But with all that was said or written, it is evident that the parties never came to any agreement; and while perhaps there was that in the letter of defendant’s attorney which might tend to induce delay upon the part of the plaintiffs, and something in the conduct of the case on the part of the defendant which deserves criticism, yet there is not enough to justify us in holding that the trial court erred in adhering strictly to its rules. We appreciate what is said by counsel as to the duty of discountenancing trickery and deceit and of upholding professional honor, and we wish the case had developed a different course of conduct on the part of the defendant; but it is also our duty to see that the value of established rules be not destroyed in consequence of a failure to enforce them strictly. The ruling of the district court must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Defendant in error, plaintiff below, brought !his action before a justice of the peace against plaintiff in error (defendant below), to recover the sum of $12.60. Defendant set up in his bill of particulars a .claim of $35.60. The justice ruled that only the amount of plaintiff’s claim, to wit-, $12.60, was available to defendant in his set-off. Upon these respective claims the case was tried before a jury, which failed to agree. Thereupon defendant filed his affidavit, •and.obtained a change of venue to another township and before another justice. When the case was called for trial before this justice, the plaintiff failed to appear, and after waiting an hour the action was dismissed without prejudice to a new action, and judgment entered against the plaintiff for costs. Thereafter, plaintiff filed his appeal bond and took the case to the district court. When the case was called in that court, the defendant moved to dismiss the appeal,- on the ground that there was no appealable judgment rendered-in the court below, and also because the case had been tried by a jury, and the amount of recovery was less than $20. This motion was overruled, and this is the principal error complained of. Plaintiff’ cites several authorities under the old practice, to the effect that an order of dismissal is not an appealable order; but those authorities are not in-point in this case, and for these reasons: The statute (Comp. Laws 1879, p. 720, § 120) allows appeal in all cases not otherwise specially provided for by law, from the final judgment of any justice of the peace. The code (Comp. Laws 1879, p.653, §3S5) declares that a judgment is the final determination of the rights of the parties in an action. Now this action is finally determined, and all rights, of either party therein adjudicated, by the dismissal without prejudice in the absence of the plaintiff. Such a disposition is specially provided for in the article of the code concerning judgments, (Comp. Laws 1879, p. 653,.§ 397,) and also-in the justices’ act, (Comp. Laws 1879, p. 719, §113.) Whatever future-rights of action plaintiff may have, that action is finally detertermined. Not only was it finally determined, butalsoaformal judgment for costs in behalf of the defendant was entered by the justice, and this judgment' the plaintiff had a right to take to the district court upon appeal. As the jury did not agree, and no verdict was rendered, and no judgment entered upon any verdict, the limitation provided in §132, Comp. Laws 1879, p. 721, has no application. That section applies only when the judgment before the justice is rendered as the result of a jury trial, and not to cases in which a jury disagree and the judgment is rendered by the independent action of the court. Further than that, the defendant in his bill of particulars claimed more than $20, although the justice considered the claim good for only $12.60. Another ground stated in the motion to dismiss the appeal was, that the appeal bond was insufficient, but no defect is pointed out by counsel in his brief, and none is obvious.
After judgment had been rendered in'the district court in favor of the plaintiff, defendant filed a motion to retax costs, which was sustained in part, and overruled in part. This ruling defendant also complains of, and asks this court to re-tax the costs. As to the ruling of the district court upon such a motion, we remark generally, that we shall not examine the different items of fees to see whether they are proper, but shall consider only such fees as the plaintiff in error specially challenges as illegal, and shows wherein he claims them to be wrong. The general statement that they are improperly taxed presents nothing which we deem it our duty to examine and consider. We only consider errors that are specifically pointed out, and the reasons therefor given by counsel.
As to the witness fees, we remark that they are itemized in the transcript from the justice’s docket, and we must presume that on the motion for retaxation it was sufficiently shown to the district court that each of such witnesses was entitled to the amount allowed him. We are not to presume in. the absence of all the testimony, that more was allowed than such testimony showed was proper.
It is further insisted that there was error in rendering judgment against the defendant for all the costs before the two justices, on.the ground that when he took, his change of venue before the first, he had confessed judgment for costs taxed there. This we think an immaterial error, if error it be, for when the fees are once paid, the claims of the several parties thereto are satisfied, and any attempt to collect them a second time would be promptly restrained.
Upon the whole record we see no error justifying interference by this court, and the judgment will therefore be affirmed.
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The opinion of the court was delivered by
Valentine, J.:
This is an action of replevin, and the main question involved in the case is, which had the prior right to the possession of the property in controversy — Moses Wallach, or William H. Wylie? The property originally belonged to Nathan Stetter, and Wallach claimed the possession of the same by virtue of a chattel mortgage executed to him by Max N. Stetter, attorney in fact of Nathan Stetter; while Wylie claimed the property by virtue of several attachments which he, as sheriff of Atchison county, Kansas, had previously levied upon the same. These attachments had all been issued in actions brought by creditors of Nathan’ Stetter. The case was tried by the court below, without a jury, and the court found in favor of Wylie and against Wallach, and rendered judgment accordingly.
I. The plaintiff in error, Wallach, claims, as a first ground of error, that some of the findings of fact were not sustained by sufficient evidence. In this we think the plaintiff in error is mistaken. It is true that the direct evidence of Wallach and of Max N. Stetter was in favor of Wallach, but there was a great number of circumstances connected with transactions involved in the case which were against Wallaces theory of the case; and we think these circumstances were sufficient to overbalance and overturn the direct evi dence of both Wallach and Max N. Stetter. We think, however, that it is unnecessary to discuss the evidence, as no useful purpose could be subserved thereby. Involved in this question of the sufficiency of the evidence, however, is a question of law, which we shall discuss as follows: Wylie introduced in evidence the deposition of Wallach, taken on behalf of Wylie; and the plaintiff in error, Wallach, now claims that Wylie was and is bound by everything that was testified to in such deposition by Wallach. This certainly is not the law, and such á thing never was the law. It is true, that when a party introduces a. witness, he cannot then impeach the general character or reputation of such witness for truth and veracity; and it is generally true, that he cannot show that the witness has made statements at other times and at other places contradictory to those which he testifies to. But neither of those cases is this case. Wylie did not attempt to impeach the general character or reputation of Wallach for truth and veracity, nor did he attempt to show that Wallach had made statements at other times and at other places contradicting the statements made by him in his deposition; although Wylie would certainly have had the right in the present case to show such contradictory statements, for the very good reason that Wallach himself was a party to this action. Wylie could have shown such contradictory statements, not for the purpose of impeaching Wallach, but as original evidence — original evidence of Wallach’s admissions.
The principal fact in controversy in this case was, whether the chattel mortgage executed to Wallach by Max N, Stetter, as the attorney in fact of Nathan Stetter, was executed for the purpose of hindering, delaying and defrauding the creditors of Nathan Stetter, or not; and the deposition of Wallach was introduced by Wylie for the purpose of proving, or tending to prove, that it was; and of course Wylie believed that it did prove, or tend to prove, that fact. It is true that all the direct statements made by Wallach upon the subject were to the effect that the mortgage was executed in good faith, and not for the purpose of hindering, delaying or defrauding the creditors of Nathan Stetter; but the deposition also contained many statements of facts and circumstances which Wylie believed proved, or tended to prove, that the mortgage' was not executed in good faith, but was executed for the purpose of defrauding the creditors of Nathan Stetter, and which statements of facts and circumstances Wylie believed were sufficient to overturn and destroy all the direct statements of good faith made by Wallach, and prove the very reverse.
The plaintiff in error, Wallach, seems to claim that Wylie is bound by the direct statements of Wallach, and that he cannot use the facts and circumstances testified to by Wallach to overturn these direct statements. This claim is certainly erroneous. Supposing that these direct statements in fact proved, or tended to prove, one thing, and that the detailed facts proved, or tended to prove, the reverse, and that the detailed facts were sufficient to overbalance and overturn the direct statements: then why should Wylie be bound by the direct statements, in preference to the detailed statements of the facts? Wylie certainly had a right to introduce in evidence the deposition of Wallach as a whole, and to rely upon what it would prove or disprove as a whole, although taking it as a whole, it would disprove some of the direct statements made by Wallach. A party never was concluded by the statements of any one of his witnesses. He always had the right to introduce other competent testimony to prove his case, although such testimony might contradict the statements of a previous witness, and might incidentally tend to impeach the testimony of such previous witness. (1 Greenl. Ev., §§ 443 to 444a; Wharton’s Ev. in Civil Cases, § 549.) The rule that a party shall not impeach his own witness, goes only to the extent that a party shall not introduce evidence for the mere purpose of impeaching one of his own witnesses; and it does not go to the extent that he may not introduce evidence to prove his case, although incidentally such evidence may impeach or contradict one of his previous witnesses. Mr., Wharton says, in his work on Evidence (see section just cited) that “In this country, while a party cannot ordinarily discredit his own witnesses, his right to contradict such evidence is unquestioned.” Many of the •detailed facts and statements which Wylie proved by Wallaces deposition could not have been proved by any other witness, and hence there was a strong and unavoidable necessity for Wylie to make Wallach one of his own witnesses; but in doing so, he did not place himself in the helpless condition of being ruthlessly and inexorably bound by all the statements made by Wallach in Wallach’s own favor. He still had the right to introduce other testimony, the testimony of Wallach himself, and of other witnesses, if they could be found, to prove that the facts of the case were not such as Wallach stated them to be in his general statements.
II. The plaintiff in error, Wallach, also claims that the ■court below erred in admitting certain evidence of Henry Eriend and others, tending to show transactions had between Stetter and others after the execution of the chattel mortgage to Wallach, and wholly unconnected with the execution of such chattel mortgage. Now the law upon this subject is just as it is claimed to be by the plaintiff in error, but such law has no application to this case. The transactions had after the execution of the chattel mortgage were not separate and independent transactions, but were parts and portions, along with the execution of said chattel mortgage of one general scheme, plan and arrangement, had between Wallach and Max N. Stetter, who was Wallach’s son-in-law, to dispose of the property of Nathan Stetter, so as to hinder, delay and defraud the creditors of Nathan Stetter. This is the theory upon which Wylie and the attaching creditors introduced the evidence; and we think the evidence in the case sustains such theory, and that the evidence objected to was> competent. The chattel mortgage was executed on Saturday, December 20, 1879, in conjunction with other transactions had at the same.-iime at Atchison, Kansas, all appearing to be fraudulent; and immediately thereafter, Wallach and Max N. Stetter went to Emporia, Kansas; and on Sunday, December 2'r} 1879, Max N. Stetter, the attorney in fact of Nathan Stetter, in conjunction with his father-in-law Wállach, sold and transferred two stocks of goods belonging to Nathan Stetter, one situated at Emporia, Kansas, and the other at Newton, Kansas. In connection with this case, and with reference to the same transactions, see Keith v. Stetter, 25 Kas. 100; Moon v. Helfer, 25 Kas. 139; Simon v. Stetter, 25 Kas. 155. These transactions at Emporia were unquestionably fraudulent, and were part and portion of the general plan and arrangement previously entered into between Wallaeh and Max N. Stetter, to hinder, delay and defraud the creditors of Nathan Stetter, of which the execution of the chattel mortgage on the day before was another part and portion of the same general plan and arrangement. The evidence of the transactions at Emporia is the evidence of which the plaintiff in error, Wallaeh, complains. But we think it was competent, as a part of a general whole, of which the execution of the mortgage was another part of the same general whole. The transactions at Emporia were not unconnected with Wallaeh or with the execution of his-chattel-mortgage, but were simply additional transactions in carrying out the same general design and purpose; and Wallaeh was probably the brains and soul of all of them.
III. The chattel mortgage executed by Max N. Stetter toWallaeh purported to secure the sum of $7,920 of indebtedness due from Nathan Stetter to Wallaeh. The court below found that the sum of $3,000 of this amount was bona fide' indebtedness, and that the sum of $4,920 thereof was fraudulent, and was merely a pretended indebtedness without any basis therefor. And then the court held, as a conclusion-of law, that as a portion of the indebtedness pretended to be secured by the' chattel mortgage and the larger portion thereof was fraudulent, it rendered the whole mortgage utterly void and of no effect. Of this conclusion of law the plaintiff in error, Wallaeh, now complains. We think, however, that this conclusion of law is correct. The statutes of this state provide that every transfer of-property, made “ with the intent to hinder, delay, or defraud creditors,, . . shall be deemed utterly void and of no effect,” (Comp. Laws of 1879, p.464, §2;) and this chattel mortgage was unquestionably executed with just such an intent and for just such a purpose. Mr. Jones, in his work on Chattel Mortgages, § 339, says that “An overstatement of the amount secured, made with a fraudulent intent to hinder, delay and defraud the mortgagor’s creditors, renders the mortgage void ;”.and further he says, (§ 350,) that “If a mortgage be void because of an intention participated in by both parties to delay, hinder and defraud the mortgagor’s creditors, it is fraudulent in toto, and cannot be supported to any extent as against such creditors; it cannot be supported to the extent of an actual debt covered by such mortgage.” And he also says, in the same section: “A mortgage which contravenes the insolvent laws as to some portion of the debt secured is wholly void.” See authorities cited by Mr. Jones; and also authorities cited in brief of counsel for defendant in error, as follows: Horton v. Williams, 21 Minn. 187; Russell v. Winne, 37 N. Y. 591-6; Rich v. Levy, 16 Md. 74; Robinson v. Holt, 39 N. H. 557; Young v. Pate, 4 Yerg. 164; Butts v. Peacock, 23 Wis. 359; Kayser v. Heavenrich, 5 Kas. 324; Smith v. Hardy, 36 Wis. 422; Henderson v. Henderson, 55 Mo. 555; Tompkins v. Wheeler, 16 Pet. 118.
IV. The plaintiff in error, Wallach, also claims that the court below erred in this case in rendering judgment in favor of Wylie and against Wallach, because the attaching creditors in the other suits took personal judgments in their favor against Nathan Stetter without any order with reference to the attached property. There was no error in this. All of the attached property had been previously sold, and the proceeds thereof were then held subject to the further order of the court; and all this had been done by the express order, direction and permission of the court. Hence there was no necessity, at the time that the court rendered the several judgments in the attachment cases, to make any further orders for the disposition of the attached property; there was really nothing to dispose of, except the proceeds of the property. When this suit and, all the attachment suits are finally determined, the court may make a general order disposing of the proceeds of the attached property as shall be just and proper.
The judgment of the court below will be affirmed.
All the Justices concurring.! | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action for damages for the negligent killing of defendant in error’s heifer by a freight train on plaintiff in error’s road. The facts in the case are briefly these: Wilson (plaintiff below) was the owner of a heifer, which he turned out of his corral into the public highway on the morning of June 29, 1881. On the evening of that day, the heifer, in a drove of cattle numbering from one hundred to one hundred and fifty, came down the highway which crosses the railroad near Wilson’s house, and in attempting to cross the railroad was struck at the railroad crossing on the highway by the engine of a freight train. No one was in the immediate charge or control of the cattle. About twenty-five of the drove had succeeded in crossing the track when the heifer in controversy in trying to cross the track was struck. The track of the railroad at the crossing was such that parties on the. train could ordinarily have seen the cattle at a distance of three hundred yards. No whistle was blown at a point eighty rods from the crossing, or as the engine'approached the crossing. The train was running at its usual rate of speed, and that speed was not slackened until the heifer was struck. When the engine reached a point eighty rods from the crossing, the cattle had not reached the track. The engine threw the heifer from the highway into a pond, which the railroad company had made in building the track. The day after, Wilson found her in the pond, her head mangled and badly injured; she could not get up; the section hands of the railroad knocked her in the head and buried her. After the plaintiff below had closed his evidence,- the railroad company interposed and filed a demurrer thereto, upon the ground that no cause of action had been proved. This demurrer was overruled, and thereupon the company asked the court to instruct the jury to return a verdict in its behalf. This was also overruled. Complaint is now made of these rulings; and it is contended by counsel representing the company, that the owner of the heifer was guilty of such contributory negligence that he was not entitled to recover any damages; that in any event, unless the negligence of the defendant was gross, or the injury willful, the owner' should be precluded from recovering: this upon the theory that as the heifer was running at large upon the highway, and not under the control of the owner or any other person, the animal was wrongfully upon the public highway with the owner’s consent. The case of Railway Co. v. Rollins, 5 Kas. 167, is cited, and it is argued from the decision in that case, that although a person has a right to use the highway for the passage of his cows or other animals to and. from the pasture, yet he must use ordinary and proper care and diligence in driving them, having reference to the situation of the road and the manner in which it is used; and that it was an act of negligence to suffer the heifer to be at large in the highway unattended, where she might go upon the railroad crossing. ■ In the case referred to, it was decided that “ ordinarily when a person allows his cattle to run on another’s land without the owner’s consent, the owner of the land is not liable for any injuries the cattle receive while there, unless the injuries are caused through his gross- negligence. But when any person knowingly allows his cattle to run on the lands of the railroad company, in the vicinity of the railroad track, and thereby endangers the lives and property of passengers and others, he can recover only for injuries done to his cattle through the most gross and wanton negli •gence of the railroad company.” It was further stated, however, in the opinion, that the fence laws, stray laws, and laws regulating the running at large of stock, impliedly authorized cattle to run at large; at least, that by these acts cattle were authorized to run at large upon such public lands as 'the legislature had the right to dispose of in that way. It is not claimed that in the county where the animal was killed the board of county commissioners had made any order forbidding or regulating the running at large of animals, and therefore individuals in that county might permit their stock to run on the public highways of the county, and in doing -so they would be guilty of no .wrong. .Therefore the plaintiff below, in turning his heifer out of the corral into the highway, was not necessarily guilty of negligence. Every ■owner of cattle has the right to depasture his cattle or stock ■upon the grass growing along a highway, where he owns the ■soil over which the highway is laid; and under the statute ■of our state, impliedly authorizing cattle to' run at large, he may turn his cattle out of his corral into the. highway to ■graze unattended, without being charged with negligence or •carelessness. With this conclusion, we must answer that the trial court did not err in overruling the demurrer to the evidence, or in refusing to direct the jury to return a verdict for the railroad company. As the plaintiff below had the right to permit his cattle to run at large upon the public highway, the instruction of the court in regard to this matter was not misleading or materially erroneous, as the heifer ■did not run at large upon the private property of any individual, or of the railroad company. The only “uninclosed land in the neighborhood” mentioned in the testimony was ■the public highway. The court instructed the jury, “That if they believed from the evidence the animal in question was injured by the negligence and careless operation of the train of the railroad company, and that the animal would have necessarily died from such injuries, they would find for the plaintiff.” It further charged the jury, “That it was the duty of the railroad company to manage its train with that decree of care and caution which would be exercised by a person of ordinary care and prudence under the same circumstances, if all the property to be affected by his act was his own; and a less degree of care and caution than this would be negligence.” ' The court did not err in these instructions. If the employés of the railroad company could by the use of ordinary prudence see, or seeing the stock on the road could without danger stop the train and avoid striking the animal, they were required to do so, because the idea is not tolerable that an injury may be inflicted which by ordinary care and diligence may be avoidéd. This is the rule in the ordinary affairs of life, and is as applicable to corporations as to individuals. (Rld. Co. v. Caffman, 38 Ill. 425; Rld. Co. v. Lewis, 58 Ill. 49; Rld. Co. v. Phillippi, 20 Kas. 9; Rld. Co. v. Rice, 10 Kas. 426.) Although the drove of cattle could have been seen from the train approaching the crossing, no attempt was made by the sounding of the whistle to frighten the cattle and make them run away, and no attempt was made to slacken the speed of the train or prevent it from running into the drove. Therefore there was evidence to go before the jury as to the negligent and careless operation of the train by the railroad company, and also evidence that the heifer was thrown from ' the track through the result of such negligence. Counsel complain that the instructions should have been so modified as to have informed the jury that if the negligence of the owner of the animal directly contributed to the injury of the animal, he could not recover except gross negligence was shown on the part of the company. No such instruction was asked for, and the court of its own motion was not required under the evidence to give such an instruction. There was no error in refusing the instructions asked, and the charge of the court to the jury was not so misleading, under the evidence presented, as to prejudice the rights of the railroad company. (Kuhn v. Rld. Co., 42 Iowa, 420.)
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.:
Plaintiff in error (plaintiff below) brought her action in the.district court of Sumner county, claiming to recover of the defendant a month’s wages as school teacher, due upon a contract made between herself and defendant. A demurrer to the petition was sustained, and she brings the matter here for reexamination. The ground upon which the demurrer was sustained is, that the petition failed to show that she was a qualified teacher at the time of the execution of the contract; and this is the only question presented for our consideration. An examination of the record discloses this:
The petition alleges “that on or about-day of--,. 1880, the defendant issued to plaintiff a teachers’ certificate-of the- grade, and that the same remains of full force and effect, never having expired or been annulled.” It further alleges that on September 7, 1880, the parties entered into a written contract, a copy of which was annexed and made a part of the petition, by which the defendant em ployed the plaintiff to teach school for a period of nine months; that in pursuance of such contract she taught school for eight months and one week, and then defendant ordered the schools closed, and has paid her for only eight months’ teaching. The contract upon its face recites that it is made “by and between the board of education of the city of Wellington, state of Kansas, and Mary E. Hamrick, a legally qualified teacher.” It also contains a proviso, “That in case said teacher shall be legally dismissed from school, or shall have her certificate annulled by expiration or otherwise, then said teacher shall not be entitled to compensation from and after such dismissal and annulment.” Art. 11, chap. 2, Comp. Laws 1879, provides for public schools in cities of the second class, and § 4 of said article organizes a body corporate, by the name and style of “ The Board of Education of the City of--, of the State of Kansas.” By § 7, a board of education, consisting of two members from each ward, is to be elected. This board, by other sections, has full control over the city schools.' Section 16 provides that the board of education shall elect a school superintendent, in no case a member of its own body; that it shall also appoint two competent persons, who, with the superintendent as chairman, shall be styled “The Examining Committee of the Board of Education;” and also, that “No person, except one who holds a diploma from the state board of education, shall be elected by the board as teacher who cannot produce a certificate from the examining committee, signed by all or a majority of them.” Now the argument of defendant in error is, that this proviso is mandatory; that a contract between the board of education and one not qualified as required therein is absolutely void; that a petition on a contract with the board of education must therefore show affirmatively that the plaintiff was a person- qualified to enter into such contract; that the certificate of qualification does not come from the board of education, but from an independent board, styled, it is true, “The Examining Committee of the Board of Education,” but still an independent board, and one at least of whose members must be outside the board of education; that the allegation that the defendant issued to the plaintiff a teachers’ certificate does not imply that this examining committee issued such certificate; and that hence the plaintiff’s petition fails to show that the plaintiff was qualified to enter into such contract. Counsel further contend that even if this allegation were construed as showing possession of a proper certificate, yet the petition fails to show that such certificate was issued before the execution of the contract, no other date thereof being given than the year 1880, the contract having been executed September 7, 1880. This argument is not sound. ‘It fails to distinguish between the two senses in which the words “the board .of education” are used. They are used in one sense to designate that administrative body which has the general management and control of the schools, in the same sense that we speak of the common council or county commissioners. They are also used to describe the corporation itself, the school district, and here they are as comprehensive and descriptive as the term city or county, when applied to their respective organizations. Now this action is not brought against the board of education as a mere administrative or legislative body, but against the corporation itself. The administrative body is but the agent or representative of the corporation, and whether the examining committee be properly a part and parcel of the administrative body or not, yet it is equally with the administrative body, within its own sphere of duty, the agent and representative of the corporation. When the examining committee acts, it acts for the corporation; its acts are the acts of the corporation in the same sense that the acts of a city clerk or of a mayor within the sphere of his special duties are the acts of the city. It is a general rule that where an act is done by an agent for his principal, it is sufficient in a pleading to allege that the act was done directly by the principal. Thus a city warrant is signed by the mayor and at tested by the clerk; so with a license. In alleging the issue of either a warrant or a license, it is enough to state that the city issued it, and it is unnecessary to specify what officer or agent actually signed the instrument. Now the allegation in this petition is not that the administrative body (the board of education) issued the certificate, but that the corporation sued (the defendant) issued it; and this implies that it was issued by that agent or representative of the corporation (defendant) authorized to issue it; and as the statute provides the examining committee as the authority or agent to issue teachers’ certificates, it is equivalent to an allegation that such committee had issued to the plaintiff a certificate. The first portion of counsel’s argument therefore fails.
Neither can the latter portion, in respect to the matter of date, be sustained. It will be observed that there is no antagonism in the dates. The only claim is, that it is not affirmatively alleged that the certificate was issued before the date of the contract. It is frequently said that when dates named in a pleading do not appear to be antagonistic, they will be presumed to be harmonious. Whether that of itself would sustain this pleading, need not be determined, for the contract between the parties is made a part of the petition. This recites that the plaintiff is a legally qualified teacher, and also contains the provision that if her certificate be legally annulled, the contract between the parties shall cease. Putting these things together, the petition is obviously sufficient in the matter of date.- The party who signs a contract, prima fade admits the statements in that contract to be true. So that we have here a specific allegation in the petition, of the issue of a certificate during the year 1880, the signing by defendant of a contract dated September 7, 1880, which recites that the plaintiff is a competent teacher, and recognizes her possession of a proper certificate. This is a sufficient prima fade showing of her qualifications as teacher, and that she was a party with whom the defendant might lawfully contract. (Budd v. Kramer, 14 Kas. 101.)
The ruling of the district court sustaining the demurrer was erroneous, and the judgment must therefore be reversed, and the case remanded with instructions to overrule the demurrer.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
At the September term of the district court for 1881, judgment was rendered in this case upon the general verdict and findings of the jury in favor of plaintiff in error. Defendant in error demanded another trial, by notice on the journal, and thereupon the judgment was vacated and the action set for trial at the next term. At the January term following, trial was again had, and a verdict rendered in favor of the defendant. Upon this verdict and the special findings of the jury, judgment was rendered in his favor.
The first errror assigned is the vacation of the judgment „ rendered at the said September term of the court, and the continuation of the cause for a new trial to the subsequent term. It is insisted that the trial had at said September term was the second trial of the cause, and that the court had no power under the provisions of § 599 of the code to grant to the defendant a third trial. It appears from the record that the petition originally filed was defective as a petition for the recovery of real property, and although this defect was abundantly cured by the answer and reply filed in the action, the court upon the trial on said pleadings sustained an objection of the defendant to the introduction of any evidence, on the ground that the petition did not state facts sufficient to constitute a cause of action. While the plaintiff excepted to this ruling, he afterward waived all errors therein by obtaining leave and filing-a new or amended petition. To this petition the defendant filed a new and different answer than the one filed to the original petition. The trial court having treated the original petition and the pleadings thereunder as constituting no cause of action, and the plaintiff having accepted by his subsequent conduct the ruling of the court to be correct, and the parties thereafter having filed-a new petition and a new answer, the trial had thereon at the said September term of the court must be regarded as the first trial, and therefore defendant had the right to demand another trial,by notice on the journal, and the court did not err in vacating said judgment and in setting the action for trial at the following January term. The trial at the January term for 1882 may be considered under the circumstances of this case as another or second trial of the cause. It was clearly the second trial had upon the pleadings as they existed at that time, and all the parties, together with the. court, seem to have regarded that the original pleadings failed to set forth an action for the recovery of real property. While we do not intend to intimate that in actions for the recovery of real property the pleadings may not from time to time be amended, and while •it is also true that upon each amendment parties as a right are not entitled to two trials, yet as in this case the parties and the court acted upon the theory that no action was pending for the recovery of real property at the trial had upon the original pleadings, the trial at the September term of 1881 must be deemed the first trial in the action for the recovery of the property in controversy.
The plaintiff, at the conclusion of the evidence, asked the court to instruct the jury, “That the burden of proving the equitable title in the said Joseph Richardson devolved upon him, and failing to prove the same by a preponderance of the testimony, they must find for the plaintiff upon that point.” The court refused this instruction, but charged the jury, among other matters, “That the plaintiff held the record title to the land, and that the defendant claimed to be the equitable owner and entitled to the possession thereof, and also charged that the burden of proof was upon the plaintiff to show his right to the possession of the land, and that the defendant unlawfully kept him out of the possession thereof, and that it devolved upon the plaintiff to make out his case by a preponderance of the evidence.” But the court did not stop here. It very carefully called the attention of the jury to all of the evidence which was uncontradicted, and then very clearly, explicitly, and at length, announced what facts were necessary to be established in order to constitute the defendant an equitable owner of the premises, and even if an equitable owner, what facts were necessary to entitle him' to assert such ownership as against the plaintiff.
As the plaintiff instituted his action for the recovery of the premises upon his legal title, he was bound to prove in the first instance that he held the legal title, and also the value of the rents and profits for which he demanded judgment. Thereupon the defendant was bound to establish such facts as constituted him the equitable owner of the premises, and his right to assert the ownership and possession as against the plaintiff.
The special findings of the jury clearly show that the jury were convinced of the equitable ownership of the defendant, and as the charge of the court did not in any manner direct the jury that the plaintiff was bound to prove other than the allegations of his petition, the refusal of the specific instruction asked for was not material error, or prejudicial to his rights.
It is also urged that there was no evidence introduced to uphold the verdict and special findings of the jury. The evidence is very conflicting, and in many matters flatly contradictory, but a perusal of the record satisfies us that there was sufficient introduced on the part of the defendant to sustain, not only the verdict, but the special findings. It is likewise claimed upon the evidence, the defendant was not the owner of any equitable estate in the land. The recitation of some of the more important facts embraced in the special findings is conclusive to the contrary. Thils, the jury found that there was a verbal agreement entered into between Joseph T. Richardson, the son, and Joseph Richardson, the father, for the son to buy for his father the land in controversy; that the defendant Joseph Richardson paid toward the purchase-price all that was paid; that the father and son agreed the title of the land should be taken in the name of the father, the defendant Joseph Richardson; that it was a violation of the contract that the son, Joseph T-Richardson, took the title to himself; that the father did not assent to this action, and had no actual knowledge that his son was mortgaging and treating the land as his own; that there was an arrangement between the father and the son that the father was to have the south half of the quarter for himself; that at the time the plaintiff took his deed, the defendant was in the open, notorious and exclusive possession of the premises under a claim of ownership; that the plaintiff did not make any inquiry of the, defendant as to his possession of the land; that the plaintiff had actual notice of the equitable title of the defendant at the execution of the deed, and was not a purchaser of the land in good faith.
The other errors complained of, in view of the special findings of the jury, are unimportant and need not be noticed.
The judgment of the district court will be affirmed.
Valentine, J., concurring.
Brewer, J., not sitting. | [
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The opinion of the court was delivered by
Brewer, J.:
But a single question is presented in this case. Defendant in error, plaintiff below, was the owner of' a certain fenced field, through which the defendant company constructed its railway track. In the construction of said road no sufficient cattle-guards were placed where the road entered and left the field. In consequence of this omission,, the plaintiff suffered injuries in the loss of his pasture and from damages to his crops by straying cattle. After the defendant had constructed its railway track, it leased the same-to the St. Louis & San Francisco railway company for the term of forty years, and in said lease it was provided among-other things:
“That generally in respect of said railway, and the maintenance, management and operation thereof, said St. Louis & San Francisco railway company would during the term of said lease observe, perform and fulfill all duties and obligations which at the date of said lease rested upon, or might thereafter be imposed upon, said St. Louis, Wichita & Western railway company, under or by virtue of the laws of the state of Kansas, to the same extent and effect as said St. Louis,, Wichita & Western railway company would be compelled to observe, perform and fulfill such duties and obligations if said lease had not been made.”
After the execution of the lease, the' St. Louis & San Francisco railway company took possession of the road, and has ever since been operating it; and the injuries occurred during such possession and operation by the St. Louis & San Franciso railway company. Defendant claims that the lessee company is alone responsible. The district court held the defendant responsible, and in this we think its ruling was correct. Defendant contends that where the statute authorizes the lease by one railway company to another of its track, the lessor company is not responsible for injuries caused by the torts of the lessee company, and in support of that doctrine cites some authorities. To a certain extent this proposition is true: if the injury results from negligence in the handling of trains or in the omission of any statutory duty connected with the management of the road, matters in respect to which the lessor company could in the nature of things have no control, then the lessee company will alone be responsible; but when the injury results from the omission of some duty which the lessor itself owes to the public, in the first instance — something connected with the building of the road — then we think the company-assuming the franchise cannot divest itself of responsibility by leasing its track to some other company. Thus, for instance, in the case at bar the defendant was charged with the duty óf placing sufficient cattle-guards before it either used this track which it constructed, or permitted anyone else to use it; and it cannot divest itself of responsibility for injuries resulting from such omission by leasing its track to some other company. The injury resulted directly from its own wrong, and not from any mere negligence on the part of the St. Louis & San Francisco railroad company. It cannot relieve itself by contracting with some other party to discharge its statutory duty. The language of the statute, § 37, ch. 84, p. 785, Comp. Laws 1879, is:
“ When any railroad runs through any improved or fenced land, said railroad company shall make proper cattle-guards on such railroad when they enter and when they leave such improved or fenced land.”
And § 39 reads:
“Any railroad company neglecting or refusing to comply with the provisions of sections one and two of this act, shall be liable for all damages sustained by anyone by reason of such neglect or refusal; and in order for the injured party to recover all damages he has sustained, it shall only be necessary for him to prove such neglect or refusal.”
The defendant omitted this duty, and by the statute is responsible for all damages sustained by reason of such omission. The distinction as to the circumstances under which the lessor and the lessee company are severally responsible for negligence and omission of duty, is noticed in the case of Railroad Company v. Wood, 24 Kas. 619. It is unnecessary to consider what would be the rule of responsibility if it appeared that in the first instance the lessor had constructed sufficient cattle-guards, and during the possession of the lessee the same had become defective and insufficient, (Swords v. Edgar, 59 N. Y. 28; Ditchell v. Rld. Co., 67 N. Y. 425;) for here the findings show that ho sufficient cattle-guards had ■ever been made by either company.
This being the only question in the ca'se, and the ruling of the district court being correct, its judgment must be 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 Daniel Dodge against C. A. Bailey, for an alleged malicious prosecution, claiming $10,000 damages. The case was tried in the court below, and judgment was rendered therein in favor of the plaintiff and against the defendant, for $1 and costs; and the defendant, as plaintiff in error, now brings the case to this court, claiming that the judgment of the court below is erroneous. The plaintiff in error (defendant below) claims-that the petition of the plaintiff below does not state facts sufficient to constitute a cause of action; that the court below erred in permitting the plaintiff below to introduce certain-evidence, and in excluding certain other evidence, and in giving certain instructions to the jury, and in refusing to give certain other instructions; that the verdict of the jury was not sustained by sufficient evidence; and that the court below erred in-overruling the plaintiff’s motion for a new trial.
We shall consider th^se claims of error in their order.
I. It is claimed that the petition of the plaintiff in the court below is defective: (1) Because it does not state or allege that the defendant did not have reasonable and probable cause for commencing the supposed .malicious prosecution; (2) because it does not state or allege that the proceedings constituting the supposed malicious prosecution had terminated.
Now it is true that the petition does not allege in terms- any want of probable cause or any final termination of the supposed malicious prosecution; but inferentially, we are inclined to think that the petition alleges both of these things; that is, from the facts stated in the petition, we are inclined to think that it should be inferred that the defendant had no reasonable or probable cause for commencing the supposed malicious prosecution, and that such supposed malicious prosecution had finally terminated before the commencement of .this action. This question of the sufficiency or insufficiency of the petition was raised by the defendant’s objecting to the introduction of any evidence under it, on the ground that it does not state facts sufficient to constitute a cause of action; and such question was not raised in any other manner.
We are inclined to think that the petition, though somewhat defective and informal, must be held to be sufficient, under such circumstances. If a motion had been made to require it to be made more specific and definite, of course the petition should not have been held sufficient as against such a motion.
II. It is claimed that the court below erred in permitting the plaintiff to introduce evidence tending to show the financial condition and circumstances of the defendant. Upon this question the authorities would seem to be somewhat conflicting. The great weight of authority would seem, however, to permit such evidence to be introduced in actions for slander; and this action for malicious prosecution partakes to some extent of the nature of that action. In both actions the character of the plaintiff is involved. In both actions the plaintiff is required to show malice on the part of the defendant. And in both actions the plaintiff, if he recovers, may recover exemplary or punitive damages. In the case of Whitfield v. Westbrook, 40 Miss. 311, which was an action for malicious prosecution, it was held that evidence showing the pecuniary condition of the defendant might be introduced for the purpose of increasing or diminishing the damages. The case of Weaver v. Page, 6 Cal. 681, which was an action for malicious prosecution, comes very nearly holding the same doctrine. The case of Belknap v. Boston & Maine Railroad Co., 49 N. H. 358, which was an action of trespass for an assault upon the plaintiff, and for ejecting him from the defendant’s cars, would seem to hold (though it is not quite clear) that the pecuniary condition and circumstances of the defendant may be shown in evidence for the purpose of enhancing the damages. In the case, however, of Guengerech v. Smith, 34 Iowa, 348, which was an action for an assault and battery, and an action in which exemplary damages were properly allowable, it was held that evidence of the financial condition and ability of the defendant could not be introduced in evidence. The Iowa decision is probably correct, and perhaps also the Mississippi decision. The actions of libel, slander and malicious prosecution may form an exception to the general rule in this particular. We shall leave this question open, however, for the present.
It is also claimed that the court below erred in permitting certain evidence to. be introduced tending to impeach the testimony of one of the defendant’s witnesses. We are inclined to think, however, that the court below ruled correctly in this particular.
III. It is also claimed that the court below erred in ex- • eluding certain evidence; but we are inclined to think that the court below properly excluded the evidence.
IV. It is claimed also that the court below erred in refusing to give certain instructions to the jury. We are inclined to think that the court below did so err; but the defendant, according to many authorities, did not save the error by proper exceptions. The defendant asked the court to give thirteen separate instructions, some of which are good law and ought to have been given, while others were properly refused. The exception to the refusal of the court to give these thirteen instructions seems to be general. It is stated in the following words, to wit: “The above and foregoing are all the instructions asked for by the defendant, each and all of which were refused by'the court; and to such ruling and refusal said defendant duly excepted.”
V. The plaintiff in error (defendant below) assigns for error, that the court below erred in instructing the jury; but he does not seem to insist upon this assignment of error in his brief, and therefore we shall pass to the next question.
VI. The plaintiff in error (defendant below) claims that the verdict of the jury is against the law and the evidence, and therefore that the court below erred for that reason-as well as for others in overruling his motion' for a new trial. He claims that the verdict is against the law and the evidence, for the reason that no malice on the part of the defendant was shown; that it was not shown that the supposed malicious prosecution had finally terminated; and that it was-not shown that the defendant did not have reasonable and probable cause for the commencement of the supposed malicious prosecution.
Now as there was some evidence introduced tending to show malice and tending to show a termination of the supposed malicious prosecution, we shall pass over these two questions to-the third, for upon these two questions we suppose the verdict of the jury is final. The other question — that is, whether any want of probable cause for the supposed malicious prosecution-was shown — is the main question in the case; and yet the action seems to have been instituted by the plaintiff below, and-tried by him all the way through, as though no such question was involved in the case at all. His petition did not allege any want of probable cause except inferentially, and, as we think, there was not a particle of evidence introduced tending to show any such Want of probable cause.
The facts of the case, as they appear from the pleadings and the evidence, are substantially as follows: In 1879, School District No. 56, of Osage county, Kansas, owned certain real and personal property, among which was the following: One cedar water bucket, one school dictionary, one lamp, and four window curtains. The dictionary was Webster’s .unabridged dictionary. The window curtains were also called “window shades” and “window blinds,” but the majority of the witnesses called them “window curfains.” About September 10, 1879, or prior thereto, this property was stolen from the school house of said school district. It is admitted by all the parties that the property was actually stolen, and there was abundant evidence tending to show that it was stolen. The property seems to have been stolen during the vacation of the school, in the summer or early in the fall of 1879. During all this time, and up to the trial of this case, the plaintiff, C. A. Bailey, was the director of the district; the defendant, Daniel Dodge, was the treasurer thereof; and J. C. Culbertson was the clerk; and the three together constituted the school board of that district. In October, 1879, a school was commenced in the school house, which school was continued till sometime in February, 1880, and during all that time the matter of the stolen property was talked about by the people of the district, including the school children; but the property was not returned to the school house, nor found, nor heard of, unless it was found or heard of at the house of the plaintiff in this action. During, the latter part of the winter of 1880 several persons came to the defendant and told him that they had seen the stolen property at the house of the plaintiff, and urged the defendant, as one of the officers of the district, to take steps to recover the possession of* the property. The defendant himself believed that he had seen the cedar water bucket at the plaintiff’s house. The defendant and Culbertson, who was clerk of the district, had frequent conversations with reference to the matter, and Culbertson told the defendant that many persons residing in the district had also come to him and stated that they had seen the property at the house of the plaintiff, and urged him also, as a member of the school board, to take steps for the recovery of the property. One of the conversations, at least, was at a regular meeting of the school board. The plaintiff, however, was not present at such meeting. . It was agreed by the defendant and Culbertson that the defendant should consult the county attorney of Osage county, and follow his advice. The defendant accordingly went to the county seat to consult the county attorney, and there found the deputy county attorney, who was an attorney at law, and stated the facts to him; and the deputy county attorney told him that he “ had better procure a search warrant and search the plaintiff’s house; and that he had better not say anything about it until he got there with the search warrant, because if he knew about it beforehand, the property could easily be destroyed or put out of the way.” Afterward- the defendant went to S. J. "Watson, justice of the peace of Fairfax township, in said county, and made the following affidavit, to wit:
“State oe Kansas, Osage County.— C. A. Bailey, being duly sworn, says that Daniel Dodge, on or before September 10th, 1879, in the county of Osage and state of Kansas, did then and there feloniously take, steal and carry away one cedar water bucket, one school dictionary, one lamp and four window curtains, value fifteen dollars, property of School District No. 56. Said property is concealed in Daniel Dodge’s house. C. A. Bailey.
“Subscribed and sworn to before me, this 25 th day of March, 1880. S. J. "Watson, J. P.”
The defendant then filed the affidavit with the justice of the peace, and the justice issued the following warrant, to wit:
“The State op Kansas, Osage County, ss. — The state of Kansas to B. G. Wilson, constable of Fairfax township, in said county: Whereas, it appearing that there are reasonable grounds for suspecting that one cedar bucket, one school dictionary, one lamp and four window curtains, the property of School District No. 56, alleged to have been feloniously taken, stolen and carried away by Daniel Dodge, are concealed in his house; you are therefore commanded forthwith to search said house, and bring said property before me, at my office, in said township; and then and there return this writ.
“ Witness my hand, at my office, in Fairfax township, in said county, this 25th day of March, 1880.
S. J. Watson,
A Justice of the Peace.”
On March 29, 1880, the constable, B. G. Wilson, went to the plaintiff’s house with the warrant, and searched the same, taking with him the defendant and Culbertson, to identify the property, if the property could be found. They searched the* house, but did not find any of the property. Afterward, and on August 16, 1880, the plaintiff-commenced this action, claiming $10,000 damages as aforesaid.
The defendant answered, denying all the allegations of the plaintiff’s petition, except such as he admitted in his answer, and setting forth in substance, but briefly, the facts above stated, in justification of his conduct. On April 15, 1881, the case was tried before the court and a jury, and the above facts with others were shown to the court and jury. The plaintiff testified that he had never had any of the stolen property in his possession, except the dictionary ; and that he had ordered one of his boys to take that to the school house, at the time that the school was commenced in October, 1879; and the boy testified that he had so taken it, and that he had laid it on the teacher’s desk. The teacher however testified with reference to this matter as follows: “There was no dictionary in the school house of any kind. Mr. Dodge’s boy never brought any such book to the school house. He brought a few old books, but no dictionary.” And no one, except the plaintiff’s two boys, ever saw the dictionary at the school house after it was first "missing; and one witness,.at least, testifies that he saw the dictionary at the plaintiff’s house after the search warrant had been issued. The plaintiff owned a cedar water bucket, similar to the one belonging to the school district. He also owned window curtains similar to the ones that belonged to the school district; and also owned lamps; but according to the evidence, there were some differences between the several articles of the plaintiff’s property and those belonging to the school district. The plaintiff and his two boys testified that they owned but one cedar water bucket; and there were several witnesses who testified that they had seen at one time, two cedar water buckets at the plaintiff’s house, one of which they believed belonged to the school district. The plaintiff’s window curtains seem to have been blue, or a bluish green, or blue on one side and green on the other; while the window curtains belonging to the school •district were green. All the window curtains seem to have had some accidental marks or spots upon them; but those upon the plaintiff’s window curtains were produced by plaster .and whitewash, while those upon the window curtains belonging to the school district were produced by candles and lamps. The window curtains belonging to the school district had spots of grease upon them, and one or two of them were ■slightly scorched. It would seem from these differences between the two sets of window curtains, that one set might ■easily be distinguished from the other; and there were several witnesses who testified on the trial that they had seen the window curtains belonging to the school district at the plaintiff’s house.
All this had been communicated to the defendant before he commenced the supposed criminal prosecution, and, as before stated, the defendant himself believed that he had seen the water bucket belonging to the school district, at the plaintiff’s house. The defendant unquestionably believed at the time he made his affidavit for the search warrant, just what he stated in the affidavit; and on the trial of this case he testified among other things, as follows: “I thought that the facts set forth in the affidavit were necessary to procure the search warrant. I believed the facts therein stated to be true at the time, and I believe so yet.” Undoubtedly the defendant believed so; and he had very good reasons for his belief; and there was nothing introduced, in the evidence to show that the defendant should have entertained any other belief. The stolen property has never yet been found.
Upon these facts, we think the defendant had probable •cause for commencing the prosecution that he did. If the plaintiff had shown that the property was not stolen, or that it was stolen by someone else than by the plaintiff, and that the defendant at the time he procured the search warrant had known these facts; or if the plaintiff had shown that the defendant knew that the property was somewhere else than at the plaintiff’s' house, at the time that the defendant procured the search warrant; or if the plaintiff had shown that he took the property, as one of the school board, for the purpose of taking care of it,, and that he did not conceal it, •nor claim that it belonged to him, and that the defendant had knowledge of these facts, then the plaintiff would have shown that the defendant did not have any reasonable or probable cause for commencing the alleged malicious prosecution. But the plaintiff did not show any of these facts, nor any other facts that would tend to show that the defendant did not have probable cause for commencing the alleged malicious prosecution; and therefore we think that the plaintiff’s action for malicious prosecution'cannot be maintained. But it is claimed by the plaintiff that if the action cannot be maintained as an action for malicious prosecution, then that it may be maintained as an action for libel or slander. Now this cannot be true, for whatever is said or ■done within reasonable limits, in a judicial proceeding, is so far privileged that it cannot constitute the basis for any action; never libel or slander and never malicious prosecution, unless such judicial proceeding was instituted maliciously and without probable cause. ( Vausse v. Lee, 1 Hill [S. C. L.] 197; Sanders v. Rollinson, 2 Strobh. [S. C. L.] 447; Townshend on Slander and Libel, §§ 220, 221, 223, 429, and notes, and cases there cited; Folkard’s Starkie on Slander and Libel, § 200.)
It is for the interest of public justice that every man may give information freely in a judicial proceeding, without fear of the ultimate consequences. This is necessary for the successful suppression of vice and crime; and it is often necessary for the purpose of protecting rights and obtaining justice in civil actions. It is claimed, however, by the plaintiff in this case, that it was not necessary that the defendant should state in his affidavit for the search warrant that the plaintiff stole the missing property. Now this is true; it was not absolutely necessary that the defendant should have stated that the plaintiff, or that anyone else, stole the property. All that was really necessary in order to obtain the search warrant was, that the defendant should state upon oath that the property had been stolen or embezzled, and it was not necessary that he should state who stole or embezzled the same. We understand that the form of the affidavit in the present case was taken from Spaulding’s Treatise for J ustices. Swan’s Treatise for J usticesalso says that if the person who conceals the stolen property is also believed to be the thief, then it may be stated in the affidavit that the property was feloniously taken, stolen and carried away by him. Now while it is not necessary to state-in an affidavit for a search warrant the name of the person whom it is believed stole the goods, yet such a statement is-not at all improper, and it would be very natural for the person making the affidavit, if he believed he knew who stole-the goods, to make such a statement; and it would also be very natural for a justice of the peace having either Spaulding’s or Swan’s Treatise before him, to copy the form of the-affidavit found in such treatise, and to state who stole the goods, provided of course that the affiant had a sufficient belief with reference to that fact to swear to the same. Of course, if a person in a judicial proceeding should state something: wholly outside of the case, and independent of the case, it would not be privileged because of its being stated in a judicial proceeding. If the statement were libelous or slanderous-if not made in a judicial proceeding, it would also be libelous or slanderous in such a case although made in a judicial proceeding. Judicial proceedings do not protect statements made therein, except such statements as may fairly or reasonably be made in such proceedings. But still we think that the interests of justice require that courts should construe all things said injudicial proceedings liberally, so as to protect the persons making the statements from unreasonable prosecutions for slander or libel; and this is particularly true as to-persons instituting the judicial proceedings; for if such proceedings are malicious and without probable cause, then the-party injured has an ample remedy by an action for the malicious prosecution.
' It is not claimed in this case that the missing goods were embezzled; but all the parties agree that they were stolen. It is thought, however, by the defendant’s counsel, that the verdict of the jury was rendered upon the theory that if the plaintiff had the goods at all, that he did not steal them, but that he embezzled them; and therefore that the affidavit of the defendant for the search warrant was not true in stating that the plaintiff stole them, and possibly that he did not have reasonable and probable grounds for believing it was true.* Now we think that the defendant had reasonable and probable grounds for believing that the affidavit was literally true; and we do not think that a man unlearned in the law, as the defendant in this case was, should be required to discriminate nicely and critically between the offenses of larceny and embezzlement. The two offenses are kindred in their nature. They involve about equal moral turpitude, and the punishment is the same., (Comp. Laws of 1879, p. 338, § 88.) But, as before stated, the question of embezzlement is not in this case.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
It is urged on the part of plaintiff in error (defendant below) that Morten, defendant in error (plaintiff below), could not maintain an action for the recovery of the possession of the real estate in controversy. It is conceded that on July 15,-1876, one J. M. Emmert and wife conveyed • the premises to Morten by warranty deed; that Emmert’s title was perfect from the government, as shown by the chain of title introduced, except it is alleged that as Emmert, on the 17th day of January, 1874, executed a bond for a deed of this land to one Daily; that the ownership and equitable title thereof passed at that time from Emmert to Daily, and as the bond was duly recorded in the office of the register of deeds of Bourbon county, that Morten took his conveyance with full notice of the record; that he is not entitled to possession, and at most can only be considered an equitable mortgagee, merely holding the legal title as a security for the payment of the balance of the purchase-money. Courtney v. Woodworth, 9 Kas. 443; Rld. Co. v. Wilder, 17 Kas. 240, and Kuhn v. Freeman, 15 Kas. 423, are cited to sustain this position. In the first place, plaintiff in error makes no claim to possession or title under the bond dated January 17,1874, nor is he the grantee of said Daily therein named, nor does he hold or claim title, interest or possession from Daily. His title, if he has one, is superior to Morten’s and Daily’s, and is based upon an alleged tax deed issued to one James Newbury on the 13th day of February, 1880.
Second: In all the cases above referred to, the vendors executing the title bond put the purchasers into possession of the premises. In this case it is not shown that Daily was ever put in possession of the premises, or ever had any actual possession thereof. The bond provided that ,$400^was to be paid on or before the 1st day of January, 1875, according to a promissory note executed by Daily to Emmert, and further provided that Emmert, within a reasonable time after the note was paid, should execute to Daily a good and sufficient deed for the premises, and thereon the bond was to be void. The deed was to be executed, however, upon the condition that the balance of the purchase-money was paid at the time • it was due. So, as Morten had the legal title and was entitled thereby to the possession of the premises until the contrary appeared, unless plaintiff in error had a valid tax deed, the first objection of counsel is fruitless.
The other question concerns the validity of the tax deed. This was filed for record on February 13, 1880, a little over one year before this action was brought. • The trial court adjudged the tax deed invalid for several reasons, among others, because there were excessive sums intentionally included within the amount for which the land was sold at the tax sale. (Quigley v. Comm’rs of Sumner Co., 24 Kas. 293; Genthner v. Lewis, 24 Kas. 309.) It appears from the evidence that the sum of $8.35 shown in the tax-sale book as being the amount necessary to redeem, included twenty-live cents for publishing notice of the sale of the land for taxes, and also included ten cents for selling the land. The charge of twenty-five cents for notice of sale is attempted to be justified by plaintiff in error, upon the ground that the land was a tract and not a town lot. (Comp. Laws 1879, ch. 39, p. 445, § 17.) The evidence is otherwise. On August 11, 1873, Joseph Williams with his wife Kate, then the owners of the premises and other land, duly platted forty acres of the northeast quarter of section 31, township 25, range 25, adjacent to the city of Fort Scott, into blocks, calling the same “Williamstown.” The plat thereof was by them duly acknowledged and recorded as required by law. The plat set out the parcels of ground reserved for streets and other public purposes, and also the blocks intended for sale. The blocks were all numbered, and the width of the streets was given. The blocks were of different sizes, but the block in controversy contained five acres. As the town was laid out under the provisions and terms of the statute concerning the plats of cities and towns, and as the map or plat thereof was duly acknowledged and filed for record, the block was within the statute a lot, although it embraced five acres of land, and the land in controversy should have been designated in the notice of sale for taxes as a town lot. (Comp. Laws 1879, ch. 78, pp. 588-9.) Before the laying-out and the platting of the said forty acres as the town of Williamstown, that tract would have been assessed as a single tract of land; after the plat of the town was of record, it should have been listed and valued as lots and blocks. (Bruce v. McBee, 23 Kas. 379.) Before being platted, if any notice of the sale thereof for taxes had been required, the whole tract could have been embraced in a single notice of sale, and for publishing the notice the printer would have been entitled ’to the fee of twenty-five cents. After being platted for each lot or block, upon which the taxes were delinquent, a separate notice of sale was required by the statute, and for publishing the notice for each lot or block the printer would have been entitled to ten cents only. In assessing the lot or block for taxes, and in advertising the same for sale, there was no need of having it described as. being in section 31, township 25, and range 25. The county •officials cannot change a town lot into a tract of land by merely adding to the proper description thereof according to the plat filed the section, town and range in which it is located, and if they describe it at such unnecessary length, the fee for publishing the notice of sale thereof for taxes is not thereby increased above the statutory fee for publishing the notice of the sale of a town lot. The land is described in the tax deed as “block No. 2, in the town of Williamstown, in section 31, township 25, range 25 — five acres, situated in the county of Bourbon and state of Kansas.” If the map or plat of Williamstown is to be disregarded, then there would not be a sufficient description of the property within the deed; but as the town of Williamstown has-been platted and recorded, the description as “block No. 2, in the town of Williamstown, county of 'Bourbon and state of Kansas,” renders the tax deed definite and complete. Counsel for plaintiff in error claim that the fee charged for selling contemplated the fee of the treasurer for issuing a tax-sale certificate. If the evidence of the witness upon this matter was incorrect, other evidence should have been produced to establish that the fee of ten cents was included for making the certificate to the purchaser.
It is. finally claimed that if the fee was actually charged for selling, that the law authorized the collection of such a fee. (Sec. 109 of the tax law.) The legislature has not specified any amount as a fee for the mere selling of property at tax sales, and therefore we must hold that such a fee is without statutory warrant, and unlawful. “The costs of advertising and the fees for selling ” must be interpreted to refer to those fees only specially named in the' statute. The other alleged defects of the tax deed need not be noticed.
The judgment of the court below will be affirmed.
All the Justices concurring.. | [
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The opinion of the court was delivered by
Horton, C. J.:
On February 2, 1881, the plaintiff in error commenced an action against the defendants in error before a justice of the peace of the city of Topeka, which was tried on the 15th day of February, 1881, and in which judgment was rendered against the plaintiff and for the defendants for costs of suit. On the 16th day of February, 1881, plaintiff appealed the action to the district court of Shawnee county. On the 28th day of March, 1881, plaintiff in error commenced another action before a justice of the peace of the ■city of Topeka against the defendants in error, and this cause was tried on the 4th day of April, 1881, and judgment rendered in favor of the plaintiff for $87.50. On the 5th day of April following, the defendants appealed from that judgment to the district court of Shawnee county. Afterward, at the January term of the district court for 1882, and on the 4th day of January, the two cases were ordered consolidated and to be tried together. The plaintiff obtained leave to file a substituted petition covering both causes of action, and on said day filed such petition. The petition alleged that $300 was due plaintiff on atícount of money due and received by the defendants during the years 1880 and 1881, for the use and benefit of the plaintiff. It further alleged that the plaintiff and defendants entered into a contract in 1880, whereby plaintiff was to turn over the possession of certain mortgaged property, described íd a chattel mortgage executed by her to the defendants upon the conditions that the defendants were to sell the property at private sale, and out of the proceeds take $500 in full satisfaction of the mortgage debt, and all amounts received from the sale of the property above the said $500 were to be'turned over to the plaintiff; that the defendants received $1,200 upon the sale of the mortgaged property, and failed and refused to account to the plaintiff for any part thereof, and that there was due from the defendants to plaintiff the sum of $600. On the 19th day of January, 1882, the defendants filed their answer, alleging first a general denial, and also setting forth that in 1877 the plaintiff executed a chattel mortgage on personal property to the defendants, as the Citizens’ bank, to secure a large sum of borrowed money; that after the conditions of the mortgage were broken, the defendants demanded possession of the property, which .was refused, and thereon they instituted an action in the district court to recover the possession of the property, but were for a long time unable to find the property, the plaintiff having run off and concealed it, so as to defeat them in their efforts to recover the same; that they were put to great expense in endeavoring to find the property;. that they finally obtained a judgment against the plaintiff for the possession of the property, and afterward they entered into a contract with her, that she should surrender the possession of, the property; that defendants should dispose of the same, and after paying all costs of said action and all other expenses in seeking for and trying to get possession of the property, and the expense of keeping the same out of the proceeds thereof, and $500 on the judgment, then the- plaintiff was to have the residue, if any. Defendants averred' that they had realized nothing from the personal property over and above the costs, expense, and their judgment. They further alleged that the plaintiff' was indebted to them in the sum of $795.49, on account of notes and accounts set forth and contained in an exhibit “A” attached to and made a part of the answer. In exhibit “A” were included: “Note, E. A. Reynolds, $51.02; interest, $27.98. Note, E. A. Reynolds, $96.88; interest, $38.26.” Copies of the notes were not filed as part of the exhibits, or attached to the answer. Upon the trial, defendants offered in evidence these two notes. The first was for $51.02, dated March 21, 1877, payable ninety days after date, to the order of D. T. Haines, with interest at twelve per cent, per annum from maturity until paid, executed by E. A. Reynolds and indorsed by the payee. The second note was for $96.88, dated October 2, 1878, payable sixty days after date to the order of H. W. Baker & Co., with interest at twelve per. cent, per annum from date, executed by E. A. Eeynolds and also indorsed by the payees. The plaintiff objected to the introduction of the notes as evidence, upon the ground that there was no pleading authorizing their introduction; and second, that there was no evidence when they were assigned to the defendants. These 'objections were overruled, and the notes read to the jury. This puling was not erroneous. If the answer was not sufficiently specific and definite, the plaintiff by motion could have attacked it, and required copies of the notes to have been filed with the answer, as provided by the statute. Again, where there is no evidence as to the date of the indorsement of a note, the presumption of law is that it was made before maturity, and that the holder is a bona fide holder for value. Therefore the mere possession of the notes produced in evidence by the defendants, imported prima facie that they acquired them for full value in the usual course of business before maturity, and without notice of any circumstance impeaching their validity, and that they were the owners thereof and entitled to recover the full amount against the plaintiff. (Rahm v. King Bridge Manufactory, 16 Kas. 530.) Upon cross-examination an attempt was made by plaintiff to compel the defendants to answer what they paid for the notes — the consideration' for the assignments. Objections were made by the defendants, and sustained. If the defendants were not the bona fide owners of the. notes, proof thereof might have been given, by the plaintiff, but without proof she cannot avail herself of this fact, and as she did not call the defendants as her own witnesses, the court committed no error in refusing to permit the consideration of the transfer of the notes, and the assignments thereof, to be investigated upon cross-examination.
After the conclusion of the evidence, the-plaintiff requested the court to instruct the jury as follows:
“1. If you find from the evidence in this case that the notes read in evidence by the defendants were assigned to them after the commencement of these actions before the justice oUthe peace, then they should not be- allowed by you.
“2. Unless the defendants were the owners of the notes read in evidence in this case, at or before the commencement of the actions before the justice of the peace, you should not allow them.”
Upon the trial, one of the defendants testified that they did not own the notes at the time of the commencement of the actions before the justice, but got them after the actions were commenced. Upon this evidence, the instructions prayed for should have been given, as the rights of parties are fixed at the time of the commencement of the action, and cannot be changed by subsequently acquired indebtedness. It is one of the requisites of a set-off, that it should be due and owing to the defendant at the time the original action was brought, and a claim or a note which is purchased by the defendant upon the plaintiff after the original suit was commenced, cannot ordinarily be pleaded as a set-off.
It is urged by the defendants that after the petition was filed in the district court, the case was an original one in that court. As the cases were brought upon appeal, and as the substituted petition covered the causes of action commenced before the justice, although the plaintiff was entitled to have his cases tried de novo in the district court, the action must be determined by us as any other action appealed to the district court, where the appellate court in furtherance of justice allows amended pleadings to be made, or new pleadings to be filed. Had a supplemental petition or a supplemental answer been filed, a different question would be presented for our consideration.
It is further -urged, that it is apparent that plaintiff was not entitled to a judgment, because of the inherent illegality and injustice of her claim, and because plaintiff’s cause of action had not accrued when the actions were brought before the justice. These points are not well taken. The note secured by chattel mortgage was only $617,75. No proof was offered as to interest. We cannot assume it bore twelve per cent.; it may have been seven per cent. only. If running at seven per cent., as the property realized $1,034 at sale, a bal anee was still due to plaintiff,, unless the costs and expenses consumed the total amount. The last piece of property disposed of under the chattel mortgage was sold on the 22d day of March, 1881. The second action was not commenced before the justice until the 28th day of March of that year. Again, the statute in relation to mortgages of personal property provides that the mortgagee or his assignee may proceed to sell the mortgaged property after condition broken, after having first given notice of the time and place of sale by a written or printed handbill posted up in at least four public places in the township or city in which the property is to be sold, at least ten days previous to the sale. Notwithstanding this provision of the statute, the mortgagee, by express stipulation of the mortgagor, even subsequent to the execution of the chattel mortgage, may Sell the property without giving public notice of the sale, and an agreement between the parties to a mortgage to sell at private sale would be valid, even if the consideration of the agreement be that the mortgagee, on waiver of public notice, would accept a less sum than that secured. (Harris v. Lynn, 25 Kas. 281; Denny v. Faulkner, 22 Kas. 89.)
Some objection is made to the petition in error, but as no motion was filed to render the petition more definite and certain, or to strike out the case-made, we have deemed it our duty to pass upon the questions presented.
The judgment of the district court will be reversed for error in refusing the instructions prayed for by plaintiff, and the cause will be remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal arising from court approval of actions taken by a conservator during the period of his conservatee’s incapacity.
David R. Hatfield, the conservatee, was involved in a motorcycle accident on August 31, 1980, in which he sustained severe head injuries and was rendered comatose. His family relationships at the time of the accident give rise to the issues asserted by the appellant.
David and his wife Susan Hatfield (appellant) had been divorced on March 3, 1980. The divorce decree and settlement agreements incorporated therein provided $500 per month child support for the children of the marriage, Traci and Shannon. Monthly alimony payments of $500 were provided for one year with a stipulation for prior termination should Susan remarry or die. No mention was made of life insurance policies on David’s life.
After the motorcycle accident, when it became apparent David could no longer handle his own affairs, his brother Larry Hatfield petitioned the court for conservatorship pursuant to K.S.A. 59-3009. The court entered an order appointing Larry conservator on October 3, 1980. David died on November 15, 1980. Shortly thereafter, the conservator filed a petition for termination of conservatorship. He included a final accounting and requested approval of his actions changing the named beneficiary on David Hatfield’s insurance policies from the former spouse to the natural children and creating a trust in favor of the children. Susan Hatfield opposed approval of the conservator’s actions in changing the named beneficiary and requested payment of child support for the four months following her ex-husband’s death.
The court approved the actions of the conservator and awarded $4,000 for “back and future child support” due December 1, 1980, through March 1, 1981. Memoranda submitted to the trial court address the issue of alimony for the same time span. Despite the court’s designation of the award as “back and future child support,” the sum covers both alimony and child support for a four-month period of time after David R. Hatfield’s death.
Susan Hatfield appeals that portion of the judgment approving the conservator’s actions in changing the insurance beneficiaries and establishing the trust. No cross-appeal is taken from the award of alimony and child support. See In re Estate of Sweeney, 210 Kan. 216, 500 P.2d 56 (1972); Kendall v. Kendall, 218 Kan. 713, 545 P.2d 346 (1976).
Before reaching the merits of the appeal, it is necessary to determine whether Susan Hatfield waived her right to appeal. The journal entry filed April 3, 1981, contains the following paragraph:
“Finally, it is stipulated by and between the parties, and approved by the Court, that in compromise of all issues arising between the parties that each party agrees, in exchange for the promise of the other, that neither will appeal any ruling, order, or this Journal Entry of Judgment, and this matter should be and the same is hereby final, closed, and terminated.”
Susan Hatfield asserts in her brief that the attorney who signed the journal entry was without authority to waive her right to appeal. He was an attorney in the same firm of attorneys and assisting her attorney of record and assumed the provision promising no appeal had been previously agreed.
Although the general rule is that a client is bound by the actions of counsel acting on his or her behalf, this court has recognized a limitation on counsel’s authority “to control over procedural matters incident to litigation” with the client maintaining control over the subject matter of the litigation. Reimer v. Davis, 224 Kan. 225, 229, 580 P.2d 81 (1978). See also Miller v. Miller, 6 Kan. App. 2d 193, 194, 627 P.2d 365 (1981); Miotk v. Rudy, 4 Kan. App. 2d 296, 299, 605 P.2d 587, rev. denied 227 Kan. 927 (1980).
This action involves a waiver of the right to appeal as part of the alleged compromise of the suit. The attorney’s authority to waive the client’s rights is stated in much the same language as his authority to compromise and settle.
“An attorney is impliedly authorized to enter into waivers concerning procedural and remedial matters, but in the absence of express authority, an attorney generally has no power, by stipulation, agreement, or otherwise, to waive or surrender the substantial legal rights of his client.” 7A C.J.S., Attorney & Client § 207.
Without belaboring a procedural-substantive distinction, it clearly appears the right to appeal is a substantial legal right which cannot be waived without the client’s consent. We recognize circumstances could operate to bind a client to his attorney’s waiver, 7A C.J.S., Attorney & Client § 207, but no such exceptional circumstances appear in the case before us.
Affidavits executed by Susan Hatfield and her attorney subsequent to timely filing of the notice of appeal indicate Susan Hatfield never consented to waiver of her right to appeal. The appellee conservator argues that, even if consent to waiver were required and even if such consent were not given, Susan Hatfield acquiesced in the judgment and foreclosed appeal. 7A C.J.S., Attorney & Client § 188. The conservator points first to Susan’s retention of the same counsel on appeal as indicative of acquiescence in the actions in the court below. The conservator also alleges acceptance of benefits in the form of $2,000 for alimony and payment of the conservator’s attorney’s fees constitute acquiescence in the judgment.
Under the circumstances of this case wherein an assistant attorney allegedly acted without authority in the trial court and the same firm is retained on appeal, we find no indication of acquiescence in the judgment on that ground. Contra Overlander v. Overlander, 129 Kan. 709, 712, 284 Pac. 614 (1930). Greater weight must be given, however, to acceptance of the money for her benefit and payment of the conservator’s attorney’s fees. This court has often expressed reluctance to deny review but has at the same time followed the rule that anything which “savors of acquiescence in a judgment cuts off the right of appellate review thereof.” In re Estate of Hill, 179 Kan. 536, 538, 297 P.2d 151 (1956). See also Haberer v. Newman, 219 Kan. 562, 566, 549 P.2d 975 (1976); Seaman Dist. Teachers’ Ass’n v. Board of Education, 217 Kan. 233, 247, 535 P.2d 889 (1975); Curry v. Perney, 194 Kan. 722, 724, 402 P.2d 316 (1965); Peters v. Peters, 175 Kan. 422, 424, 263 P.2d 1019 (1953). A refinement of that rule was developed in Garden City Country Club v. Commercial Turf Irrig., Inc., 230 Kan. 272, 634 P.2d 1067 (1981). Prior to that opinion, requesting a remittitur had been found to constitute acquiescence and preclude appeal. See, e.g., Anstaett v. Christesen, 192 Kan. 572, 389 P.2d 773 (1964); Hawkins v. Wilson, 174 Kan. 602, 257 P.2d 1110 (1953) (both overruled to the extent they are contrary to or inconsistent with Garden City Country Club v. Commercial Turf Irrig., Inc.). In Garden City Country Club, the court distinguished remittiturs from other actions constituting acquiescence and concluded “where a verdict is reduced and judgment entered for the residue on motion of the party against whom the verdict was entered, said party has neither consented to nor acquiesced in the new judgment, and is not barred from appeal.” 230 Kan. at 275. The action of a party in requesting or accepting reduction of the amount or judgment is distinguishable, however, from unqualified acceptance of the terms of a judgment as in this case. The plaintiff accepted the check, presumably with knowledge of the journal entry, and paid the required fees. That she subsequently filed a timely notice of appeal does not nullify her acceptance of the judgment. We find that by acquiescing in the judgment, plaintiff forfeited any right to appeal.
Under the foregoing facts and circumstances the appeal is dismissed. | [
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The opinion of the court was delivered by
Miller, J.:
This is an appeal by the plaintiffs, Woodrow N. Anderson, Norma J. Anderson, Robert C. Owen, Marjorie G. Owen, and Bob Owen & Company, Inc., from summary judgment entered against them and in favor of the defendant, Overland Park Credit Union, by the Johnson District Court. Plaintiffs commenced this action for a declaratory judgment, claiming that an option to purchase contained within defendant’s lease is legally unenforceable, and that defendant cannot legally exercise the option. Both plaintiffs and defendant moved for summary judgment. The trial court held that the option was valid, and entered summary judgment for the Credit Union. Plaintiffs appeal.
The facts are not disputed. The Credit Union, by warranty deed, conveyed an unimproved tract of land in Overland Park to William L. Marley and Joyce Ann Marley on October 6, 1967. On that same day, the Marleys entered into a twelve-year lease agreement, whereby they leased to the Credit Union 720 square feet of floor space in a commercial building to be built by them on the described land. The lease commenced on the date the building was completed, about February 1, 1968, and the initial term ran until January 31, 1980. The lease provided in substance that as rent the Credit Union would, concurrently with the execution of the lease, convey the described tract of land to the Marleys by warranty deed, and would thereafter pay certain annual cash rent based upon the ad valorem taxes on the property. The option provision of the lease, which is at the heart of this lawsuit, reads as follows:
“The Lessee is hereby given the option to purchase the property described in the paragraph next following and all buildings thereon, of which the leased premises is a part, at the end of the original term of this lease at a price of $93,000.00. Such option shall be exercised by the Lessee delivering written notice to the Lessor, not less than sixty (60) days prior to the end of the original term of this lease, of Lessee’s intention to exercise said option. If said option is exercised, the Lessor and Lessee shall, within ten days after such exercise, execute and acknowledge in duplicate a Contract of Sale the terms thereof to be for cash upon expiration of the original lease term or upon such other conditions and terms as the parties might mutually agree.”
The Credit Union went into possession of its leased space on or about February 1, 1968. It has remained in possession since that time and no issue is raised as to its proper payment of the annual cash rentals.
The plaintiffs, Robert C. Owen, Marjorie G. Owen, and Rob Owen & Company, Inc. (the Owens), presently hold legal title to the land. In 1976, however, they entered into a contract to sell the tract to Woodrow N. Anderson and Norma Jean Anderson for the principal sum of $100,000. The Andersons agreed to make a small down payment, to assume an existing mortgage on the property, and to make monthly payments to the Owens over a nine-year period. The contract provided that “existing Leases will all be honored,” and it contained the following specific reference to the Credit Union lease:
“That the existing Lease with the Overland Park Credit Union grants to said Overland Park Credit Union an option to purchase the building within a given time (as shown on Lease) at a price of $93,000.00. The Buyers are fully aware of this clause in the Lease. However, the Sellers hereby agree that if the Credit Union should exercise this option, then the purchase price for Buyers herein will be lowered by $7,000.00.”
K.S.A. 17-2226 sets forth a formula for determining the amount of funds which a credit union may spend to purchase real estate for its use. If such an expenditure will exceed the limitation, approval of the purchase must be secured from the credit union administrator. The statute reads:
“Credit unions may purchase real estate and improvements thereon for their use and occupancy. Without the approval of the administrator such expenditure shall not exceed five percent (5%) of the first million dollars of the total shareholdings plus three percent (3%) of the total shareholdings in excess of one million dollars ($1,000,000), plus such additional sums from undivided earnings as have been set aside for such purpose.”
In the summer of 1979, the Credit Union applied to the Kansas credit union administrator for approval of its purchase of the property under its option. The administrator replied on July 23, 1979, as follows:
“My analysis of your financial statement as of June 30, 1979 shows a total allowable purchase cost for real estate and improvements (K.S.A. 17-2226) without the administrator’s approval to be $71,711.48. This would exceed your option figure by $21,288.52.
“As I understand your lease, renewal of the lease calls for $300 per month. A depreciation schedule on a $93,000.00 building for 30 years calls for $258.33 per month.
“I further understand that upon purchase of the building, rental income would accrue to the benefit of the credit union members.
“In view of this, my approval of your option to purchase is hereby granted.”
Shortly after receiving that approval, and in August 1979, the Credit Union sent by registered mail addressed to the Marleys, the Andersons, the Owens, and Rob Owen & Company, Inc., written notice of the Credit Union’s intention to exercise its option to purchase the land for $93,000, and it requested the owners to execute and acknowledge a Contract of Sale within ten days in conformity with the terms of the option. The notices were promptly delivered and receipt acknowledged. No contract was forthcoming.
The plaintiffs sought review of the credit union administrator’s decision by the Kansas Credit Union Council. That seven-member body met on October 9, 1979. All parties to this action appeared and presented evidence. The Council conducted a full review *of the action of the administrator, and on October 10, 1979, advised an attorney for the plaintiffs that the Council concurred with the administrator’s decision authorizing the Overland Park Credit Union to make the purchase.
Next, and on October 26, 1979, this declaratory judgment action was commenced. The Credit Union answered and counterclaimed for specific performance.
In addition to the option to purchase, the lease also granted to the Credit Union an option to extend the term of the lease for one additional ten-year period, and provided that during the extended term “the Lessee shall pay to Lessor rental in the sum of $300.00 per month, payable in advance on or before the first day of each month.” On February 1, 1980, and during the pendency of this action, plaintiff Woodrow N. Anderson wrote to the Credit Union as follows:
“Under the terms of the lease you owe us $300.00 per month rent, commencing February 1st, 1980. We will look forward to receipt of this payment, and will appreciate payment on the first day of the month thereafter.”
After hearing all parties, the trial court, in a comprehensive memorandum decision, entered summary judgment in behalf of the Credit Union on all claims of the plaintiffs against it, and granted specific performance of its option to purchase the land, in accordance with Count I of the Credit Union’s counterclaim. A final judgment was entered, and from that judgment the plaintiffs appeal.
The primary and controlling issue before this court is whether the option provision of the lease is sufficiently specific and complete to be enforceable. Plaintiffs contend that the option does not contain all of the terms which are essential, and thus the trial court erred in granting specific performance. Specifically, they complain that it fails to set forth (1) the closing date, (2) the date of possession, (3) the type of title to be transferred, (4) the payment of taxes, and (5) the pertinent requirements governing title insurance or an abstract opinion.
We should first review some of the principles governing specific performance and the construction of real estate option and sales agreements. In Pitts v. Marsh, 222 Kan. 586, 567 P.2d 843 (1977), we considered a claim that a contract for sale of realty was too uncertain and indefinite to justify specific performance, and that it failed to contain certain necessary provisions. We said:
“In order for a court to decree specific performance of a contract for the sale of real estate it is necessary the evidence pertaining thereto establish its terms, conditions and purposes with definiteness and certainty. (Peterson v. Hagaman, 162 Kan. 222, Syl. 2, 175 P.2d 118.) The requirement of certainty in the terms of the contract extends to the parties, subject matter, purposes, consideration, place and time of performance, terms of payment and duration of the contract. (71 Am. Jur. 2d, Specific Performance, Sec. 34, p. 54.) Reasonable certainty in the terms of a contract is all that is required for a court to decree specific performance; the contract need not provide for every collateral matter or every possible contingency which might arise with respect to the transaction. (81 C.J.S., Specific Performance, Sec. 31 b, pp. 486 and 487; 71 Am. Jur. 2d, Specific Performance, Sec. 34, p. 54.)
“In the present case the contract was in writing and covered the essential requirements with sufficient definiteness for the court to understand and enforce the mutual obligations of the parties as stated in the written instrument.” 222 Kan. at 587.
In Wilcox v. Wyandotte World-Wide, Inc., 208 Kan. 563, 493 P.2d 251 (1972), we determined that an option had been properly exercised, and we directed the trial court to grant specific performance. In considering the issues, we said:
“It is well established in Kansas that an option agreement to sell and convey land becomes absolute and binding on both parties when the option is accepted by the vendee within the time and on the terms specified. Such an agreement will be specifically enforced if it is fairly made and for a sufficient consideration. [Citations omitted.]
“Whether equity will decree the specific performance of a contract rests in sound judicial discretion and always depends on the facts of the particular case. [Citations omitted.] Ordinarily there is no equity in releasing a party from a fair and reasonable contract into which he freely entered unless the circumstances of the case require it.” 208 Kan. at 569.
“As pointed out heretofore whether equity will grant specific performance of a contract rests in sound judicial discretion and depends on the equities in the particular case.” 208 Kan. at 571.
A case somewhat similar to the one at hand is Janssen v. North Iowa Conf. Pen., Inc. of Meth. Ch., 166 N.W.2d 901 (Iowa 1969). There, the plaintiffs, Mr. and Mrs. Janssen, brought action for specific performance against the North Iowa Conference Pensions of the Methodist Church to enforce an option to purchase a farm. The Iowa Supreme Court said:
“In that respect defendant pension fund argues the agreement is fatally uncertain as to, (1) when payment of the purchase price is to be made; (2) when possession is to be given; (3) who shall pay taxes; (4) whether insurance is to be carried and by whom; and (5) whether interest is to be paid.
“With regard thereto this statement in 81 C.J.S. Specific Performance § 34, p. 494, is both pertinent and informative: “*** a contract to convey land can be specifically enforced even though no certain and definite time is fixed for payment of the purchase price, at least when an obligation to pay within a reasonable time is implied; Also a lack of provision for the time of payment of interest, such as annually or semiannually, does not create an important uncertainty or ambiguity; and a failure to state the time for making a conveyance does not make the contract too ambiguous, uncertain, or indefinite for specific enforcement, at least where the time of conveyance is not of the essence of the contract. So, the failure of a contract for the sale of realty to fix a definite time for consummation of the transaction does not prevent specific performance if the contractual terms are so expressed that the court can determine with reasonable certainty the parties’ duties and the conditions under which performance is due.’ See also 49 Am. Jur., Specific Performance, section 23, page 36.
“In Carter v. Bair, 201 Iowa 788, 208 N.W. 283, this court was confronted with the matter of specific performance arising out of an option to purchase contained in a lease. Dealing with certainty of the terms of that agreement, we stated at 201 Iowa 789-790, 208 N.W. 283: ‘Nothing is said about possession; but the purpose of the contract was to put the plaintiffs in the enjoyment of the property, inferentially as a residence, for which they, as tenants, were to pay $25 per month. On exercising the option, they were to continue to pay the $25 per month, and in addition were to pay the interest, at 7 per cent, and by plain implication were to pay the taxes after the last tax payment that would become delinquent during the original term of the lease. Defendant is to have the interest. This represents the use of the purchase money. Plaintiffs are to pay interest and taxes, and we think this must be for the use of the property, and that they are entitled to continue in the possession. Nothing is said about title, but the law would imply that the defendant should furnish marketable title. Nothing is said about conveyance, but here too the law would imply a covenant to convey when the purchase money is paid. All of the essential elements of a contract are present. We think that, though many of the ordinary provisions of a contract of sale are not provided for in terms, they are such as may, and under the circumstances ought to be, supplied by intendment. Schermer v. Wilmart, 282 Pa. 55, 127 A. 315.’ ” 166 N.W.2d at 907-908.
In the case at hand, the Credit Union and the Marleys struck a bargain between them. The Credit Union conveyed valuable real estate in the center of Overland Park to the Marleys, and it contracted to pay — and it paid — rent for a period of twelve years. This conveyance and promise furnished the consideration for the lease, the options contained therein, and for the space occupied by the Credit Union. The Marleys accepted the deed, built the building, and permitted the Credit Union to occupy the agreed portion thereof for twelve years.
There is no claim that the Owens did not know of the lease and the option when they acquired title. The Andersons were alerted, and entered into their contract with full knowledge of the Credit Union’s rights. The Credit Union gave written notice to all interested parties of its election to exercise its option more than 120 days prior to the end of the original term of the lease. We turn now to the specific terms of the option.
The parties are properly designated. The lease, and the option as one of the terms thereof, “shall inure to the benefit of and be binding upon the heirs . . •. and assigns” of the Marleys and
the Credit Union. The Andersons and the Owens stand in the place and stead of the Marleys.
The subject matter and purpose is clearly expressed: To give the Credit Union the discretionary right to purchase the described real estate at a stated price.
Consideration for the option, as we have stated, was the consideration for the lease — the land conveyed by the Credit Union to the Marleys and the Credit Union’s promise to pay a sum annually for twelve years. The purchase price for the land is stated: $93,000.
Time of performance is fixed. Written notice of Lessee’s intention to exercise the option must be given to the Lessors, wherever they may be. This was done. It must be delivered not less than sixty days prior to the end of the original term of the lease. This, too, was done. Payment by the Credit Union was to be “cash upon expiration of the original lease term. . . .” By that date plaintiffs had instituted this action; offer of payment was in effect tendered by the August notification, and refused by the action taken by plaintiffs. An actual tender is not required when its futility is shown. See Gardner v. Spurlock, 184 Kan. 765, 339 P.2d 65 (1959). While a specific place of payment is not fixed in the option, payment must be to the owners. We do not regard the fact that a particular physical location is not fixed in the option to be a critical omission. The closing date is in effect fixed: upon expiration of the original lease term.
The terms of payment are fixed: cash. The duration of the contract is likewise fixed: the option is to be exercised at the end of the original term of the lease.
The date of possession is not stated — but the Credit Union is, and has been since 1968, in the actual physical possession of that part of the premises which it leased, and its right to possession would follow the exercise of its option. On the date fixed for payment (upon the expiration of the original lease term) it was entitled to full possession of the property.
The type of title to be transferred is not specifically spelled out in the option; but as the Iowa court held in the Methodist pension fund case:
“Nothing is said about title, but the law would imply that the defendant should furnish marketable title. Nothing is said about conveyance, but here too the law would imply a covenant to convey when the purchase money is paid.” 166 N.W.2d at 908.
We hold that under the facts before us, where the Credit Union is to pay $93,000 for the land, the law will require the plaintiffs to furnish marketable title, either by furnishing a current policy of title insurance or an abstract of title certified to date, at plaintiffs’ option, and will require plaintiffs to furnish a good and sufficient deed when the purchase price is paid.
Taxes are not mentioned in the option, but as between grantor and grantee the payment of taxes is controlled by K.S.A. 79-1805, which provides:
“As between grantor and grantee of any land, where there is no express agreement as to which shall pay the taxes that may be assessed thereon, if such land is conveyed on or after the first day of January and before the first day of November, then the grantee shall pay the same; if conveyed on or after the first day of November and before the first day of the next ensuing January, then the grantor shall pay them. . . .”
We conclude that the essential elements of a contract of sale are contained within the terms of the option agreement, and that those customary but nonessential terms noted above may be implied and are imposed by law. We hold that the option is enforceable, and we see no equitable or legal reason for releasing the owners from the obligations of contract freely and voluntarily entered into.
Plaintiffs contend that the purchase of this property, which is larger than the Credit Union’s present needs for office space, violates the law. This is based on plaintiffs’ construction of K.S.A. 17-2226, previously quoted, and K.S.A. 17-2204(3), which provides in substance that primary use of the funds of a credit union shall be for loans to members. The first of those statutes, however, expressly authorizes credit unions to purchase realty for their use and occupancy. Must the credit union purchase only so much space as is necessary for its present needs, without any consideration of possible future growth and requirements? We think not.
A similar issue faced the Kentucky Supreme Court in Home Savings B’ld’g. Assn v. Driver, 129 Ky. 754, 112 S.W. 864 (1908). In that case the court interpreted the Kentucky Constitution which provided “no corporation shall . . . hold any real estate, except such as may be proper and necessary for carrying on its business, for a period longer than five years, under penalty of escheat.” The court’s reasoning is persuasive, and is particularly applicable here:
“The third question is, has the association the right to erect, remodel, or own a building of more than sufficient capacity to accommodate its own business and to rent out the excess? There is nothing in the Constitution, charter of the association, or statutes placing any limitation upon the character of a building which a corporation may erect as a home in which to conduct its business. A corporation conducting a business of the character of that in which appellant is engaged naturally expects its business to grow and expand from time to time, and, in building a home, it would be exercising but a short-sighted judgment if it did not make provision for the future by building a home large enough to take care of its expanding business, and hence, even if it should build a house larger and roomier than its present needs or interests require, it would be acting clearly within the exercise of its corporate right and power. The limitation which the statute imposes is that it shall not own more real estate than is necessary for the proper conduct of its business, but it does not attempt to place any restriction or limitation upon the right of the corporation or association as to the character of building it shall erect on said real estate; and, while the Constitution and the statutes provide that no corporation shall engage in any business other than that expressly authorized by its charter, we are of the opinion that, in renting out the unoccupied and unused portions of the building so erected, the association could not be said to be engaged in any other business than that authorized by its charter. The renting of the unused portions of the building is a mere incident in the conduct of its real business. We would not say that a building association might embark in the business of building houses and renting or leasing them, but there is quite a difference in building or renting a house in which to conduct its own business and leasing the unused portions thereof for the time being, or until such time as they may be needed by the association, and in building houses for the purpose of renting or leasing them. The one might properly be said to be the proper exercise of a power incident to the conduct of its legitimate business, whereas the other would be a clear violation of that provision of the statute which denies to any corporation the right to conduct any business other than that authorized by its charter. To hold otherwise would be to charge most of the banking institutions, trust companies, and other corporations, such as title guaranty companies, etc., doing business in the state, and especially in the large cities, with violating the law; for it is well known that there are few of such institutions that do not, at times, rent out or lease the unneeded portions of the building occupied by them as homes. We do not think that in so doing they are violating any provisions of the law, but that the renting out of the unused and unoccupied portions of their buildings is but an incident in the conduct of their business.” 129 Ky. at 762-764.
We conclude that the Kansas statutes should not be so narrowly construed as to limit a credit union, in the purchase of a site for its office, to the exact present space needs of the organization and to require it in future years to buy small pieces of adjoining land and construct thereon one room at a time as it grows. Statutes must be construed with reason, considering the practicalities of the subject matter addressed. We hold that the legislature did not intend to limit a credit union, in purchasing property for its use and occupancy, to its present needs with no view to the future. The fact that some space which is presently not needed may be rented to others will inure to the benefit of the Credit Union membership, and appears entirely consistent with the statutes cited, and with the latest expression of the legislature, K.S.A. 17-2204(12). That subsection was added in 1981. It reads:
“Every credit union incorporated pursuant to or operating under the provisions of this act may exercise such powers, including incidental powers, as shall be necessary or requisite to enable it to carry on effectively the purposes and business for which it is incorporated.”
Next, plaintiffs argue that the purchase of this real estate violates the Credit Union’s by-laws. The by-laws provide that the Credit Union may invest its monies “as provided by Kansas Law.” Plaintiffs’ argument on this point is premised upon their contention that the acquisition of this property is contrary to law, which we have already decided adversely to plaintiffs’ claim. The argument has no merit.
Plaintiffs claim that the decision of the credit union administrator and the Kansas Credit Union Council was arbitrary and capricious. The trial court held that plaintiffs have no standing to raise this issue. Without deciding the question of standing, and looking to the merits of the claim, it is apparent that the administrator and the Council afforded plaintiffs, as members of the Credit Union and as lessors, a full and complete hearing, considered carefully the issues including the statutes and the effect of the proposed action upon the Credit Union’s membership, and decided the issue adversely to the plaintiffs. There is absolutely no indication of fraudulent, arbitrary, or capricious conduct; on the contrary, the administrative order is supported by the evidence and is within the scope of the administrative authority of both the administrator and the Council. We find no error.
Finally, plaintiffs contend that K.S.A. 17-2226 is an unconstitutional delegation of legislative power or, in the alternative, an invalid delegation of administrative authority. This claim was not presented to the trial court. In the original petition and in the amended petition, plaintiffs claimed that the same statute was unconstitutional as an improper delegation of judicial power. The latter issue was not briefed, was not determined by the trial court, and is not presented here. It is well settled that a point not raised before, or presented to, the trial court cannot be raised for the first time on appeal before this court. Fleming v. Etherington, 227 Kan. 795, Syl. ¶ 7, 610 P.2d 592 (1980). Since the constitutional issue now raised was not presented to the trial court, and since a determination of the constitutionality of the statute is not necessary and essential to a determination of this controversy, we decline to entertain the issue. See State v. Nelson, 210 Kan. 439, 443, 502 P.2d 841 (1972), and cases there discussed.
The order of the trial court granting summary judgment to the Credit Union on all claims of the plaintiffs, and ordering specific performance of the option agreement, is eminently correct. The judgment is affirmed. | [
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The opinion of the court was delivered by
Herd, J.:
This is an appeal from the district court’s decision holding this State’s school closing statutes, K.S.A. 72-8136a et seq., in part unconstitutional.
The Shawnee Mission Unified School District No. 512 is a political subdivision of the State located in Johnson County. Pursuant to K.S.A. 72-8127 the Board of Education has divided the school district into five geographical areas, or member districts, North, South, East, West and Northwest. The Board of Education is comprised of seven members, one of whom is elected from each of the member districts, and the other two are elected at large from the entire school district.
The Antioch Elementary School is located within the North member district of the entire school district. Prior to school unification in 1969, the school was owned and operated by Common School District No. 61. Those who live within the boundaries of old school district No. 61 are still subject to a property tax levy which is used to help retire the continuing bonded indebtedness of Common School District No. 61. On September 22, 1980, the Superintendent of Schools of the Shawnee Mission School District recommended to the Board of Education that Antioch Elementary School be closed at the end of the 1980-81 school term. After consideration of the factors outlined in K.S.A. 72-8136b the Board adopted a resolution stating its tentative intention to approve the recommendation of the Superintendent and close the school. On December 17, 1980, after a public hearing, the Board made a final decision to close Antioch Elementary School at the end of the 1980-81 school year.
In accordance with K.S.A. 72-8136e(¿) a petition in proper form was submitted to the Johnson County Election Commissioner demanding that a referendum election be held on the issue of the closing of Antioch Elementary School. That election was held on April 7, 1981, at which time the forces in favor of keeping the school open won a narrow victory.
In determining who could vote in the April 7 referendum the school district followed K.S.A. 72-8136e(¿) and (c) which provide in pertinent part:
“(b) . . . All registered electors residing within the member district of the unified school district in which the affected attendance facility is located may vote at the election. The board shall not close any affected attendance facility pending any election to be held under the provisions of this section. If a majority of those voting at such election are not in favor of closing the affected attendance facility the same shall not be closed. If a majority of the votes at such election are in favor of closing the affected attendance facility, the board may close the affected attendance facility at the conclusion of the current school year.
“(c) In the event the attendance area in which the affected attendance facility is located consists of territory which is located in more than one member district of the school district, the registered electors residing in any precinct or precincts in which any portion of the attendance area which is outside the member district in which the affected attendance facility is located shall be eligible to sign the petition and to vote at the election provided for by subsection (b) of this section.”
The attendance area of Antioch Elementary School is located in both north and west member districts. Persons residing in Ward I, Precinct 11, of the City of Overland Park are the non-residents of north member district who are entitled to vote on the school closing. Thus, pursuant to K.S.A. 72-8136e(¿) and (c), all registered voters residing in north member district or Ward 1, Precinct II, were eligible to vote in the school closing election. The following map illustrates the situation:
The appellee resides in the northwest area of the school district, approximately 2.7 miles from Antioch Elementary School. Consequently, he was not allowed to vote in the referendum. Prior to the election he filed a petition seeking a declaratory judgment the school closing statutes were unconstitutional because of the manner in which they limited participation in school closing referenda. He also sought an injunction prohibiting the continued operation of Antioch School, solely on the basis of the results of the referendum and a writ of mandamus directing the School Board to conduct all elections held pursuant to K.S.A. 72-8136e on a district-wide basis. Finally, he demanded an award of attorney fees and court costs.
The appellee consented to allow the referendum to be held, subject to the trial court’s determination regarding its validity. After trial the court held K.S.A. 72-8136e unconstitutional in part as violative of the 14th Amendment to the U.S. Constitution. Appellee’s request for attorney fees was, however, denied. This appeal followed.
Initially, we must deal with the question of whether the trial court erred in allowing appellants to intervene below. Originally, the trial court permitted Jack Balsinger and Ronald Blecke to intervene for the purpose of filing an amicus curiae brief. In announcing the decision at trial, however, the court granted Balsinger and Blecke leave to intervene with “the same rights and privileges of the original defendants, including the right to seek appellate review of this decision.” Appellee argues the trial court abused its discretion in allowing appellants to intervene.
K.S.A. 60-224 states in part:
“(b) Permissive intervention. Upon timely application anyone may be permitted to intervene in an action: (1) When a statute confers a conditional right to intervene; or (2) when an appellant’s claim or defense and the main action have a question of law or fact in common. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
“(c) Motion to intervene and practice an intervention. (1) A person desiring to intervene shall serve a motion to intervene upon the parties as provided in K.S.A. 60-205. The motion shall state the grounds therefor, and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute of this state gives a right to intervene. (2) When the validity of a statute, regulation or constitutional provision of this state, or an ordinance or regulation of a governmental subdivision thereof affecting the public interest, is drawn in question in any action to which the state or governmental subdivision or an officer, agency or employee thereof is not a party, the court may in its discretion notify the chief legal officer of the state or subdivision thereof affected, and permit intervention on proper application.”
K.S.A. 60-224 is patterned after Fed. R. Civ. P. 24. In 7A Wright & Miller, Federal Practice and Procedure: Civil § 1913, pp. 341-42 (1981 Supp.), the rule is discussed as follows:
“In making a discretionary decision on the issue of permissive intervention, the district court should consider the nature and extent of the intervenors’ interest, their standing to raise legal relevant issues, the legal position they seek to advance and its probable relation to the merits of case, whether changes have occurred in the litigation so that intervention that was once denied should be reexamined, whether the intervenors’ interests are adequately represented by other parties, whether intervention will prolong or unduly delay the litigation, and whether the parties seeking intervention will significantly contribute to the full development of the underlying factual issues in the suit and to the just and equitable adjudication of the legal questions presented.”
Here appellants complied with the statute. They filed and served a motion alleging they were residents of the Antioch school attendance center area and attached an answer wherein they asserted their defenses to the action. Further, appellants have a substantial interest in the outcome of the controversy because of their status as property taxpayers residing in the Antioch Elementary School attendance area. Their intervention has not and will not prolong or unduly delay the litigation. Appellants’ claim involved the same question of law at the main action, but raised no new issues of law. Finally, the original defendant, Shawnee Mission School District No. 512, has chosen not to appeal the trial court’s determination. In light of these factors the trial court did not err in allowing appellants to intervene.
The central issue in this case is whether the Shawnee Mission School District, under the direction of a state statute, violated appellee’s 14th Amendment right to equal protection by prohibiting him from voting on the closing of Antioch Elementary School.
When ruling on the constitutionality of a statute, this court’s duty is clear.
“Constitutionality is presumed, all doubts must be resolved in favor of the statute’s validity, and before a statute may be stricken down it must be clearly shown it violates the constitution. It is the court’s duty to uphold the statute under challenge, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. State ex rel. Stephan v. Martin, 230 Kan. 747, 641 P.2d 1011 (1982); State ex rel. Schneider v. Kennedy, 225 Kan. 13, 20-21, 587 P.2d 844 (1978); City of Wichita v. Kansas Corporation Commission, 225 Kan. 524, 527, 592 P.2d 880 (1979); Rogers v. Shanahan, 221 Kan. 221, 223, 565 P.2d 1384 (1976); Brown v. Wichita State University, 219 Kan. 2, Syl. f 3, 547 P.2d 1015 (1976).” Von Ruden v. Miller, 231 Kan. 1, 3, 642 P.2d 91 (1982).
Pursuant to K.S.A. 72-8136e the school district created a classification. In one group were those registered voters who lived in the north member district or Ward 1, Precinct 11, of Overland Park. In another were all other registered voters in the school district. These two classes were treated differently in that the former group was allowed to vote in the Antioch School referendum while the latter was not. The question, then, is whether the unequal treatment resulting from the school district’s classification amounts to a denial of equal protection.
Of particular importance in any equal protection analysis is the determination of what level of scrutiny should be employed in examining the governmental classification. Appellees rely heavily on Kramer v. Union School District, 395 U.S. 621, 23 L.Ed.2d 583, 89 S.Ct. 1886 (1969), for their argument this court should strictly scrutinize the classification here. At issue in Kramerwas a New York voter qualification statute that limited the vote in school district elections to otherwise qualified district residents who (1) either owned or leased taxable real property located within the district, (2) were married to persons owning or leasing qualified property, or (3) were parents or guardians of children enrolled in a local district school for a specified time during the preceding year. The court held the statute denied equal protection because it was not necessary to promote a compelling state interest.
The “compelling state interest” standard, as it has come to be called, is applied whenever the classification interferes with the exercise of a fundamental right under the Constitution. See, e.g., Memorial Hospital v. Maricopa County, 415 U.S. 250, 39 L.Ed.2d 306, 94 S.Ct. 1076 (1974); Dunn v. Blumstein, 405 U.S. 330, 31 L.Ed.2d 274, 92 S.Ct. 995 (1972); Shapiro v. Thompson, 394 U.S. 618, 22 L.Ed.2d 600, 89 S.Ct. 1322 (1969). We agree the right to vote for elected representatives is fundamental “because statutes distributing the franchise constitute the foundation of our representative society.” Kramer, 395 U.S. at 626. There is a difference, however, when the issue involves the right to vote in a limited special purpose referendum. In Hill v. Stone, 421 U.S. 289, 297, 44 L.Ed.2d 172, 95 S.Ct. 1637, reh. denied 422 U.S. 1029 (1975), the Supreme Court recognized this difference when it stated:
“[A]s long as the election in question is not one of special interest, any classification restricting the franchise on grounds other than residence, age, and citizenship cannot stand unless the district or State can demonstrate that the classification serves a compelling state interest.”
When a special interest election is involved the traditional standard of equal protection analysis is utilized. Such a standard requires only that classifications bear some rational relationship to a legitimate state end. A violation of the Equal Protection Clause will be found only if the classifications are based on reasons totally unrelated to the pursuit of that goal. McGowan v. Maryland, 366 U.S. 420, 6 L.Ed.2d 393, 81 S.Ct. 1101 (1961). The rational relationship test has been applied by the Supreme Court in holding a water district could constitutionally have a board of directors selected in an election where votes were allocated according to the assessed valuation of each voter’s land (Salyer Land Co. v. Tulare Water District, 410 U.S. 719, 35 L.Ed.2d 659, 93 S.Ct. 1224 [1973]), and in upholding a voting scheme for a water reclamation district in Arizona, in which eligibility to vote for the district’s directors was limited to landowners and apportioned according to the amount of land each voter owned. Ball v. James, 451 U.S. 355, 68 L.Ed.2d 150, 101 S.Ct. 1811 (1981).
The Supreme Court also employed the rational relationship test in Lockport v. Citizens For Community Action, 430 U.S. 259, 51 L.Ed.2d 313, 97 S.Ct. 1047 (1977). There a New York statute provided a new county charter could go into effect only if it was approved in a referendum by separate majorities of the voters who lived in the cities within the county and those who lived outside cities but within the county. In the challenged referendum the city voters approved the new charter but the non-city voters did not. The court upheld the law and recognized the difference between an “election involving the choice of legislative representatives” and a “ ‘single-shot’ referendum. In a referendum,” it said, “the expression of voter will is direct, and there is no need to assure that the voters’ views will be adequately represented through their representatives in the legislature.” Lockport, 430 U.S. at 266.
As in Lockport, unlike Kramer, this case involves a “ ‘single-shot’ referendum” at which the voters spoke directly. Further, this case involves an election which is likely to be of special interest to a particular, well-defined portion of the electorate. See Hill v. Stone, 421 U.S. 289. Our political process is one peculiarly suited to compromise and experimentation. Compromise, however, requires flexibility. If all voting restrictions must be justified by a compelling state interest that flexibility would be lost. We hold the “rational relationship” test is the proper standard to apply in the case at bar..
The determinative step in an equal protection analysis is to consider whether the particular classification in question is rationally related to a legitimate state end. In reaching a decision it is necessary to examine the purpose behind K.S.A. 72-8136e(¿) and (c), the statutory sections creating the classification.
During the 1977 session of the legislature House Bill 2320 was offered as a response to declining enrollment in the Shawnee Mission school district. The bill gave the school board sole authority to close schools in the district. Opposition to the bill in that form developed from patrons who wanted more say in the decision to close schools. During consideration by the Senate Education Committee, Senator Gaar offered compromise amendments. The Gaar amendments formed the basis of K.S.A. 72-8136e(¿) and (c) as they now stand.
The legislative history of the statute in question demonstrates K.S.A. 72-8136e was a creature of compromise. It was a legislative response to the need to develop a workable policy regarding school closings while at the same time giving due consideration to wishes of the voters. Alternatively, the legislature could have: 1) Given the school board sole authority to close schools; 2) allowed electors in the entire Shawnee Mission school district to vote on the closing of every school; 3) permitted only those registered to vote in the particular school’s attendance area to vote on the question; or 4) included those in the pre-unification school district in which the particular school was located as voters.
The ultimate State purpose in offering a system of public schools is to provide an environment where quality education can be afforded equally to all. In pursuance of this ultimate goal a workable plan to allow the closing of schools when enrollments decline is needed. K.S.A. 72-8136e was an attempt to meet the legitimate State purpose of providing that workable plan while also insuring equality of education. It may not have been the best possible scheme but that is not the question before us. For example, it is argued all registered voters living in old Common School District No. 61 should have been allowed to vote because money from the sale of Antioch Elementary School would be used to help retire that district’s bonded indebtedness, thereby reducing property taxes. This might well have been a proper response to the problem, although the interest of those residents of district No. 61 who were not allowed to vote in the referendum is at best speculative due to the absence of any statutory requirement the money from the sale of Antioch School be used to retire the old district’s bonded debt. Our concern here, however, is only whether the statute involved bears a rational relationship to the previously noted legitimate state ends. We hold it does. In light of the problem presented and the alternatives available, K.S.A. 72-8136e was a reasonable compromise which gave both the school board and the voters a voice in the decision.
In light of this holding appellee’s cross-appeal regarding attorney fees need not be discussed.
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The opinion of the court was delivered by
Schroeder, C.J.:
Abraham L. Mitchell (defendant-appellant) was found guilty of murder in the second degree (K.S.A. 21-3402) by a jury in Jackson County, Kansas. He now appeals, contending the state of Kansas did not have jurisdiction over him for the crime charged. In support of that contention, he cites the Federal Major Crimes Act, 18 U.S.C.A. 1981 Supp. § 1153.
Before addressing the substantive issue raised by the defendant on appeal, we must first address the State’s contention that the defendant waived his right to appeal by failing to file a timely notice of appeal. The record reflects that the defendant was sentenced August 6, 1980. K.S.A. 22-3608 provides the defendant may appeal not later than ten days after expiration of the district court’s power to modify the sentence. Under the provisions of K.S.A. 1980 Supp. 21-4603(2) the district court may modify a sentence within 120 days after the sentence is imposed. Thus, the defendant has, after sentence is imposed, a maximum of 130 days in which to bring his appeal. Defendant Mitchell’s notice of appeal, dated June 6, 1981, came long after the expiration of the 130 days.
In its brief, the State correctly summarizes the law relative to defendant’s right to appeal which is guaranteed neither by the Federal Constitution, Griffin v. Illinois, 351 U.S. 12, 18, 100 L.Ed. 891, 76 S.Ct. 585 (1956), nor by the Kansas Constitution, State v. Smith, 223 Kan. 47, 48, 574 P.2d 161 (1977); State v. Hanes, 187 Kan. 382, 385, 357 P.2d 819 (1960). Article 3, Section 3 of the Kansas Constitution provides in part:
“The supreme court shall have original jurisdiction in proceedings in quo warranto, mandamus, and habeas corpus; and such appellate jurisdiction as may be provided by law.”
The general rule is that the Kansas appellate courts have no jurisdiction to entertain an appeal in a criminal case unless the defendant brings his appeal within the time established by statute. State v. Ortiz, 230 Kan. 733, 735, 640 P.2d 1255 (1982); State v. Moses, 227 Kan. 400, 404, 607 P.2d 477 (1980); State v. Smith, 223 Kan. at 48; State v. Thompson, 221 Kan. 165, 167, 558 P.2d 1079 (1976); Ware v. State, 198 Kan. 523, 525, 426 P.2A78 (1967).
Under some circumstances, however, this court has implicitly recognized an exception to the general rule. See, e.g., Troy v. State, 215 Kan. 368, 524 P.2d 1127 (1974); Brizendine v. State, 210 Kan. 241, 499 P.2d 525 (1972); Johnson v. State, 203 Kan. 947, 457 P.2d 181 (1969). “An exception . . . has been recognized only in those cases where a defendant either was not informed of his or her rights to appeal or was not furnished an attorney to exercise those rights or was furnished an attorney for that purpose who failed to perfect and complete an appeal.” State v. Ortiz, 230 Kan. at 735-36. Defendant Mitchell contends he was not informed of his right to appeal and requests this court to hear his appeal out of time.
Three post-trial proceedings are relevant to our consideration of this issue. At the sentencing hearing the defendant filed a motion to dismiss for lack of jurisdiction on the same grounds which he raises on appeal. The motion was overruled and sentence imposed. Significant to this appeal is the fact the district court judge did not, at the time sentence was imposed, inform the defendant of his statutory right to appeal. K.S.A. 22-3424(5) provides:
“After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of his right to appeal and of the right of a person who is unable to pay the costs of an appeal to appeal in forma pauperis. If the defendant so requests the clerk of the court should prepare and file forthwith a notice of appeal on behalf of the defendant.”
In April 1981 the defendant filed a pro se motion alleging he had not been advised of his right to appeal and requesting the right to take a direct appeal. Counsel was appointed for the defendant and a hearing held on May 27, 1981. Mitchell’s testimony at the hearing revealed he had made inquiries regarding appeal shortly after he was sentenced. According to Mitchell, his court-appointed attorney told him to file an appeal once he got to Lansing but did not tell him the clerk of the district court had a statutory duty to file an appeal if requested. Mitchell inquired about an appeal at Lansing but was told to initiate the appeal when he reached the Kansas Reception and Diagnostic Center (KRDC). At KRDC, he was told to wait until he returned to Lansing. Once back at Lansing, he again contacted the legal aid advisor. At this time, Mitchell learned that there was a time limit on his right to appeal and that the time had run. The pro se motion followed. At the conclusion of the hearing on May 27, the motion was dismissed because it was filed more than 130 days after sentencing. K.S.A. 1980 Supp. 21-4603(2).
On June 1, 1981, the.court on its own motion reconsidered its ruling of May 27 and entered an order granting the defendant the right to appeal his conviction out of time. The court made four specific findings:
“1. That Defendant was sentenced in this matter on August 6, 1980;
“2. At the time of sentencing, the Court inadvertently failed to advise Defendant of his right of appeal pursuant to K.S.A. 22-3424(5);
“3. That Defendant was informed of his right of appeal by his attorney, Marlin A. White, and knew he had the right to appeal his conviction;
“4. Notwithstanding, the statutory duty to inform the Defendant of his right to appeal is imposed upon the Court, the Court failed to do so and the Court now wishes to correct its error.”
While it is clear the defendant was not informed of his right to appeal by the judge, it is apparent from his actions that he knew something of his appeal right. The question for decision is whether, under the facts of this case, he knew enough. We find that he did not.
Because K.S.A. 22-3424(5) is identical to Fed. R. Crim. Proc. 32(a)(2), decisions construing that rule are entitled to great weight, although they are not controlling on this court. See, e.g., Brookover Feed Yards, Inc. v. Carlton, Commissioner, 213 Kan. 684,690, 518 P.2d 470 (1974); Reed v. Chaffin, 205 Kan. 815, 819, 473 P.2d 102 (1970); McCabe v. Board of Johnson County Comm’rs., 5 Kan. App. 2d 232, 235, 615 P.2d 780, rev. denied 228 Kan. 807 (1980).
The purpose of K.S.A. 22-3424(5) logically is the same as that of the federal rule: “[T]o insure that all defendants who might wish to appeal are fully aware of their appeal rights.” (Emphasis added.) United States v. Benthien, 434 F.2d 1031, 1032 (1st Cir. 1970). A full awareness of one’s rights surely must include the knowledge that there is a time frame within which those rights must be exercised. From the record in this case, it is apparent the defendant did not have that knowledge. This court will consider the appeal out of time and reach the substantive issue raised. In doing so, we express no opinion whether the appeal would have been heard had the record revealed the attorney had made a full disclosure to the defendant of his appeal rights.
Defendant-appellant raises one issue on appeal: Whether the state of Kansas had jurisdiction to try him for the crime charged, murder in the second degree. For purposes of this appeal, it is unnecessary to state any of the factual background surrounding the death of Richard Pahmahmie, Sr. The parties have stipulated that the defendant and the victim were “Indians” and that the offense in question occurred within “Indian country” as those terms are used and defined in 18 U.S.C.A. § 1151 et seq. The defendant contends that the Federal Major Crimes Act, 18 U.S.C.A. 1981 Supp. § 1153, grants exclusive federal jurisdiction over an Indian defendant charged with killing another Indian within Indian country. The State argues Kansas has concurrent jurisdiction by virtue of 18 U.S.C.A. § 3243. Some background of the statutes in question should prove helpful.
Exclusive tribal jurisdiction over major crimes caused concern in the last century and led to passage of the Federal Major Crimes Act in 1885. Keeble v. United States, 412 U.S. 205, 209-10, 36 L.Ed.2d 844, 93 S.Ct. 1993 (1973). That statute, now codified at 18 U.S.C.A. 1981 Supp. § 1153, provides in pertinent part:
“Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnaping, rape, carnal knowledge of any female, not his wife, who has not attained the age of sixteen years, assault with intent to commit rape, incest, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury, arson, burglary, robbery, and larceny within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.”
The Federal Major Crimes Act has long been viewed as conferring exclusive federal jurisdiction over the enumerated federal crimes. See, e.g., Seymour v. Superintendent, 368 U.S. 351, 359, 7 L.Ed.2d 346, 82 S.Ct. 424 (1962); Williams v. Lee, 358 U.S. 217, 220 n. 5, 3 L.Ed.2d 251, 79 S.Ct. 269 (1959); United States v. Kagama, 118 U.S. 375, 377-78, 30 L.Ed. 228, 6 S.Ct. 1109 (1886).
Historically, a special relationship has existed between the federal government and members of Indian tribes, with the federal government’s cession of jurisdictional power to the states over intra and inter-tribal matters an infrequent occurrence. Criminal jurisdiction in particular has been the subject of only limited grants. See generally, Clinton, Criminal Jurisdiction Over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz. L. Rev. 503 (1976).
Congress has, on occasion, specifically abrogated the exclusive federal jurisdiction over major crimes. For instance, 18 U.S.C.A. 1981 Supp. § 1162 provides the states of Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin have jurisdiction over offenses committed by or against Indians in certain Indian country within those states.
The states of Kansas, Iowa, and North Dakota have been given jurisdictional grants in separate but substantially similar statutes which appear to be in conflict with the exclusive grant of federal jurisdiction over major crimes in 18 U.S.C.A. 1981 Supp. § 1153. The statutory provision giving Kansas jurisdiction over offenses committed by or against Indians on Indian reservations is found at 18 U.S.C.A. § 3243.
“Jurisdiction is conferred on the State of Kansas over offenses committed by or against Indians on Indian reservations, including trust or restricted allotments, within the State of Kansas, to the same extent as its courts have jurisdiction over offenses committed elsewhere within the State in accordance with the laws of the State.
“This section shall not deprive the courts of the United States of jurisdiction over offenses defined by the laws of the United States committed by or against Indians on Indian reservations.”
The State argues this provision unambiguously confers concurrent jurisdiction with the federal government for the so-called major crimes. Given the historically protective attitude of the federal government toward the Indian tribes and the language of the Federal Major Crimes Act, we do not believe the statute is clearly unambiguous. What appears to be a clear jurisdictional grant is clouded by the proviso that “[t]his section shall not deprive the courts of the United States of jurisdiction over offenses defined by the laws of the United States committed by or against Indians on Indian reservations.”
This court has not had occasion to interpret 18 U.S.C.A. § 3243 although it was mentioned briefly in State v. Levier, 226 Kan. 461, 462-3, 601 P.2d 1116 (1979), which held arrests can be made on Indian reservations for crimes committed off the reservation. One federal case interpreting the identical grant of jurisdiction to Iowa, however, provides us with an analysis. See Youngbear v. Brewer, 415 F. Supp. 807 (N.D. Iowa 1976), aff’d. 549 F.2d 74 (8th Cir. 1977). The Youngbear court utilized maxims of statutory construction, legislative history, as well as a comparison of language in other statutes abrogating exclusive federal jurisdiction to reach the conclusion Iowa did not share concurrent jurisdiction with the federal government over major crimes committed by Indians on the Indian reservations. Ry comparison, ours is a simpler task.
The legislative history of 18 U.S.C.A. § 3243 clearly indicates the proviso was intended to preserve exclusive federal jurisdiction over the major crimes. The Congressional Record for 1940 contains two versions of the bill. The bill as originally read provided:
“Be it enacted, etc., That concurrent jurisdiction is hereby relinquished to the State of Kansas to prosecute Indians and others for offenses by or against Indians or others, committed on Indian reservations in Kansas, including trust or restricted allotments, to the same extent as its courts have jurisdiction for offenses committed elsewhere within the State in accordance with the laws of the State; and section 328 of the act of March 4,1909 (35 Stat. 1151), as amended by the act of June 28, 1932 (47 Stat. 337), and sections 2145 and 2146 of the United States Revised Statutes (U.S.C., title 18, sec. 548 [Federal Major Crimes Act], title 25, secs. 217, 218) are modified accordingly insofar as they apply to Indian reservations or Indian country in the said State of Kansas.” 86 Cong. Rec. 5596, 76th Cong. 3rd Sess. (May 6, 1940). (Emphasis added.)
A subsequent committee amendment eliminated the references to concurrent jurisdiction and modification of federal law.
“That jurisdiction is hereby conferred on the State of Kansas over offenses committed by or against Indians on Indian reservations, including trust or restricted allotments, within the State of Kansas, to the same extent as its courts have jurisdiction over offenses committed elsewhere within the State in accordance with the laws of the State: Provided, however, That nothing herein contained shall deprive the courts of the United States of jurisdiction over offenses defined by the laws of the United States committed by or against Indians on Indian reservations.” 86 Cong. Rec. 5596, 76th Cong. 3rd Sess. (May 6, 1940).
As the Youngbear court observed in comparing the Iowa and Kansas statutes:
“By deleting this language, the only intent which can reasonably be inferred to Congress was to preserve exclusive Federal jurisdiction over the major crimes.” 415 F. Supp. at 813.
That intent is underscored by a letter from a Kansas congressman which appears in the report of the House Committee on Indian Affairs. Representative W. P. Lambertson wrote, “The Government here relinquishes to the State full jurisdiction over the Indians for small offenses.” H.R. Rep. 1999 at 2, 76th Cong. 3rd Sess. (1940).
This legislative history clearly indicates Congressional intent to retain exclusive jurisdiction over the crimes specifically enumerated in 18 U.S.C.A. .1981 Supp. § 1153, among them murder. We find the state of Kansas acted beyond the scope of the jurisdictional authority conferred by 18 U.S.C.A. § 3243 in trying Abraham L. Mitchell for murder.
The judgment of the district court is reversed with directions to dismiss the action. | [
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The opinion of the court was delivered by
Miller, J.:
This is a criminal case. The State appeals, pursuant to K.S.A. 22-3602(¿)(l), from the trial court’s dismissal of Count I of the second amended complaint.
The facts must be stated in some detail. Defendant James C. Burkett, Sr., was originally charged with the aggravated battery of Luanne Vohs, K.S.A. 21-3414, with a deadly weapon, to-wit: an automobile. Burkett was arrested in Alabama, waived extradition, and was returned to Kansas. Shortly before the preliminary hearing was to be held, plea negotiations resulted in a plea agreement. The defendant agreed to enter pleas of nolo contendere to charges of reckless driving, K.S.A. 8-1566, and failure to stop and remain at the scene of an injury accident, K.S.A. 8-1602. The State agreed that in return for the defendant’s nolo contendere pleas it would (1) dismiss the felony charge, (2) request that the sentencing judge not impose incarceration as a penalty, and (3) remain silent and not make a recommendation as to the amount of the fine to be imposed.
The State then filed a first amended complaint charging the two misdemeanors only; the defendant entered pleas of nolo contendere to both charges before a district magistrate judge in Jefferson County; the State recommended that no incarceration be imposed, and it did not suggest the amount of the fine. The judge requested a presentence report and, after it was received, imposed concurrent sentences: six months in the county jail for reckless driving, and one year for leaving the scene of an injury accident. (Counsel agree that the sentence imposed for reckless driving was erroneous, the maximum sentence of confinement for a first offense of reckless driving being ninety days, as provided by K.S.A. 8-1566.)
Defendant promptly filed a notice of appeal from the judgment of the district magistrate judge to the district judge. The State then filed a second amended complaint, charging Burkett with three offenses. Count I reasserted the original felony charge of aggravated battery; Counts II and III charged misdemeanors, reckless driving and leaving the scene of an injury accident.
The defendant moved to dismiss the second amended complaint or in the alternative to dismiss Count I, the felony charge. After the submission of briefs and oral argument, the district judge sustained the motion and dismissed Count I. In his oral ruling, the judge observed that the defendant had entered pleas of nolo contendere before the district magistrate judge as agreed; that he did not agree to accept whatever sentence was imposed; and that he has an absolute right to appeal to a district judge or to an associate district judge, and to have a trial de novo before such judge. The ruling was based upon Blackledge v. Perry, 417 U.S. 21, 40 L.Ed.2d 628, 94 S.Ct. 2098 (1974). The trial judge concluded that the State’s assertion of a more serious charge in response to the defendant’s exercise of his right of appeal constituted a violation of due process.
Under the facts of this case, the issue before us is whether the State may reassert the felony charge.
We will review the applicable statutes, then the applicable case law.
K.S.A. 22-3609a provides:
“(1) A defendant shall have the right to appeal from any judgment of a district magistrate judge. The administrative judge shall be responsible for assigning a district judge or associate district judge for any such appeal. The appeal shall stay all further proceedings upon the judgment appealed from.
“(2) An appeal to a district judge or associate district judge shall be taken by filing a notice of appeal with the clerk of the court. . . .
“(3) The clerk of the district court shall deliver the complaint, warrant and any appearance bond to the district judge or associate district judge to whom such appeal is assigned. The case shall be tried de novo before the assigned district judge or associate district judge.”
K.S.A. 22-3610 provides:
“When a case is appealed to the district court, such court shall hear and determine the cause on the original complaint, unless the complaint shall be found defective, in which case the court may order a new complaint to be filed and the case shall proceed as if the original complaint had not been set aside. The case shall be tried de novo in the district court.” (Emphasis supplied.)
K.S.A. 22-3611 provides:
“If upon appeal to the district court the defendant is convicted, the district court shall impose sentence upon him and render judgment against him for all costs in the case . . . .”
K.S.A. 22-3609a and K.S.A. 22-3610 were amended by 1982 Senate Bill 699, § 19 and 20. These amendments, however, did not change the portions of the statutes quoted above.
In North Carolina v. Pearce, 395 U.S. 711, 23 L.Ed.2d 656, 89 S.Ct. 2072 (1969), Pearce had been convicted of a felony in a North Carolina trial court. Several years later, he successfully attacked the conviction and a new trial was ordered. He was retried, was again convicted, and was then sentenced to a longer total sentence than that which was originally imposed. The conviction and sentence were affirmed by the North Carolina Supreme Court. Pearce then filed a petition for habeas corpus in the United States District Court for the Eastern District of North Carolina. That court held that the longer sentence imposed upon retrial was unconstitutional and void. The Fourth Circuit affirmed. The Supreme Court also affirmed, holding that a due process violation may result when a more severe sentence is imposed on a defendant who is retried and convicted after successfully pursuing an appeal or otherwise attacking his original conviction and sentence. The court said:
“Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.
“In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” 395 U.S. at 725-26.
In Blackledge v. Perry, 417 U.S. 21, the Pearce principle was extended to prosecutors and the manner in which they conduct their affairs. Perry was charged with a misdemeanor in a North Carolina district court. He was convicted and given a six-month sentence. He then filed a notice of appeal to the Superior Court since, under North Carolina law, a person convicted in the district court has a right to a trial de novo in the Superior Court. The appeal automatically annuls the prior conviction and both the State and the defendant begin anew in the Superior Court. At this stage of the proceedings, the prosecutor obtained an indictment from a grand jury charging Perry with a felony based on the same conduct which was the subject of the misdemeanor charge. He entered a plea of guilty to the indictment and was sentenced to a term of five to seven years in the penitentiary. He later attacked this conviction through habeas corpus in the United States district court, which held that the bringing of the felony charge after the filing of the appeal violated his constitutional rights. The United States Supreme Court affirmed, holding that the bringing of the felony indictment violated Perry’s right to due process. The court said:
“A person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration. Cf. United States v. Jackson, 390 U.S. 570.
“Due process of law requires that such a potential for vindictiveness must not enter into North Carolina’s two-tiered appellate process. We hold, therefore, that it was not constitutionally permissible for the State to respond to Perry’s invocation of his statutory right to appeal by bringing a more serious charge against him prior to the trial de novo.” 417 U.S. at 28-29.
The case before us is factually distinguishable from Blackledge in that the defendant herein was originally convicted on a bar gained nolo contendere plea to the misdemeanors; he had been charged initially with a felony.
Plea bargaining is a useful and necessary tool which the prosecutor may employ, in his or her discretion. The practice has been approved by the United States Supreme Court and by this court. See Santobello v. New York, 404 U.S. 257, 261, 30 L.Ed.2d 427, 92 S.Ct. 495 (1971), and State v. Jackson, 223 Kan. 554, 558, 575 P.2d 536 (1978).
In the case at hand, both the defendant and the State made certain concessions and received certain benefits. The defendant was assured that he would no longer be charged with a felony; the charge would be reduced. The State was assured of a conviction of two serious misdemeanors without the time and the expense of a felony trial. Both parties initially performed under the plea bargain as agreed. Upon the imposition of sentence, which was harsher than the defendant had anticipated, he filed notice of appeal to the district judge.
The quoted statute, K.S.A. 22-3609a, gives defendant this privilege as a matter of right. The effect of the appeal is to stay all further proceedings before the district magistrate judge. The case is to be tried de novo before the district judge or an associate district judge. The pleas entered before the district magistrate judge are automatically vacated; otherwise there would be no reason for a trial. The proceedings start afresh; arraignment must be held; new pleas must be entered; a jury may be demanded; and if conviction results, the judge must direct the disposition, whether by fine, sentence, suspension of sentence, probation or otherwise. The plea, conviction and disposition had before the district magistrate judge are subject to automatic vacation by the appeal; none remain.
A situation similar to that now before us was presented in United States ex rel. Williams v. McMann, 436 F.2d 103 (2d Cir. 1970), cert. denied 402 U.S. 914 (1971). In that case, decided after Pearce but before Blackledge, the court faced a situation where the accused and the state had entered into a plea agreement. Defendant Williams, originally charged with sale of heroin, pleaded guilty to an attempted sale and was sentenced to three to seven years. He sought and was granted permission to withdraw his guilty plea, and was later tried, convicted and sentenced to a term of five to ten years for the original offense charged, sale of heroin. He attacked this sentence by habeas corpus in the federal courts, contending that the increased charge and sentence was violation of the Pearce principle. The district court denied relief and the Second Circuit affirmed. It said:
“Williams concedes that the original reduction from sale to attempted sale was the result of an express agreement with the prosecutor given in consideration of his plea of guilty. When Williams was successful in revoking his part of the bargain by having his plea of guilty set aside, it is hardly surprising, and scarcely suggestive of vindictiveness, that the district attorney in turn withdrew his consent to the reduced charge. Indeed, all that happened was that the prosecution was forced to proceed on the original charge ....
“. . . For us to hold that one in Williams’s position may not be tried and sentenced upon the charge originally brought would encourage gamesmanship of a most offensive nature. Defendants would be rewarded for prevailing upon the prosecutor to accept a reduced charge and to recommend a lighter punishment in return for a guilty plea, when the defendant intended at the time he entered that plea to attack it at some future date. Although there is no suggestion in the record that Williams attempted this gambit, one way in which it might be achieved would be to plead guilty after a bargain has been struck with the prosecutor on the lesser charge and sentence. But, if the court after reading the defendant’s probation report imposed a sentence higher than contemplated, the ‘unbargained-for’ longer sentence would then trigger proceedings to vacate the plea. Indeed, any reason the defendant could conceive for setting aside his plea and sentence would lose him little. If the defendant’s argument were to prevail, then a trial on the lesser charge only could result. The defendant would thus run no risks by this maneuver for his trial could end in acquital, but if he should be convicted, he urges he could not receive a sentence greater than that imposed on the guilty plea to the lesser offense. This is nothing more than a “heads-I-win-tails-you-lose” g-.-nble. To frustrate this strategy, prosecutors would be restrained from entering plea i argains, thereby adding further to the staggering burdens of our criminal courts, and judges would become more rigid in exercising their discretion in favor of permitting withdrawal of a guilty plea. This would hardly enhance the administration of criminal justice.” 436 F.2d at 106-107.
Other cases follow a similar line of reasoning. Thus, in United States v. Johnson, 537 F.2d 1170 (4th Cir. 1976), where guilty pleas to two of four counts were later vacated, it was held to be no denial of due process to charge all four original counts on retrial; in United States v. Anderson, 514 F.2d 583 (7th Cir. 1975), where a plea-bargained guilty plea to a lesser charge was later challenged and withdrawn, it was held to be no denial of due process to then prosecute on the greater charge; and in United States v. Williams, 534 F.2d 119 (8th Cir. 1976), where a conviction on a bargained guilty plea to a lesser charge was reversed, no due process violation was found when the defendant was brought to trial on the original charges. See also Hawk v. Berkemer, 610 F.2d 445 (6th Cir. 1979); Hardwick v. Doolittle, 558 F.2d 292 (5th Cir. 1977); and Com. v. Ward, 493 Pa. 115, 425 A.2d 401, cert. denied 451 U.S. 974 (1981). In Bordenkircher v. Hayes, 434 U.S. 357, 54 L.Ed.2d 604, 98 S.Ct. 663 (1978), the Court found that the Due Process Clause did not bar prosecution on the original indictment after the defendant refused a plea bargain offer to lesser charges. The Court observed:
“While confronting a defendant with the risk of more severe punishment clearly may have a ‘discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices [is] an inevitable’ — and permissible — ‘attribute of any legitimate system which tolerates and encourages the negotiation of pleas.’ Chaffin v. Stynchcombe, supra, [412 U.S. 17] at 31. It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty.” 434 U.S. at 364.
See also United States v. Goodwin, _ U.S. _, 73 L.Ed.2d 74, 102 S.Ct. 2485 (decided June 18, 1982).
In the case now before us, both parties carried out their obligations under the agreement when the case was presented to the district magistrate judge. When the defendant appealed the matter to the district judge, however, the defendant’s pleas of nolo contendere were automatically vacated. The effect was the same as if he had requested and had been granted leave to withdraw his nolo pleas.
The prosecutor then refiled the original felony charge, together with the misdemeanors. When the defendant is arraigned before the district judge, he may wish to plead nolo contendere again to the misdemeanor charges. If he does so, the plea arrangement will still be in effect and will be binding on both parties, and the State will be obligated to dismiss the felony charge. If, on the other hand, defendant does not plead nolo contendere to the misdemeanors, the defendant will have repudiated the plea agreement and the matter will go to trial on the originál felony charge. Thus, a defendant who is convicted on a bargained guilty or nolo contendere plea before a district magistrate judge, and who is aggrieved by the sentence imposed, may appeal to a district or associate district judge and be sentenced anew without facing the original more serious charge, so long as he is willing to enter the bargained plea upon appeal. We note, however, that the district or associate district judge is not limited by any lawful sentence imposed by the district magistrate judge, and in the absence of vindictiveness may impose any sentence prescribed for the offenses. See State v. Parker, 213 Kan. 229, 516 P.2d 153 (1973), and State v. Eaton, 213 Kan. 86, 89, 515 P.2d 807 (1973).
We see no indication of vindictiveness here; the prosecutor is merely reasserting the original felony charge. He has not filed new and more serious charges as a result of the defendant’s appeal. To hold that the prosecutor may not do so would permit a defendant to secure the benefit of his plea bargain — reduced charges — and also to have a trial on those charges rather than to enter nolo contendere pleas as agreed. The State would lose the entire benefit of its bargain; it would realize no convictions, and it would face the time and expense of trial on the reduced charges. Defendant would have everything to gain and nothing to lose, the “heads-I-win-tails-you-lose” gamble described in United States ex rel. William.
We conclude that the State is not precluded from reasserting the original charges under either Pearce or Blackledge, and that the trial court erred in dismissing Count I of the second amended complaint.
The judgment is reversed, and the case is remanded for further proceedings in accordance with this opinion. | [
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The opinion of the court was delivered by
Bkeweb, J.:
This was an action of ejectment, brought by plaintiff in error to recover possession of certain real property situated in Jackson county. The case was first tried in April, 1879, and a judgment then rendered for plaintiff) which was reversed by this court upon proceedings in error. (24 Kas. 547.) The case was again tried, in November, 1881, and judgment rendered in favor of the defendants; to reverse which, plaintiff brings the proceedings a second time to this court. >>
Nearly all the questions in the case were considered and determined when it was here before. The decision of those questions has'become the established law of the case. (Headley v. Challiss, 15 Kas. 602.) Nevertheless,, counsel for plaintiff in error seriously challenge the decision then made, and earnestly contend that this court erred and should reexamine the questions; and they refer to the opinion in Long v. Wolf, 25 Kas. 522, in which we stated that we had gone to the extreme verge in this case in upholding defective notices of redemption, and that the. case deserved to be limited rather than extended. We do not understand that the rule that a decision once made becomes the established law of the case is a cast-iron rule, and incapable of relaxation in any event. Cases may arise in which it will be very clear that the first decision was erroneous, that not only in the case at bar will wrong result from adhering to the decision, but also other interests through the state will be imperiled; hence we do not doubt the power of the court to reconsider and reverse ■ a prior decision in the same case. Still, in all ordinary cases the rule is as above stated. After a decision has once been announced by this court, the further steps in continuation of the controversy are based upon and regulated by that decision, and unless it is plain that a serious error has been committed, such decision should be adhered to. Now it is not clear to us that the prior decision was wrong. On the contrary, the question still seems one of great doubt. Much can be said on either side, but after all the arguments pro and con have been considered, we can only say that we hesitated at the time the prior decision was made; we hesitate still, and that very doubt compels us to adhere to that decision. Outside of these principal questions, there are simply one or two matters in the admission of testimony which deserve consideration.
And first, the court permitted the defendant, over the objections of the plaintiff, to prove certain admissions made by plaintiff’s attorney on the former trial. The question in the case was as to the validity of a tax deed under which the defendant claimed. John Shoup, the principal defendant, at one time had possession of the laud under contracts of purchase from the plaintiff. These contracts stipulated that Shoup should pay the taxes. He failed to pay them, and upon his failure a tax deed issued to one Flint, and thereafter Flint conveyed to Shoup. Before this conveyance of the tax title to Shoupj he had surrendered to the plaintiff these contracts of purchase, and a vital question was as to the terms of the agreement under which these contracts were surrendered and canceled. It was claimed that the plaintiff’s attorney admitted on the former trial that upon the surrender of these contracts of purchase, each party was released from all obligations and stipulations contained therein. Proof of this admission was offered and received, and in respect thereto the court instructed as follows:
“It is claimed by the defendants that upon that trial, Mr. Martin, as such attorney, admitted the surrender and cancellation of the contracts referred to. The plaintiff was bound by the admission, if it pertained to the case; if it was a general admission of the facts referred to, and without limitation, the plaintiff would be bound thereby in every subsequent stage of the case. But if it was an admission for the purposes of that trial only, and so understood by the parties at the time, it would not be binding upon the plaintiff now.”
In this did the court err? It is not disputed but that an admission contained in a pleading may be taken advantage of by the opposite party at any time in the trial of a case, and this notwithstanding by amendment the admission is dropped from the pleadings upon which the case is in fact tried. But it is contended that a mere oral waiver of testimony made pending a trial is to be considered as made only for the purposes of that trial, and is nothing which binds the party in any future trial; and that this so-called admission of Mr. Martin’s was but in effect a waiver of proof, and for the purposes of that trial only; and in support of this the case of Weisbrod v. The Rld, Co., 20 Wis. 421, is cited. We think the ruling of the district court is correct. An attorney is for the purposes of the trial the agent of his client, and whatever he does and says in its progress is prima fade the act and word of the client. If the plaintiff in this case had been a living person, and upon the trial had stated exactly what his attorney did state, no one would question but that proof of such statement might be given in any subsequent trial. It is doubtless often true that during the progress of a trial, and to hasten it, counsel waive the production by the opposite party of formal proof of some fact, intending to rest their case on some other matter; and this, which is done for the mere purpose of that trial alone, and for the sake of facilitating it, is not to be considered as a formal admission of the fact, binding in all subsequent progress of the case. But whether the consent or admission or waiver is to be considered as made for the purposes of that trial only, or as a general admission, is ordinarily a question of fact to be determined by the jury, and so in this case the court placed it. It is true that sometimes the waiver or admission may be so obviously intended for that trial alone that the court may properly so instruct the jury, and it may also be so obviously intended as a general admission that the court may instruct the jury to treat it as such: as for instance, where the parties sign an agreed statement of facts. But perhaps more often, especially in reference to oral admissions, it is uncertain whether they were intended as general admissions, like admissions in a pleading, by which the party intends to stand at all times, or as a mere waiver of proof, for the purposes of facilitating the pending trial. Then the tribunal to determine what was the import and intent of the admission is the jury before which the case is then pending for hearing. It may not always be easy to determine as to any particular admission upon which side of the line it belongs, yet the difficulty is not in the rule itself, but in its application to the particular case. In 1 Greenl. on Ev., § 186, the author thus states the rule:
“The admissions of attorneys of record bind their clients in all matters relating to the progress and trial of the cause. But to this end they must be distinct and formal, or such as are termed solemn admissions, made for the express purpose of alleviating the stringency of some rule of praptice, or of dispensing with the formal proof of some fact at the trial. In such -cases they are in general conclusive, and may be given in evidence, even upon a new trial.”
In Gresley on Evidence, 458, the author says:
“For the purposes of the suit an admission made by counsel is conclusive; and in the subsequent proceedings, or on rehearing, if the court is satisfied, that they were really made, they cannot be retracted. The party’s remedy is against his counsel.”
So, in Holley v. Young, 68 Me. 215, it was held that “an admission made at the first trial, if reduced to writing or incorporated into the record of the case, will be binding at another trial of the case, unless the presiding justice, in the exercise of his discretion, thinks proper to relieve the party from it.” See also Doe v. Burt, 7 C. & P. 6; Langley v. Lord Oxford, 1 M. & W. 508; Woodcock v. Calais, 68 Me. 244; Perry v. Manufacturing Co., 40 Conn. 313.
It may also be noticed that in the -record of the case as it came to us before, the admission appears as a general one, and is thus stated:
“That at the time of the surrender of each of said contracts, numbered 555 and 531 respectively, and mentioned in the third finding or conclusion of fact of the court herein, it was mutually agreed and understood by and between said plaintiff [defendant in error] and the said John Shoup, that he should relinquish all his claims in and to each, of said tracts [of land] under and by virtue of the said contracts re spectivfjy, and all his improvements on the said premises; and in consideration thereof, the said plaintiff, at the time of such surrender of said contracts, released all its claims'’against the said John Shoup, under and by virtue of the covenants on the part of said John Shoup in said contracts and each of them contained.”
' We conclude, therefore, that there was no error in the rulings of the district court in this respect.
The only other matter in respect to the testimony which we shall consider, is as to the ruling of the court permitting the witness John Shoup to state the contents of a letter claimed to have been written him, concerning the subject-matter of the action. It is said that no sufficient evidence was given of the loss of the letter; and Johnson v. Matthews, 5 Kas. 118, is cited as authority. We think that case is not in point, and that sufficient evidence was in fact given of the loss of the letter to justify evidence as to its contents. In the case from 5 Kas., supra, the only evidence was the statement of the witness “ that the order is now so mislaid that I cannot find it.” Here the witness testified where he last saw the letter, and that was in a chest in his own home where he kept his private papers, and that he had searched for it more than once, the last time just before he started for the trial, and that he had not been able to find it; that he had not got the letter, and so far as he knew it was lost. We may also add that in view of the other testimony the error in the admission of the contents of this letter, if error it was, was not one of very great importance.
We see no other matter that we think deserves special mention. The only serious question in the case is, as to the sufficiency of the notice of the expiration of the time of redemption— a question which was decided adversely to the plaintiff when the case was here before; and which decision, for reasons heretofore given, must, although the question be doubtful, be adhered to.
The judgment of the district court will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
After the decision in this court in Benton v. Nason, et al., 26 Kas. 658, and on the 21st day of March, 1882, the plaintiff filed his petition to perpetually enjoin the defendants, as commissioners of Pottawatomie county, from canvassing the votes polled at the election held in that county on September 23,1879, for the purpose of permanently locating the county seat of the county. It was alleged in the petition, that the order for the election was wrongfully and illegally made, because not petitioned for by the proper number of legal voters of the county; that the petition presented and acted upon contained the names of minors, dead persons, non-residents and forged signatures in numbers sufficient to reduce it below the requirements of the law. A temporary, injunction was granted upon the application of the plaintiffj by the probate judge of Pottawatomie county, upon the date of the filing of the petition, and at the March term of the district court for 1882 the defendants moved to dissolve the injunction thus granted; and upon the hearing of the motion the record and decision of affirmance in the case of Benton v. Nason, supra, were offered in evidence. The motion was sustained, and plaintiff now brings the case here.
It appears from the record that the case of Benton v. Nason, supra, was tried upon its merits, and the judgment therein rendered affirmed by this court. We perceive no error in the ruling of the district court. Although the plaintiff was not the same as in Benton v. Nason, yet it was the same interest which was plaintiff; and where one case involving the county-seat question has been heard upon the merits and decided, county commissioners ought not to be exposed to repeated suits from different parties. If this be not true, then it follows that it is within the power of those who may be dis satisfied with the result of a county-seat election, to defeat almost forever the canvass of the returns of the election, by the continued institution of new suits. Perhaps there might be some special and exceptional circumstances preventing the one decision determining all, but, as a -rule, one decision on the merits of .the case ought to conclude all parties with the same interest. See McMillen v. Butler, 15 Kas. 62. .Further than this, however, subdivision 3 of §18 of the code bars this action. The date fixed by law for the canvass of the votes cast at the election was September 27,1879, and in our opinion the cause of action accrued to the plaintiff the day fixed by law for the canvass. This action was not commenced for more thani two years after that date. If the county commissioners had voluntarily deferred any action, the rule might have been different, but their action was postponed through an injunction, and the time thereby for commencing this action was not extended. At any rate, if the rule here stated is not within the very letter of the statute, it is clearly within the spirit, and it is important that there should come a time in which litigation of this character shall end.
The order and judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Two questions are presented by the record - for our consideration:
First, Is the will referred to in the agreed statement of facts the valid will and testament of James M. Allen, deceased ?
Second, If it is his will, has the real estate devised therein to Sarah. J. Lavett, net Allen, descended to the heirs of the testator by the neglect of the devisee?
It is admitted in the statement of facts that the property •described in the will at the time of its execution belonged exclusively to James M. Allen, and that he died sole seized thereof. Rebecca J. Allen, his wife, who joined in the execution of the will, is still living, but had no interest whatever in the property mentioned in the will during the life of her husband, James M. Allen. This, therefore, is the case of a will where the husband and wife join in the execution of what is in form a ioint will, but which only disposes of property of which the husband is the sole owner. Such an instrument may be sustained as the several will of the husband. The wife, having nothing on which the will could operate, is held to be a mere cipher-in the transaction. The will, therefore, was that of the husband in the same manner'as though the wife had not signed it, and all her declarations and acts must be rejected as surplusage. (Thomas Rogers, et al., Appellants, &c., 11 Me. 303; Walker v. Walker, 14 Ohio St. 157.) Neither have the provisions of the will become void and ineffectual on account of the delay in the probate of it. Counsel for defendant in error claims otherwise, and refers to §§ 29 and 30, ch. 117, Comp. Laws 1879. They are as follows:
“Sec. 29. No will shall be effectual to pass real or personal estate, unless it shall have been duly admitted to probate or recorded, as provided in this act.
“Sec. 30. No lands, tenements or hereditaments shall pass-to any devisee in a will, who shall know of the existence thereof, and have the same in his power and control for a term of three years, unless, within that time, he shall cause the same to be offered for or admitted to probate; and, by such neglect, the estate devised shall descend to the heirs of the testator.”
The facts agreed upon do not bring the devisee within the-terms of said § 30 so as to deprive her of the estate devised by the will. Unless Lyons, the executor, acted for her, she had no power and control over the-will- until after the commencement of this action, and accordingly could not have been guilty of neglect in the matter of offering the will to probate. If the executor was her agent,, then she attempted through him to have the will probated on December '21, 1872, immediately after the death of the testator, and again in 1878. If the executor was not acting for her, then the will, although she knew of the existence thereof, was not in her power and control. (Comp. Laws 1879, ch. 117, §§3,4,5.)
In our opinion, the real estate in controversy passed under the will to Sarah J. Lavett, neé Allen, and did not descend to the heirs of the testator.'
The judgment of the district court must be reversed, and the case remanded with direction for judgment to be entered in favor of the plaintiffs in error, defendants below.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action on a promissory note and a mortgage. -The note- was a negotiable instrument for $205, executed by Winfield S. Romaine to George R. Shaver; and the mortgage was a real-estate mortgage, executed by Romaine to Shaver, to secure the payment of the note, and was duly recorded. Shaver transferred the note and mortgage, before due, to the Farmers’ and Merchants’ bank at Wichita, Kansas, as collateral security for the payment of another note, executed by Shaver to the bank. This note and mortgage were transferred to the bank by an indorsement of the note, and by delivery of the note a.nd mortgage. No written assignment of the mortgage was ever made or recorded. Afterward, but before the note was due, Mary E. Kirk purchased the mortgaged property from Romaine, paying therefor $477.26, as follows: $300 to discharge a prior mortgage; $80.65 to Shaver for releasing the mortgage executed to him; and $96.61 to Romaine and to other creditors of his. Mrs. Kirk at the time had no knowledge that the note and mortgage which had been executed by Romaine to Shaver had been transferred to the Farmers’ and Merchants’ bank, and had no knowledge of the nature and character of such note and mortgage, except as the same were shown by the record of the mortgage in the recorder’s office. Afterward the bank transferred the note and mortgage to its president, H. W. Lewis, who then commenced this action to recover upon the same, making Romaine and.Mrs. Kirk parties defendant in the action. The plaintiff, Lewis, properly set forth his cause of action in his petition, and the defendant, Mrs. Kirk, properly set forth her defense in her answer, and to this defense the plaintiff replied by filing a general denial. A trial was had upon these pleadings, before the court without a jury, and the court found generally in favor of the defendant, Mrs. Kirk, and against the plaintiff, and rendered judgment accordingly. The plaintiff then moved for a new trial, which motion was overruled; and the plaintiff then brought the ease to this court for review.
It will be seen that the controlling question i.n this case is solely with regard to the mortgaged property, and arises between Lewis, a bona fide holder of the note and mortgage, and Mrs. Kirk, a bona fide purchaser of the mortgaged property.
It is true, the plaintiff -claims that Mrs. Kirk was not a bona fide purchaser of the property; but as that question was and is one of fact, and as it was properly submitted to the court below upon the pleadings and the evidence, and as the court below found in her' favor and against the plaintiff, and as there was sufficient evidence to sustain the finding of the court below, that question must now be considered as settled and at rest, and the defendant’ must* how be deemed to have been a bona fide purchaser of the property. It is true that Mrs. Kirk or her agent did not,, see the note and .mortgage. Nor was it necessary.- She was not a party to either of them. She was not a payor or payee, an indorser or indorsee, a mortgagor or mortgagee, nor an assignor or assignee; and she had no right to the possession of either the note or the mortgage. She was a mere purchaser'of real estate, and interested only in making a sufficient examination to see that the title was clear, or appeared to be clear. Her agent, however, inquired for the note and mortgáge, and was told that they were at Shaver’s home, about ‘twenty-five miles distant. We are now discussing the question of fraud in fact, and these matters certainly do not prove any such kind of fraud.
It is also true that Mrs. Kirk did not pay to Shaver for releasing the mortgage the full amount of the note; but none of these things prove that 'she was not a bona fide purchaser of the property. As before stated, she was not a party to either the note or the mortgage, and was not bound to know the exact nature of the transactions had between Shaver and Eomaine, or all of such transactions. She was not bound to know that there was still more than $80.65 due on the note. But even if she had known the same, still that fact alone' would not make any difference; for the holder of a note and mortgage may release the mortgage without receiving the full value of the note, or even without receiving anything thereon or therefor. He may take other security on the note, or he may consider the maker of the note perfectly good, and be willing to release the mortgage without receiving any payment on the note. But what the character of the transactions were between Shaver and Romaine, Mrs. Kirk was not bound to know; and from anything appearing in the case, she may have acted in the most perfect good faith. It is true, also, that the land was worth more than $477.26. It was in fact worth about $700; but that fact does not establish fraud, any more than the other facts do; and the court below by its findings necessarily found that Mrs. Kirk and her agent acted in good faith in the purchase of the property. Of course Shaver acted in bad faith. After transferring the note and mortgage to the bank, he should not have entered a release of the mortgage upon the records of the county. We now pass to the questions of law.
The question now arises, who shall suffer from the fraud of Shaver — the bona fide holder of the note and mortgage, or the bona fide purchaser of the mortgaged property?
The plaintiff claims' that it must be the purchaser of the property; and he founds that claim exclusively upon .the negotiable character of the note and mortgage. The defendant, on the other hand, claims that it is the plaintiff who must lose; and she founds her claim upon the laws regulating the sale and conveyance of real estate, the registry laws, etc., and upon the claim that although the note is negotiable, the mortgage is not.
Now it must be admitted that a mortgage in the abstract is not, and never was,.a negotiable instrument; and that even where it is made for the purpose of securing some debt, or instrument, or act, or transaction, not negotiable, it is not, and never was, a negotiable instrument.
In this state, the only negotiable instruments are bills of exchange, promissory notes and bonds, payable to order or bearer; and if payable to order and transferred, then indorsed by the payee thereof.
But it is claimed by the plaintiff that when a mortgage is executed to secure the payment of a negotiable instrument, it so far partakes of the negotiable character of such instrument as to become itself negotiable; and in support of this proposition, the plaintiff cites: 1 Jones on Mortgages, § 834; Carpenter v. Longan, 83 U. S. (16 Wall.) 271, 275; Sawyer v. Pritchett, 86 U. S. (19 Wall.) 147; Croft v. Bunster, 9 Wis. 503, 510, 511; Kelley v. Whitney, 45 Wis. 110; Vandercook v. Baker, 48 Iowa, 199; Beals v. Neddo, 10 Cent. L. J. 187; same case, 1 McCrary, U. S. C. 206; Burhans v. Hutcheson, 25 Kas. 625.
To this extent we think the claim of the plaintiff is correct. A mortgage in this state is only a security — only an incident to the debt which it is made to secure, and, like all other securities, it follows the debt and partakes of its nature and character.
The defendant, however, disputes this doctrine, even to the extent above suggested, and cites many authorities which seem to sustain his view of the case, among which, one of the ablest and most thoroughly considered is the case of Baily v. Smith, 14 Ohio St. 396, 405, et seq.
Of course such a doctrine as the one we have just conceded to be correct confers a vast amount of intrinsic force upon a negotiable instrument. It says that a negotiable instrument, by its own intrinsic force, may confer the important element of negotiability upon a collateral contract — a, mortgage of real estate — and make such collateral contract, like itself, negotiable. Suppose that the negotiable instrument should be executed by one person, and that the mortgage to secure the same should be executed by another and different person, and that the mortgaged property should belong to the mortgagor, and not to the person who executed the note: then is the mortgage, as against the mortgagor and his grantees, nego tiable to the extent of the note? And suppose, further, that a portion of the note should be paid before maturity, and then that the note and mortgage should be transferred by indorsement of the note before maturity: could the transferee, as the plaintiff claims, not only recover a judgment against the maker of the note for the full amount of the note, but also recover judgment against the mortgagor to sell the mortgagor’s property to pay all of such amount? Or could the transferee, as the defendant claims, recover a judgment against the mortgagor to sell only a sufficient amount of his property to pay the amount actually due on the note? Could the two instruments under such circumstances be considered substantially as only one instrument, and each negotiable, or must they be considered as separate instruments — one negotiable and the other not? For the purposes of this case, we shall assume where the mortgage has been duly recorded, and not discharged of record, that both instruments would be negotiable, and that the mortgaged property would be liable in all these cases for the full amount of the main instrument (the note), notwithstanding any equities that might exist on the one side in favor of the mortgagor, or his grantee, or 'that might exist on the other side in favor of the maker of the main instrument, or any indorser thereof. Under the authorities, we would also think that whenever the payee and mortgagee of a negotiable promissory note, and its attendant mortgage, transfers such note and mortgage by indorsement of the note, he cannot then discharge the mortgage of record so as to affect existing rights. This would seem to be the doctrine enunciated in the following cases: Roberts v. Halstead, 9 Pa. St. 32; Vandercook v. Baker, 48 Iowa, 199. But none of the cases yet cited reach the present case. The authorities so far cited go only to the extent of saying that the transfer before due of a negotiable instrument, secured by a mortgage, cuts off all equities existing in favor of the maker of the note and mortgage, or in favor of any person who has put the same in circulation as maker or indorser, or who has notice, constructive or actual, of the existence of the'mortgage, and no sufficient and legal notice of its discharge or satisfaction ; and they do not go to the extent of saying that no person can become an innocent and bona fide purchaser of the mortgaged property so as to obtain it freed from the mortgage debt, when the records of the county' apparently show that the mortgage debt is no lien upon the property, or when they fail to show that it is such lien.
The plaintiff claims that the case of Burhans v. Hutcheson, 25 Kas. 625, is conclusive in his favor in the present case.. We do not think so, however. In that case, the discharge of the mortgage of record was not made by the mortgagee, but was made by the mortgagor himself — that is, the mortgagor seemingly attempted to release himself from his own mortgage, a mortgage which he himself had executed; and to discharge himself from his own debt. The discharge in that case was void — the same as no discharge at all. In the present case, the contest is between a bona fide holder of the note and mortgage and a bona fide purchaser of the mortgaged property, who had no knowledge, actual or constructive, that any person except the mortgagee had any interest in the note and mortgage; and the release of the mortgage was made by the mortgagee himself. The release in this case was by the right person, and was valid. The two cases are so absolutely dissimilar that the one reported in 25 Kansas can be no authority for this.
The defendant’s counsel cite the following authorities, in support of their views: Bank v. Anderson, 14 Iowa, 544; Vanice v. Bergen, 16 Iowa, 555; McClure v. Burris, id. 591; Cornog v. Fuller, 30 Iowa, 212; Bowling v. Cook, 39 Iowa, 200; Walker v. Schreiber, 47 Iowa, 529; Ayers v. Hays, 60 Ind. 452; Etzler v. Evans, 61 Ind. 56; Fosdick v. Barr, 3 Ohio St. 471; Ex’rs of Swartz v. Leist, 13 Ohio St. 419; Baily v. Smith, 14 Ohio St. 396; Roberts v. Halstead, 9 Pa. St. 32; Henderson v. Pilgrim, 22 Tex. 464; Fassett v. Smith, 23 N. Y. 252; Van Keuren v. Corkins, 66 N. Y. 77; Johnson v. Carpenter, 7 Minn. 176; Ogle v. Turpin, 13 Cent. L. J. 479; same case, 101 Ill.; Jones on Mortgages, §§ 472, 791, 820, 967.
The theory upon which the defendant claims that her rights cannot be affected by reason of the negotiability of the note and mortgage in this case is, that she is not a party to either the note or mortgage; that she is not a maker or indorser, a payee or mortgagee, and has never had any connection therewith. She claims that she is merely a purchaser of the real estate, and that, as such purchaser, her rights are governed and to be determined, not by the laws or rules of courts concerning negotiable instruments, but by the laws regulating the sales and conveyances of real estate and by the registry laws. She claims that she has a right to purchase real estate as free and clear from incumbrances,' when the records of the county show that the same is free and clear from incumbrances; provided, of course, that her purchase is in fact in good faith.
Section 19 of’the registry laws provides that—
“ Every instrument in writing that conveys any real estate, or whereby any real estate may be affeoted, ... . may be recorded in the office of the register of deeds of the county in which' said real estate is situated.”
Section 20 of such laws provides that the record of such instrument shall impart notice to others; and § 21 of such laws provides that—
“No such instrument in writing shall be valid, except between the parties thereto and such as have actual notice thereof, until the same shall be deposited with the register of deeds for record.” (Comp. Laws of 1879, p. 212.)
All persons admit that a mortgage of real estate, to be of any validity as against third persons without notice, must be recorded. (See act concerning conveyances and act concerning mortgages.) Sec. 3 of the act concerning mortgages recognizes “.the recording of the assignment of a mortgage.” And § 5 of the same act provides that—
“Any mortgage of real property that has been or may hereafter be recorded, may be discharged by an entry on the- 'margin of the record thereof, signed by the mortgagee, or his attorney, assignee, or personal representative, acknowledging the satisfaction of the mortgage, in the presence of the register of deeds or his deputy, .who shall subscribe the same as a witness.” (Comp. Laws of 1879, pp. 555, 556.)
And §5 of the act relating to frauds and perjuries provides that no interest in lands exceeding one year-in duration shall be assigned or granted, unless it be by some deed or note in writing, signed by the party assigning or granting the same. (Comp. Laws of 1879, p. 464.)
These are all the statutes that are necessary to be referred to respecting the sale and conveyance of real estate, or respecting instruments creating or discharging or affecting mortgage liens, or respecting the registry of instruments affecting real estate. There are other statutes governing judgment liens, attachment liens, mechanics’ liens, etc. Under these statutes we think it is perfectly safe for any person who has no notice of outstanding equities to purchase real estate which the records of the county apparently show is free and clear from all incumbrances. If a mortgage has been executed by the owner of the property to secure the payment of a negotiable promissory note, and the mortgage has never been recorded, then we think a person who has no knowledge of the mortgage may purchase the property from the mortgagor freed from all liens or equities created by the mortgage. Or, if the mortgage has been recorded and then has been regularly released on the margin of the record thereof by the mortgagee, then-we think that any person, if he does it in good faith, may purchase the property in like manner freed from all liens and -equities existing in favor of the holder of the mortgage; or in other words, and to state the proposition more succinctly, a purchaser in good faith of real estate may always rely upon the public 4records, subject only to the equities of persons in open, visible and exclusive possession of the property. A purchaser in good faith of real estate is never bound to take notice of secret equities, liens, interests, trusts or in cumbrances, which cannot be discovered from an inspection of the public records, or cannot be ascertained by inquiries from the parties in possession. He may always rely upon the public records and such inquiries as they suggest, and such inquiries as are proper of the parties in possession; and if from all these the title appears to be clear, he will then obtain a good title, although there may be some outstanding equity or lien in favor of some other person.
After a careful consideration of the authorities and the statutes of this state, we have come to this conclusion: Where a real-estate mortgage is executed to secure the payment or a negotiable promissory note, such mortgage will so far partake of the negotiable character of the note that whenever the note is transferred by indorsement before due so as to free it from all equities existing in favor of the maker of the note, or prior indorsers, the mortgage will also be freed from such equities. But until the mortgage is recorded, such transfer will not prevent a third person, who has no notice of the mortgage or transfer, from purchasing the mortgaged property and thereby obtaining a full and absolute title to the property, free and clear from the mortgage lien. But when the mortgage is recorded, its negotiable character is then extended even to bona fide purchasers of the property, and it retains such character contemporaneously with the existence of the note to which it is an incident until the note is satisfied, or until the mortgage is released of record by the mortgagee, or his attorney, assignee, or personal representative; and that when the mortgage is so released it then loses its negotiable character to the extent that any third person who may then purchase the property in good faith will obtain the full, complete and absolute title thereto, freed from all equities, liens, interests, trusts or incumbrances existing in favor of any holder of the note and mortgage, whether the note is satisfied or not.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The only question in this case is, the extent of the liability of a garnishee. The cause was tried in the court below on an agreed statement of facts. From that agreed statement it appears that on the 14th day of January, 1881, plaintiffs commenced an action before W. E. Hazen, a justice of. the peace, against one Clarence Bryant, to recover the sum of $113.17, and op that day caused a garnishee summons in- said cause to be served on the defendant, returnable on the 25th day of January, 1881. On the 25th day of January, 1881, they recovered a judgment against Bryant in said action for the sum sued for. On the 14th day of January, the day of the service of the garnishee summons, the defendant was indebted to Bryant in the sum of $28.84, for labor theretofore performed. For a long time prior to said 14th day of January, Bryant had been in the employ of the defendant at and for the agreed compensation of $70 a month, payable at the expiration of each month. On-said 14th day of January after the service of the garnishee summons, the defendant discharged Bryant from its employ and immediately thereafter reemployed him at and for the agreed compensation of $70 a month — payable in advance, said employment to commence on the 15th day of January; and on the 15th day of January defendant paid him the sum of $70 for one month’s labor. Bryant continued in the employ of the defendant for the months following, and the single question is, whether said garnishee proceedings bound the defendant for any moneys paid to Bryant, or any liabilities incurred to him after the service of the garnishee summons and the discharge of-Bryant from its employ. The district court, to which the case was taken from the justice of the peace, held that it did not; and from that ruling the plaintiffs come to this court.
The amount in controversy in this case is small, but the question is of some importance, and is not free from difficulty. A first reading of the statute seems to sustain the plaintiffs’ claim, and yet a careful consideration of the principles which underlie proceedings in garnishment at least throws great doubt upon the question. We quote such portions of the statute (Justices’ Act, ch. 81, Comp. Laws 1879) as seem to bear directly upon the question:
“Sec. 39. The garnishee shall appear before the justice, in accordance with the command of the notice, and shall answer, under oath, all questions put to him touching the property of ■every description and credits of the defendant, in his possession or under his control; and he shall disclose truly the amount owing by him to the defendant, whether due or not; and in the case of a corporation, any stock therein held by or for the benefit of the defendant, at or after the service of the notice.”
“Sec. 42. If the garnishee'appear and answer, and it is ■discovered on his examination that at or after the service of the order of attachment and notice upon him die was possessed of any property of the defendant, or was indebted to him, the justice may order the delivery of such property, and the payment of the amount owing by the garnishee into court, or may permit the garnishee to retain the property or the amount owing, upon the execution of an undertaking to the plaintiff, by one or more sufficient sureties, to the effect that the amount shall be paid or the property forthcoming, as the ■court may direct.
“Sec. 43. If the garnishee fails to appear and answer, or if he appears and answers, and his disclosure is not satisfactory to the plaintiff, or if he fails to comply with the order of the justice to deliver the property and pay the money owing into court, or give the undertaking required in the preceding section, the plaintiff may proceed against him in an action, in ■his own name, as in other cases; and thereupon such proceedings may be had as in other actions, and judgment may be rendered in favor of the plaintiff for the amount of the property and credits of every kind, of the defendant in the possession of the garnishee, and for what shall appear to be owing by him to the defendant, and for the costs of the proceedings against the garnishee.”
“Sec. 51.'An order of attachment binds the property attached from the time of service, and the garnishee shall stand liable to the plaintiff in attachment for all property, moneys and credits in his hands, or due to him from the defendant, from the time he is served with the written notice mentioned in section thirty-seven.”
The provisions of the code of civil procedure in reference to garnishment proceedings in the district court are substantially the same.
Now counsel for plaintiffs say that from the answer it appears, not merely that the defendant was indebted to Bryant at the time of the garnishment summons in the sum of $28.84, but also that after such service and before the answer day it became indebted to him in the further sum of $70, and that, by the plain language of §42 the defendant was liable to the plaintiffs for such after-accruing indebtedness; while on the other hand, defendant contends that the liability of the defendant is fixed at the time of the service of the garnishee process, that such garnishee proceedings amount to no more than an.assignment of the debtor’s then existing claim against the garnishee, and did not reach to or affect any subsequent transactions, contracts and liabilities between it and the debtor. It is obvious that this question of the garnishee’s-liability for an indebtedness may arise in at least four distinct cases: First, Where the indebtedness is owing and already due and founded upon a consideration theretofore fully paid, as for work already done or for goods already sold and delivered. Second, Where the consideration has theretofore been fully paid, but the indebtedness, though existing, is by the terms of the contract between the parties, not yet due. Third, Where the contract for the indebtedness has been previously made, but the consideration therefor has been only partially paid and discharged, as where a contract has been made for the performance of work which has been only partially performed. And Fourth, Where at the time of the service there is no indebtedness, and no contract providing for any, but- intermediate the time of the service and the time of the answer an independent contract is made and an original indebtedness created. As to the first two classes of cases, there can be no question as to the liability of the garnishee. As to the third, none as to the liability of the garnishee for the amount which would be owing to the debtor if immediately he stopped further performance and discharge of the consideration; but perhaps some doubt as to his liability for the additional amount due upon a subsequent payment and discharge by the debtor of the remaining portion of the consideration. The fourth case is the one at bar. For the present, laying aside all question of fraud, which will be considered hereafter, the case stands precisely as if at the time of the service of the garnishee process this defendant was not indebted to the debtor, and was under no contract and had no engagement with him. And the question is, whether the garnishee process will bind the defendant as to contracts entered into and liabilities incurred subsequent to the service of the garnishee process. With some hesitation, we are constrained to answer this question in the negative. The general theory and doctrine of garnishment is, that the-garnishee is to be protected against all unnecessary vexation, and that the garnishee proceedings amount to no more than a substitution of the plaintiff for the defendant debtor in the enforcement of any liability against the garnishee. It was-said by this court, in the case of the Board of Education v. Scoville, 13 Kas. 32, that: “Neither of said orders is a judgment. The making of them is not an adjudication between the parties. It does not determine their ultimate rights. It simply gives to the creditor the same right to enforce the payment of the money from the garnishee that the debtor previously had. It is in effect only an assignment of the claim from the debtor to the creditor. The creditor-gains no more or greater rights than the debtor had, and the garnishee loses no rights.” Drake, in his work on Attachments, § 458, also states the general doctrine in this language: “A fundamental doctrine of garnishment is, that the plaintiff does not acquire any greater rights against the garnishee than the defendant himself possesses.” And again, in § 463, he says: “It will be found on examination, that whatever else may under particular statutes authorize his being charged, there are two comprehensive grounds common to every attachment system, viz.: 1. His possession when garnished, of personal property of defendant, capable of being seized and sold on execution y ■and, 2. His liability ex contractu to'the defendant whereby the latter has at the time of the garnishment a cause of action, present, or future, against him.”
Most of the sections of the statute seem to recognize and ■enforce this general doctrine. Thus the preliminary affidavit in ordinary garnishee cases, § 37, must read: “ Has property of the defendant (describing the same) or credits in his possession, or is indebted to him.” While § 54a, under which this affidavit was filed, requires that it show: “That such person ■or corporation is anywise indebted to the principal defendant, •whether such indebtedness be due or not.” That is, the affidavit upon which all garnishee proceedings rest must show a subsisting and present indebtedness, and is not sufficient if it alleges that the parties in the future are to enter into a contract and to then create an indebtedness. Obviously, this ■contemplates simply a seizure and an appropriation of a present indebtedness, and not a reaching out for the seizure of a nod-existing but expected liability in the future. Sec. 51, properly read, as we think, harmonizes with this view. It attempts to define the time at which the process is effective. An attachment “binds the property from the time of service,” and the garnishee is liable “from the time he is served.” That does not mean that he is liable for any debts that may be due from him to the defendant at any time after the service, but that he is liable from the time of service for any debts that may be then due from him. Sec. 39, which provides what his answer shall contain, requires that he shall disclose truly the amount owing by him to the defendant, whether due or not. Now if this section was the only one, it might refer to the time«of the answer or to the time of service of process; but as the general doctrine in all litigation is that rights are to be determined as they existed at the time jurisdiction attaches rather than at the time the evidence of such rights is furnished, and in view also of the language of the affidavits upon which these garnishee proceedings were founded, it would seem that this language should be-understood as referring to a disclosure of the amount due at the time jurisdiction attaches by the service of the garnishee process. The same reasoning which under this language would make the garnishee liable for all debts up to the time of answer, would under §43 make it liable for all .debts up to the time of the judgment against it in cases where it failed to answer, or its answer was, as in this case, not satisfactory. The language of § 42, it may be conceded, is broader, and apparently extends to indebtedness existing at or after the time of service; but we are constrained to think that this language is limited to and controlled by the language of the other sections referred to. The case of Martin v. Gayle, 2 Disney, p. 86, though only the decision of an inferior court, is exactly in point and upon the same section. It is true the court in that case did not finally decide as to the liability of the garnishee, but simply declined to enforce that liability upon a summary application. Speaking, however, of this section, it says: “What operation, then, it may be asked, can be given to the words ‘or after/ in § 217 of the code? It is sufficient to say that a reasonable effect may be given by supposing that they Were intended to embrace the case of debts not payable until after service of the notice. ‘Debitum in prcesenli, solvendum in futuro.’ This, in view of an order of payment, was material. The answer might show a debt due, but not payable. The order might be made after it became payable.”
See also the case of Nash v. Gale, 2 Minn. 310; Davenport v. Swan, 9 Humph. 186; and Case Threshing Machine Co. v. Miracle, Sup. Ct. Wis., decided February 7, 1882, and reported in 14 Cent. L. J., p. 278. In the case from 9 Humphrey, it appears that after the service of garnishee process the garnishee purchased from the defendant a horse, but the debt thus created was held not subject to the garnishment. The cases cited by the plaintiff are with one exception none of them in point. They are all cases in which the liability was existing at the time of the service of the garnishee process, although in some of them the money was not due until sometime thereafter. The case of Silverwood v. Bellas, 8 Watts, 420, seems to be an authority sustaining the plaintiffs’ claim. In that case, three years after service of the garnishee process, money came into, the hands of the garnishee belonging to the judgment debtor, and the liability was enforced. The court, however, rests its decision upon the particular statutes of that .state, which they say are the same as under the custom of London, from which the acts were borrowed. Referring to-the act of 1705, the court says: “ It enacts that if the garnishee-plead he had no goods or effects in his hands at the time of' the attachment, or at any time after, and the plaintiff prove the contrary, the jury shall find for the plaintiff.” It also holds that under the act of 1789 the garnishee may "be compelled to answer interrogatories touching the goods and moneys of the defendant in his possession or due and owing at the time of the service of such writ of attachment, or at any other time. Whether this decision were correct or not under the statutes-of Pennsylvania, we need not stop to inquire; but the case impresses us forcibly with the impropriety of enforcing such a doctrine under our statutes. The idea of holding a garnishee liable for moneys coming into his hands three years-after the service of garnishee process, seems abhorrent to our notions of the duty of a prompt disposition and adjustment of the rights of litigants. And yet if the doctrine contended for by the plaintiffs be correct, the same result might follow in this state. Garnishee proceedings are authorized after as-well as before judgment, (§§ 155, 156,) and from § 37 it would seem that where the garnishee is a corporation, answer day might be indefinitely postponed. Can if be that a party’s contracts with a corporation, whether for the sale of property or the performance of labor, can be so tied up by the service of garnishee process that the consideration of those contracts,, the payments for the property or the labor, must for an indefinite time be appropriated to the payment of a single garnishee creditor? We may also remark here without enlarging to any extent, that the construction claimed by plaintiffs would tend to prevent dealings of any kind between the debtor and other-parties. By serving a few garnishee notices the future earnings of a debtor might be wholly seized for the payment of ■his debts, leaving him nothing for personal support. In that way a laborer, however skillful, and however valuable his services, might practically be driven from a community. Here we may refer to the question of fraud, alleged in the discharge •of Bryant and his immediate reemployment under a stipulation for advance payment. This it is true may have been simply a trick to defeat the action of the creditor, but it is not necessarily so. It may be that Bryant would work under no other conditions, and his services may have been of such a character as to be absolutely necessary to the defendant. In such case it could not be affirmed that the proceedings were a fraud upon the rights of the plaintiffs. The mere fact of the abrogation of one and the making of a new contract is •not of itself a fraud upon the rights of the plaintiffs. Clearly it is no fraud if the plaintiffs’ rights extended only to the time ■of the service of the garnishee process. These considerations lead us to the conclusion that the construction placed by the district court upon the liability of the defendant is correct, and its judgment must therefore be affirmed.
Counsel for defendant in error also suggest that by the terms of the new contract no debt was created. They argue that if the company had refused to pay on the 15th day of ■January, it would not have been indebted, but only liable for •damages on account .of a breach of contract; and on the other hand, that if Bryant refused to work, it would be owing him nothing by virtue of its contract, or if it had paid Bryant, he would be indebted to it. In other words, they claim that this contract created not a certain debt payable in the future, but only a contingent liability, which is not the subject of garnishment; but in the view of the case that we have already taken, it is unnecessary to consider whether this be correct or not.
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 defendant in error, plaintiff below, to recover a balance due on settlement of a partnership transaction. Stripping the pleadings of all matters in which the parties agreed, and it left this single issue for trial. The petition alleged that as partners, the parties bought 900 head of sheep at one purchase, and sold the same in a single lot to L. Adams; that the profits of this transaction were $225, which profits were received and appropriated by the defendant. The answer denied specifically any partnership in the purchase and sale of these sheep, and alleged that it was a private transaction of defendant. Upon this issue the parties went to trial. The record contains the testimony of plaintiff and that of the defendant, and, without setting forth the other testimony, states that the testimony offered by plaintiff “conclusively proved the issues on his part,” and also that the evidence offered by defendant tended to sustain his own testimony and theory of the case. The court instructed the jury on the law of partnership correctly, and in a manner not now criticised by plaintiff in error; but the court refused this special instruction, asked by defendant: “If you believe from the evidence that there was a partnership between plaintiff and the defendant in the purchase of the sheep bought of Wardsworth, and that such partnership covered and embraced the sheep sold to Adams, and should further find that there has been no accounting between the parties plaintiff and defendant as to the profits or losses on said sale to Adams, then as a matter of law the plaintiff cannot recover in this action.” The refusal to give this instruction is the principal error complained of, and indeed presents the only question which we think needs any special comment. This- instruction proceeds upon the theory that where there are unsettled partnership dealings between two parties, the only proper action is an equitable one for an accounting,- and that an action at law cannot be maintained by one partner against the other for his alleged share of the profits. As a general proposition this is undoubtedly correct, and is supported by a large citation of authorities; but in view of the issue presented by the pleadings, as well as the testimony, we think the refusal to give it worked no error to the substantial rights of the defendant, and for these reasons: In the first place, we do.not understand the statement in the record as to the effect of the testimony in the same manner as counsel for plaintiff in error. The record says that the plaintiff’s testimony “conclusively proved” the issues on his part, and that the defendant’s testimony on the other hand tended to sustain his theory of the case. Now counsel for plaintiff in error say that this means simply that plaintiff’s testimony, in the absence of counter testimony, made out his ease, but the defendant’s testimony, being of contrary effect, left a doubtful question of fact to be settled by the jury; but this we thinly would be merely that plaintiff’s testimony made out a prima fade case. And where the record says that it conclusively proved the issues on his part, it means that it so proved such issues that no counter testimony could overthrow it. Then, and then only, is testimony conclusive and an issue conclusively proved; so that, although the defendant offered testimony tending to prove his theory of the case, upon the • whole testimony the plaintiff’s allegations were conclusively proved, and it would have been error for the jury to find against those allegations.
Second, where there is but a single partnership transaction, one joint venture, which is fully closed, we think one partner may maintain an action against the other for his share of the profits of that single transaction, and that in such a case there is no necessity of a formal accounting between parties. (Sikes v. Work, 6 Gray, 433; Wheeler v. Arnold, 30 Mich. 304.)
Third, the verdict of a jury as to the amounts of profits of a partnership transaction is as conclusive as the report of a referee or the findings of a court, and the parties may, if they see fit and the court makes no objections, submit the question of profits to the determination of a jury. Now in this case the plaintiff alleged a single transaction — the purchase and sale of a lot of sheep; that the profits of such transaction amounted to a certain sum, which was received by the defendant. The defendant denied all this, and claimed that the transaction was an individual and not a partnership matter. He raised no question as to the sufficiency of the petition, made no claim to a reference, an accounting, or a trial by the court, but went to trial before a jury without objection upon the single issue which he had tendered. Thereafter it was too late for him to insist that the petition was not sufficient in that it failed to ask for an accounting, or that he was entitled to a different trial and before a referee or the court. Even if the petition had disclosed a continuing partnership, a series of partnership transactions, and such a state •of affairs as would properly call for an accounting, and alleged generally without any prayer for an accounting that the defendant had received and appropriated the profits of ■such partnership, amounting to a specific sum; and the defendant, under a general denial and with a claim that there was no partnership, had gone to trial without objection before ■.a jury, it may be doubted whether, under the code practice, and where the same court tries questions of law and equity, the defendant could then defeat a recovery on the ground that though there was a partnership there had been no settlement of the partnership dealings, and the plaintiff’s true remedy was an action of accounting. Under the old practice, where the plaintiff brought an action of accounting, if the defendant denied the partnership the court might have submitted the question of the existence of a partnership to the verdict of a jury, and if that were determined in favor of the plaintiff, then direct an accounting between the parties.
We therefore conclude that the court did not err in refusing this instruction. As to the other matters complained of, it is enough to say that as the testimony “conclusively proved” the plaintiff’s cause of action, the rulings of the court worked no injury to the substantial rights of the defendant.
The judgment will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Yalentine, J.:
This is a civil action in the nature of ■quo warranto, brought by the attorney general in the name of the state of Kansas, to obtain a judicial determination dissolving the corporate existence of the Blue Mont Central College association. This association was organized in the year 1858, under an act of the legislature'of the territory of Kansas, approved February 9, 1858, (Private Laws of 1858, p. 75.) The objects of the association, as expressed in its charter, were the promotion of education and science, the conducting of experiments in agriculture, the testing of soils, and the cultivation of trees; and the association was authorized, for these purposes, to locate a college to be called “The Blue Mont Central College,” at or near Manhattan, Kansas, and to purchase both personal and real property; but not to hold at any one time more than five thousand acres of real estate. The association purchased property, located its college, and did and performed' all other things necessary to be performed under its charter, up to the year 1863, when it sold and transferred all its property, both real and personal, and ceased to maintain a college, or to perform any of the other duties or things required or authorized by its charter; and such has remained its condition up to the present time. The .college buildings, with all the grounds belonging thereto or connected therewith, and the apparatus and library used in connection with the college, were transferred to the state of Kansas on June 10, 1863, under an act of the legislature approved February 16, 1863. (Laws of 1863, pp. 11,12.) The other property belonging to the association was transferred to private individuals; and the. association has owned no property since 1863, unless, possibly, it has owned a reversionary interest in the property which it transferred to the state of Kansas. The president and trustees of the association have held just five meetings since the year 1863. The first was held December 14, 1861; the second, April 25, 1865; the third, January 5, 1880; the fourth, January 18, 1881; and the fifth, January 27, 1881; but at none of these meetings was anything done or attempted for the purpose of carrying out any of the objects or purposes expressed in the charter of the association.
Upon these facts, the attorney general claims that the association ought to be dissolved.
We are inclined to think that the attorney general is correct. It is now nearly nineteen years since the association wholly ceased the performance of every duty imposed upon it by its charter; and since, it has wholly abandoned every object for which it was brought into existence; and the association allowed nearly fifteen years (from April 25, 1865, to January 5, 1880) to elapse without holding any meeting or even any pretense of any meeting; and the association does not now pretend that it will ever again attempt to carry out any of the objects of its organization. Under such circumstances, we think its corporate existence should be dissolved.
It is not contended by the attorney general and his associate counsel, as we understand, that mere lapse of time, or the mere fact of the sale of the corporate property, or the mere failure of the corporation to elect officers, will, ipso facto, dissolve the corporate existence of the association; but it is contended by them that the absolute abandonment by the association of all its duties, and all the objects for which it was created, for the period of nearly nineteen years, furnishes such incontestable grounds for its dissolution that any court of competent jurisdiction must, whenever the question is properly presented to it, judicially determine that the corporation must be dissolved.
In this state a corporation can probably be dissolved only in one of two ways: first, by the expiration of the time limited in its charter; and second, by a judgment of dissolution, (Comp. Laws of 1879, p. 222, §40;) and the judgment of dissolution can probably be rendered only in an action in the nature of quo warranto, (Comp. Laws of 1879, p. 692, §653;) but such judgment of dissolution may be rendered in any case for misuser or non-user of the corporate franchises of the association, whenever such misuser or non-üser has been long-continued, willful and persistent. There are other grounds also which would authorize a judgment of dissolution of a corporation, but they do not apply to this case.
The defendants have set up a defense that the association has a suit now pending in the district court of Riley county, for the recovery of the real estate conveyed in 1863 by the association to the state of Kansas. Now the pendency of such a suit is no defense to this action. Even if the association should recover in that action, it would not be in furtherance of the corporate duties of the association, or for the promotion of the objects for which it was created. The authorities will be found cited in the briefs of counsel.
Judgment will be rendered in favor of the plaintiff and against the defendants for costs, and dissolving the corporate existence of the Blue Mont Central College association.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Joseph Westenberger and Simon Lowenthal were partners under the firm-name of S. Lowenthal & Co., doing business in Leavenworth city from January 1, 1880, to about the 10th day of January, 1881, at which time they alleged they dissolved, Westenberger claiming that he sold his interest in the firm to Lowenthal for the sum of $28,473.84, for which, after deducting $852.84, placed to his credit on general account, he took thirty-six notes of Lowenthal for $767.25 each, due respectively in two, three, four, five, six, seven, eight, nine, ten, and so on, up to thirty-seven months after date, in alleged settlement of the partnership. On the 14th day of November, 1881, he obtained from Lowenthal a chattel mortgage upon his stock of goods in the store at Leavenworth to secure thirty-four of said notes, and on the same day filed the mortgage in the office of the register of deeds of Leavenworth county. He also claimed that he took immediate possession of the property under the mortgage, with the consent of Lowenthal. About this time, Morse, Sheperd & Co. brought an action in the United States circuit court for the district of Kansas, against Lowenthal, to recover the sum of $4,141.69, and caused a writ of attachment to issue, which was placed in the hands of the United States marshal, Benjamin F. Simpson; and thereunder George E. Sharritt, a deputy' United States marshal, levied upon the goods embraced in the chattel mortgage. Thereupon Westenberger instituted an action of replevin in the district court of Leavenworth county, against Simpson and Sharritt, tq. recover possession of the goods. He obtained judgment in that court, and it is contended before us that this judgment must be reversed, because the court permitted evidence to go to the jury to prove his good character and reputation for honesty and fair dealing. His counsel claim this evidence was relevant and legitimate, and therefore properly admitted, and refer to 1 Greenl. Ev. (10th ed.), § 54, pp. 76-79, and the cases there cited, especially Ruan v. Perry, 3 Caines, 120. It is stated in 1 Greenleaf, supra, “and generally in actions of tort, wherever the defendant is charged with fraud from mere circumstances, evidence of his general good character is admissible to repel it.” In the note thereunder, it is said: “ The ground on which evidence of good character is admitted in criminal prosecutions, is this: that the intent with which the act charged as a crime was done, is of the essence of the issue, agreeably to the maxim, Nemo reus est, nisi mens sil rea; and the prevailing character of the party’s mind as evinced by the previous habit of his life, is a material element in discovering that intent in the instance in question. Upon the same principle, the same evidence ought to be admitted in all other cases, whatever be the form of proceedings, where the intent is material to be found as a fact involved in the issue.” The basis of the text and the note seems to be the case of Ruan v. Perry, supra, where the court held that “in actions of tort, and especially charging a defendant with gross depravity and fraud, upon circumstances merely, evidence of uniform integrity and good character is oftentimes the only testimony which a defendant can oppose to suspicious circumstances.” This doctrine, it is said generally, was recognized by the court in Fowler v. Ætna Fire Ins. Co., 6 Cow. 673, and afterward in Townsend v. Graves, 3 Paige, 455, 456. If the rule laid down in Greenleaf and supported by the authority of Ruan v. Perry, supra, controls, then the testimony complained of was admissible.' But, on the other hand, if the doctrine attempted to be established in Ruan v. Perry, supra, and by the text in Greenleaf, is not good law, the evidence was not only irrelevant and incompetent, but prejudicial to the opposing parties, and therefore they would be entitled to a reversal of the judgment. It is stated in 1 Wharton Ev., §47: “Although in criminal cases good character may be proved by the defendant, as tending to substantiate the plea ;of not guilty, yet in civil suits such evidence has been held to be irrelevant. When the question comes whether the defendant has committed a crime, then as a matter of indulgence to one whose life or liberty is at stake, good character, such as would make it improbable that he would have committed the crime in question, may be introduced among the elements from which the jurors are to make up their judgment. But whether it be because in a civil issue between two private parties, neither has the right to claim such an indulgence from the other, or whether it be because most civil suits grow out of, or may be supposed to grow out of honest misconceptions of rights, Anglo-American courts have agreed in holding that so far as concerns the proof in civil issues, the character of either party is, as a rule, irrelevant.” In reference to Ruan v. Perry, supra, the author says: “This case is sometimes cited as authority for the position that in actions for tort, charging criminality, the defendant may put good character in evidence. In Fowler v. Ins. Co., 6 Cow. 675, and Townsend v. Graves, 3 Paige, 455, Ruan v. Perry is cited with qualified approval; but it is emphatically repudiated in Gough v. St. John, 16 Wend. 646; Platt v. Andrews, 4 Comst. 493, and Porter v. Seiler, 23 Pa. St. 424.” In Fowler v. Ætna Fire Ins. Co., supra, cited as supporting Ruan v. Perry, the court refer to the latter case, but refer approvingly to Att'y General v. Bowman, 2 Bos. & Pul. 532, and decide that evidence of general good character is inadmissible by way of defense in a 'civil action in which a party is charged with a specific fraud, and that in civil actions the character of every transaction must be ascertained by its own circumstances, and not by the character of the parties. In Townsend v. Graves, supra, also cited by Green-leaf as recognizing Ruan v. Perry, the real question before the chancellor was, whether the complainant who charged the defendant with having fraudulently substituted another number in a package of lottery tickets, in the place of the prize ticket, could be permitted in the first instance to give evidence of the general bad character of the defendant. The chancellor decided, as such evidence had no bearing whatever •on the matter in issue in the cause, it was wholly inadmissible, and ought not to have been received. In Gough v. St. John, supra, the defeudant was sued in an action on the case for a false representation as to the solvency of a third person. The representation was in writing, and verbal testimony was •offered tending to show that the defendant knew it to be false. .To rebut this charge, proof that the defendant sustained a good character for honesty and fairness in dealing, was offered .and admitted. Cowen, J., held that the fraudulent intent was a necessary inference of law from the falsity of the representation, and that the evidence of character was improperly admitted. He cited and condemned the case of Ruan v. Perry, as favoring the general admissibility of evidence-of character in civil actions for injuries to property. The-other judges agreed that the evidence was improperly admitted, but said nothing as to the ease of Ruan v. Perry. They denied, however, that fraud was in such cases an inference of law. In Smets v. Plunkett, 1 Strob. (S. C.) 372, it is said: “Evidence of the plaintiff’s general character was no doubt intended to show that he was incapable of having first appropriated a portion of defendant’s lumber dishonestly and then rendered a false account of sales; and the evidence tended toward this purpose. If it could have laid bare the heart of the plaintiff and ascertained really the strength of his moral principles, it would have been highly influential. But examinations in court into general good character according to reputation usually distinguish only between the two classes, the good and the bad, without nice discrimination between the infinite degrees and varieties which exist of either class. Of most persons, there is really no general reputation as to character, and of some, the general reputation is widely different from the truth, which a full knowledge-of their motives, principles and habits would disclose. Sometimes upon trials, the good are overthrown by unexpected assault, and often the bad burnished and strengthened by the ready testimony which their influence procures in their favor, while many of their neighbors who think ill of them,, shrink from being examined, or being examined, cannot say that the suspicions which they entertain, and which they feel rather than know that others also entertain, have been uttered so as to constitute a bad reputation. In investigations concerning character, feeling and prejudice are more frequently exhibited than in inquiries upon any other subject. The number of witnesses is often extended far beyond the limit which upon other topics the court would indulge, and if there be contrariety of opinion, the matter is usually left at last in great uncertainty. These considerations suggest, the propriety of adhering closely to the rules which have been established to regulate the admission of the evidence of reputation concerning general character. If in every case where an act of dishonesty is imputed, the imputation may be met by such evidence, then there are few cases into which such evidence might not be introduced. Trials would be insupportably tedious, and the result of a trial would as often depend upon the popularity of a. party as upon the merits of his case.” Again, in Wright v. McKee, 37 Vt. 161, the early case of Ruan v. Perry is cited as having been overruled, and as an argument for excluding evidence offered by a defendant to sustain a good character for honesty and integrity in a civil action brought to recover- the value of a package of bank bills and silver delivered by the plaintiff to the defendant to carry to a third person, which it was alleged the defendant converted to his own use, the court says: “In criminal cases the respondent is permitted to introduce evidence of this kind. In civil cases, where the question of character is directly in issue, and material as to the amount of damages, as in slander and seduction, it is admitted. > This, we think, is the extent to which it ought to be admitted in civil suits. In criminal cases the law'allows it to the respondent out of tenderness to help him, if it may, in his necessity, as it gives him the benefit of every doubt. And even in criminal cases the law regards it of value only when .the other evidence leaves the case in doubt, and general good character may be fairly invoked to rebut suspicious circumstances. Many considerations concur in rejecting such evidence in civil cases. Evidence of this character has but a remote bearing as proof to show that wrongful acts have or have not been committed, and the mind resorts to it for aid only when the other evidence is doubtful and nicely balanced. It may then perhaps serve to turn the wavering scales. Very rarely can it be of substantial use in getting at the truth. It is uncertain in its nature, both because the true character of a large portion of mankind is ascertained with difficulty > and because those who are called to testify are reluctant to disparage their neighbors, especially if they are wealthy, influential, popular, or even only pleasant and obliging. It is mere matter of opinion, and in matters of opinion men are apt to be greatly influenced by prejudice, partisanship, or other bias of which they are unconscious. And in cases which are not quite clear, they are apt to agree with the one who first speaks to them on the subject, or to form their opinions upon the opinions of others. The introduction of such evidence in civil cases whenever character is assailed, would make trials intolerably long and tedious, and greatly increase the expense and delay of litigation. It is a kind of evidence that might easily be manufactured, is liable to abuse, and if in common use in the courts as likely to mislead as to guide aright. The authorities are quite unanimous in excluding such testimony. It is the settled rule of the common law.” In Connecticut, in Humphrey v. Humphrey, 7 Conn. 116, and in Norton v. Warner, 9 Conn. 172; in Maine, in Potter v. Webb, 5 Greenleaf, 14; in Pennsylvania, in Anderson v. Long, 10 Serg. & Rawle 55, and in Porter v. Seiler, 23 Pa. St. 424; in Indiana, in George v. Drummond, 7 Ind. 19; in Kentucky, in Morriss v. Hazlewood, 1 Bush, 208; in Missouri, in Gutzwiller v. Lackman, 26 Mo. 168; in South Carolina, in Smets v. Plunkett, supra, the same doctrine is recognized. See also Attorney General v. Bowman, 2 Bos. & Pul. 532, note; 1 Phil. Ev.467, and Cowen & Hill’s notes-thereto; 1 Starkie’s Ev. 366; Barton v. Thompson, 56 Iowa, 571; Dudley v. McCluer, 65 Mo. 241.
From an examination and consideration of the authorities, our deduction in the premises is, that the decision of Ruan v. Perry, has been overthrown; that the rule in Greenleaf in regard to the admission in civil actions of evidence of good character -in favor of a party charged with fraud, is incorrect, and that in actions like the one at bar, such evidence is irrelevant and incompetent. As an excuse for the admission of the evidence concerning the good character of Westenberger, it is urged that the counsel representing the defendants below opened his case to the jury with the statement that Westenberger and Lowenthal were brothers-in-law; that they had been leagued together for twenty years or more for the pur pose of swindling their creditors; and that such counsel upon the trial went back to the years 1864,. 1865, 1866, 1867 and 1868, to show by evidence that Westenberger and Lowenthal had been partners; that they had failed; that they had made an assignment, which was afterward set aside; that Westenberger afterward went through bankruptcy, and was discharged. In the first place, the remarks of counsel to the jury do not appear in the case, and we must decide the questions at issue upon the record. But if counsel made any improper or irrelevant remarks in the opening of his case, such conduct would not authorize the opposing side to introduce, against objection, irrelevant and incompetent testimony. And if any irrelevant testimony was offered upon the trial by •defendants below, this would not sanction, against objection, the introduction of opposing testimony of like kind on the other side. But the evidence of Westenberger’s transactions referred to, may have all been relevant and competent as tending, to show whether he was the' owner of $28,473.84 of assets in the partnership of S. Lowenthal & Co. at the time of the alleged dissolution on the 10th of January, 1881, and therefore as tending to show whether the chattel mortgage assailed, secured an actual indebtedness of the amount named therein. (Wallach v. Wylie, 28 Kas. 138.)
Error is also alleged in the direction of the court to the jury. As plaintiffs in error did not ask for additional instructions, nor indeed for any instruction, and as it seems to be admitted that the instructions given are good law when reduced to abstract propositions, the objection to the charge of the court, under the circumstances, is not sufficient to set aside the verdict and the judgment. On account, however, of thfe admission of the irrelevant and incompetent evidence touching the character and reputation of Westenberger for honesty and fair dealing, the judgment of the district court must be reversed, and the cause remanded for a new trial.
Valentine, J., concurring.
Brewer, J., not sitting. | [
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The opinion of the court was delivered by
Horton, C. J.:
Upon the findings of fact made and filed by the trial court, it was adjudged that the plaintiff is seized in fee of the undivided two-elevenths of the premises in controversy, and the defendant Mary Newell is a tenant-in-common with him, and seized in fee of the undivided nine-elevenths thereof. Thereon, it was ordered that partition be made as follows: The commissioners to set off to plaintiff two-elevenths without the stone store building, if the same could be done without manifest injury; but if this partition ■ could not be made without manifest injuiy, then the commissioners should appraise the value of the lot without the stone building, and upon a sale of the property the proceeds should be applied as follows: First, in payment of the costs, including attorney’s fees; and second, that defendants be paid that proportion of the residue which the found value of the building shall bear to the appraised value of the lot, and two-elevenths of the balance of the proceeds to go to the plaintiff, and nine-elevenths thereof to the defendant Ma!ry Newell. It is claimed on the part of the plaintiff' in error, that the defendants should not only be denied compensation for the improvements, but should be held accountable for rents and profits also. The defendant Mary Newell is the wife of her co-defendant Samuel H. Newell, and purchased from' Hiram McNutt, by warranty deed on January.13, 1875, the entire interest as she supposed in the premises, and paid the sum of $800. The plaintiff purchased the interest of Mary A. Kenyon, James P. and William H. Rexford by quitclaim deed, on March 10, 1881, for $50. In the year 1876, the husband of Mary Newell (her co-defendant) erected the stone store building, of the value of $3,550. This building was completed in June, 1876, and still remains on the premises.- The value of the rents, issues and profits of the premises without the improvements did not exceed the taxes assessed thereon. Neither the plaintiff nor any of his grantors paid any of these taxes, but they have all been paid by the defendants. Whatever was done by Samuel H. Newell in the way of improving the premises, was manifestly done with the knowledge and consent of his wife Mary Newell, who with him has had possession of the premises since the date of purchase. The plaintiff’s title was not obtained until long after the completion of the stone building, and only about two months before the commencement of this action; hence, defendants only denied plaintiff’s title during that brief time. The rents, issues and profits of the premises separate and apart from the improvements, during the time they were in the possession of the defendants, were all necessary for the payment of' the taxes; therefore no money was due plaintiff on account of such rents, issues and profits, unless defendants should be held accountable for the rents, issues and profits of the building, which was erected while they had exclusive possession thereof.
Sec. 629 of the code provides that: “The court shall have full power [in partition of real property] to make any -order not inconsistent with the provisions of this article, that may be necessary to make a just and equitable partition between the parties, and to secure their respective interests.” The improvements in this case seem to have been made in good faith, the defendants supposing themselves to be legally entitled to the whole premises, and the court below did not err under the provisions of said section and the principle of equity in making the decree complained of. (1 Story’s Eq. Jurisp., §§ 655, 656; Freeman on Cotenancy and Partnership, §§ 509, 570.)
In the case of Scott v. Guernsey, 48 N. Y. 106, William Guernsey erected the buildings, not as having any interest in the property, but on a special agreement with the tenant for life. In that case, it was decided when the. life tenant died, the property as it stood with the buildings on it, belonged to the heirs, and that as William Guernsey continued to occupy it knowing all the facts, he was required to pay the full value of his occupation. In Austin v. Barrett, 44 Iowa, 488, Wilson, the grantor of Barrett, purchased an undivided one-tenth of the premises in dispute, and while it was his duty to pay the taxes on the premises, omitted so to do for the express purpose of permitting the land to be sold for taxes, to the end that he might become the purchaser, and thus cheat and defraud the other owners. After Wilson sold and conveyed his, interest to Barrett, the defendant Barrett obtained a tax deed upon the tax certificate obtained by the fraud of his grantor, and when tendered the money that he had paid out for taxes and other expenses, refused to take the money or make any settlement, on the ground that he had a good title to the land under such tax deed obtained to cheat and defraud his co-tenants. Neither of these cases is parallel to the one at bar, and they therefore do not conflict, with the principles embodied in the judgment of the trial court.
The order and 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. i
This action was brought by J. McMurry and C. McMurry, partners as J. & C. McMurry & Co., against E. E. Fletcher and others, to recover from the defendants the sum of $2,000 on a certain contract in writing, dated February 5, 1877, in which contract J. & C. McMurry & Co. were the parties of the first part, and E. E. Fletcher was the party of the second part, and which contract provided among other things as follows:
“ The second party agrees to execute and deliver first parties, or their assigns, a good and sufficient warranty deed conveying the northeast quarter of section 10, in tdwnship 23, south, of range 5, west, containing 160 acres, more or less, and situated in Eeno county, Kansas. Second party further sells all growing crops on said tract;. said tract of land and crops thereon being of the value of two thousand dollars. Said deed to be given on or before November 1, 1877. Should second party fail to convey said tract of land as herein agreed, or within a reasonable time thereafter, the first parties shall be entitled to recover the sum of two thousand dollars, in lieu of said conveyance of said tract of land.”
This contract in writing will be found copied in full in the case of McMurry v. Fletcher, 24 Kas. 577, 578. The action was tried before the court and a jury, and the verdict and judgment were rendered in favor of the defendants and against the plaintiffs; and the plaintiffs now bring the case to this court.
It appears from the pleadings and evidence, that on September 23,1878, the defendant R. E. Fletcher, with his wife, executed a warranty deed conveying the land mentioned in said contract to J. & C. McMurry & Co. This deed the plaintiffs claim was not sufficient, for two reasons: First, they claim that it was executed to the plaintiffs in their firm-name, and not to them as individuals; and second, they claim that it was not executed within the time required by the said contract.
The first reason we think is not sufficient, for at least two .reasons: First, the contract provided that the deed should be executed to the plaintiffs in their firm-name, that is, to “ J. & C. MeMurry & Co.;” second, the defendant R. E. Fletcher testified on the trial that he tendered the deed, immediately after executing the same, to the plaintiff J. McMurry; and also testified as follows:
“I told him (J. McMurry) that if the form of the deed was insufficient, that I would change it in any way he desired; but he made no objection to the form, but claimed that the contract we had made was broken, and that they would not receive- a deed.”
We must take the testimony of Fletcher as true; for the verdict and judgment were in his favor, and we do not retry the facts. When the case of McMurry v. Fletcher, reported in 24 Kas. 574, was here, it was then thought by this court that said deed was a full compliance with the above-mentioned contract made between the parties on February 5, 1877. The court at that time used the following language:
“In the absence of the contract of February 5, 1878, as the oi’iginal contract (the one of February 5, 1877) recites that the deed should be made to J. & C. McMurry & Co., we suppose Fletcher would have fully performed the conditions of the contract upon this point, by delivering or tendering a deed running to said J. & C. McMurry & Co.”’
The action in this case is wholly and exclusively upon the original contract executed February 5, 1877.
The, second reason urged by the plaintiffs for claiming that said deed was insufficient, is, that it was not executed or tendered to them within the time prescribed by their original contract. We think that this reason is not sound, for various reasons. The plaintiffs had the possession of the land, and were receiving all the benefits therefrom, and of course were losing but little, if anything, by the delay. Besides, the contract did not require that the deed should be executed before November 1, 1877, and not even then. All that the contract required was, that the deed should be executed “within a reasonable time thereafter” — that is, after November 1, 1877; and it was, in fact, executed and tendered to the plaintiffs within less than eleven months thereafter. In real-estate transactions time is seldom material. It is seldom of the essence of the contract; and according to the testimony of R. E. Fletcher, which we must take as true, it was certainly not material nor of the essence of the contract in this case. Fletcher testified that at the time the contract was entered into between the parties, he, Fletcher, had no patent for the land, but that he was expecting one to be issued to him soon, and that for that reason the contract was drawn up in the form in which it was drawn; that the McMur.rys did not wish to have a deed executed or to receive the same until the United States patent had been issued to Fletcher; that on February 5, 1878, when the second contract was entered into, the McMurrys extended the time within which the deed should be executed, which was to be soon after the time when the patent should be issued; and that immediately after the patent was issued, which was in September, 1878, he, Fletcher, executed the deed and tendered it to the plaintiffs, as aforesaid.
Under all these circumstances, we certainly think that the deed was tendered within a reasonable time after November 1, 1877. The testimony of Fletcher, however, was disputed by the testimony of some of the other witnesses, but as the find ing of the jury and the judgment of the court below were in favor of the defendant and against the plaintiffs, we must now decide the case upon the theory that the testimony .of the defendant Fletcher was and is true. We do not weigh the relative merits or truthfulness of the conflicting testimony presented to the jury.
The plaintiffs claim that the court below erred in some of its instructions. The instructions read as follows:
“ 1. If a deed was not made to the land, or tendered within a reasonable time, then plaintiffs had the right to rescind the contract so far as the land was concerned, and - the two thousand dollars then became due. . . '
“2. What is a reasonable time, is a question of fact for you to determine, and in doing so'you should take into consideration all of the circumstances in the case — the kind of property, the nature of the transaction, and in fact all of the circumstances, because what might be a reasonable time in one case would not be in another; and what is meant by reasonable time is such a time as would necessarily be necessary, and as would be thought necessary in contracts similar to the one in the case. It does not mean the longest or shortest time that would possibly be necessary if a man by reason of accident, misfortune or carelessness should require a long time. If such accident, misfortune or carelessness were unusual in transactions of a like nature, then such time would be unreasonable. So if a man by reason of sufficient skill or luck should require a much shorter time than would be usual in such transactions, this would be an unreasonable time — that is, it would not be sufficient to enable the average person to fulfill the contract. A reasonable time, then, is such time as would ordinarily and generally be sufficient.
“3. At the time of the tender of the deed by Fletcher to McMurry, if a reasonable time had passed, then McMurry was not bound to accept it, but might then sue for the recovery of the two thousand dollars in money; but if the tender of said deed was within a reasonable time, then the McMurrys were bound to accept it, and cannot recover in this action.
“4. If there was any extension of time by the parties when the note was given for $500, then such extension of time must be considered. If there was no extension, and if you further find that defendant Fletcher did not tender a deed on or before November, 1877, (the time specified in the original contract,) the plaintiffs could refuse to take a deed afterward, and make a tender of the land back to Fletcher, and could bring the action and recover the two thousand dollars, with interest at seven per cent, from the date.”
It is claimed that these instructions are erroneous, because the court below instructed the jury that a reasonable time in this case was one of fact for the jury to determine. We think this instruction is correct. Where the facts upon which the reasonable time is founded are all admitted, or clearly and conclusively proved, such reasonable time is generally a question of law; but where the facts are disputed, then such reasonable time becomes a question of fact. In this case we think it was a question of fact, and taking the evidence of Fletcher as true, we think this fact was determined correctly by the jury. There was evidence tending to show that the plaintiffs offered to redeliver the possession of the land to Fletcher; but there was no evidence introduced showing that he accepted or took such possession of the land, and evidently he did not. The authorities referred to, will be found in counsel’s briefs. We perceive no error in the rulings of the court below, and therefore its judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
McFarland, J.:
This is an action to foreclose a mechanic’s lien for pipe supplied for installation in a gas pipeline. The trial court held in favor of the lien claimant, Interlake, Inc., and the pipeline property owner, Kansas Power and Light Company, appeals therefrom. The Court of Appeals affirmed the trial court with modification relative to allowances of prejudgment interest [Interlake, Inc. v. Kansas Power & Light Co., 7 Kan. App. 2d 16, 637 P.2d 464 (1981)]. The case is before us on petition for review.
The issue is whether Interlake is entitled, under the laws of Kansas, to a lien against the property. Specifically, KPL contends that Interlake is not within any classification afforded protection by the mechanics’ lien statutes applicable to gas pipelines (K.S.A. 55-207 to 55-210 inclusive) and hence is not entitled to a lien. There is no claim by KPL that the lien statement was incorrect as to form, contents or procedure or that the action was not filed within the time permitted by statute for the filing of actions to foreclose a mechanic’s lien.
Inasmuch as resolution of the issue involves determination of the legal relationships of the parties, the relevant facts must be set forth in considerable detail. KPL is the owner of a certain pipeline, pipeline gathering system and pipeline easement in Meade County. In April of 1976, KPL contacted Continental Pipe and Tube Corporation, at St. Louis, Missouri, for price quotations on needed pipe for the pipeline construction. The quoted price was satisfactory and KPL issued its purchase order to Continental for the pipe. KPL had a contract with Plexco, an Illinois firm, to coat the pipe. Accordingly, KPL directed that the pipe be shipped to Plexco. KPL was advised that Continental would fill the pipe order with pipe it would purchase from Interlake, Inc., whose principal place of business is situated in Illinois. Continental issued a purchase order to Interlake for pipe, directing Interlake to ship the pipe to Plexco. The contract between Interlake and Continental had specialized provisions as to how and when Continental was to pay for the pipe. A degree of protection was afforded Interlake in that a maximum credit of $50,000 was to be advanced to Continental. Unfortunately, Interlake ignored the protective provisions it had caused to be inserted in the contract and delivered pipe in excess of the credit limitation.
During the spring and summer KPL purchased a wide range of materials needed for the pipeline project from other suppliers. On July 28, 1976, KPL entered into a contract with J & B Construction Company to construct the pipelines, utilizing KPL’s materials except for a few specified items not relevant herein. J & B Construction had no contracts with Plexco, Continental or Interlake. The project was completed and KPL paid all firms with whom it had contracted to perform services or supply materials. Continental was paid in full, but it paid Interlake only a portion of what was owed. Continental became insolvent and was adjudicated bankrupt.
Interlake perfected a mechanic’s lien and brought this action against KPL and Abraham Davis, trustee in bankruptcy for Continental, for foreclosure thereof. The trial court held that Interlake had a valid mechanic’s lien on the pipeline property and ordered the same foreclosed, unless the lien was previously satisfied. KPL appeals therefrom. Interlake cross-appealed from the trial court’s denial of prejudgment interest. The Court of Appeals affirmed the judgment but remanded for allowance of prejudgment interest. The trustee for Continental does not appeal.
Reference to specific dollar amounts has been deliberately avoided in the above factual recitation. This has been done for the sake of simplicity inasmuch as all the contracts referred to involved supplying materials or services for more than just the Meade County portion of the pipeline project which is the subject of this litigation. It is sufficient to say that the parties have agreed that $227,769.98 is the value of the pipe sold by Interlake and subsequently laid in Meade County. Interlake received payment for said pipe from Continental in the amount of $109,487.31. Thus Interlake’s claim for a mechanic’s lien in Meade County is $118,282.67. There is no dispute as to this being the proper figure. As previously noted, the sole issue is whether Interlake comes within any classification afforded protection under the pertinent statutes.
Gas pipeline mechanics’ liens are created and governed by the provisions of K.S.A. 55-207 to 55-210 inclusive. The general lien statutes (K.S.A. 60-1101 et seq.) do not apply to oil and gas leases [Mountain Iron & Supply Co. v. Branum, 200 Kan. 38, 41, 434 P.2d 1015 (1967)]. Oil and gas lien laws confer special privileges, are to be strictly construed against one claiming the privilege, and their scope is not to be extended beyond that clearly granted by the legislature. Gaudreau v. Smith, 137 Kan. 644, 21 P.2d 330 (1933). It is therefore incumbent upon Interlake to establish that it is clearly within some classification authorized by the legislature to assert a lien.
The two statutes permitting the assertion of a lien against oil and gas leaseholds or pipelines are K.S.A. 55-207 and 55-208.
K.S.A. 55-207, in effect in its present language since 1925, provides:
“Any person . . . who shall under contract, express or implied, with . . . the owner of any gas pipe line ... or with the . . . agent of such owner, who shall perform labor or furnish material . . . shall have a lien upon the . . . gas pipe line . . . .”
It is undisputed that there was no contract between the supplier of materials, Interlake, and the pipeline owner, KPL. Likewise, the evidence is lacking that Continental acted as the agent of KPL in its dealings with Interlake. Clearly, K.S.A. 55-207 confers no lien right upon Interlake under the facts herein.
If Interlake has a right to a lien, it must bring itself within a classification granted such protection by the provisions of K.S.A. 55-208, unchanged since its enactment in 1909, which provides:
“Any person, copartnership or corporation who shall furnish such machinery or supplies to a subcontractor under a contractor, or any person who shall perform such labor under a subcontract with a contractor, or who as an artisan or day laborer in the employ of such contractor, and who shall perform any such labor, may obtain a lien upon said leasehold for oil and gas purposes or any gas pipe line or any oil pipe line from the same tank and in the same manner and to the same extent as the original contractor for the amount due him or her for such labor, as provided in K.S.A. 55-207.”
The trial court (and the majority of the Court of Appeals panel herein) concluded Interlake had a lien right under K.S.A. 55-208. We do not agree.
K.S.A. 55-208 expressly affords protection to: (1) a legal entity furnishing machinery or supplies to a subcontractor under a contractor; (2) a person performing labor under a subcontract with the contractor; and (3) an artisan or day laborer employed by a contractor. Protection was judicially extended to a fourth category in Mountain Iron. That fourth category is suppliers of materials to a contractor. It would, after all, be wholly illogical if protection were afforded to a materialman supplying a subcontractor but not to a materialman supplying a contractor. Mountain Iron represents basically a judicial correction of a statutory omission rather than an extension of the scope of the statute.
Interlake contends it is either within the first or fourth category depending on how the terms “contractor” and “subcontractor” are defined. KPL denies Interlake is within either category. Interlake asserts the correct meaning of contractor is the broad definition — one who contracts. A subcontractor is then merely one who contracts with a contractor to perform all or part of the original contract. Under this interpretation, contractors and subcontractors may supply either labor or materials or both. KPL argues that this broad definition is inappropriate to mechanics’ lien statutes and that in such context, contractors and subcontractors refer to those who actually construct as opposed to those who just supply materials.
It is certainly true that there is language in some opinions of this court which appears to support Interlake’s definitional position. In Stewart v. Cunningham, 219 Kan. 374, 377, 548 P.2d 740 (1976), the court was called upon to construe certain provisions of the general mechanics’ lien statutes (K.S.A. 60-1101 et seq.). Factually, the owner signed a contract with a firm to perform the plumbing, heating and air conditioning portion of a motel construction project. The owner subsequently signed a contract with a general contractor, and directed that the plumbing contract be treated as a subcontract thereto. There were some notice problems which made determination of whether the plumbing firm was a contractor or a subcontractor a key issue. There was no contention that the plumbing firm served only as a materialman. The court did cite the following general statement from 57 C.J.S., Mechanics’ Liens § 90, p. 602:
“A contractor is one who furnishes labor or materials under a contract direct with the owner for the improvement of property.” 219 Kan. at 377.
Mountain Iron & Supply Co. v. Branum, 200 Kan. 38, concerns a dealer in oil well supplies seeking to enforce a lien for supplies furnished a drilling contractor. This court’s opinion refers to the supplier as a “materialman subcontractor.” The principal problem in the Mountain Iron case was whether the supplier’s failure to send notice of lien to the owner defeated the claim. The court held that the lien was fatally defective for lack of notice.
We conclude the loose language utilized in both Stewart and Mountain Iron, which appears to include suppliers of material within the terms contractors and subcontractors, was merely incidental to the holdings, and we do not consider such to be determinative of the issue herein.
An excellent discussion of the various classes of potential lien claimants can be found in 53 Am. Jur. 2d, Mechanics’ Liens. The following excerpts are particularly significant:
Ҥ 71. Materialmen.
“The right to assert a mechanic’s lien is now generally extended to materialmen or those persons who supply materials for the structure and have no other connection with the work. But materialmen, to be entitled to a lien, must be specifically referred to within the statute, for it cannot be extended to that class by construction. Thus, materialmen are not generally within the term ‘contractor’ or ‘subcontractor.’
Ҥ 72. Contractors or subcontractors distinguished.
“In some jurisdictions there is no distinct class of ‘materialmen.’ The statutes confer the right to a lien on persons furnishing materials but designate them as contractors or subcontractors, depending on whether such persons furnish materials to the owner of a structure or to the contractor constructing it. Generally, however, a distinction is made, at least for some purposes, between contractors or subcontractors on the one hand and materialmen on the other, based upon the nature of the person’s contract obligation, and materialmen are not generally within the term ‘contractor’ or ‘subcontractor.’
“Where a distinction is made between a subcontractor and a materialman, a person, to become a subcontractor rather than a materialman must generally do something more tkan merely furnish materials. It has been declared that he must actually construct with such materials some part of the structure which the contractor has agreed to erect, although this construction, at least in some jurisdictions, need not be at the jobsite. Thus, the rule is laid down that the essential feature which constitutes one a subcontractor rather than a materialman is that in the course of performance of the prime contract he constructs a definite, substantial part of the work of improvement in accord with the plans and specifications of such contract, not that he enters upon the jobsite and does the construction there.
“Accordingly, it is held that one who merely furnishes materials to the owner or a contractor is a materialman, and not a contractor or subcontractor, within the meaning of the mechanic’s lien laws ....
Ҥ 73. Suppliers of a materialman or subcontractor.
“Persons supplying materials to a materialman or a subcontractor must come clearly within the terms of the statute, or they can claim no lien. They are so far removed from the owner that the privilege of a lien is not often extended to them, and the plainest expressions of law must be used to entitle them to this remedy. Thus, where a construction company, engaged in building a church, placed an order for certain materials required in the construction of the church, understanding that such material would be obtained from a certain manufacturer, the manufacturer of the materials was held to have no right to a lien against the church in which the materials were incorporated. Materialmen in the second degree may, however, be provided for by a statute which expresses with sufficient clearness an intent to this effect. Under some statutes it is stated that a supplier of a materialman is not entitled to a lien but that a supplier of a subcontractor is.” pp. 582-86. (Emphasis supplied.)
Continental contracted to sell pipe to the property owner, KPL. Continental did not install the pipe nor add to nor improve the pipe in any way. In fact, Continental never had physical possession of the pipe. We believe that Continental must be considered to be a materialman. It simply furnished materials under contract with the owner. Accordingly, Continental, had it not been paid, would clearly have been afforded protection under K.S.A. 55-207.
Interlake sold materials to Continental. Interlake then is a supplier to a materialman — a class so far removed from the owner that only the “plainest expressions of law” must be used to entitle the class to lien protection. Do the oil and gas lien statutes (K.S.A. 55-207 to 55-210 inclusive) clearly provide that suppliers to materialmen are entitled to the special privilege of asserting a lien against the property? We believe not.
There is no provision in either K.S.A. 55-207 or 55-208 evincing a legislative intent that suppliers to materialmen are included within the term “subcontractor.” In fact the traditional classifications are specifically set forth in K.S.A. 55-210 which provides:
“All liens for labor and materials furnished to owners of leaseholds for oil and gas purposes, as may be provided by law, shall be enforced in the same manner, and notice of the same shall be given in the same manner (whether by the contractor, subcontractor, or materialman or laborer) as may be provided by law for enforcing liens of mechanics and others against real estate.” (Emphasis supplied.)
We therefore conclude: (1) Interlake served herein as a supplier to Continental, a materialman; (2) a supplier to a materialman is afforded no protection under the gas and oil lien statutes (K.S.A. 55-207 to 55-210 inclusive); and (3) the trial court erred in holding Interlake had a valid lien and ordering same foreclosed.
The judgment of the trial court is reversed and the cause is remanded with directions to enter judgment in favor of the landowner in accordance with this opinion.
Prager, J., not participating. | [
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The opinion of the court was delivered by
Fromme, J.:
This is an original action in mandamus brought by the State of Kansas on relation of the attorney general asking this court to issue an order or writ to compel the Board of Education of Unified School District No. 428, Barton County, Kansas, to provide the students of that district with bus transportation. We are asked to hold that the Board must “provide or furnish transportation” by owning and operating its own vehicles or by contracting with a public or private carrier to transport the students.
In response to the petition, the Board argues that the present statutes relating to the transportation of students authorize the Board to “provide or furnish transportation” either by transporting the students by bus or by providing for reimbursement of those persons who furnish transportation in privately owned automobiles.
The facts leading to the present action are not in dispute and in summary are substantially as follows:
The Board of Education of Unified School District No. 428 (the Board) on unification accepted the territory of a separate school district known as Bissell’s Point located in the northeastern portions of the county and of the unified district. Prior to unification the Bissell’s Point School District operated a bus system. Other districts in the area of the unified district No. 428 did not. Following unification this practice continued. Bus service was provided only in the area formerly in the Bissell’s Point School District.
In June, 1981, the Board, which is the respondent herein, voted to discontinue bus service to pupils residing in that portion of the district known as the Bissell’s Point area, effective with the beginning of the 1982-83 school year.
The Board notified the parents and guardians of pupils who would be affected by this action that the Board would contract with them for the transportation of their children at a reasonable rate per mile. During the fall of 1981, the Board distributed a questionaire to parents and guardians of pupils in the Bissell’s Point area who were eligible to receive either bus transportation or mileage reimbursement. Results of this questionnaire showed that over two-thirds of those responding favored mileage reimbursement over bussing.
In the fall of 1981, the Board requested a legal opinion from the Attorney General as to the extent of its duty in providing or furnishing transportation under the applicable statutes. The Attorney General issued a formal opinion advising the Board it had an affirmative duty to provide bus transportation, and could not employ mileage reimbursement contracts except under limited special circumstances.
The Board sought and obtained an estimate of the amount of original outlay it would take to establish bus transportation in the district. The business manager of the district estimated the cost to be $350,000.00 to $500,000.00. The Board reaffirmed its earlier decision to end bus service in the Bissell’s Point area and to substitute mileage reimbursement contracts for the entire unified district. The present action by the Attorney General followed.
The petitioner and the respondent Board have filed separate memoranda of arguments and authorities. In addition the petitioner has filed a response to respondent’s memorandum.
Because of the press of time on school district budget questions and other critical factors which are concerned in any decision of this court, we have considered the arguments and authorities cited by both parties, and have decided that oral arguments are not necessary. A decision in this matter must rest in large part on a construction of certain statutes which govern the transportation of students by school districts.
The definitions section, K.S.A. 72-8301(c), states:
“(c) The words ‘provide or furnish transportation in addition to their ordinary meaning shall mean and include the right of a school district to: (1) Purchase, operate and maintain school buses and other motor vehicles; (2) contract, lease or hire school buses and other motor vehicles for the transportation of pupils, students and school personnel; (3) purchase, operate and maintain buses other than school buses for the transportation of pupils, students or school personnel to or from school-related functions or activities; (4) contract, lease or hire buses other than school buses for the transportation of pupils, students and school personnel if said buses are owned and operated by a public common carrier of passengers under a certificate of convenience and necessity granted by the state corporation commission or the interstate commerce commission and are operating within the authority granted to said public common carrier; and (5) reimburse persons who furnish transportation to pupils, students or school personnel in privately owned motor vehicles.” Emphasis supplied.
K.S.A. 1981 Supp. 72-8302 relating to the transportation of students in pertinent part reads:
“(a) The board of education of any school district may provide or furnish transportation for pupils to or from any school of the school district. Every school district shall provide or furnish transportation for every pupil who resides in the school district and who attends any of grades kindergarten through twelve at a school of the school district subject to the conditions specified in provision (2) and to any one of the following conditions:
“(1) (A) The residence of the pupil is inside or outside the corporate limits of a city, the school building attended is outside the corporate limits of a city and the school building attended is more than 2 xh miles by the usually traveled road from the residence of the pupil, or
“(B) the residence of the pupil is outside the corporate limits of a city, the school building attended is inside the corporate limits of a city and the school attended is more than 2 x/% miles by the usually traveled road from the residence of the pupil, or
“(C) the residence of the pupil is inside the corporate limits of one city, the school building attended is inside the corporate limits of a different city and the school building attended is more than 2 ¥2 miles by the usually traveled road from the residence of the pupil.” Emphasis supplied.
K.S.A. 72-8303 authorizes the boards of education to prescribe the routes over which transportation of its students is to be provided on a daily basis.
The sharpest conflict between the parties seems to arise from their differing construction of K.S.A. 72-8304 which states:
“In those cases where it is impracticable to reach a student’s residence by the prescribed transportation route, and where such residence is more than one mile by road from the prescribed route; and in those cases where it is impracticable to schedule a school bus for the transportation of a student; the board of education may contract for the transportation of such student to the regularly prescribed school route or to the school building. Such contracts shall provide for the payment of mileage at a rate not to exceed the rate specified in K.S.A. 1972 Supp. 75-3203 and any amendments thereto for each mile actually traveled; shall be limited to two round trips per day on a route prescribed by the board of education; and shall be subject to any rules or regulations adopted by the board of education. In those cases, where more than one student is transported in the same vehicle, mileage shall be paid for only one student.”
We note in passing that K.S.A. 1972 Supp. 75-3203 as amended, as referred to in the above statute, authorizes the Secretary of Administration to fix the rate of mileage to be paid to public officials. So, under K.S.A. 72-8304 boards of education may set the rates for payment of mileage for students at a rate not to exceed the rate fixed annually by the secretary.
In determining the legislative intent for the purpose of statutory construction the historical background and changes made in a statute are to be considered by the court, and any changes and additions made in existing legislation raise a presumption that a change in meaning and effect was intended. Shapiro v. Kansas Public Employees Retirement System, 211 Kan. 452, Syl. ¶ 2, 507 P.2d 281 (1973); Southeast Kansas Landowners Ass’n v. Kansas Turnpike Auth., 224 Kan. 357, 367, 582 P.2d 1123 (1978).
Two prior cases of this court have been decided which concern the question of school transportation. They are: Harkness v. School District, 103 Kan. 573, 175 Pac. 386 (1918), and Kimminau v. Common School District, 170 Kan. 124, 223 P.2d 689 (1950). Under the statutes in effect when those cases were decided this court held that the district had an option to pay the persons transporting pupils or to furnish transportation by bussing.
Kimminau was decided under the laws which later appeared in the General Statutes of 1949. 72-609 through 72-612 provided for transportation and for the establishment of bus routes to accommodate elementary and high school pupils. 72-614(3) defined the words “provide or furnish transportation” to mean and include the right of the school district to contract or hire buses, “in addition to their ordinary meaning.” 72-615 authorized the governing body of any school district to provide or furnish transportation to and from school. 72-621 provided that if the district board did not provide transportation for all elementary and kindergarten pupils who resided two and one-half miles or more from the school, that the district was required to pay to the person transporting any such pupil mileage at the rate of five cents per mile. Under 72-617 when the district furnished bus transportation and established regular routes, special provision was made for payment of mileage in those instances where it was impracticable to reach students in “out-of-the-way places.” For any student required to be transported to school under 72-621, who lived more than a mile from the regularly established bus route, the district was required to pay the person transporting them to and from the bus route five cents per mile.
We note that a complete repeal and recodification of the above sections of G.S. 1949, ch. 72, art. 6 occurred in 1968. See L. 1968, ch. 401, §§ 1 through 13. The new codification of these laws concerning the transportation of students first appeared in K.S.A. 1969 Supp. 72-8301 et seq.
In K.S.A. 1969 Supp. 72-8302 appears the requirement that the school district provide or furnish transportation for all students who reside more than two and one-half miles from public school. Under the definition section in the statute (72-830l[c]) the term “provide or furnish transportation” covered both bussing and mileage reimbursement. 72-8303 authorized laying out bus routes, and 72-8304 provided that in those cases where it was impracticable to reach a student’s residence by a prescribed bus route and where the residence was more than a mile from the route, the board of education was to contract with the persons furnishing transportation for mileage reimbursement either to the bus route or to the school building. The only change in this section from 1968 to the present was in 1973 when the rate of nine cents was eliminated and the present provision was inserted permitting the board to set the rate of not more than the amount fixed by the Secretary of Administration for public officials.
Now turning to the provisions of present statutes governing the transportation of students, we direct our attention to K.S.A. 72-8301, 72-8303, 72-8304 and to K.S.A. 1981 Supp. 72-8302. In construing statutes the legislative intention should be determined from á general consideration of the whole act, and effect must be given, if possible, to the entire statute and every part thereof. To this end it is the duty of the court, so far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. Southeast Kansas Landowners Ass’n v. Kansas Turnpike Auth., 224 Kan. at 367, 368.
The petitioner contends that 72-8304 limits the circumstances under which mileage reimbursements may be paid, and that payment can be made only when one of the two situations mentioned in the statute exist: first, when it is impracticable to reach a student’s residence by the prescribed transportation routes and the pupil resides more than one mile off the route; second, when it is impracticable to schedule a school bus for the pupil’s transportation. Petitioner argues if the district is free to pay mileage for all eligible pupils the first part of the statute, i.e., that part limiting payment to situations where the student resides more than a mile from the regular route and where it is impracticable to reach the residence by bus route, is superfluous. We do not agree.
We see no great change in substance wrought by the 1968 recodification. There was a rearrangement, some much needed deletions, and a condensing of various sections. However, the definition of the term “provide or furnish transportation” continues to include both transportation by bus (K.S.A. 72-8301 [c][2], [3], and [4]) as well as a provision for mileage reimbursement (K.S.A. 72-8301[c][5]).
The present authorizing statute, K.S.A. 1981 Supp. 72-8302, condenses several of the prior laws and makes mandatory the providing or furnishing of transportation for pupils who reside in the school district, attend grades kindergarten through twelve, and who reside more than two and one-half miles from the schoolhouse with some limited exceptions for those living and attending schools in cities.
As we read K.S.A. 72-8304 it has a definite place in the scheme for transportation of pupils, and it is not superfluous. The board must decide what bus routes to prescribe, if any. If no bus routes are prescribed, mileage reimbursement contracts must be entered into with the persons who furnish transportation to pupils in privately owned motor vehicles as mandated by K.S.A. 1981 Supp. 72-8302.
However, where transportation routes for buses are prescribed pursuant to K.S.A. 72-8303 there are bound to be instances when it is impossible to run a bus to the residence of every pupil attending the school. Both distance and time consumed en route will determine when it becomes impracticable to reach a student’s residence. When transportation routes have been prescribed and when the prescribed transportation route does not come within a mile of a pupil’s residence then and in that event the first part of K.S.A. 72-8304 comes into the picture. In that event the mileage reimbursement provisions require mileage reimbursement for students living more than one mile from the route. The rate per mile is limited not to exceed the amount set annually by the Secretary of Administration. Payment is limited to two round trips per day on a route prescribed by the board of education. The route prescribed by the board may be to the regular bus transportation route or to the school building.
In view of the provisions of the present statutes and considering the lack of substantive changes in the 1968 recodification we are of the opinion the ultimate holdings with regard to providing and furnishing transportation in Harkness v. School District, 103 Kan. 573, and Kimminau v. Common School District, 170 Kan. 124, were not changed by the recent statutes.
Under the provisions of K.S.A. 72-8301 et seq. regarding the transportation of students the board of education of a school district may fulfill its obligation to “provide or furnish transportation” for students (1) by furnishing bus transportation over prescribed routes, (2) by reimbursing persons who furnish transportation in privately owned motor vehicles, or (3) by a combination of bus transportation and mileage reimbursement.
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The opinion of the court was delivered by
Herd, J.:
This is an appeal from a conviction of rape. K.S.A. 21-3502.
About 9:00 a.m. March 24, 1981, David Lilley arrived at the home of Melvin Copeland. Lilley had just been sent home from work because he was still “shaky” from a drinking binge the night before. Copeland and his wife were keeping the victim, a fourteen-month-old girl, while the victim’s mother attended a funeral in Topeka.
After Melvin Copeland’s wife left for work he and Lilley went next door to Robert Hopper’s apartment. When they left the Copeland apartment the victim was asleep in one of the bedrooms. At Hopper’s the three men commenced drinking beer. At around 11:00 a.m. Hopper and Copeland sent Lilley to the liquor store for another six pack. He returned fifteen to thirty minutes later. When this six pack was finished Lilley was again sent out. He brought back more beer about one-half hour later. When Lilley returned the three men continued to drink, but after about ten minutes Lilley left. Approximately twenty minutes later Copeland heard the baby crying next door. He went to investigate and found her standing near the kitchen with blood running down her leg.
The victim was taken to the emergency room where the physician on duty discovered a laceration extending from the vagina to the rectum.
Later that evening Lilley was interviewed by Wichita Police Detective Jan McCloud. At that time he denied any knowledge of the incident. The next day Lilley was again interviewed by Detective McCloud. This time he confessed to the crime.
On March 26, 1981, a complaint was filed against Lilley, charging him with rape. K.S.A. 21-3502. Trial was held September 28, 1981, and Lilley was found guilty. He appeals.
Appellant first contends the trial court erred in allowing the State to amend the original information. That information, filed March 26, 1981, alleged the appellant committed:
“[T]he act of sexual intercourse with a female infant, to wit: [child’s name], age fourteen (14) months, when the said [child’s name] was physically powerless to resist; and when the said [child’s name] was incapable of giving her consent because of mental deficiency which condition was known and was reasonably apparent to the said David L. Lilley.”
The amended information merely deleted the phrase regarding the victim’s inability to consent.
K.S.A. 22-3201(4) provides:
“The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.”
Here none of appellant’s rights were prejudiced. There was no surprise involved. The amended complaint included the same wording as the original. Appellant knew from the start the State was alleging the little girl was powerless to resist his attack.
Appellant next argues he was improperly charged with rape and that it was error for the trial court to refuse to instruct on the lesser included offense of indecent liberties with a child. The elements of rape are set out in K.S.A. 21-3502(1):
“Rape is the act of sexual intercourse committed by a man with a woman not his wife, and without her consent when committed under any of the following circumstances:
“(a) When a woman’s resistance is overcome by force or fear; or
“(b) When the woman is unconscious or physically powerless to resist; or
“(c) When the woman is incapable of giving her consent because of mental deficiency or disease, which condition was known by the man or was reasonably apparent to him; or
“(d) When the woman’s resistance is prevented by the effect of any alcoholic liquor, narcotic, drug or other substance administered to the woman by the man or another for the purpose of preventing the woman’s resistance, unless the woman voluntarily consumes or allows the administration of the substance with knowledge of its nature.”
Since K.S.A. 21-3501 defines “woman” as “any female human being” rape was obviously a proper charge in this case. This section replaced the previous offense of forcible rape while K.S.A. 21-3503 replaced statutory rape. Lilley could have been charged with either offense. The State properly chose to charge him with the former.
K.S.A. 21-3503(1) states:
“Indecent liberties with a child is engaging in either of the following acts with a child under the age of sixteen (16) years who is not the spouse of the offender:
“(a) The act of sexual intercourse;
“(b) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender or both.”
Indecent liberties with a child could in some cases constitute a lesser included offense of rape. The trial court’s duty to instruct on lesser included crimes is governed by K.S.A. 21-3107(3), and that duty arises only when there is evidence under which the defendant might have reasonably been convicted of the lesser offense. State v. Staab, 230 Kan. 329, 339, 635 P.2d 257 (1981). Here the age of the victim prevented her consent. Thus, under these circumstances no evidence of the lesser offense could have been offered. As such the trial court properly refused to give the instruction.
Appellant next argues the State failed to prove all the elements of the crime of rape because it offered no evidence to show the victim was not the appellant’s wife. This claim deserves little discussion. Under K.S.A. 60-409(c) the court may take judicial notice of “such specific facts and propositions of generalized knowledge as are so universally known that they cannot reasonably be the subject of dispute.” It is obvious the fourteen-month-old victim was not appellant’s wife. Under these circumstances no proof was required.
Appellant next claims he was entitled to an instruction on involuntary intoxication. K.S.A. 21-3208(1) provides:
“The fact that a person charged with a crime was in an intoxicated condition at the time the alleged crime was committed is a defense only if such condition was involuntarily produced and rendered such person substantially incapable of knowing or understanding the wrongfulness of his conduct and of conforming his conduct to the requirements of law.”
A defendant is, of course, entitled to have the theory of his case presented to the jury under appropriate instructions where there is support for it in the evidence. State v. Warren, 221 Kan. 10, 13, 557 P.2d 1248 (1976); State v. Moore, 220 Kan. 707, 709, 556 P.2d 409 (1976). The problem here is that the record in this case contains absolutely no support for appellant’s theory of involuntary intoxication. “[B]efore intoxication may be said to be ‘involuntary’ a defendant must show an irresistible force, which is something much more than a strong urge or ‘compulsion’ to drink.” State v. Seely, 212 Kan. 195, 202, 510 P.2d 115 (1973). Here all the evidence points to the voluntary consumption of alcohol. As such the instruction was properly refused.
Appellant next contends the trial court erred in admitting his out-of-court confession because it was not freely and voluntarily made.
At the beginning of the trial the court held a hearing outside the presence of the jury to determine the admissibility of a tape of the appellant’s confession made the day after the rape. At the hearing Detective McCloud testified the confession was voluntarily made after the appellant had waived his Miranda rights. Appellant claimed the confession was made as a result of threats by the police. He acknowledged, however, that he knew and understood his rights when he made the confession. Indeed, the transcript of the taped confession shows appellant was thoroughly advised of his rights and that he waived them all in writing.
The hearing was conducted by the trial court pursuant to K.S.A. 22-3215. When the trial court determines from such a hearing the extrajudicial statement was freely, voluntarily and intelligently given and admits the statement into evidence at trial, the appellate court will not reverse such determination if it is supported by substantial competent evidence. State v. Gilder, 223 Kan. 220, 227, 574 P.2d 196 (1977). See also State v. Treadwell, 223 Kan. 577, 578-79, 575 P.2d 550 (1978). Here the appellant’s own testimony established he was aware of his rights when he made the statement. Further, the taped confession itself, which the trial court listened to before making its ruling, contains substantial, competent evidence the statement was freely and voluntarily made.
Appellant’s final argument is that he should have been granted a new trial because of misconduct on the part of the prosecutor.
During closing argument the prosecutor stated:
“Let me comment just a moment on the confession that you heard that we played through the testimony of, Detective McCloud. The admissibility in this trial of that confession is determined by one person. It is not determined by Mr. Busch or myself. It is not determined by you. It is determined by Judge Ballinger. And Judge Ballinger heard the evidence outside your presence and determined that the confession was given voluntarily, was given freely, and under the law that confession was properly admitted in this trial.
“Now, MR. BUSCH would have you believe that there was something wrong with that confession, but there is not anything wrong with that confession. If there were you never would have heard it in this case.”
Appellant made no contemporaneous objection to these comments.
“It is well settled that reversible error cannot be predicated upon a complaint of misconduct of counsel in the closing argument to the jury where the defendant makes no objection to the misconduct and makes no request to have the court admonish the jury to disregard the objectionable statements.” State v. Fleury, 203 Kan. 888, 896, 457 P.2d 44 (1969).
See also State v. Moody, 223 Kan. 699, 705, 576 P.2d 637, cert. denied 439 U.S. 894 (1978).
Besides appellant’s failure to object, the trial court admonished the jury to disregard any statements of counsel having no basis in evidence. No reversible error was shown.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
Stanley Johnson, Jr. was convicted by a jury of first degree murder (K.S.A. 21-3401) and of aggravated robbery (K.S.A. 21-3427). He raises six points on appeal.
The victim, William Juett, lived in an upstairs apartment at 1118 Kansas Avenue, Topeka, Kansas. On October 20, 1980, at 5:38 p.m. a citizen stopped a police officer and reported that blood had dripped into a first floor apartment at 1118 Kansas Avenue. Officers entered the Juett apartment and found Juett lying on the floor in a pool of blood. The coroner determined the time of death to be around 9:00 p.m. on October 19, 1980, and that the victim may have lived from one to five hours after the attack. An autopsy disclosed five stab wounds in the chest, a split forehead, and bruises on the face. The hemorrhage of blood from these wounds caused his death.
A police investigation disclosed that the victim kept rather large amounts of currency and cash on hand. The defendant was observed by a neighbor leaving the victim’s apartment between 3:00.and 5:00 p.m. on October 19th. He entered a cab with a suitcase. Later he returned to the apartment house and carried out a vacuum cleaner. The cab driver testified he picked up a black male at the victim’s address, and the man was carrying a vacuum cleaner, a briefcase, and a bag of pennies. The cab driver picked the defendant’s picture from a photographic lineup. He further testified he dropped the man off in the 1600 block of Van Burén. Defendant’s residence was at 1628 Van Burén.
A vacuum cleaner and tape recorder were found at defendant’s address. The victim’s conservator identified the vacuum cleaner as belonging to Juett, and the serial number on the tape recorder matched the serial number on a tape recorder box found in Juett’s apartment. Two towels found in Juett’s apartment contained human blood compatible with defendant’s blood type. When the defendant was questioned, one hand had been injured from a cut.
Defendant’s mother lived in an upstairs apartment across the hall from Juett’s apartment. A pair of men’s shoes was discovered in defendant’s mother’s apartment. They had traces of human blood on them. A partial latent palm print was found on the top of Juett’s kitchen stove. Comparison of prints disclosed it was made by defendant.
Girtha Hollingsworth, defendant’s common-law wife, testified at trial that the defendant brought home the vacuum cleaner and a briefcase on October 19th. She testified defendant brought home some money at that time, took the family to dinner, paid various bills, and gave $100.00 to her. Mrs. Hollingsworth’s daughter Sarah testified that the defendant borrowed $2.50 from her before leaving the house on Sunday, October 19th. When she next saw the defendant at 10:00 p.m. that evening he showed her $350.00 to $400.00. She further testified that her mother told her the defendant had $929.00. Another daughter Alnita testified that when the defendant returned to the house at 5:00 p.m. he brought the vacuum cleaner and showed her a large amount of money. Defendant gave her the tape recorder.
Defendant steadfastly denied killing Mr. Juett and at trial testified he had cut his hand on a broken aquarium and also injured this hand while cutting up chicken. He testified that he washed Juett’s windows in the apartment on Saturday, the 18th. He further testified that on the 19th he visited his mother who lived in the same apartment building. Some time after 3:00 p.m. on the 19th he observed a man leaving Juett’s apartment building with blood stains on his shirt and pants. Defendant said he later took out the trash and found the vacuum cleaner and tape recorder while rummaging in the trash. He opened the wound in his hand while looking through the trash so he went to Juett’s apartment in search of a band-aid. When no one answered his knock, he entered the unlocked door and found Juett on the floor with towels covering his face and chest. He removed the towels and discovered Mr. Juett was not breathing. He became scared and left. He testified the money he had on Sunday the 19th was his Christmas savings. He decided to use it when the welfare agency would not pay the delinquent gas bill. Additional testi mony will be discussed in connection with each point raised by defendant.
Defendant-appellant contends the trial court erred in refusing to suppress statements made by him to the police on October 22nd. This was the second time he was interrogated. He was taken from his home to police headquarters and again advised of his “Miranda rights.” He was then asked to tell the officers again of his activities on Sunday, the 19th. Defendant refused saying he had already told them everything and didn’t want to go over it again. He was asked if he cared to take a polygraph test and he said he would. However, he asked to call his lawyer before taking it. He was handed a telephone directory and he used the phone but was unable to locate his attorney. He then changed his mind about taking the polygraph test. The request made was to call his attorney in regard to taking the polygraph test. It was not a specific request for the presence of his attorney during further interrogation.
Later that morning defendant was waiting in an outer office in the county courthouse. Lt. Tom Sargent of the police department happened by, apparently by chance and not design. They knew each other and Lt. Sargent struck up a conversation with defendant. The conversation covered a wide range of subjects. During this conversation it was defendant who initiated the discussion as to the Juett death. Defendant was again advised of his rights, waived them, and again told his story to Lt. Sargent.
Defendant relies on Edwards v. Arizona, 451 U.S. 477, 68 L.Ed.2d 378, 101 S.Ct. 1880 (1981), but that case is distinguishable in that defendant in the case at bar did not express a desire to deal with police only through counsel, and the trial court’s finding that defendant initiated subsequent conversation with Lt. Sargent is supported by the evidence. According to Lt. Sargent, the conversation was relaxed, over cigarettes and coffee. Defendant confessed to no wrongdoing, but made damaging statements which were changed by him at trial. Defendant told of cleaning the windows and mopping the floors in Juett’s apartment on the 18th. He further stated he had purchased the vacuum cleaner and tape recorder from an unknown Negro male.
It was these statements made by defendant on the 22nd which the trial court refused to suppress after a Jackson-Denno hearing. Defendant relies on the fact that the questioning continued after he had previously advised the police he did not want to repeat the statements he had made the day before, and he relies on the additional fact that he asked to call his lawyer before taking a polygraph.
The rules governing are set forth in State v. Newfield, 229 Kan. 347, 623 P.2d 1349 (1981):
“If police interrogation of a person in custody continues and a statement is taken in the absence of an attorney after the person has requested an attorney, a heavy burden rests on the State to demonstrate that the person knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” 229 Kan. 347, Syl. f 1.
“In determining the voluntariness of a confession, it is to be viewed in light of the totality of the circumstances, including the following factors: (1) The duration and manner of interrogation; (2) the accused’s ability upon request to communicate with the outside world; (3) the accused’s age, intellect and background; and (4) the fairness of the officers in conducting the interrogation. Essential to the inquiry is the determination that the statement was the product of the free and independent will of the accused. If the accused was not deprived of his free choice to admit, deny or refuse to answer, the statement may be considered voluntary.” 229 Kan. 347, Syl. f 2.
“In cases of in-custody interrogation, police officers have the duty to take effective means to notify a person of his right to silence and to assure that the exercise of that right will be scrupulously honored. The critical safeguard required is the person’s right to cut off further interrogation elicited by express questioning or its functional equivalent in the form of any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response.” 229 Kan. 347, Syl. f 3.
In our present case defendant was advised of his rights and his right to an attorney was honored when he was given the telephone directory and an opportunity to call. The request for an attorney was conditioned on taking a polygraph test and when he was unsuccessful in reaching his attorney he refused to take the polygraph test. It was a substantial time later that he and Lt. Sargent met and struck up their conversation. This was not by design. After again being advised of his rights the informal questioning continued. Applying the rules in State v. Newfield, 229 Kan. 347, we hold the statements were voluntary and defendant’s rights were scrupulously honored. The trial court did not err in refusing to suppress the statements. See also State v. Nichols, 212 Kan. 814, 816, 512 P.2d 329 (1973).
Appellant’s next point concerns the trial court’s failure to strike the testimony of two officers when the prosecution failed to produce police reports under K.S.A. 22-3213 (Ensley). Subsection (2) of the statute states:
“After a witness called by the state has testified on direct examination, the court shall, on motion of the defendant, order the prosecution to produce any statement (as hereinafter defined) of the witness in the possession of the prosecution which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.”
At trial both Special Agent Young and Detective Gilchrist testified that after an interview with the defendant they went to the crime scene to see if the windows in the victim’s apartment had been washed recently. They both testified the windows had not been washed recently. Request was made by the defense for a copy of the officers’ report concerning this investigation. The prosecution responded that if a report was made and available, the defendant was certainly entitled to have a copy. However, the prosecution had been all through the police records and could not find any report on this phase of the investigation. Further, it could not be established that the requested report had in fact ever been made.
In State v. Wilkins, 220 Kan. 735, Syl. ¶ 3, 556 P.2d 424 (1976), it is said:
“A trial court exercising its discretion in ruling upon a motion to strike the testimony of a witness for failure of the prosecution to produce a statement pursuant to K.S.A. 22-3213(2), should consider why the statement was not produced; if it was lost, the facts and circumstances surrounding the loss; the negligence or fault on the part of the state; the nature, relevance and importance of the statement; the risk of prejudice to the defendant; the essentiality of the testimony to the state; and the other evidence in the case.”
After considering each of these matters specified in Wilkins in light of the facts of the present case we find no prejudicial error. It concerned a matter which was minor in nature, bearing on the credibility of defendant, and it was not established that a report was ever made or filed with the department.
Appellant further contends it was error for the court to allow both officers to testify that the windows were not clean because it permitted cumulative evidence to be presented by the State.
It is pointed out in State v. Bright, 229 Kan. 185, 191, 623 P.2d 917 (1981), that it lies within the authority of a trial court to limit the number of witnesses on a single issue, and it lies within the judicial discretion of the court as to where the line should be drawn on the number of witnesses permitted. When two wit nesses for the prosecution give cumulative testimony on the same subject to impeach the defendant’s testimony, and the testimony of both witnesses is relevant, no error results, for the admission of cumulative evidence, if relevant, rests in the judicial discretion of the trial court. We find no abuse of discretion here.
The appellant contends the trial court erred in admitting into evidence repetitious, gruesome, and repulsive photographs of the victim’s corpse taken at the scene of the crime and during the autopsy. We have examined these photographs. In a crime of violence which results in death, photographs which serve to illustrate the nature and extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to testimony of a doctor as to the cause of death even though they may appear gruesome. State v. Wilson, 220 Kan. 341, Syl. ¶ 5, 552 P.2d 931 (1976).
The naked corpse of a person who has been badly beaten, stabbed five times, and had his forehead laid open, is not a pretty sight. Neither is the picture of a man’s lung which has the appearance of having hemorrhaged from a stab wound. However, Mr. Juett was discovered in his apartment under circumstances indicating a violent death. The actual cause of death could only be determined by an autopsy. The pictures were helpful and relevant to explain the testimony of the coroner. We find no reversible error in their admission. See State v. McCorgary, 224 Kan. 677, 681, 585 P.2d 1024 (1978).
Appellant next alleges error in permitting a daughter to relate a conversation had with her mother for the reason the statements of the mother were subject to marital privilege claimed by the defendant-husband.
The mother had previously denied on the witness stand that she knew how much money her husband had when he returned home. When pressed for the amount she stated, “I didn’t count it.” The daughter was then permitted to testify that her mother told her the money amounted to $929.00.
The marital privilege is declared in K.S.A. 60-423, as to criminal actions, and gives the accused a privilege to prevent his spouse from being called as a witness to testify against the accused with respect to any confidential communication. This privilege is covered again by 60-428 subject to 60-437. This latter provision covers waiver of the privilege. The marital privilege declared in K.S.A. 60-423(b) and 60-428 applies to communications transmitted between spouses, and under K.S.A. 60-437 such privilege may be waived if the judge finds that the person claiming the privilege, without coercion, trickery, deception, or fraud practiced against him or her, made disclosure of any part of the matter to a third person.
In the case at bar the defendant displayed the money openly before at least three family members. The daughter did not disclose a confidential communication between spouses. The mother did not tell the daughter what the spouse had told her in confidence. The defendant’s disclosure of the money was openly made to the daughter as well as to the mother and another daughter. The intended transmission of the communication to a third person by a person later claiming the privilege will generally negative any implication of confidentiality. 8 Wigmore on Evidence § 2336 (McNaughton rev. 1961); State v. Benner, 284 A.2d 91 (Me. 1971). The conversations between mother and daughter are not privileged under these circumstances. State v. Glover, 219 Kan. 54, Syl. ¶ 3, 547 P.2d 351 (1976).
The final point raised by appellant concerns a charge of prosecutor misconduct during closing arguments.
The district attorney in an attempt to convince the jury that defendant’s testimony was not believable made the following statements during closing argument:
“But what did he say he did? Oh, he got scared and just left. But did he ever tell anybody? Is there any evidence? And all the opportunities to talk to all the people that he talked to, that he once, other than to his attorney, once mentioned the name of a Damon Jones to anybody? No, he didn’t. Here we are, this is March the third or March the second, excuse me, some — What would that be? — about five months and now we hear for the first time Damon Jones, and where do we hear it at? From the defendant when he’s on trial for first degree murder.”
Defense counsel immediately objected to these statements as not fair comment on the evidence. The objection was overruled. It turns out that Damon Jones was the person alleged by defendant to have run from Juett’s apartment house with blood stains on his shirt and pants. Before the trial, defense attorney had requested that an assistant district attorney run checks on this man. So the prosecutor’s office had been advised of this man before trial and the district attorney’s statement that defendant had not once mentioned the name of Damon Jones to anyone was a misstatement persisted in by the prosecutor even after the defense attor ney had approached the bench and refreshed the prosecutor’s recollection. The prosecutor stood by and allowed the judge to persist in upholding the previous order overruling the objection. The judge then instructed the jury to disregard the defendant’s objection. Later, on the argument of a motion for new trial the prosecutor admitted that the defense attorney had requested the check on Damon Jones before trial. Therefore the statement made during closing argument was false.
Even if this false statement was made from mere oversight and not to intentionally mislead the court and jury, the court erred in overruling the objection. A prosecutor may appeal to the jury with all the power and persuasiveness his learning, skill, and experience enables him to use so long as his comments are confined to the evidence and reasonable inferences drawn therefrom. However, he is an officer of the court and is guilty of gross misconduct if he asserts facts to be true which he knows, or should have known, to be false. Berger v. United States, 295 U.S. 78, 84, 79 L.Ed. 1314, 55 S.Ct. 629 (1935). See also State v. Dorsey, 224 Kan. 152, Syl. ¶ 1, 578 P.2d 261 (1978).
Although it was error to permit the prosecutor’s statements to remain in the record over objection, we must determine whether such constituted harmless error. In applying the Kansas harmless error rule (K.S.A. 60-2105) in line with the state and federal constitutional requirements, a court must be able to declare the error had little, if any, likelihood of having changed the result of the trial and the court must be able to declare such a belief beyond a reasonable doubt. State v. Thompson, 221 Kan. 176, Syl. ¶ 5, 558 P.2d 93 (1976); Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824 (1967). The only testimony during the trial concerning Damon Jones was that of the defendant who told the story about seeing the black man with blood stains on his shirt and pants coming out of Juett’s apartment house. On cross-examination defendant said the man was Damon Jones. The testimony in this case need not be further detailed. Suffice it to say the evidence of defendant’s guilt was overwhelming. The testimony of the cab driver and the neighbor placed defendant in the apartment house at or about the time Juett met his death. His possession of the victim’s vacuum cleaner and tape recorder, and the possession of hundreds of dollars the same day he had borrowed money from a stepdaughter also pointed to his guilt. His palm print in the apartment and his blood type on bloody towels in the victim’s apartment pointed to his guilt, especially when coupled with the fresh cuts on his hand and the apparent misstatements made by him.
The misconduct of the prosecutor in representing that defendant had not disclosed his story concerning Damon Jones prior to trial was directed toward questioning defendant’s credibility. Defendant’s credibility had been in serious question on various other matters including his story of cleaning Juett’s apartment windows and his discovery of the vacuum cleaner and tape recorder in the trash at the Juett apartment house. Considering the nature and extent of the evidence of guilt of the defendant in this case this court is able to declare the error had little, if any, likelihood of having changed the result of the trial, and we are able to declare such a belief beyond a reasonable doubt.
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The opinion of the court was delivered by
Herd, J.:
This is a declaratory judgment action challenging the constitutionality of K.S.A. 1980 Supp. 79-3109, K.S.A. 79-1113 and K.S.A. 1980 Supp. 79-3120a, the intangibles tax and exemptions therefrom.
William J. Von Ruden, Jr., a resident of Reno County, was levied a tax of $29 on his intangible property pursuant to K.S.A. 1980 Supp. 79-3109. He filed this action against Annabelle Miller, Reno County Treasurer, challenging the tax. The trial court held the act and its exemptions constitutional, obligating Von Ruden to pay the tax. This appeal followed challenging the constitutionality of the act.
Let us state at the outset the long-standing and well-established rules of this court when considering the constitutionality of a statute. Constitutionality is presumed, all doubts must be resolved in favor of the statute’s validity, and before a statute may be stricken down it must be clearly shown it violates the constitution. It is the court’s duty to uphold the statute under challenge, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. State ex rel. Stephan v. Martin, 230 Kan. 747, 641 P.2d 1011 (1982); State ex rel. Schneider v. Kennedy, 225 Kan. 13, 20-21,587 P.2d 844 (1978); City of Wichita v. Kansas Corporation Commission, 225 Kan. 524, 527, 592 P.2d 880 (1979); Rogers v. Shanahan, 221 Kan. 221, 223, 565 P.2d 1384 (1976); Brown v. Wichita State University, 219 Kan. 2, Syl. f 3, 547 P.2d 1015 (1976).
Any discussion of the issues involved should be prefaced by noting the relevant constitutional and statutory provisions. Article 11, § 1 of the Kansas Constitution provides:
“The legislature shall provide for a uniform and equal rate of assessment and taxation, except that the legislature may provide for the classification and the taxation uniformly as to class of motor vehicles, mineral products, money, mortgages, notes and other evidence of debt or may exempt any of such classes of property from property taxation and impose taxes upon another basis in lieu thereof.”
K.S.A. 1980 Supp. 79-3109 states in part:
“Moneys, notes and other evidences of debt as defined in K.S.A. 79-3108 and acts amendatory thereof, are hereby separately classified for taxation purposes as authorized by section 1 of article 11 of the constitution of the state of Kansas and shall hereafter be taxed annually as hereinafter provided.
“(a) Except as otherwise provided by subsection (b) of this section, any person owning money, notes and other evidences of debt at any time during his or her taxable year ending during the last preceding calendar year shall, as of January 1 of the current year, be subject to a tax equivalent to three percent (3%) upon the total gross earnings received by him or her from such money, notes and other evidences of debt during such taxable year and such money, notes and other evidences of debt shall be exempt from all other property orad valorem taxation. (Emphasis added.)
K.S)A. 1980 Supp. 79-3109(¿), in substance, provides the board of county commissioners of any county, the governing body of any city, and the township board of any township, may fix the rate of the tax levied upon money, notes and other evidence of debt having a tax situs in the governmental unit, at a rate other than prescribed in subsection (a). The board of county commissioners may fix the rate at one-fourth of one percent or a multiple thereof not to exceed three-fourths of one percent. The city or township, as the case may be, may fix a rate in the amount of one-fourth of one percent or a multiple thereof not to exceed two and one-fourths of one percent. The respective governing bodies may also elect that no tax be levied, in which case the issue shall be submitted to a referendum upon petition by five percent of the electors. Conversely, if the governing body does not elect to eliminate the tax five percent of the electors may petition for a referendum on that issue. The governing body of any county, city, or township which has voted to eliminate the tax is authorized to impose and levy any other tax which may be authorized by law or to increase its ad valorem tax levy to offset the revenue loss.
K.S.A. 79-1113 provides:
“National banking associations and banks and corporations holding stock therein; exemption from intangibles tax. Shares, shares of stock or other evidence of ownership of national banking associations and banks located or doing business within the state, and all income therefrom and the shares, shares of stock or other evidence of ownership of corporations holding stock of a national banking association or bank located or doing business in Kansas, to the extent the income of such corporation is attributable to dividends received on such stock, and all income therefrom, shall be exempt from the tax imposed on moneys, notes and other evidences of debt by K.S.A. 79-3109 and any amendments thereof.”
K.S.A. 1980 Supp. 79-3120a provides:
“Money, notes and other evidences of debt exempt from taxation. The following shall be and are hereby exempt from taxes levied under the provisions of K.S.A. 1979 Supp. 79-3109, and amendments thereto, and from all other property or ad valorem taxes levied under the laws of the state of Kansas:
“(a) Notes secured by mortgages on real estate, which mortgages have been recorded in this state and the registration fee or tax thereon paid, as otherwise provided by law;
“(b) all moneys, notes and other evidences of indebtedness held by the trustee of a qualified trust described in section 401, 408 or 501(c)(4), (5), (9), (17) or (18)) of the internal revenue code of 1954, as amended (26 U.S.C. 401,408 or 501(c)(4), (5), (9), (17) or (18)) which is part of a stock bonus, pension or profit-sharing plan of an employer for the exclusive benefit of employees or their beneficiaries or health and welfare plan;
“(c) money, notes and other evidences of debt, to the extent of the tax liability hereinafter provided, which is owned by a person who has a disability or was sixty (60) years of age or older on January 1 of the year in which an exemption is claimed hereunder. The exemption allowable under this subsection shall be in an amount equal to the lesser of the following: (1) The amount of the tax liability on the first three thousand dollars ($3,000) of gross earnings from said money, notes and other evidences of debt; or (2) the amount of the tax liability on the first three thousand dollars ($3,000) of gross earnings from said money, notes and other evidences of debt reduced by the amount that the owner’s income exceeds twelve thousand five hundred dollars ($12,500), including in such owner’s income the income of such person’s spouse, in the year next preceding that in which the exemption is claimed under this subsection. No person shall be eligible to claim an exemption hereunder in the same year in which such person’s spouse has claimed an exemption hereunder. As used in this subsection, the terms ‘income’ and ‘disability’ shall have the meanings ascribed to them in K.S.A. 1979 Supp. 79-4502, and amendments thereto;
“(d) money, notes and other evidence of debt upon which the board of county commissioners of the county and governing body of the city of situs or the board of county commissioners and the township board of situs have provided by ordinance or resolution that there shall be no taxes levied upon in accordance with subsection (b) of K.S.A. 1979 Supp. 79-3109, and amendments thereto; and
“(e) money, notes and other evidence of debt owned by any credit union.”
A brief history of the applicable law will be helpful. Article 11, § 1, contains the notorious uniform and equal clause of the Kansas Constitution. It has been hailed as a savior by property owners with uninflated value and as absolute confiscation by property owners whose property is inflated in value. It was adopted as a part of the original constitution and was unamended until 1924. Prior to the amendment all property in the state, except that exempted by statute or the constitution, was required to be uniformly assessed at its fair market value in money and equally taxed within its taxing district. There was only one class of property for tax purposes. The assessing was accomplished by township trustees and county clerks. They were untrained and tended to view fair market value as the lowest possible value they could get by with, particularly since the taxpayer was often a neighbor and the assessor had similar property. Intangibles presented a troublesome problem because money and evidence of debt had a stated value, thus presenting no opportunity to lower values to the ridiculous levels placed on tangible property. The only remaining method to satisfy the constitutional mandate of uniform and equal was to assess tangibles at comparable values to the stated values of intangibles. Even though the increased assessed valuation would in theory lower levies accordingly, this solution was unacceptable to property owners. They did not trust local authorities to put this theory into practice. After two unsuccessful attempts, article 11, § 1, was amended in 1924 by adding the language, “except that mineral products, money, mortgages, notes and other evidence of debt may be classified and taxed uniformly as to class as the legislature shall provide.” No longer was there a need to compare tangible values with intangible values. The constitutional changes awaited only statutory implementation. In 1931 an implementing statute separately classifying money, notes and other evidences of debt and imposing a statewide levy of “five mills on the dollar of actual value thereof . . .” was enacted. L. 1931, ch. 311, § 2; ch. 312, § 2. In Hunt v. Eddy, 150 Kan. 1, 90 P.2d 747 (1939), this court held the taxation of shares of stock at this rate was valid, finding the 1924 amendment intended to include common stock within the definition of other evidence of debt. Later, in Commercial National Bank v. Board of County Commissioners, 201 Kan. 280, 440 P.2d 634 (1968), this court again construed the 1924 amendment. There it was held that, in light of the exception allowing separate classification of intangibles, the assessment of intangible property at its actual value, while tangible property was assessed at thirty percent of fair market value, did not violate article 11, §L
Intangible property continued to be the subject of concern even after the 1924 amendment and the 1931 implementation statute. Since intangibles are transitory and easy to hide, the tax was the subject of wholesale evasion. For instance, as found in 1955 by the Citizens Advisory Commission Study, Kansas residents owned $691,000,000 in common stocks while the assessed value of both stocks and bonds in Kansas that year was only $39,000,000. This study led to the 1959 enactment of K.S.A. 79-3109, giving the owner of intangible property the option of paying a tax equivalent to three percent of the total gross earnings therefrom for the past year or paying the previously established tax of five mills on each dollar of actual value. The 1959 statute was enacted to encourage intangibles taxpayers to comply with the law. L. 1959, ch. 388, § 1. In 1970, the five mill option was eliminated leaving the tax on intangible property at three percent of gross earnings. L. 1970, ch. 390, § 1.
In 1974, article 11, § 1 was again amended to allow motor vehicles among the categories permitted to be separately classified. Also added was the following general provision important to this discussion:
“[0]r may exempt any of such classes of property [motor vehicles, mineral products, money, mortgages, notes and other evidence of debt] from property taxation and impose taxes upon another basis in lieu thereof.”
Exemptions from intangibles taxes provided for in K.S.A. 1980 Supp. 79-3120a were first enacted in 1974. L. 1974, ch. 437, § 2. The provision for intangibles tax local option, K.S.A. 1980 Supp. 79-3109(h) was added in 1976. L. 1976, ch. 425, § 1(h).
Let us now consider Von Ruden’s challenge section by section, as briefed, even though it will entail some repetition.
For his first issue Von Ruden argues K.S.A. 1980 Supp. 3109(a) violates the uniform and equal clause of article 11, § 1, applicable to all property in the state, citing Hines v. Leavenworth, 3 Kan. 186 (1856). Appellee Miller counters with the contention the intangibles tax is an excise tax and therefore exempt from the uniform and equal requirement which applies only to ad valorem taxes. See Hartman v. State Commission of Revenue and Taxation, 164 Kan. 67, 70, 187 P.2d 939 (1947). The reason for the distinction between ad valorem and excise taxes was stated in City of Newton v. Atchison, 31 Kan. 151, 155-56, 1 Pac. 288 (1883):
“[Article 11, §1] obviously refers to property, and not to license taxes.
“In Baker v. City of Cincinnati, 11 Ohio St. 540, the supreme court, upon kindred constitutional sections, makes these observations:
“ ‘Now neither of these sections, in terms, prohibits granting licenses and making a charge therefor, or the imposition of a tax on a license. The second section requires the taxing of all property by a uniform rule. A license cannot be regarded as property. [Citation omitted.] It is not, therefore, to be taxed as property under that section. An express direction to impose a tax on all property by a uniform rule does not necessarily exclude taxation upon that which is not property, or cover the whole ground included within the limits of the taxing power.’ ”
Ad valorem and excise taxes were then further distinguished in Callaway v. City of Overland Park, 211 Kan. 646, 651, 508 P.2d 902 (1973):
“The term ‘excise tax’ has come to mean and include practically any tax which is not an ad valorem, tax. An ad valorem tax is a tax- imposed on the basis of the value of the article or thing taxed. An excise tax is a tax imposed on the performance of an act, the engaging in an occupation or the enjoyment of a privilege.”
The foregoing clearly illustrates the dichotomy. Let us proceed to examine the intangibles tax for the purpose of determining its identity.
Since K.S.A. 1980 Supp. 79-3109(o) bases the intangibles tax on three percent of gross earnings, not value, it is clearly not an ad valorem tax. The trial court held the tax was not ad valorem without specifically stating it was an excise tax. Although Callaway noted, as a practical matter, that an excise tax includes practically any tax which is not an ad valorem tax, this is not invariably true. The Kansas intangibles tax fits neither the definition of an ad valorem tax nor an excise tax, which includes income taxes, defined in article 11, § 11, and K.S.A. 79-3201 et seq., as a tax on net income. The history of the tax previously set out shows that until the 1958 amendment providing for the percentage of earnings option, it was clearly a property tax. The wording of K.S.A. 1980 Supp. 79-3109(o) supports the conclusion the Kansas intangibles tax is considered a property tax. That statute states:
“[A]ny person owning money, notes and other evidence of debt . . . shall ... be subject to a tax equivalent to three percent (3%) upon the total gross earnings . . . and such money, notes, and other evidences of debt shall be exempt from all other property or ad valorem taxation.” (Emphasis added.)
A discussion of the Ohio intangibles tax in Benua v. Columbus, 170 Ohio St. 64, 68-69, 162 N.E.2d 467 (1959), is informative:
“In its program of providing revenues by property taxation, Ohio makes a levy based on the ownership of both real and personal property and, in the latter category, on the ownership of both tangible and intangible property. Various formulae exist for the determination of the amount of tax to be paid on account of the ownership of these various kinds of real and personal property, but in each instance the fact oí taxation is based upon the ownership. In the case of intangible personal property .... the amount of the tax to be paid is based upon the revenue produced. The tax, however, continues to be levied on account of the ownership of the securities and not on the revenues, revenue production only being used as the measure of the tax as a matter of equity and convenience. This does not alter the fact that the tax levied by the state of Ohio on account of the ownership of a share of dividend-paying stock is just as much a tax on property as is the tax levied upon a parcel of land ....
“[A] tax levied on account of the ownership of intangible property does not become án income tax simply because the amount of the tax is determined from or ‘based, on the income yield' of the intangible property.”
In Associated Rly. Equipment Owners v. Wilson, 167 Kan. 608, 208 P.2d 604 (1949), construing G.S. 1947 Supp. 79-907 which imposed a tax of two and one-half percent of the gross earnings received “by reason of the use or operation” of railroad cars owned by out-of-state persons or companies but leased to railroads operating within this state, it was held that, although the tax was not based on ownership, it was nonetheless a property tax. The court stated, “The tax on the property is merely measured by a percentage of the gross earnings received from the use and operation of the property within the state.” 167 Kan. at 618. We conclude the Kansas intangibles tax is a specific property tax.
Appellant confuses the terms property tax and ad valorem tax. They are not synonymous. Although the intangibles tax is a property tax, it is not, as discussed, an ad valorem tax. Property taxes may be either ad valorem or specific, although they are usually ad valorem. Specific taxes are of a fixed amount by the head or number, or by some standard of weight or measurement, and require no assessment other than a listing or classification of the subjects to be taxed. 71 Am. Jur. 2d, State and Local Taxation § 20, p. 355. Other states with intangibles taxes based on a percentage of gross earnings have construed them as specific taxes on property. See Bennett v. Evatt, 145 Ohio St. 587, 62 N.E.2d 345 (1945); In re Harris, Upham & Co., 194 Okla. 155, 148 P.2d 191 (1944); Shivel v. Kent County Treasurer, 295 Mich. 10, 294 N.W. 78 (1940). In Shivel and Harris it was held that since the Michigan and Oklahoma constitutions respectively allowed for the imposition of specific taxes as exceptions or in lieu of ad valorem taxes, the uniform and equal requirement of their constitutions was not applicable to the intangibles taxes at issue.
The 1924 amendment to article 11, § 1, which separately classified intangibles for tax purposes, furnishes the authority for removing intangible property from the uniform and equal clause of the constitution. It is inherent in the term “separately classify” that the separately classified property be dealt with in a manner different from other property. Different treatment means nonuniform and permissibly unequal treatment. As stated in Commercial National Bank v. Board of County Commissioners, 201 Kan. at 283, the uniform and equal clause of article 11, § 1, does not apply to intangible property. However, article 11, § 1 also contains the provision that separately classifiéd must be uniform within its class. Since this section of the statute provides for a statewide levy on all intangible property, it is clearly in compliance with article 11, § 1 in all respects. K.S.A. 1980 Supp. 79-3109(a) is not in violation of article 11, § 1. Appellant’s first issue is without merit.
For his next issue appellant contends K.S.A. 1980 Supp. 79-3109(a) violates the Equal Protection Clause of the 14th Amendment of the U.S. Constitution. In State ex rel. Tomasic v. Kansas City, Kansas Port Authority, 230 Kan. 404, Syl. ¶ 15, 636 P.2d 760 (1981), we held article 11, § 1, is substantially identical to the principle of equality embodied in the Equal Protection Clause of the 14th Amendment, and stated the rule:
“States are subject to the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution in the exercise of their taxing power, but flexibility and variety appropriate to reasonable taxation schemes are permitted. The state taxation scheme must have a rational basis with classifications based on differences having a fair and substantial relation to the object of the legislation.”
In Commercial National Bank v. Board of County Commissioners, 201 Kan. 280, we discussed the need, rationale and legislative scheme for separate classification of intangible property for tax purposes. A rational basis for the separate classification of intangible property clearly exists making taxation of it, on a basis different from other classes of property, reasonable. K.S.A. 1980 Supp. 79-3109(a) does not violate the Equal Protection Clause of the 14th Amendment.
Let us next consider K.S.A. 1980 Supp. 79-3109(b) which appellant contends is in violation of article 2, § 1, as an unlawful delegation of legislative authority and in violation of article 11, § 1, and the Equal Protection Clause of the 14th Amendment, as being a tax not uniform as to class.
As we previously stated, this section of the statute provides counties, cities and townships may reduce or eliminate their part of the three percent statewide tax on gross revenue of intangible property, subject to petition and referendum by the electors of the municipality.
Let us examine the local option provisions. The legislative power of the state is vested in the House of Representatives and Senate by article 2, § 1. However, article 2, § 21, authorizes the legislature to confer power of local legislation upon political subdivisions. See State, ex rel. v. Hardwick, 144 Kan. 3, 6, 57 P.2d 1231 (1936). Article 12, § 5 confers home-rule power to cities. In Claflin v. Walsh, 212 Kan. 1, 509 P.2d 1130 (1973), we discussed home-rule limitations:
“The home rule power of cities is not absolute. It is subject to the power of the legislature to act in certain areas - exclusively in some, optionally in others. These limitations on city power are expressly set forth in the home rule amendment. Section 5(a) of the constitutional provision cited in full above vests absolute and exclusive power in the legislature in regard to the procedure for incorporating cities, the methods of altering boundaries, the methods by which cities may be merged or consolidated, and the methods by which cities may be dissolved. Statutory enactments in these areas are not subject to the exercise of home rule power by charter ordinance.
“The optional powers of the legislature are set forth in Section 5(b) as limitations or exceptions to the exercise of home rule power by cities. The home rule power is subject to optional control by legislative action in four specific areas:
“(1) Enactments of statewide concern which are applicable uniformly to all cities.
“(2) Other enactments of the legislature applicable uniformly to all cities.
“(3) Enactments applicable uniformly to all cities of the same class limiting or prohibiting the levying of any tax, excise, fee, charge or other exaction.
“(4) Enactments of the legislature prescribing limits of indebtedness.” 212 Kan. at 7.
It should be noted that none of the foregoing constitutional provisions confer on local governments the power to legislate statewide issues.
In analyzing this problem the first question to be determined is whether the intangibles tax is a state issue or a local issue. If it is a local matter there is no constitutional impediment to the statute. It has some aspects of both categories. Under K.S.A. 1980 Supp. 79-3109(a), persons owning intangibles are “subject to a tax equivalent to three percent (3%) upon the total gross earnings received” therefrom. A property owner is required to file a tax return with the state director of property valuation or director of taxation reporting the gross earnings. K.S.A. 79-3111. The tax payable thereon is then certified back to the county clerk of the county of residence of the taxpayer by the secretary of revenue. The tax is collected and distributed by the county treasurer along with other local taxes. The levy is set by the state. Local units of government may take affirmative action and lower or eliminate the levy under K.S.A. 1980 Supp. 79-3109(h). If no local action is taken, the statewide levy applies. It thus appears the intangibles tax is in reality a statewide tax which local units of government are authorized to vary or eliminate. It is not subject to home rule because it is of statewide concern, uniformly applicable to all cities. Therefore, it is not a local matter and does not fall under the provisions of article 2, § 21, authorizing the legislature to confer powers of local legislation upon political subdivisions. It is argued the delegation of legislative authority to local government to reduce or eliminate the intangibles tax levy is comparable to the delegation of authority to local government to set ad valorem tax levies. The comparison is inappropriate. The intangibles tax is a statewide levy fixed by the legislature and has no relationship to program or need. On the other hand, ad valorem tax levies are controlled by the program they fund. They are set by calculating the taxing unit’s assessed valuation, adopting a budget, crediting carryover funds and state funds, then dividing the adjusted budgeted amount into the assessed valuation. The resulting quotient is the levy. This process is subject to the legislatively imposed limitation of budget and levies. The setting of a local ad valorem tax levy is the result of mathematical calculation involving no discretion. Thus, with ad valorem taxes, the local act of setting levies is an administrative act. See Board of County Commissioners v. Brookover, 198 Kan. 70, 422 P.2d 906 (1967). Therefore it is not in violation of the general rule that the legislative power cannot be delegated. 71 Am. Jur. 2d, State and Local Taxation § 144, p. 466, states:
“Furthermore, it is recognized that certain aspects of the taxing process are not legislative in the sense that they may not be delegated to other governmental agencies, or even to individuals, if, in making such delegation, the legislature retains sufficient and proper control over those elements of the taxing function which are nondelegable. Thus, a distinction is drawn between the elements that enter into the imposition of a tax and the ministerial and administrative steps taken for its assessment and collection; the latter being delegable, the former not. In the light of this distinction, a state legislature cannot delegate to an adminis trative board the power to determine the rate of taxation, or to say whether or not taxes shall be collected at this or that rate. It may, however, be laid down as a general proposition that where a legislature enacts a specific rule for fixing a rate of taxation, by which rule the rate is mathematically deduced from facts and events occurring within the year and created without reference to the matter of that rate, there is no abdication of the legislative function, but, on the contrary, a direct legislative determination of the rate.”
The Ohio Supreme Court in defining legislative power concluded:
“The true distinction, therefore, is, between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.” C. W. &Z. Rail Road Co. v. Commissioners of Clinton County, 1 Ohio St. 77, 88-89 (1852).
The grant of authority to local government to reduce or eliminate the intangibles levy is legislative, giving local government total discretion to change the law even to the extent of increasing ad valorem taxes beyond the statutory limit to replace the lost intangibles tax. In State, ex rel. v. Hines, 163 Kan. 300, 302-03, 182 P.2d 865 (1947), we commented on the delegation of legislative authority:
“If the powers sought to be delegated are legislative in character, as distinguished from administrative, ordinarily they cannot be delegated unless their delegation is authorized by some express provision of the constitution or the authorization arises by reason of clear implication therefrom. Such a result follows from the doctrine of separation of the powers of government.”
We are forced to conclude the intangibles tax is a statewide tax and K.S.A. 1980 Supp. 79-3109(b) authorizes local governments to legislate a local reduction of or total exemption from the tax as they determine in their discretion. This is an unauthorized delegation of legislative authority contrary to article 2, § 1, of the Kansas Constitution.
This holding is dispositive of the issue. Thus, there is no need to discuss the other constitutional challenges to K.S.A. 1980 Supp. 79-3109(b).
Finally, appellant challenges the exemptions provided for in K.S.A. 1980 Supp. 79-3120a and K.S.A. 79-1113, as violative of article 11, § 1, and the equal protection clause of the 14th Amendment.
As we noted above, where constitutional challenges have been made to tax exemption schemes as violative of article 11, § 1, we have consistently held this provision is, in principle and effect, identical to the principle of equality embodied in the Equal Protection Clause. State ex rel. Tomasic v. Kansas City, Kansas Port Authority, 230 Kan. at 426. The standard under article 11, § 1, is that the legislature may provide statutory exemptions • if such exemptions have a public purpose and promote the general welfare. 230 Kan. 404, Syl. ¶ 3. The standard under the Equal Protection Clause is that the taxation scheme must have a rational basis with classifications based on differences having a fair and substantial relation to the object of the legislation. 230 Kan. 404, Syl. ¶ 15.
K.S.A. 79-1113 exempts shares of stock of national banking associations from the intangibles tax. Such shares are, however, subject to tax under K.S.A. 1980 Supp. 79-1107. An exemption which is designed to prevent double taxation satisfies equal protection. 71 Am. Jur. 2d, State and Local Taxation § 314. As such, article 11, § 1, is not violated.
K.S.A. 1980 Supp. 79-3120a(a) exempts notes secured by real estate mortgages on which a mortgage registration fee has been paid. Again, the exemption prevents double taxation.
The remaining exemptions must be viewed in light of the rule that where private property is involved, as opposed to property owned by governmental units, an exemption, to be valid, must be based on the use of the property and not on the basis of ownership alone. Topeka Cemetery Ass’n v. Schnellbacher, 218 Kan. 39, 542 P.2d 278 (1975).
At first blush K.S.A. 1980 Supp. 79-3120a(b) appears to be an exemption based on ownership. But a close analysis reveals this exemption is actually based on the use of the property as a means of funding IRA qualified retirement plans. Thus, this exemption accomplishes the same purpose as the IRA qualified plans, i.e., deferred taxation of retirement funds.
It is argued K.S.A. 1980 Supp. 79-3Í20a(c) is also an exemption based on the ownership of intangible personal property by low income elderly or disabled persons. However, a use-based classification is present here. It is reasonable to assume that persons in this category use the income generated by this property as a primary means of support. By exempting the income generated by intangibles owned by low income persons, more funds remain in their households and the amount of public assistance outlay is thereby reduced. Obviously, the statute serves a public purpose and is based on the use of the property. It is of note that this exemption differs from the provision reducing the assessed value of certain farm machinery and equipment found unconstitutional in State ex rel. Stephan v. Martin, 227 Kan. 456, 608 P.2d 880 (1980). That provision did not exempt such property from taxation based on a purpose promoting the general welfare. Rather, it purposely sought to alter the assessment rate of particular property for the purpose of benefiting a particular class of persons suffering economic distress.
K.S.A. 1980 Supp. 79-3120a(d) exempts the intangible property from taxation which was previously exempted by local taxing units. It is a mere ratification of constitutionally impermissible action and therefore unconstitutional.
The classification in K.S.A. 1980 Supp. 79-3120a(e) is also use-based. That statute exempts “money, notes and other evidences of debt owned by a credit union.” A credit union is a nonprofit organization “incorporated for the purpose of creating a source of credit at a fair and reasonable rate of interest, of encouraging habits of thrift among its members, and of providing the opportunity for people to use and control their money for their mutual benefit.” K.S.A. 1980 Supp. 17-2231(c). Thus, it appears credit unions are established under state law for a public purpose and promote the general welfare. The statutory exemption accomplishes this public purpose.
We hold the tax on intangible property to be a specific property tax rather than an ad valorem tax. Article 11, § 1 specifically authorizes separate classification of intangible property and taxation on some basis other than value. K.S.A. 1980 Supp. 79-3109 imposes a statewide tax. K.S.A. 1980 Supp. 79-3109(¿) and 79-3120a(d), which authorize local units of government to reduce or eliminate the tax on intangible property, is an unauthorized delegation of legislative authority in violation of article 2, § 1. K.S.A. 1980 Supp. 79-3109(h) and 79-3120a(d) are declared unconstitutional and severed from the act under authority of K.S.A.79-3119. This opinion shall apply prospectively. We hold the remainder of K.S.A. 1980 Supp. 79-3109 and 79-3120a to be constitutional.
The judgment of the trial court is affirmed in part and reversed in part consistent with this opinion. | [
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The opinion of the court was delivered by
Holmes, J.;
This is an appeal by the plaintiff, Michael Lee Miller, from the dismissal of all of his alleged causes of action in what is essentially a false arrest action. The facts are not in dispute.
On June 14, 1979, plaintiff was arrested for running a stop sign in the City of Overland Park. The arresting officer, defendant Denis Plumly, requested a computer check and was advised there was an outstanding Kansas City, Kansas, arrest warrant for one Michael Lee Miller for failure to appear on a charge of driving with an expired license tag. Officer Plumly then transported Miller to the Overland Park police station where he was held for the Kansas City police. During this part of the incident, Mr. Miller tried to explain to Officer Plumly that he was not the Michael Lee Miller named in the arrest warrant; that his driver’s license number was different from that of the fugitive Miller; and that he had never driven the particular automobile with the expired tag. Officer Plumly refused to consider his explanations or attempt any verification of plaintiff’s story and instead simply held him for transportation to Kansas City.
When plaintiff was taken to Kansas City by Kansas City police officers, he again tried to explain the mix-up. But again, the police declined to make any effort to verify plaintiff’s version of the facts. Plaintiff was incarcerated for a number of hours and required to post bond before being released. He was directed to appear for trial on the expired tag charge on July 6,1979, at which time the Kansas City, Kansas, police officer who made the expired tag arrest was unable to identify plaintiff as the operator of the vehicle and the case was dismissed. There does not appear to be any dispute that plaintiff was not the Michael Lee Miller sought by the Kansas City police.
Thereafter, on June 12, 1981, plaintiff filed a three-count petition for damages against Officer Plumly, the City of Overland Park, the City of Kansas City, and one Officer Robinson of the Kansas City police department. In Count I, plaintiff alleged a cause of action for false arrest and imprisonment. Count II alleged negligent arrest and Count III, a civil rights violation asserting the defendants had deprived plaintiff of his right to liberty without due process of law as prohibited by 42 U.S.C. § 1983. Plaintiff sought actual and punitive damages. The petition is unclear whether plaintiff was asserting all counts against all defendants. However, in view of the trial court’s findings and our holding herein, it is not necessary to attempt to determine which counts apply to which defendants. June 14, 1981, fell on a Sunday so the plaintiff’s petition was filed within two years of the date of his original arrest and incarceration. K.S.A. 60-206(a). It appears there were two Officer Robinsons on the Kansas City police force. T. J. Robinson had nothing to do with the arrest or incarceration of Miller. Rose Robinson was a booking officer and approved Miller’s bond. Miller intended to sue Rose Robinson but caused summons to be issued to T. J. Robinson. When plaintiff’s counsel was apprised of the error, no action was taken to effect proper service on Rose Robinson. The trial court dismissed the case as to T. J. Robinson and plaintiff does not appeal from that ruling.
All defendants filed motions for either summary judgment or dismissal which were sustained on various grounds. Counts I and III were dismissed on the grounds they were barred by the one-year statute of limitations applying to false arrest actions. K.S.A. 60-514(2). Plaintiff has not appealed the dismissal of Count I and concedes it was barred by 60-514(2). Count II alleging “negligent arrest” was dismissed as failing to state a claim upon which relief could be granted. Plaintiff has not appealed that ruling. Count II was also dismissed based upon governmental immunity as provided in K.S.A. 1978 Supp. 46-902. The officers and the cities were obviously engaged in the performance of a governmental function and the dismissal was proper. Cross v. City of Kansas City, 230 Kan. 545, 638 P.2d 933 (1982). Other grounds for dismissal of Count II were also found by the trial court but they need not be considered further.
The sole viable issue before this court is whether the trial court was correct in its determination that the one-year statute of limitations for false arrest applied to Count III, which alleged a violation of plaintiff’s civil rights under 42 U.S.C. § 1983. The trial court made, inter alia, the following conclusion of law:
“4. Claims brought pursuant to 42 U.S.C. § 1983 are governed by the state statute of limitations which is most analogous to the civil rights claim. Board of Regents v. Tomanio, 446 U.S. 478, 482-485 (1980). The statute of limitations to be applied to Count III of the plaintiff’s petition is K.S.A. 60-514, which statute bars said claim, and therefore Count III should be dismissed against all defendants.”
K.S.A. 60-514 provides:
“The following actions shall be brought within one (1) year. (1) An action for libel or slander.
(2) An action for assault, battery, malicious prosecution, or false imprisonment.
(3) An action upon statutory penalty or forfeiture.”
Appellant contends the appropriate statute of limitations is K.S.A. 60-513(a)(4), which provides:
“(a) The following actions shall be brought within two (2) years:
(4) An action for injury to the rights of another, not arising on contract, and not herein enumerated.”
There is no congressionally mandated statute of limitations for § 1983 actions. Federal courts are instructed to look to state law to determine such limitations. Board of Regents v. Tomanio, 446 U.S. 478, 64 L.Ed.2d 440, 100 S.Ct. 1790 (1980). In fact, 42 U.S.C. § 1988 mandates that federal courts apply the law of the state in a § 1983 action “so far as the same is not inconsistent with the Constitution and laws of the United States.” Although the federal courts in civil rights actions apply the state period of limitations for the most analogous cause of action consistent with the facts asserted to support the civil rights claim, Johnson v. Railway Express Agency, 421 U.S. 454, 462, 44 L.Ed.2d 295, 95 S.Ct. 1716 (1975), Zuniga v. AMFAC Foods, Inc., 580 F.2d 380 (10th Cir. 1978), there is no bar to a state Supreme Court interpreting or construing any of its own limitations statutes as specifically applying to particular § 1983 actions, without resort to analogy. When a state has determined the appropriate statute of limitations for a given set of facts upon which a § 1983 action is based, the federal courts will then apply such determination to similar actions brought in federal court as required by §1988. The reason for § 1988 is obvious. It would not be in the best interests of justice to have differing statutes of limitations between the state and federal courts for civil rights actions based upon the same set of facts. Under such circumstances, the cause of action might be barred in one court and not in the other, leading to forum shopping and other inconsistencies.
It must be conceded that several federal cases have applied the two-year statute of limitations to civil rights actions arising in Kansas. In Wilson v. Hinman, et al, and Wilson v. Powers, et al, 172 F.2d 914 (10th Cir. 1949), the court stated:
“The time for filing an action under the Civil Rights Act is controlled by the applicable Kansas Statute of Limitations. (Citations omitted.) Sec. 60-306, par. 3, Kansas G.S. 1935, provides that ‘an action for injury to the rights of another, not arising on contract,’ must be brought within two years.” p. 915.
Again, in Brown v. Bigger, 622 F.2d 1025 (10th Cir. 1980), we find:
“Federal courts must apply the applicable state statute of limitations in a civil rights action. Crosswhite v. Brown, 424 F.2d 495 (10th Cir. 1970). The applicable state statute of limitations in Kansas is two years. Kan. Stat. Ann. § 60-513(a)(4) (1976); see Hannon v. Woodson, Unpublished No. 76-1873 (10th Cir. April 18, 1977).” p. 1026.
In the Wilson cases plaintiff was an elderly woman who appeared pro se and as the court noted, “We do not have the benefit of any formal pleadings on behalf of the appellant from which to judge the nature or form of her causes of action.” 172 F.2d at 915.
In Brown the cause of action was based upon allegations by a penitentiary inmate that several guards forcibly put him to bed while he was in a hospital for treatment and such action by the guards constituted cruel and unusual punishment. While the court found that K.S.A. 60-513(a)(4) was the appropriate statute of limitations, it also found that the statute was tolled while Brown was in prison (K.S.A. 60-515[o]) and therefore the determination of what statute of limitations applied was not germane to the court’s decision.
Zuniga v. AMFAC Foods, Inc., 580 F.2d 380 (10th Cir. 1978), was a case in which the court was faced with a determination of the proper Colorado statute of limitations to be applied to an action asserting a violation of Zuniga’s civil rights under 42 U.S.C. § 1981. In determining that the factual situation supporting plaintiff’s alleged cause of action should be compared to the Colorado cause of action, if any, which would be supported by such facts, the court stated:
“In sum, the answer to our limitations question requires analysis of the essential nature of the federal claim and comparison to similar state actions.” 580 F.2d at 384.
In Cooper v. Hutchinson Police Department, 6 Kan. App. 2d 806, 636 P.2d 184 (1981), rev. denied 230 Kan. 817 (1982), our own Court of Appeals had occasion to consider the appropriate statute of limitations to be applied in a § 1983 action based upon assault and battery allegations. The court stated:
“The remaining issue to be resolved concerns the appropriate statute of limitations for a civil rights action in Kansas. K.S.A. 60-513 reads in part:
‘(a) The following actions shall be brought within two (2) years:
(1) . . . . (4) An action for injury to the rights of another, not arising on contract, and not herein enumerated.’
“While a number of federal decisions have held this two-year statute of limitations to be applicable in Kansas civil rights actions, no Kansas appellate court has done so. Wilson v. Hinman, 172 F.2d 914 (10th Cir. 1949); Brown v. Bigger, 622 F.2d 1025 (10th Cir. 1980). We now hold that K.S.A. 60-513 is the appropriate statute of limitations for actions brought in Kansas for the injury to or denial of a person’s civil rights.” pp. 808-809.
We are of the opinion that the rule laid down in Cooper is overly broad and that all § 1983 actions are not covered by K.S.A. 60-513(o)(4). In the instant case, it is obvious that plaintiff’s complaints all grow out of one simple set of facts which traditionally would support a cause of action for false arrest and imprisonment. K.S.A. 60-514 provides that a one-year statute of limitations shall apply to certain clearly specified actions, to-wit: libel, slander, assault, battery, malicious prosecution, false imprisonment and an action upon a statutory penalty or forfeiture. We do not believe that it was the intent of Congress in enacting §1983 to establish a cause of action with a different statute of limitations than that provided by the state for a common law or state statutory action on the identical set of facts. Indeed, the very reason for § 1988 and the application of state periods of limitation to § 1983 actions is to avoid such inconsistency. 42 U.S.C. § 1983 provides:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
As previously indicated, the federal courts, in order to assure uniformity, are required to follow state law in applying the statute of limitations to a § 1983 action. Where a particular set of facts will only support causes of action enumerated in K.S.A. 60-514, it would be incongruous, to say the least, that a one-year period of limitations would apply to a common law or state statutory cause of action and a different period of limitations would apply to a separate cause of action under § 1983 based upon the same identical facts. Indeed, from recent pronouncements of the United States Supreme Court, it appears that there may be no basis for a due process civil rights action under § 1983 when an adequate remedy is provided by state law. See Parratt v. Taylor, 451 U.S. 527, 68 L.Ed.2d 420, 101 S.Ct. 1908 (1981). As that issue is not before us at this time, we need not speculate upon the effect of Parratt on similar cases.
While 60-513(o)(4) may be the appropriate statute of limitations to be applied to other § 1983 civil rights causes of action (a determination we are not called upon to make at this time), when our legislature has specifically adopted a lesser period of time for certain specific types of action, we believe such time limits should also apply to a § 1983 cause of action when it is based solely upon facts which would fall within K.S.A. 60-514.
We hold that when a § 1983 civil rights action is based upon facts which would support under state law only an action for libel, slander, assault, battery, malicious prosecution, false imprisonment or an action upon a statutory penalty or forfeiture, K.S.A. 60-514 is the correct statute of limitations to be applied and that such an action is barred after one year. To the extent that Syl. ¶ 1 and the corresponding portion of the opinion in Cooper v. Hutchinson Police Department, 6 Kan. App. 2d 806, 636 P.2d 184 (1981), hold to the contrary, the decision of the Court of Appeals in Cooper is overruled.
The judgment is affirmed.
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The opinion of the court was delivered by
Miller, J.:
This is an original action in mandamus, brought by the petitioner, Manhattan Buildings, Inc., the owner of the Woman’s Club building in downtown Topeka, against the respondent, Patrick J. Hurley, Secretary of Administration of the State of Kansas. Manhattan leased the building to the Secretary; before taking possession under the lease, the Secretary gave Manhattan a notice of termination. By this action, Manhattan asks this court to declare that the termination clause of the lease was not properly invoked, and that Section 69 of 1981 Senate Bill No. 470 (later 1981 Session Laws of Kansas, Chapter 32, Section 69, and now K.S.A. 1981 Supp. 75-3921) is unconstitutional and void. Manhattan also seeks an order in the nature of mandamus, compelling the Secretary to perform all of his obligations under the lease. The attorney general and the Legislative Coordinating Council were granted leave to intervene.
The essential facts, which are not in substantial dispute, are as follows: Throughout the year 1980, various employees of the department of administration and the insurance department carried on negotiations with representatives from Manhattan Buildings with regard to leasing the Woman’s Club building for the insurance department, which was to move from its quarters in the State Office Building to the Woman’s Club building. These negotiations culminated in a written lease dated January 8, 1981, executed by Manhattan Buildings as lessor and the Secretary of Administration as lessee, and approved by the sublessee, Fletcher Bell, Commissioner of Insurance. The lease required the lessor to renovate the building according to stated and appended specifications, and to complete this work before the State took possession. The lease covered a period of ten years, commencing May 1, 1981. It provided for payment of rent in the total sum of $1,899,687.50, payable $17,969.78 on May 1, 1981, $94,984.38 to be paid semiannually on each July 1 and January 1 thereafter through July 1,1990, and a final payment of $77,014.50 to be paid January 1, 1991. Clause No. 9 of the lease gives rise to this litigation. It reads as follows:
“Termination for Fiscal Necessity: Notwithstanding any other provision of this lease, if funds anticipated for the continued fulfillment of this lease agreement are at any time not forthcoming, either through the failure of the legislature to appropriate funds or the discontinuance or material alteration of the program under which funds were provided, then second party [the Secretary] shall have the right to terminate this lease by giving first party a reasonable notice specifying the reasons for such necessary termination.”
It is undisputed that neither the insurance department nor the department of administration had available funds appropriated for the purpose of funding this specific lease during the fiscal year ending on the 30th day of June, 1981. Funding for the lease was to come from appropriations to be made by the 1981 legislature.
The insurance department, at the time the lease was entered into, was occupying space in the State Office Building. A request for funds to cover the rental for that space was included within the department’s original budget request for the fiscal year be ginning on July 1, 1981. That request was not sufficient to cover the increased cost of leasing the Woman’s Club building, and accordingly, early in 1981, that request was increased. The Governor, in his recommendations to the legislature, included the increased amount. Appropriations for the insurance department, incorporating that increase, were then included within 1981 Senate Bill No. 158. The bill was referred to the Senate Ways and Means Committee, where a subcommittee recommended that the increase be stricken from the insurance department’s appropriation. The subcommittee’s report explains its recommendation as follows:
“The Subcommittee concurs with the Governor’s recommendations except for two items. The recommended $385,598 for rents exceeds the requested amount by $156,805 and reflects the anticipated relocation of the agency from the State Office Building to a privately-owned facility at 9th Street and Topeka Blvd. The Subcommittee questions whether it is in the best interests of the state to be contracting with a private landlord when the same funding could be dedicated toward amortizing the cost of a state-owned building. Furthermore, the Subcommittee is of the opinion that the Legislature should not appropriate additional funds for new leases prior to review of the comprehensive space management plan proposed by the Department of Administration.”
The full Senate Ways and Means Committee, in considering the subcommittee report, discussed the possibility of planning a second state office building instead of leasing more space in privately owned buildings. It adopted the subcommittee report, and recommended the bill for passage. The Senate then passed the bill, with the additional funds deleted.
Next in the legislative process, a subcommittee of the House Ways and Means Committee recommended that the additional funds be restored to the insurance department’s appropriation. The full committee, however, did not adopt the subcommittee report, and recommended the bill for passage without the additional funds requested by the insurance department. 1981 Senate Bill No. 158 was then passed by the House, approved by the Governor, and published, without an appropriation of funds for the insurance department to cover the Woman’s Club lease.
That, however, is not the end of the legislative history. On April 30, 1981, upon the recommendation of the Governor, the House Ways and Means Committee adopted a motion to make a contingency appropriation of $550,000 to the department of administration for the cost of rent, moving expenses, and modification costs of providing space for state agencies. Immediately thereafter, however, a substitute motion was adopted, which removed $150,000 from the contingency appropriation and placed it in the insurance department’s budget. This was made a part of the omnibus appropriation bill, 1981 Senate Bill No. 470, and that bill, with the increased amount included within the insurance department’s appropriation, was passed by the House on May 1, 1981. The bill was then referred to a conference committee, which prepared a report removing the $150,000 from the insurance department’s appropriation, restoring a like amount to the contingency appropriation of the department of administration, and adding Section 69, which forbids the expenditure of moneys appropriated to any state agency for the lease of the Woman’s Club property. The bill, amended as recommended by the conference committee, was adopted by both houses of the legislature on May 4, 1981. In that form it was approved by the Governor, was published, and is included within the 1981 Session Laws.
Section 5(a) of 1981 Senate Bill No. 470, now Section 5(a) of Chapter 32 of the 1981 Session Laws of Kansas, reads as follows:
“Sec. 5.
“DEPARTMENT OF ADMINISTRATION
“There is appropriated for the above agency from the state general fund for the fiscal year specified, the following:
Fiscal Year 1981
Fiscal Year 1982
“Contingency for supplemental rent, moving expenses, and modification costs of providing space for state agencies................................... $550,000
“Provided, That any unencumbered balance in excess of $100 as of June 30, 1981, is hereby reappropriated for fiscal year 1982: Provided, however, That no expenditures shall be made from this account except upon approval of the state finance council acting on this matter which is hereby characterized as a matter of legislative delegation and subject to the guidelines prescribed in subsection (c) of K.S.A. 75-3711c: Provided further, That in considering expenditures from this account the department of administration shall give major consideration to relocating the division of information systems and computing of the department of administration outside the state office building.”
Section 69 of 1981 Senate Bill No. 470, which became Section 69 of Chapter 32,1981 Session Laws of Kansas, and is now K.S.A. 1981 Supp. 75-3921, reads as follows:
“No moneys appropriated to any state agency, as defined by K.S.A. 1980 Supp. 75-3701, and amendments thereto, shall be expended for the lease of the property located at 420 Southwest Ninth Street in the City of Topeka (commonly known as The Woman’s Club) nor shall any other funds of any agency of state government be utilized for such purpose. It is the intent of this section to invoke and exercise the ‘termination for fiscal necessity’ clause of the lease entered into by the department of administration for the property described in this section.” (Emphasis supplied.)
On May 5, 1981, the day after Senate Bill No. 470 was enacted, and again on June 1, 1981, the date upon which the bill was published in the official state paper and became effective, the Secretary gave Manhattan Buildings written notice of termination, under Clause No. 9 of the lease. The June 1 notice reads in part:
“Senate Bill No. 470 was published today in the official state paper. That bill prohibits my department and all other state agencies from expending any funds for the lease of the Women’s Club Building.
“Since the lease of the Women’s Club contains a provision for terminating the lease in the event the legislature fails to appropriate funds for the continued fulfillment of the lease agreement, I am giving notice that the legislature has so failed to appropriate funds. For that reason, the lease is terminated effective today.”
Subsequent negotiations between Manhattan and the Secretary proved fruitless. This action was then commenced.
Before turning to the specific issues raised, we should first consider some of the principles which govern the exercise of our jurisdiction in proceedings in the nature of mandamus. Article 3, Section 3 of the Kansas Constitution grants this court original jurisdiction in proceedings in mandamus. The exercise of that jurisdiction, however, is of necessity discretionary. Justice Rousseau Burch, speaking for the court in In re Burnette, 73 Kan. 609, 617, 85 Pac. 575 (1906), said:
“A few matters of great public importance and certain depredations upon personal liberty are cognizable in the first instance by the supreme court, through proceedings in quo warranto, mandamus, and habeas corpus. But even in such cases some special reason must exist for invoking its powers or parties will be relegated to a court of general jurisdiction for relief. [Citations omitted.]
“It would be entirely impossible for a single supreme court to hear and decide controversies generally, arising within the state, upon their merits; and if any considerable number of them were to be heard anew little opportunity would remain for the performance of the true functions of an appellate court.”
K.S.A. 60-801 defines mandamus as “a proceeding to compel some . . . person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.” It is, of course, an appropriate proceeding designed for the purpose of compelling a public officer to perform a clearly defined duty, one imposed by law and not involving the exercise of discretion. Mobil Oil Corporation v. McHenry, 200 Kan. 211, Syl. ¶ 14, 436 P.2d 982 (1968).
Mandamus to compel the performance of a public duty will not ordinarily lie at the instance of a private person. Where, however, the individual shows an injury or interest specific and peculiar to himself, and not one that he shares with the community in general, then the remedy of mandamus and the other extraordinary remedies are available. Nunn v. Morrison, 227 Kan. 730, 732, 608 P.2d 1359 (1980), citing Mobil Oil Corporation v. McHenry, 200 Kan. at 243.
Mandamus is also a proper remedy where the essential purpose of the proceeding is to obtain an authoritative interpretation of the law for the guidance of public officials in their administration of the public business, notwithstanding the fact that there also exists an adequate remedy at law. Mobil Oil Corporation v. McHenry, 200 Kan. at 239.
In the case at hand, if the duties of the Secretary were clear and nothing else were involved, complete relief could no doubt be secured in the district court, which has jurisdiction of mandamus actions, K.S.A. 60-801 et seq., and where the matter may be heard by either a district judge or an associate district judge. K.S.A. 20-302, -302a. The case before us, however, is not so simple. It involves the interpretation of a clause in a lease, which we are informed is common to many leases of private property by the state, and a determination of the constitutionality and interpretation of acts of the legislature. The plaintiff lessor has an interest peculiar to it insofar as its particular lease is concerned, and yet a determination of the issues here will perhaps affect other leases and lessors, and give guidance in the administration of public affairs. Under the circumstances, we conclude that there are important public questions before us in this case, and in accordance with the authorities cited above, we shall exercise our original jurisdiction in mandamus and proceed to determine those issues.
Was the termination clause of the lease properly invoked by the Secretary in terminating the lease with Manhattan Buildings? That clause provides in applicable part that “if funds anticipated for the continued fulfillment of this lease agreement are at any time not forthcoming . . . through the failure of the legislature to appropriate funds . . . then second party shall have the right to terminate this lease . . . .”
It is clear from the legislative history recited above that the anticipated funds to fulfill this lease were to come from budget appropriations for the insurance department. The insurance department asked for the funds, the Governor recommended them, both Senate and House committees discussed the funding of this lease, and both houses passed Senate Bill No. 158, with the necessary funds deleted. Finally, an attempt was made to include the necessary funds in an appropriation for the insurance department in the omnibus appropriation bill; this move failed and funds were never appropriated to the insurance department to fund this lease.
Manhattan contends that adequate funds were, however, appropriated by Section 5(a) of Senate Bill No. 470 where the sum of $550,000 was appropriated to the department of administration for supplemental rent, moving expenses, and modification costs of providing space for state agencies. A proviso to that act, however, states that no expenditures shall be made from the $550,000 appropriation except upon approval of the state finance council, which approval must be subject to the guidelines prescribed in subsection (c), K.S.A. 75-371 lc. That subsection provides in substance that the approval of the state finance council shall be given only upon a finding that the requested action “is not one that was rejected in the next preceding session of the legislature and is not contrary to known legislative policy.”
The legislature carefully and at length considered the Woman’s Club lease; it refused to provide the requested funds; and it made clear by Section 69 that no moneys appropriated to any state agency (which includes the department of administration) shall be expended for the lease of the Woman’s Club property. Under these facts, it is clear that the expenditure of appropriated funds, whether those appropriated by Section 5 of Senate Bill No. 470 or otherwise, is an action which was rejected by the 1981 Kansas Legislature, and which is contrary to the expressed legislative policy. Accordingly, the state finance council could not approve the expenditure of Section 5 funds for the Woman’s Club lease, and the Secretary could not spend the funds for that or any other purpose without finance council approval.
Anticipated funds for the fulfillment of the lease were not forthcoming, the legislature having failed to appropriate such funds. We hold that the occurrence anticipated by the termination clause occurred, and that the termination for fiscal necessity clause was properly invoked by the Secretary to terminate the lease.
Does Section 69 of 1981 Senate Bill No. 470, now K.S.A. 1981 Supp. 75-3921, constitute an unconstitutional impairment of the obligation of contracts in violation of Article I, Section 10, of the United States Constitution? We think not.
Article I, Section 10, provides that:
“No State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . .”
Manhattan contends that Section 69 violates this constitutional provision since it impairs the contract obligation created by the lease between Manhattan and the Secretary, and that the only real question is whether the impairment is of such a nature as to be impermissible. We do not agree.
We start an examination of this issue with the proposition that individuals are free to enter into such contracts as they may choose, subject only to limited and reasonable restraints. Freedom of contract is a qualified and not an absolute right, but it is one of those freedoms protected by the Fifth and Fourteenth Amendments to the Constitution of the United States. See West Coast Hotel Co. v. Parrish, 300 U.S. 379, 81 L.Ed. 703, 57 S.Ct. 578 (1937); 16A Am. Jur. 2d, Constitutional Law §§ 560,592; and 16 C.J.S., Constitutional Law § 210. Freedom or liberty of contract also involves the right to agree upon such mutual terms as are not against public policy or prohibited by law, and such terms may, of course, provide for termination upon the occurrence of certain contingencies. As Justice Fromme, speaking for a unanimous court, said in Augusta Medical Complex, Inc. v. Blue Cross, 227 Kan. 469, 475, 608 P.2d 890 (1980):
“[CJompetent parties may make contracts on their own terms, provided such contracts are neither illegal nor contrary to public policy, and in the absence of fraud, mistake or duress a party who has entered into such a contract is bound thereby. Wille v. Southwestern Bell Tel. Co., 219 Kan. 755, 757, 549 P.2d 903 (1976). This would include any provision for mutual termination of the contract.”
The parties to this action, in the exercise of their free right to contract, entered into the agreement which is the subject of this action. As before noted, it contained Clause No. 9, which authorized the Secretary to terminate the lease in the event that the funds anticipated for the continued fulfillment of the lease were not forthcoming, through the failure of the legislature to appropriate them. There is nothing illegal or contrary to public policy in the contract provision; fraud, mistake, or duress is not claimed. Clause No. 9, in effect, makes the contract contingent upon funding by the legislature. We see nothing wrong with such a provision. The legislature, by failing to fund the contract, and by the explicit language of Section 69, triggered the termination clause of the contract, and permitted one of the contracting parties to bring the contract to an end. This action was expressly within the contemplation of the contracting parties at the time the contract was made. We find no unconstitutional impairment of the obligation of contracts.
Manhattan Buildings next contends that Section 69 of 1981 Senate Bill No. 470 denies petitioner the equal protection and due process of law guaranteed it by the Fourteenth Amendment to the United States Constitution. It is petitioner’s contention that Section 69 singles out the Woman’s Club building and Manhattan Buildings as its owner, as a class of one, and prohibits any state agency from leasing the building at any time for any period, or from spending any state moneys for such purposes. We do not so read the provisions of the act.
Section 69 provides in effect that no appropriated moneys or other funds of any state agency shall be expended for the lease of the Woman’s Club. The statute then provides:
“It is the intent of this section to invoke and exercise the ‘termination for fiscal necessity’ clause of the lease entered into by the department of administration for the property described in this section.” (Emphasis supplied.)
The target of Section 69 is the ten-year lease dated January 8, 1981, executed by Manhattan Buildings and the Secretary, and then being considered by the 1981 legislature. No state funds may be spent for that lease. The section, however, does not prohibit the expenditure of appropriated or other public funds under or pursuant to the terms of any other or later lease which may be entered into by some state agency in the future, for a different and perhaps shorter term, for the same building.
We turn now to the tests which must be applied in order to determine whether a legislative act denies due process or equal protection. Justice Owsley discussed both in State ex rel. Schneider v. Liggett, 223 Kan. 610, 576 P.2d 221 (1978), when he said:
“[T]he test for due process . . . [is] whether the legislative means selected had a real and substantial relation to the objective sought. The rule has been restated in terms of whether the regulation is reasonable in relation to its subject and is adopted in the interest of the community. (West Coast Hotel Co. v. Parrish, 300 U.S. 379, 81 L.Ed. 703, 57 S.Ct. 578, 108 A.L.R. 1330.)
“Our next concern is whether the statute offends the equal protection clause. When considering this question we must first determine the proper test. Traditionally, the yardstick for measuring equal protection arguments has been the ‘reasonable basis’ test. The standard was set forth in McGowan v. Maryland, 366 U.S. 420, 425-26, 6 L.Ed.2d 393, 81 S.Ct. 1101:
‘. . . The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. . . .’
“In Dandridge v. Williams, 397 U.S. 471, 25 L.Ed.2d 491, 90 S.Ct. 1153, reh. denied 398 U.S. 914, 26 L.Ed.2d 80, 90 S.Ct. 1684, it was stated:
‘. . . If the classification has some “reasonable basis,” it does not offend the Constitution simply because the classification “is not made with mathematical nicety or because in practice it results in some inequality.” Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78. . . .’ (p. 485.)
“A statute comes before the court cloaked in a presumption of constitutionality and it is the duty of the one attacking the statute to sustain the burden of proof. (Henry v. Bauder, 213 Kan. 751, 753, 518 P.2d 362; Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 760, 408 P.2d 877; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79, 55 L.Ed. 369, 31 S.Ct. 337.)” 223 Kan. at 614, 616.
See also Sheppard v. Sheppard, 230 Kan. 146, 149, 630 P.2d 1121 (1981).
Under these standards, it would appear that the reasonable basis test is the yardstick under which the statute must be measured, as to both due process and equal protection. The legislative history, previously stated, makes it clear that the legislature was considering the entire problem of space for state agencies. It is undisputed that the Woman’s Club lease was an attractive offer to the State. At the same time, it involved a lengthy lease of privately owned space, presented for funding for the first time. The legislature, in seeking the most effective way to provide needed space for state agencies, concluded that leasing the Woman’s Club building for a ten-year period was not desirable. The action was taken after consideration of the overall problem, and there is no indication that the action was arbitrary or other than in the utmost good faith. We conclude that Section 69 bears a real and substantial relation to the objective sought, and that there is a reasonable basis for the classification. We find no deprivation of due process or equal protection.
Manhattan Buildings next contends that Section 69 of 1981 Senate Bill No. 470 violates Article 2, Section 16, of the Kansas Constitution, which reads in part:
“No bill shall contain more than one subject, except appropriation bills and bills for revision or codification of statutes.”
Manhattan contends that the subject matter of Section 69 is foreign to the subject of appropriations. We disagree. It specifically and clearly states that no funds shall be expended for a particular purpose. In the recent case of State ex rel. Stephan v. Carlin, 230 Kan. 252, 258, 631 P.2d 668 (1981), where another section of the same act was challenged as violative of the same constitutional section, we said:
“Appropriation bills may direct the amounts of money which may be spent, and for what purposes; they may express the legislature’s direction as to expenditures; they may transfer funds from one account to another; they may direct that prior unexpended appropriations lapse.” (Emphasis added.)
By Section 69 the legislature was clearly expressing its direction as to expenditures, stating that appropriated moneys and other public funds could not be spent for a certain purpose. It falls squarely within the language of Stephan v. Carlin, emphasized above. We find no violation of Article 2, Section 16.
Finally, Manhattan contends that Section 69 of 1981 Senate Bill No. 470 constitutes a usurpation of the powers of the executive department by the legislative department, and thus violates the separation of powers doctrine. The separation of powers doctrine has been discussed and explained at length in several recent and illuminating unanimous opinions of this court, and we do not need to expound at length on the subject here. See State v. Greenlee, 228 Kan. 712, 620 P.2d 1132 (1980); State, ex rel., v. Bennett, 219 Kan. 285, 547 P.2d 786 (1976); Leek v. Theis, 217 Kan. 784, 539 P.2d 304 (1975); and Van Sickle v. Shanahan, 212 Kan. 426, 511 P.2d 223 (1973).
Statutes are, of course, presumed to be constitutional; all doubts must be resolved in favor of validity, and before a statute may be stricken down, it must clearly appear that the statute violates the constitution. When a statute is challenged as violating the constitutional doctrine of separation of powers, the court must search for a usurpation by one department of the powers of another department on the specific facts and circumstances presented. The cited cases conclude that absolute separation of powers is impossible, and that a slight degree of blending or admixture of the three powers of government is unavoidable. To constitute a usurpation of powers, one department of the government must be subjected, directly or indirectly, to the coercive influence of the other; there must be a significant interference by one department with the operations of another.
In considering whether a usurpation of powers exists, a court should consider various factors. In State, ex rel., v. Bennett, 219 Kan. at 290, 291, these are said to include:
(a) The essential nature of the power being exercised;
(b) The degree of control by the legislative department in the exercise of the power;
(c) The nature of the objective sought to be attained by the legislature;
(d) The practical result of the blending of powers as shown by actual experience over a period of time.
The assignment of office space for executive agencies in both state-owned and leased buildings is traditionally a function of the executive branch, and the actual leasing of space is also an executive function. The legislature, however, appropriates the funds which are expended by all branches of government, and it is concerned with the overall picture and cost of housing state government. New buildings cannot be acquired by construction or purchase without specific legislative authorization through the appropriation process. As we have seen, the 1981 legislature was concerned with the new ten-year lease at hand, since it was considering the construction or purchase of a new facility. The legislature appropriated funds for the leasing of various build ings, including one or more properties owned by Manhattan, but stopped short when it came to the funding of this new long-term lease of the Woman’s Club building. It thus limited the executive branch in one specific and isolated area, and for various stated reasons. No similar legislation during the past several years has been called to our attention, and we know of no attempt by the legislature to regularly limit or direct the executive branch in this specific area.
Upon careful consideration of all of the facts before us, we conclude that Section 69 of 1981 Senate Bill No. 470 is not a significant interference by the legislative branch with the executive branch, and that Section 69 does not constitute a usurpation of powers. We find the legislation constitutional.
Relief in the nature of mandamus is denied. | [
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The opinion of the court was delivered by
Brewer, J.:
The parties in this case had been partners, and this action grew out of differences between them in the settlement of their partnership affairs. The plaintiff in error was plaintiff below. After the issues had been settled by the filing of amended pleadings, the case was referred to a referee, who reported in favor of plaintiff the sum of $602.84. Upon the filing of this report plaintiff moved the court to eonfirm it, and that judgment be entered in accordance therewith. At the same time, defendant moved that the report be referred back to the referee, for the purpose of correcting an error in a single item, amounting to $284, and for an order instructing the referee to divide the costs equally between the parties. This latter motion was sustained in part, and without any direction as to costs the matter was re-referred to the referee for further testimony and report. In the second report, the item of $284 above referred to was divided, and one-half thereof, to wit, the amount of $142, deducted from the amount awarded to the plaintiff. Plaintiff moved to set aside this second and amended report, but this motion was overruled, and judgment entered in favor of the plaintiff for $490.60, as well as for all costs in the action. The further difference is by reason of interest, and an item in favor of plaintiff of $7. Plaintiff now brings the whole record here for review. While' in his petition in error plaintiff challenges one ruling in respect to the admission of testimony, yet in their brief his counsel ignore this, and challenge simply the findings of fact made by the referee. Of course our inquiry will therefore be limited to the single matter counsel discuss in their brief. (Wilson v. Fuller, 9 Kas. 176; Hutchinson v. Bain, 11 Kas. 234; Davis v. Fillmore, 15 Kas. 333.) Upon the question as to how far the testimony sustains the findings made by the referee, counsel for plaintiff in error have filed an elaborate brief. Counsel for defendant in error insist that upon the record as it stands, no inquiry is proper in this court as to the sufficiency of the testimony to sustain the findings. Now we remark generally, that probably the defendant’s objection to the record is not well taken. The objection is more technical than substantial, and probably not sufficient to prevent a full examination of the testimony by this court.
Second, it is already settled that the findings of fact made by a referee are. as conclusive as to questions of fact as the verdict of a jury. (Walker v. Manufacturing Company, 8 Kas. 397; Owen v. Owen, 9 Kas. 91.)
Third, as the plaintiff upon the filing of the first report moved to confirm it, such action, if not conclusive upon him, raised a very strong presumption that there was no error in such report of which he could justly complain. And as the subsequent report changed but a single item, it would seem that the only substantial matter of inquiry for this court is as to the propriety of such change. We do not mean to decide as a matter of law that the plaintiff was estopped by filing his motion to confirm the first report, from thereafter questioning the facts as found therein, because, although believing himself wronged by such findings, he might have preferred to accept the sum awarded and end the litigation, rather than assert his absolute rights at the expense of further time and money and continued litigation. But while we do not assert an estoppel from such action, it is a circumstance indicating with a good deal of force, that there was no grievous wrong in such findings so far as he was concerned. Thereafter, as against him they should be accepted as correct, unless he made the error to appear most clearly and satisfactorily.
And finally, we remark that there was testimony sufficient to sustain the findings of the referee. It would be a useless labor to review the testimony, which is very voluminous — making a record of some 550 pages. • The bulk of it is that of the two principal parties, and they differ materially in their understanding and recollection. But this court does not attempt to settle disputed questions of fact. It is enough for us that upon examination of the record, we see that there is testimony which fairly supports the conclusions of the trial court, and we think without a doubt that in this case there was such testimony. Even though it were conceded that the apparent weight of the evidence is against the conclusions of the trial court, yet that would not be sufficient to disturb the judgment. This is the settled doctrine of this court, announced in repeated decisions; and notwithstanding the elaborate argument of counsel upon the testimony, we see nothing to take this ease out of the line of those decisions. Apparently, if the record has been correctly copied, there are two or three clerical errors in figures, but sueh errors must be corrected in the district court, or at least the attention of that court must be called specifically to them before we shall make any changes. The judgment will therefore be 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 William Koch against the Memphis, Kansas & Colorado, railway company, for labor performed by Patrick' Monroe for the railway company in the month of August, 1880. The judgment in the court below was in favor of Koch and against' the railway company, for the amount of the claim ($34.80), and costs; and the railway company now asks to. have such judgment reversed.
It appears from the evidence that the claim of Monroe against the railway company was a valid and subsisting one; that Koch purchased the same from Monroe, and took a power of attorney from Monroe authorizing Koch to collect the claim from the railway company; It also appears that Koch gave notice to H. H. Henderson, an agent of the railway company at Parsons, Kas., of Koch’s purchase of the claim from Monroe, and also of his possession of the power of attorney to collect the claim. Afterward, Henderson paid the debt to Monroe, and he, as well as the railway company, then refused to pay the debt to Koch, who then commenced this action for the recovery of the debt.
The only question now to be considered is, whether the notice given by Koch to Henderson of his (Koch’s) purchase of the claim from Monroe was a sufficient notice of the same to the railway company. In other words, was Henderson such an agent of the railway company that such a notice would bind the company? The evidence with respect to this question, or so much of it as is necessary to refer to, is as follows. Koch testified in his own behalf, and stated, among other things, as follows:
“I took the power of attorney down to H. H. Henderson. He has charge of the depot and business of the company here in Parsons. He is the only agent stationed in this county. They have no general office in this state, except this. Mr. Henderson paid off the men (the same as Pat. Monroe), with the checks of .the company. The men who were building the road went to Mr. Henderson and got their pay on pay-day. On the morning of the ninth of September, I handed this power of attorney to Mr. Henderson and asked him to. make the payment to me instead of to Mr. Monroe. He said: ‘The checks for the payment of the men hadn’t come yet.’ He said I had better send the check up to the paymaster at Kansas City, so that they might make out the check to me instead of to Monroe. ‘I will, try and do so,’ I said, ‘but will see my attorney, Mr. Ayres, first; and I want you to be sure and hold the check for me if it comes.’ He said, ‘Yes, sir, all right.’”
Koch also testified that in a subsequent interview between these same parties; Henderson said that “he had already received the check and handed it over to Monroe.'”
A. H. Ayres, the plaintiff’s attorney, also testified that at a conversation had between himself and Henderson and Koch, prior to the payment of said claim, Koch requested Henderson to deliver the check only to the plaintiff, if sent to him (Henderson); and that he (Ayres) understood Henderson to promise so to do. And Ayres further testified that after Henderson had paid Monroe that “ he then stated that he had given the check to Monroe because he [Henderson] had 'learned that part of the pay that Koch had given for it was beer.” This was substantially all the evidence upon this subject that was introduced on the trial. On the hearing of a motion for a new trial, however, made by the railway company, W. C. Perry, one of the attorneys for the railway company, filed his'affidavit, stating among other things, “that he [Henderson] paid the money to the principal instead of to the attorney.” A. H. Ayres also filed his affidavit upon the hearing of this same motion, which affidavit stated among other things, that after the debt had been paid to Monroe instead of to Koch, that Ayres asked Henderson “ why he had done so with- full notice of Koch’s claim, to which he replied that he had not respected Koch’s claim or his power of attorney, because he had learned that Koch had bought Monroe’s time by paying him in part with beer, and he did not propose to sanction such practices with their men.”
Upon the foregoing evidence introduced on the trial, the court below found in favor of the plaintiff and against the defendant, and therefore necessarily found that Henderson was such an agent of the railway company that notice to him of the purchase of the claim by Koch from Monroe was a sufficient notice to the railway company. Upon this same evidence, and upon the affidavits filed by the respective parties, the court below‘overruled the defendant’s motion for a new trial, and therefore must have held and found in overruling such motion the very same thing which it found and held upon the evidence introduced upon the trial. We think the evidence introduced upon the trial was sufficient to authorize the finding of the court below; and such evidence and the said affidavits were sufficient to authorize the action of the court below in overruling the defendant’s motion for a new trial; or least the evidence was not so utterly insufficient as to authorize this court to set aside the finding and ruling of the court below and to grant a new trial.
From the evidence introduced on the trial, it appears that Henderson was in charge of the depot and “business” of the railway company at Parsons; that he was the only agent of the company stationed in Labette coúnty; and that the company has no general office in this state except at Parsons. It also appears that Henderson “paid off” the employés of the company with checks, and that such employés received “their pay on pay-day” from Henderson; and Henderson paid the debt to Monroe instead of Koch, because,'as Henderson believed, a portion of the consideration which passed from Koch to Monroe, and which induced Monroe to transfer his claim to Koch, was nothing but that supposed worthless article of drink usually denominated “beer.”
Of course the evidence is not very satisfactory. It would seem that Henderson made the payments with checks of the company, and it does not appear clearly who paid these checks; but probably there is sufficient evidence from which it may be inferred that Henderson also paid the checks. The attorney for the railway company stated in his affidavit “that he [Henderson] paid the money to the principal [Monroe] instead of td the attorney ” (Koch), etc. There is no evidence showing that Henderson did not pay the checks; and some of the evidence would seem to indicate that he did pay them. Probably, however, that makes but very little difference; for whether Henderson’s agency was of a comprehensive character or very limited, it would still seem from, the evidence that his agency was the most comprehensive and general of any agent of the railway company in Kansas; that he had power to pay all the employés of the railway company with checks, and that he had a discretion, to some extent at least, in delivering these checks; and as he delivered the check to Monroe after he had' full ■ notice of- the claim of Koch, it would seem that the company should be held responsible. Of course we are not very well satisfied with the evidence upon this point. It is somewhat doubtful whether it shows a sufficiently comprehensive agency on the part of Henderson to make his knowledge of Koch’s claim binding upon the railway company; but still the evidence is of such a character, though weak and inconclusive, that we do not think that we would be warranted in overturning the finding and ruling of the court below, and in reversing its judgment, for no other reason than that such finding, ruling and judgment are not supported by sufficient evidence. The judgment of the court below will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This action was brought by Frank Doster against Samuel T. Howe, as treasurer of Marion county, to recover the amount of a county order which Howe, .as treasurer, refused to pay. The action is founded upon the following facts: In 1878 the board of county commissioners of Marion county was about to erect permanent. county buildings costing $7,500, without first having submitted the question to a vote of the electors of said county. In order to prevent the board from so doing, the county attorney, C. Reed, commenced an action in the name pf the state, on his relation, in the district court of Marion county, to perpetually enjoin the board from so constructing said buildings, or from expending any money therefor, or from letting the contract for the construction of such buildings. A hearing was had before the judge of the district court, and the judge found in favor of the board of county commissioners and against the plaintiff, and refused to grant the injunction. The county attorney then took the. case to the supreme, court on petition in error, and the supreme court reversed the judgment and order of the district court, and remanded the case for further proceedings. (The State, ex rel., v. Comm’rs of Marion Co., 21 Kas. 419.)
While the case was in'the supreme court, the board of county commissioners employed the plaintiff in this action, Frank Doster, as an attorney at law, to defend the case for them in the supreme court, which he did. Afterward the board issued an order or warrant on the county treasurer for the sum of $87.50, to pay Doster for his services in the supreme court. Doster presented this .order to the defendant, Samuel T. Howe, who was then treasurer of Marion county, and demanded payment; but Howe refused to pay the same, upon the ground that the consideration therefor was illegal. Doster then commenced this action against Howe for the amount of the order. Plaintiff’s petition properly set forth his cause of action on the order, and the defendant’s answer properly set forth (1) a general denial; and (2) the foregoing facts. The plaintiff demurred to the second ground of the defendant’s answer, upon the ground that it did not state facts sufficient to constitute any defense to his action, and the court below overruled the demurrer; to which ruling the plaintiff excepted, and^then brought the case to this court for review.
The whole question in this case depends upon the question, whether the board of county commissioners had any legal authority to employ the plaintiff Doster to defend it in the supreme court. It is now admitted by all parties that the county board should not have attempted to let any contract to build the county buildings which it desired to build, without first submitting the question to a vote of the electors of Marion county; and it is also admitted that the action brought by the county attorney, to restrain the board from so doing, was rightfully brought, and that the county attorney was entitled to the injunction prayed for. The question, however, at the time was not an entirely clear one, and the judge of the district court decided adversely to the opinion of the county attorney, and in favor of the board of county commissioners. The question then arises, could the board of county commissioners and Frank Doster, under such circumstances, make a legal and valid contract that Frank Doster should defend the action against the board of county commissioners in the supreme court? It is admitted that the contract would have been legal if the county board had had the right to build said county buildings, without first submitting the question to a vote of the electors — that is} it is admitted that the county board has a right to employ counsel in any proper suit not in its own county, in which the board of county commissioners (virtually the county) is a party, or interested; provided, the board of county commissioners happens to be on the right side of the case. But it is claimed that in a case like this, where the board of county commissioners happens to be on the wrong side of the case, and the county attorney is prosecuting on the other side of the case, that the board cannot make any valid agreement with any attorney employing him to defend its side of the case.
The defendant claims in substance as follows: That the building of said county buildings, as contemplated by the board of county commissioners, was beyond its power, and illegal; and that for that reason the county board had no right to defend any action brought against it to prevent the construction of said buildings, and had no right nor power to employ counsel to assist it in defending such action. The defendant cites the following cases as authority for his position: Gregory v. Bridgeport, 41 Conn. 76; Gove v. Epping, 41 N. H. 539; Thayer v. Boston, 36 Mass. (19 Pick.) 511; Vincent v. Nantucket, 66 Mass. (12 Cush.) 103.
The defendant cites some other authorities, but we think they have no application to the case; and indeed we hardly think that the cases which we have already referred to as cited by defendant have-much application to this case. For instance, the case of Gregory v. Bridgeport, which is about as near applicable as any cited, is a case where a person was appointed by the city as a superintendent of wharves, and who performed the act complained of, but who did not perform it for the city, but for a third person, and the act itself was not illegal or wrongful. But he was sued by still another person, and in defense of the suit he incurred expenses; and it was held that the city could not legally indemnify him for such expenses. In the present case, it was the county board itself — the proper and real representative of the corporate existence of the county, that contemplated the construction of the public buildings; and the contemplated construction of these buildings was entirely and solely for the county, and the county board has authority to construct such buildings, provided it does so in a proper manner; and it was the county board that was sued; it was the county board that employed the plaintiff, Doster; and it was the county board which Doster defended in the supreme court. The county board under the statutes has a right to build just such buildings as it contemplated building, provided • it first obtained the consent of a majority of the electors of the county at a proper election held for that purpose; and the only thing that was illegal or irregular in the present case was, that the board contemplated constructing such buildings without first submitting the question to a vote of the electors — that is, the thing that the county commissioners contemplated doing was not beyond the scope of its authority, but it simply contemplated doing it in an illegal and improper manner.
The plaintiff cites the following cases in support of his theory of the case: Cushing v. Stoughton, 60 Mass. (6 Cush.) 389; Drake v. Stoughton, id. 393.
In the first case it is held that—
“If a town appoint a committee for an illegal purpose, with authority to defend all actions growing out of the same at the expense of the town, and the committee employ counsel accordingly, by whom. professional services are rendered in defense of such an action, the town is liable for the services rendered.”
In the second case it is held as follows:
“A town having appointed a committee for an illegal purpose, with authority to defend all suits which might grow out of the same, and also voted that all costs, expenses and trouble which the committee might incur in the premises should be paid by the town, it was held that the town was not liable for the services of the committee rendered in effecting the purpose of their appointment, but was liable for services performed by them in defending an action brought against the town on account thereof.”
If these two cases last cited are correct, we would think that the contract of employment between the county board and the plaintiff Doster is legal and valid; It would seem that in all cases where a suit is pending in the supreme court against a comity board, and it is doubtful which way the case should be decided, that the county board ought to have the power to employ counsel to defend it until the question is finally determined as to which is right — the county board, or the adverse party; and it would seem that an attorney at law ought to have the right and power to take such an employment; and this although in the end it may be determined and adjudicated that the county board had no good grounds of defense to the action. We suppose that it will not be claimed that the attorney at law should in all cases, or indeed in any case, investigate the entire case first before he takes the employment for the purpose of ascertaining whether the board has any good defense or not; for the investigation itself is often the larger portion of the work in the case, and it often happens that after the attorney has investigated the case he will believe that the board has a good defense, while in the end the supreme court may decide that the board did not have a good defense. We suppose also that it will hardly be claimed that an attorney should take the case upon a contingent fee — that is, that if in the end he should be successful in the supreme court, that he should receive pay for his services; but if he should not be successful, that he should not be entitled to anything. However, the doctrine of counsel for the defendant in this case (the county treasurer) would result in this very thing. According to his theory, if the supreme court had decided the case of The State, ex rel., v. Comm’rs of Marion Co. in favor of the commissioners, the contract between the commissioners and the plaintiff Doster would be valid; but as the supreme court decided the case the other way, deciding it in favor of the state and against the commissioners, then the contract between the commissioners and the plaintiff Doster was invalid. It is our opinion that the contract was valid, and that the plaintiff is entitled to recover in this case. If the building of the said county buildings had been entirely beyond the scope of the power of the board of county commissioners, then it is possible that the contract between it and Doster would not be valid; but as the building of such buildings is not beyond the scope of its power, but simply requires the preliminary consent of the electors of the county, we would think the contract between Doster and the board of commissioners is not invalid.
The judgment of the court below will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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Per Curiam:
Defendant'in error brought suit before a justice of the peace, on an account for rent. The case was tried by the justice without a jury. After plaintiff had finished her testimony, defendant filed a demurrer to the evidence, which was overruled by the justice, and the defendant offering no testimony, judgment was entered in favor of the plaintiff. Defendant filed a motion for a new trial, which was overruled. He then caused a bill of exceptions to be prepared and signed, and sought to take the case on petition in error to the district court. This cannot be done, and therefore the judgment of-the district court affirming the judgment below must be affirmed. See the following cases: Ayres v. Crum, 13 Kas. 269; Nesbit v. Hines, 17 Kas. 316; Rice v. Harvey, 19 Kas. 144; Holland v. Mudenger, 22 Kas. 731; Kerner v. Petigo, 25 Kas. 652; Mills v. Kansas Lumber Co., 26 Kas. 574. | [
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Per Curiam:
The contest in this case is as to the validity of a tax deed. The attorneys of the two parties respectively went at about the same time, one to the office of the county clerk, and the other to the office of the county treasurer — the ■one to obtain for his client a tax deed, and the other to redeem the land for his client. Each knew the other’s object and purpose. Before the tax deed was executed, the redemption-money had ‘been tendered to the treasurer, and received by him. The district court held the tax deed invalid. This ruling is correct, and must be affirmed, on the authority of Matthews v. Buckingham, 22 Kas. 166. The defect in the certificate of redemption, (the same as that noticed in Shelton v. Dunn, 6 Kas. 128,) does not avoid the effect of the tender. and reception by the treasurer of the redemption-money. | [
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Per Curiam:
This is an appeal by the defendant from a
verdict and judgment in a criminal prosecution. No brief has been filed by either party in this court. We have examined the record, and from such examination we are of the opinion that no material error, affecting prejudicially the substantial rights of the defendant, has been committed. The judgment of the court below will therefore be affirmed. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action brought by the defendant in error before a justice of the peace against the plaintiff in error on seven city warrants. The bill of particulars copying the seven warrants alleged, that on March 1, 1879, the city being indebted to one C. A. Stillson, by its proper officers executed the warrants. It also alleged an indorsement and transfer to the plaintiff for value, and that no portion had been paid. The following is a copy of one of the warrants, others being similar:
“No. 26. “City Clerk’s Oeeice, \
Burrton, Harvey County, Kas., March 1, 1879. J
“ The City Treasurer of the City of Burrton, Kansas:
“Pay to C. A. Stillson, or bearer, ten months after date, twenty (20) dollars on account of fire extinguisher, int. at 7 °/o, out of any money in your hands belonging to .the city of Burrton not otherwise appropriated.
“By order of the city council of the city of Burrton.
Wm. Kinney, Mayor.
“Attest: W. D. McClintock, City Clerk.
“$20. Accepted March 6, 1879.
E. M. Weymouth, Treasurer.”
The city answered with a verified denial, denying that it •ever issued the obligations sued on, and alleging that if they were issued it was without authority from the city, and also that the city never bought the fire extinguishers mentioned in the warrants, nor authorized anyone to buy them. The ease was tried upon these pleadings, and upon the trial judgment was entered in favor of the plaintiff for the sum of $ 166.10, and interest thereafter at the rate of ten per cent. This judgment was rendered in the district court, the result of the trial in the justice’s court not appearing in the record. The testimony was not preserved, and the case is presented to us upon simply the pleadings and judgment.
The plaintiff in error insists that these warrants were void, because, first, as appears from the bill of particulars, they were issued in payment of an antecedent debt; and second, because they are time warrants. Neither of these objections is well taken. Cities of the third class have power to make certain contracts, and in the making of such contracts to incur indebtedness. Thus, by § 54, ch. 19, Comp. Laws 1879, (the act concerning cities of the third class,) the council is authorized to purchase “fire engines, hooks, ladders, buckets and other apparatus.” Under this, it may purchase fire extinguishers such as these warrants were given for. By § 35 of the same act, it may “appropriate money and provide for the payment of the debts and expenses of the city; ” and it is immaterial whether the language of the bill of particulars is to be understood as implying a present purchase, a debt therefor and the issue of these warrants in payment, or a prior purchase and antecedent debt. In either case the city could provide for payment and issue warrants therefor. (City of Wyandotte v. Zeitz, 21 Kas. 660, 661.)
Again, the fact that these warrants are not payable immediately does not invalidate them. Express authority is given for the issue of city warrants, (§ 24 of said chapter,) and in the absence of any statutory inhibition, the fact that the warrants are not made payable until such time as the revenue of the year will probably be collected, does not render them void. It has been laid down very generally, (see Dillon’s Municipal Corporations, note to § 407, and cases cited therein,) that a municipal corporation has the- power, in the absence of any statutory inhibition, to issue any ordinary evidence of indebtedness, and payable either instantly or at any time in the future. It is unnecessary in this case to go to this extent. It is sufficient to hold as we do, that there being no statutory inhibition the city may anticipate the revenues of the year, may contract debts in the earlier part of the fiscal year, and issue warrants payable at such time during the year as the taxes will probably be collected. These warrants were issued in March, payable in ten months, which would take them to the first of January ensuing; and as tax-paying time practically commences about the middle of December, the warrants were in effect simply drafts on the revenue then anticipated. The authority to issue such warrants, we think, was vested in the city.
Again, counsel for plaintiff in error insists that as his answer was verified, and no reply filed, upon the pleadings the city was entitled to judgment. This is a mistake. His answer, though verified, amounted to nothing more than a denial, and to a denial no reply is necessary. The denial being verified, put upon the plaintiff the burden of proving the execution of the warrants, which otherwise would have been admitted. As the testimony is not preserved, it must be presumed that it was sufficient to establish all the allegations of plaintiff’s bill of particulars, and its right to recover.
One other matter requires notice. The bill of particulars prays for seven per cent, interest. The warrants as copied draw seven per cent, interest, but the judgment as entered bears ten per cent, interest. This of course is erroneous. The judgment can carry no higher rate of interest than the instrument upon which it is based, or than is prayed for in the bill of particulars. Counsel for defendant in error concede this, but insist that it is a mere mistake of the clerk in entering the judgment, which should be corrected in the court below. It may or may not have been a mistake of the clerk. The journal entry of judgment may have been prepared by the plaintiff’s counsel, as indeed it ought always to be, and the clerk may have copied the entry just as it was prepared. There is no presumption in favor of the party' and against the clerk; it is rather to be presumed that the clerk entered the judgment just as he was directed. "At any rate, as the record now stands there is a judgment which is not warranted in its entire extent by the pleadings in the case. It is our duty, therefore, to order that it be so modified as to conform to those pleadings. The order therefore will be, that the case be remanded to the district court, with instructions to modify its judgment so as to make it draw seven instead of ten per cent, interest. In all other respects the j udgment will be affirmed. The costs in this court will be divided between the parties.
All the Justices concurring. | [
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Per Curiam:
The questions in this case are precisely like those in Tarpenning v. Cannon, ante, p. 665. Therefore the judgment of the district court will be affirmed, excepting the part relating to costs; and the case will b.e remanded, with direction to the court below to retax the costs according to the views expressed in Tarpenning v. Cannon. | [
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The opinion of the court was delivered by
Horton, C. J.:
It is objected that the verification to the petition is wholly insufficient, and ought not to have been received as evidence. Section 114 of the code, and many cases, are cited as sustaining the objection. Neither the provision of the code referred to, nor the decisions cited, support the objection. The question before us is not one of statutory verification. The pleading was not of the character to necessarily require verification, and the affidavit annexed to the petition made the petition sufficient , 1 to be received and considered on the hearing for the interlocutory order. In Atchison v. Bartholow, 4 Kas. 124, in the jurat annexed to the’petition the affiant merely testified on information and belief. In this case the affiant deposed that he was the agent of the plaintiff; that the plaintiff was a non-resident of the state;. that he had heard the petition read, and that the several matters therein stated were true.
It is further urged that the petition makes a case of simple naked trespass, and does not authorize a temporary or final order of injunction, or any other equitable relief. The petition will not bear this construction. It alleges that the plaintiff is now, and has been for years, the owner and in the actual possession of the premises; that the same are partially inclosed, and about fifty acres thereof broken and in-cultivation; and then sets forth that, proceeding under some pretended claim of right, the defendant is seeking to oust plaintiff from the possession of the premises, and appropriate the same to his own use and occupation. It further alleges that the defendant is irresponsible, and not able to respond in damages for the injuries and damages apprehended. So long as the plaintiff is in the actual possession of the premises, the defendant has no right by force to attempt to enter thereon to oust him of such possession, or to deprive him of the use thereof, or to erect any buildings thereon. It is said that the fact that the injury is irreparable may arise either from the nature of the injury, or the want of responsibility of the person committing it, and that either will furnish sufficient grounds for interference by injunction. To exclude equitable relief, it must not only appear that there is some remedy at law, but also that it is adequate. If the defendant is irresponsible, the actions at law proposed by his counsel can scarcely be said to be adequate.
Again, the defendant has no right to erect and maintain a building, on land owned and in the actual possession of plaintiff, and the erection of such building is a trespass of. a character to authorize equitable relief. (Grant v. Crow, 47 Iowa, 632; Sword v. Allen, 25 Kas. 67; Webster v. Cooke, 23 Kas. 637; Code, § 238.)
We do not understand from the petition'that the defendant has actually turned the plaintiff out of possession and taken full and absolute possession, but only that he has entered upon the land under some pre- ,. tended claim of title, and that he is seeking to oust plaintiff of all possession, and to assume the management and control of the land at the time of the application for the temporary order of injunction. The injunction, pendente lite, does not determine the parties’ rights, and as the district courts have considerable discretion in allowing or disallowing, and in sustaining or vacating temporary injunctions, we perceive no good reason in this case for reversing or vacating the order granted!
The order and 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.:
This was an action brought by Iowa T. Shively against EL V. Beeson, G. A. Colton, A. J. Shannon, and A. Wilgus, assignee of EE. V. Beeson, to recover on the following promissory note, to wit:
“$1,500. Paola, Kansas, April 6, 1870.
Fifteen months after date, we promise to pay to the order of W. T. Shively, guardian of Ida Ward, fifteen hundred dollars, with 8 per cent, interest per annum from date until paid. Value received. EL V. Beeson.”
Indorsed: “G. A. Colton, A. J. Shannon.”
Judgment was rendered in the court below in favor of the plaintiff and against the defendants for the amount of the note; and the defendants, as plaintiffs in error, now bring the case to this court for review.
The facts of the case as they appear from the pleadings of the.parties and the report of the referee who tried the ease in the court below are substantially as follows: On April 6, 1870, and prior thereto, H. "V. Beeson and W. T. Shively were partners in business. Also, at the same time and for some •time subsequently thereto, W. T. Shively was the guardian of Ida Ward, a minor, and of her estate. On April 6, 1870, Shively sold his interest in the partnership business to Beeson, and the note in controversy was given by Beeson to Shively in part payment for Shively’s interest in the business. Previous to that time, Shively had used some of the funds belonging to his ward’s estate, and therefore, and for the purpose of repayment, and for the purpose of-making the note a part of the property of his ward’s estate, he took the note payable “to W. T. Shively, guardian of Ida Ward.” As will be seen, this note became due on July 6,1871. On July 26, 1871, Beeson, being insolvent, made an assignment of his property for the benefit of his creditors. On December 26, 1871, Shively’s guardianship of Ida Ward and of her estate terminated, and T. M. Carroll was appointed as his successor. •On January 31, 1872, a petition was filed in the United States district court against W. T. Shively for the purpose of having him adjudged to be a bankrupt, and on February 3, 1872, his bankruptcy was so adjudged. On March 14, 1872, Herman Markson was appointed assignee in bankruptcy for W. T. Shively’s estate; and on March 15, 1872, a proper assignment of Shively’s estate was made to him. On March 25, 1872, Shively filed his papers in the probate court of Miami county for final settlement as the guardian of the estate of Ida Ward. In this proposed settlement Shively claimed a credit for the amount of the note. Op May 8, 1872, Shively’s successor, T. M. Carroll,' objected to the allowance of this credit, and on September 10, 1872, the objection was sustained by the probate court) and the credit disallowed. In April, 1873, Ida Ward attained her majority. On July 21,1873, Ida Ward commenced an action against the defendants in this action to recover on the promissory note now in controversy, Shively agreeing to pay the costs of the suit provided she failed in her action. In such action, the defendants pleaded that Ida Ward was not the real party in interest — not the real owner of the note; and the court so found, and rendered judgment against her for costs. Afterward, and on July 7, 1874, Shively executed an assignment of the note to William Crowell and A. G. McKenzie, who were the sureties on his bond as guardian of Ida Ward, for the purpose of securing them as his sureties; and on July 9, 1874, Crowell and McKenzie commenced an action against the present defendants to recover the a'paount of the note. In this action, Herman Markson was on July 5, 1875, made a party defendant, and Markson answered, claiming that he was the owner of the note, and asked judgment accordingly. The present defendants replied to Mark-son’s answer, denying his ownership of the note. On October 21, 1878, this action of Crowell and McKenzie against the present defendants and Markson was’dismissed without prejudice. In October, 1879, W. T. Shively and A. G. McKenzie assigned the note to the present.plaintiff, Iowa T. Shively, and since that time Crowell and McKenzie have disclaimed all interest in the note. After, said assignment, and on October 15, 1879, the plaintiff’, Iowa T. Shively, commenced this present action. In this present action the defendants answered, setting up among’other things that Iowa T. Shively was not the real party in interest — hot the real owner of the note — but that the note belonged to Herman Markson, the assignee in bankruptcy of the estate of W. T. Shively. This question as to the ownership of the note was the principal question to be determined in the case in the court below, and is now the principal question to be determined. In the court below the case was referred to a referee, who found all. the facts specially, and from these facts concluded that Iowa T. Shively was not the owner of the note, but that in fact it belonged to Herman Markson, the assignee in bankruptcy; and in conclusion recommended that judgment be rendered against the plaintiff for costs. But the court below concluded from the facts agreed upon and found that Markson was not the owner of the note, but that Iowa T. Shively was, and rendered judgment accordingly in her favor and against the defendants for the amount of the note, and costs. From this judgment the defendants now appeal, and bring the case to this court on petition in error.
Other facts with reference to the case will be found reported in 24 Kas. 352, et seq.; for this is the second time that the case has been to this court.
The plaintiffs in erpor (defendants below) do not claim that the note still belongs to W. T. Shively, or that it belongs tolda Ward, or to Crowell, or McKenzie; but they claim that it belongs to Herman Markson, assignee in bankruptcy of the estate of W. T. Shively, and that he alone has the right and the authority to sue thereon, or to collect the amount thereof; and in this we think the plaintiffs in error are correct. The note was given for the individual debt of W. T. Shively, and his ward never had any interest in such debt, and the probate court never assented that the note should become any part of the estate of Ida Ward; but on the contrary, adjudged and ordered that it should not become any part- of her estate, and in effect held that Shively and his sureties should remain personally responsible for the full amount of all the assets of her estate that came into Shively’s hands not otherwise accounted for; and upon these facts the district court, in the case brought by Ida Ward against the present defendants, also held and adjudged that the note did not belong to Ida Ward or to her estate, and therefore that she could not recover thereon. Therefore, at the time when Shively became a bankrupt, and when the assignment in bankruptcy was consummated, Shively owned the note, and the title thereto passed by the assignment from Shively to Markson, (Bankrupt Act, § 14, U. S. Rev. Stat. §§ 4044, 5046, 5047,) and Markson alone became the' only-person who had any authority to sue upon the note. See sections above cited, and Deadrick v. Armour, 10 Humph. (Tenn.) 588, 598, 599; Berry v. Gillis, 17 N. H. 1, 17.
It is true, as claimed by the defendant in error (plaintiff below), that Markson never had the possession of the note, never collected anything thereon, and never attempted to collect anything thereon, except by filing his answer in the action brought by Crowell and McKenzie against the present defendants, and that the note has always been in the possession of W. T. Shively, or of Crowell and McKenzie, or of the present plaintiff, Iowa.T. Shively. But we do not think that these facts make any material difference. When the assignment in bankruptcy was consummated, Markson became the owner of the note, with the exclusive right to sue thereon, whether he obtained possession of the note or not.
It is also claimed by the defendant in error (plaintiff below), that the present defendants, by denying Markson’s ownership of the note, and by denying his right to collect the same in the suit brought by Crowell and .McKenzie against the present defendants, are estopped from now claiming that Markson is the owner of the note, and the only person entitled to sue thereon. This claim we think is erroneous. It must be remembered that no adjudication was had'in the case of Crowell and McKenzie against the present defendants; but that the action was dismissed without prejudice.
But it is further claimed by the defendant in error, plaintiff below, that as no suit was brought on the note, or for the possession thereof, by the assignee in bankruptcy, within two years after the assignment of the estate to him, and within two years after the cause of action accrued thereon in his favor, that his supposed right to the note, and his supposed cause of action thereon or for the possession thereof, is barred by virtue of the provisions of § 2 of the bankrupt act — §5057, U. S. Rev. Stat.; that is, it is claimed that by virtue of the provisions of said §§ 2 and 5057, Markson’s right of action against the present defendants for the recovery of the amount of the note, and his right of action against Shively, for the possession of the note, are barred. We hardly think that this claim of the defendant in error is correct. A suit merely to collect a debt, or to enforce the - ' _ ■ payment of money due on a promissory note, does not fall within the provisions' of these sections barring causes of action, (Sedgwick v. Casey, 4 Nat. Bank’g Reg., 496; same case, 3 Chic. L. N. 177; Smith v. Crawford, 9 Nat. Bank’g Reg., 38; same case, 6 Ben. D. C. 497; Carr v. Lord, 29 Me. 51;) and the interest advérsely claimed, which the provisions of these sections are designed to protect, is an interest in a claimant other than the bankrupt. (Clark v. Clark, 58 U.S. [17 How.] 315; Pickett v. McGavick, 14 Nat. Banking Reg., 236, 238.) But whether we are correct, or not, in this, we think is wholly immaterial so far as this case is concerned, for so long as the estate of' W. T. Shively is in process of administration and settlement in the bankruptcy court, we do not think that any person can sue for the recovery of the assets of the estate, except the assignee thereof; and while the estate is in process of administration and settlement in the bankruptcy court, we do not think that the mere failure of the assigned to sue upon a claim in favor of the estate, until after the two-years statute of limitations provided for in said §§'2 and 5057, has run against the claim and barred its recovery, will give to the bankrupt himself, or to any assignee of his that became such assignee after the proceedings in bankruptcy were commenced, any right to sue on such claim or for the recovery of such claim. It is the duty of the bankrupt, and of the creditors of the estate, as well as of the assignee in bankruptcy, to see that the assignee in bankruptcy sues upon all claims belonging to the estate within the proper time. But undoubtedly after all proceedings in the bankruptcy court with reference to the estate have ■terminated, and the assignee has been discharged, then if the claim is still unpaid and not barred by any other statute of limitations, either the bankrupt himself or his assignee or creditors could sue on the claim for its recovery; and undoubtedly in the present case when all bankruptcy proceedings shall have terminated and the assignee in bankruptcy been discharged, the present plaintiff, Iowa T. Shiveley, may sue the present defendants for the recovery of the amount of the note, provided no statute of limitations except said §§ 2 and 5057 have run against the claim and barred its recovery; her right, however, probably being subject to the prior right of the creditors of W. T. Shively to receive the amount of the note. It would seem that at the time that this case was tried the proceedings in bankruptcy had not been terminated, and that the assignee in bankruptcy, Markson, was still acting; and hence, although the note is still due and unpaid, yet no one but Markson can sue upon it or for its recovery.
The judgment of the court below will be reversed, and the 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
Prager, J.:
This is a nonstatutory action commenced by the mother of plaintiff, Randal Paul Gross, a ten-year-old minor child, seeking an adjudication that the defendant, Richard O. VanLerberg, was the natural father of plaintiff and an order requiring the defendant to provide for the support and education of the plaintiff. The action was commenced on November 29, 1977. Defendant VanLerberg died on February 1,1979, while the action was pending. His will was thereafter admitted to probate, and coexecutors were appointed and qualified. The plaintiff then moved to substitute the coexecutors as parties defendant. This motion was followed by a motion of the defendant to dismiss the action.
The district court denied the motion for substitution and en tered judgment in favor of the defendant. In his memorandum decision, the trial judge stated:
“[A]bsent a statute expressly providing for the survival of a cause of action, or of an action to establish paternity and support of an illegitimate child, neither the right of action nor an action already instituted survives the death of the putative father, so no new proceeding can be instituted against the decedent’s estate, and an existing action which has not reached judgment abates and cannot be continued against decedent’s personal representative.”
Citing 10 C.J.S., Bastards § 47; 10 Am. Jur. 2d, Bastards § 97; 58 A.L.R.3d 188. The trial court reasoned that the parental obligation to support legitimate children terminates at death, and illegitimate children should not be treated more favorably. Further, the court observed that it would be extremely severe and very questionable policy to allow a living woman to swear the paternity of illegitimate offspring upon a dead man. The court noted the provisions of K.S.A. 60-225(a)(1), K.S.A. 60-1801, and K.S.A. 60-1802, and arrived at the conclusion that plaintiff did not have a cause of action or a claim for relief against a deceased parent, any more than a legitimate child, and therefore, this cause of action for support did not survive the death of the defendant.
Plaintiff appealed to the Court of Appeals which reversed in a split decision in a published opinion, Gross v. VanLerberg, 7 Kan. App. 2d 99, 638 P.2d 365 (1981). The majority opinion by Judge Spencer held that the father of an illegitimate child has a duty to support similar to that imposed upon the father of a legitimate child where the relationship of father and child has been established by acknowledgment of paternity or the judgment of a court of record having jurisdiction of the case. The opinion recognized, however, that the obligation of a father to support his child, whether legitimate or illegitimate, ends with the death of the father, absent enforceable contractual obligations to the contrary. The majority upheld the trial court in its conclusion that the portion of the action seeking support for plaintiff from the deceased did not survive and thus abated on the death of the defendant.
The court then proceeded to determine this additional issue: Whether a nonstatutory action for support survives the death of the putative father to the limited extent of determining paternity, even though the action for support abated. The majority of the court held that the portion of the action seeking a determination of the status of the plaintiff as the child of the defendant did not abate at the death of the defendant. Judge Meyer disagreed with the majority and filed a dissenting opinion on this issue. The majority opinion by Judge Spencer and the dissenting opinion of Judge Meyer present an excellent discussion on the issue and each cites case law in support of his respective position. In view of the importance and novelty of the issue, the Supreme Court granted the defendant’s petition for review.
We have carefully considered the matter and have concluded that the trial court and Judge Meyer were correct in holding that the entire action did not survive, and thus, abated on the death of defendant VanLerberg. In reaching this conclusion, we have considered together several Kansas statutory provisions which in our judgment clearly establish the legislative intent. Generally, it may be stated that the matter of legitimatization of a child is a creature of statute. The statutes of the different states are widely different, and each must be construed and given effect according to its own terms. The courts throughout the nation, however, are in substantial agreement that, absent a statute expressly providing for the survival of an action to establish paternity of an illegitimate child, neither an action brought after the death of the putative father nor an action already instituted but not completed before the death of the putative father survives the death of the father. This subject is discussed in a comprehensive annotation in 58 A.L.R.3d 188, where many cases are cited on the issue. On page 106 of his dissenting opinion Judge Meyer cites cases from various jurisdictions which follow the majority rule.
As stated by Judge Meyer in his dissenting opinion, the rationale for the rule varies from state to state. Some cases note the quasi-criminal nature of bastardy proceedings. Other cases observe that it would be an extremely severe and very questionable policy to allow a living woman to swear the paternity of her illegitimate offspring upon a dead man. Most of the cases noted that, under the common law, all bastardy proceedings abated upon the death of the putative father and left it up to the legislature to modify the harshness of the common law in this particular. One court opined that while a legitimate child could be disinherited by the father, to allow an illegitimate child to establish paternity after the death of the father would prevent the father from exercising that option and thus give the illegitimate offspring an advantage over the legitimate offspring.
The question of the survival of causes of action under the Kansas Code of Civil Procedure is governed by K.SA. 60-1801 and K.SA. 60-1802, which provide as follows:
“60-1801. Survival of actions; what causes of action survive. In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to the person, or to real or personal estate, or for any deceit or fraud, or for death by wrongful act or omission, shall also survive; and the action may be brought notwithstanding the death of the person entitled or liable to the same.”
“60-1802. Abatement. No action pending in any court shall abate by the death of either or both the parties thereto, except an action for libel, slander, malicious prosecution or for a nuisance.”
It should be noted that a nonstatutory action for support is not one of the causes of action which survives under the provisions of K.S.A. 60-1801. In its memorandum decision sustaining the defendant’s motion to dismiss, the trial court discussed the relationship between K.S.A. 60-1801 and 60-1802. The court noted that in reliance on K.S.A. 60-1802, the plaintiff contended that he had a right to proceed with his cause of action in this case. The court then observed that, when considering the matter of the abatement of an action due to the death of a party, it is essential that one maintain a clear distinction between an “action” and a “cause of action.” The term “cause of action” refers to the substantive application of law to the facts; in other words, the substance of the litigátion. The word “action” refers to the procedural aspect of a suit. Thus, where the original cause of action survives the death of a party and a new party is substituted, the original proceeding does not arbitrarily terminate. An action does not abate if the cause of action survives. Conversely, where the cause of action does not survive, the action terminates on the death of the defendant. The court then reasoned that, by the express provisions of K.S.A. 60-1801, the legislature specifically provided which causes of action survive the death of a party. On the other hand, the purpose of K.S.A. 60-1802 is not to govern which causes of action survive the death of a party but only to effectively provide for the continuance of the pending litigation with substitute parties in those cases where the underlying cause of action survives.
The distinction between abatement of a cause of action because of nonsurvival and a statutory provision for substitution of parties for the decedent is discussed in 1 Am. Jur. 2d, Abatement, Survival, and Revival §§ 47, 48, where cases from various jurisdictions are cited. We have concluded that the trial court correctly interpreted K.S.A. 60-1801 and 60-1802 in holding that whether a particular cause of action survives the death of a party is to be determined by K.S.A. 60-1801. K.S.A. 60-1802 simply provides the procedure for the continuation of an action by substitution of parties in cases where the cause of action survives the death of a party.
The legislature provided an action to determine paternity in K.S.A. 38-1101 et seq. Under K.S.A. 38-1101, an action to determine paternity must be brought in the name of the State of Kansas on the relation of the unmarried woman as complaining witness. Under K.S.A. 38-1104, the time limitation for instituting such an action is one year after the birth of the child whose paternity is in issue. The death of the child does not abate or bar the action, K.S.A. 38-1107. Under K.S.A. 38-1108, the death of the mother does not abate an action to establish paternity, if the child is living, but the action may be continued in the name of the child. K.S.A. 38-1109 provides that, in the case of the death of the alleged father, the cause of action sürvives and the action may be prosecuted against the personal representatives of the deceased person. It is important to note that the legislature did not provide that an action to determine paternity could be brought in the first instance by the child against his putative father.
Under Kansas law, a child without parental support or claiming an interest in specific property or contractual or statutory benefits, is afforded a number of remedies. For example, under K.S.A. 59-501, for the purpose of distribution of property of a decedent, the word “children” is defined as including illegitimate children when applied to mother and child, and also when applied to father and child (1) where the father has notoriously or in writing recognized his paternity of the child, or (2) his paternity thereof has been determined in his lifetime in any action or proceeding involving that question in a court of competent jurisdiction. K.S.A. 59-501 thus governs the right of an illegitimate child to inherit from his putative father. This statute requires more than proof of paternity; it requires a showing that the father notoriously or in writing recognized his paternity of the child. If the illegitimate child relies on a finding of paternity by a court, the decree of paternity must have been entered during the lifetime of the father in order to be sufficient to establish a right of inheritance.
The Kansas cases have protected the right of an illegitimate child to inherit from his putative father where the claim has been asserted in different kinds of actions. Paternity has been established and the right of inheritance has been litigated and protected in actions for ejectment or partition of real property. McLean v. McLean, 92 Kan. 326, 140 Pac. 847 (1914) (ejectment); Smith v. Smith, 105 Kan. 294, 182 Pac. 538 (1919) (partition of real estate); Nolting v. Holt, 113 Kan. 495, 215 Pac. 281 (1923) (ejectment and for partition). In addition, a child may claim and prove paternity for purposes of inheritance in a proceeding for administration of the putative father’s estate. In this regard, see Record v. Ellis, 97 Kan. 754, 156 Pac. 712 (1916); Jensen v. Reeble, 167 Kan. 1, 204 P.2d 703 (1949); In re Estate of Julian, 184 Kan. 94, 334 P.2d 432 (1959).
In Miller v. Miller, 116 Kan. 726, 229 Pac. 361 (1924), an illegitimate child was permitted to assert a claim for benefits provided under certain statutes relating to compensation for the children of veterans of World War I. In Green v. Burch, 164 Kan. 348, 189 P.2d 892 (1948), it was held that an illegitimate child was entitled to assert a claim and recover benefits under the workmen’s compensation act as a dependent of the deceased workman.
The foregoing cases are not intended as a complete listing of cases where paternity has been an issue and determined after the death of the putative father. They clearly show, however, that the issue of paternity has long been recognized as one for determination by our courts, even though the putative father at the time of such determination is deceased. It must be recognized, however, that, in each of the cases cited, the illegitimate child asserted a claim involving his rights in specific property or benefits provided by law. There are no cases in Kansas, however, which recognize the right of an illegitimate child to bring an action solely for the purpose of determining paternity in the abstract, where the rights of the child in specific property are not involved or where the child is not claiming a right of inheritance in the estate of the putative father or benefits as a child under some compensation law.
On the basis of the above rationale and under the facts of this case, we hold that the nonstatutory action for support brought by the plaintiff against the defendant did not survive the death of the defendant and abated in its entirety when the defendant’s death occurred.
We have thus concluded that the trial court correctly decided the case and that the judgment of the district court dismissing the action must be upheld. The judgment of the district court is affirmed. The judgment of the Court of Appeals reversing the district court is reversed.
Schroeder, C.J. and Herd, J., concur in the result. | [
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal from sundry trial court rulings and findings and from a decree of adoption entered by the Sedgwick County District Court. Carmon Perciado (Perciado), the putative father of Baby Boy L., an infant born out of wedlock, Quelin and Ernestine Perciado, the baby’s paternal grandparents, and the Kiowa Tribe of Oklahoma, are the appellants. The adoptive parents are the appellees. The baby is the illegitimate son of Miss L., a non-Indian and the appellant, Carmon Perciado, a five-eighths by blood relationship Kiowa Indian duly enrolled as a member of the Kiowa Tribe. The appellants contend that the trial court erred in determining that the provisions of the Indian Child Welfare Act of 1978 (ICWA or the Act), 25 U.S.C. § 1901 et seq. (Supp. Ill 1979), were not applicable to the adoption proceeding and in the alternative assert that if the Act does not apply then the adoption is invalid under state law.
Due to the involved procedural aspects of this case, it is necessary that we set forth the facts in some detail. Baby Boy L. was born at Wichita, January 29, 1981. On the same date his natural mother, an unmarried non-Indian woman, executed a consent to the adoption specifically directed and limited to the adoptive parents named in the consent. The appellees filed their petition for adoption along with the mother’s consent the same day and the court entered an order granting them the temporary care and custody of the child. It is not disputed that the appellant Perciado is the father of the child. Notice of the adoption proceedings and time of hearing was personally served on Perciado at the Kansas State Industrial Reformatory where he was incarcerated and upon the State Department of Social and Rehabilitation Services (SRS).
On March 6, 1981, Perciado filed an affidavit of indigency and the court appointed representatives of the Legal Aid Society of Wichita, Inc., to represent him. On March 9,1981, appellees filed an amendment to their adoption petition alleging Perciado was “an unfit person to have or assume or be given parental responsibilities” and asked that his parental rights be terminated and severed. On March 11, 1981, SRS filed its report recommending the granting of the adoption. On March 25, 1981, Perciado filed an answer to the amended petition asking that the adoption be denied, that he be found a fit and proper person, that his parental rights not be severed and that he be given permanent custody of his son.
On March 30, 1981, the matter was called for trial and the court ruled that it would bifurcate the proceedings and proceed first with the determination of the fitness of the father and whether his parental rights should be severed, and second, with the adoption itself. No objection to this procedure was made by Perciado, who was present in person (having been transported from the Kansas State Industrial Reformatory), or by his counsel, and evidence was introduced on behalf of appellees and by Perciado. Eight witnesses testified on behalf of the appellees and Perciado presented one witness, at which time the trial was recessed until April 1, 1981. On April 1, 1981, it was brought to the court’s attention that Perciado was an enrolled member of the Kiowa Tribe and that the federal Indian Child Welfare Act of 1978 might apply, and therefore the case was continued for thirty days to allow proper notice to be given to the Kiowa Tribe. Thereafter, notice was given to the Kiowa Business Committee at Anadarko, Oklahoma. On April 14, 1981, an amended or supplemental consent to the adoption was filed by the baby’s mother. This consent was also limited strictly to the named appellees. On May 7, 1981, Perciado, through the Legal Aid Society, filed an amended answer in which he alleged that the ICWA applied to the proceedings and asked, among other things, that the child be placed with a member of its extended family, or other members of the Kiowa Tribe, or with other Indian families as defined by the Act. On May 8, 1981, the Kiowa Tribe filed a petition to intervene in the proceedings and on May 29, 1981, a notice of appearance was filed by Bertram E. Hirsch, an attorney from New York, on behalf of the Kiowa Tribe and the paternal grandparents. Mr. Hirsch associated with local counsel in Wichita as required by our rules. On May 16,1981, the Business Committee of the Kiowa Indian Tribe, over the objections of the baby’s mother, enrolled Baby Boy L. as a member of the Tribe with a Kiowa blood degree of 5/16ths. On June 15,1981, Perciado and the Kiowa Tribe filed a petition to change temporary custody and a petition to transfer jurisdiction of the case to the Court of Indian Offenses at Anadarko, Oklahoma. Appellees filed answers to the various petitions filed by the appellants and the matter again came before the court on June 24, 1981. The applicability of the Indian Child Welfare Act had been submitted by all parties on briefs filed with the court and the court found that the Act did not apply to the proceedings and therefore denied the petition of the Kiowa Tribe to intervene and then held that the petition for temporary custody and the petition to transfer jurisdiction to the Court of Indian Offenses were moot.
The court then proceeded to hear additional evidence from Perciado on the question of his fitness and whether his consent to the adoption was required. Mr. Hirsch was denied the right to participate in the proceedings on behalf of his clients, as their petition to intervene had been denied, but was allowed to sit with, counsel and advise the attorneys for the father. After the completion of the evidence, the court determined that Perciado was an unfit person to have the care, custody or control of the minor child. Having determined that the father, Perciado, was an unfit person to have the care or custody of Baby Boy L., the court then proceeded to hear evidence on the advisability of the adoption itself, the second portion of the bifurcated proceedings. After hearing this additional evidence, the court found that the appellees were suitable persons to adopt the child, that it was in the best interests of the child to grant the adoption, and the adoption of Baby Boy L. by the appellees was granted.
Appellants have appealed, raising numerous issues. The first three points asserted by the appellants will be considered to gether as they all involve the applicability of the ICWA. Those points are:
1. The ICWA is applicable to adoption proceedings under state law where the child to be adopted is a member of an Indian tribe and is illegitimate, and the acknowledged putative father is a member of an Indian tribe.
2. The Kiowa Tribe of Oklahoma has a right to intervene in this proceeding.
3. The appellants have a right to petition the trial court to transfer jurisdiction and to change temporary custody in these proceedings.
At the outset, we are faced with the interpretation of complex federal legislation which is not only confusing but, if applied as requested by the appellants, would also be inconsistent, contradictory, and would accomplish no worthwhile or useful purpose. As stated by one author:
“Enacted in 1978, the Indian Child Welfare Act (Act) is the result of an attempt by Congress to promote the stability of Indian families and tribes. Responding to a demonstrated risk of unwarranted removal of Indian children from their homes by state and private child welfare agencies, the Act was intended to impose strict procedural limitations on these agencies’ activities. Unfortunately, the Act falls far short of achieving the goals set by Congress. [Emphasis added.]
“Although these provisions [of the Act] are well intentioned, their effectiveness is limited by inconsistencies and ambiguities in the drafting of the Act. Consequently, the Act may confuse and even exacerbate the problems which prompted its passage.” Barsh, The Indian Child Welfare Act of 1978: A Critical Analysis, 31 Hastings L.J. 1287-88.
In overruling the Kiowa Tribe’s motion to intervene on the grounds that the ICWA did not apply to these proceedings, the trial court made, inter alia, the following findings and conclusions:
“3. That the application to intervene was not filed within twenty (20) days as required by the Indian Child Welfare Act, 25 USC 1911, nor was the application verified as required by K.S.A. 59-2202.
“4. That the Indian Child Welfare Act of 1978,25 USC Section 1901, et seq. has no application to the factual situation before the Court in that:
(a) The adoption Petition concerns the illegitimate child of a non-Indian mother.
(b) The child involved herein was born on January 29, 1981, and on the same day, [Miss L.], the natural mother of said child, voluntarily consented and released said child into the care of the Petitioners, who are non-Indian.
(c) That the attorney for the Petitioners herein notified the Kiowa Indian Tribe of Oklahoma of the proceedings herein by notice which was received by the Kiowa Indian Tribe on the 14th day of April, 1981.
(d) The child has never been in the care or custody of the putative father who is five-eighths Kiowa Indian.
(e) The issue of the preservation of the Indian family is not involved as the child has never been a part of any Indian family relationship.
(f) The subject matter of this litigation, Baby Boy L., is not a member of an Indian family.
(g) The child appears to have been enrolled as a member of the Kiowa Tribe of Oklahoma subsequent to the initiation of these proceedings and contrary to the expressed wishes of the natural mother, a non-Indian.
(h) The controversy does not involve a situation where a State or Federal agency is attempting to unilaterally remove an Indian child from his home and thereby break up an Indian family.
(i) Absent the consent of the natural mother to the adoption, it appears that the child would not have been in an Indian home, nor part of an Indian family.
“5. The minor child’s home has at all times been exclusively with [appellees], non-Indians, and this is the total extent of his family relationship to date.
“6. The Act is concerned with establishing proper definitions and safeguards in the situation where Indian children are being removed from their families by reason of child neglect, abuse, or similar grounds. These issues are not present in an adoption proceeding instituted on the voluntary consent of a non-Indian unwed mother of an illegitimate child, where that child’s care and custody has, with the natural mother’s permission, been with non-Indian proposed adoptive parents since the child’s birth.”
The Indian Child Welfare Act, 25 U.S.C. § 1901 et seq., was enacted by Congress in 1978, and in § 1902 the policy behind the adoption of the Act was expressed as:
“The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.” (Emphasis added.)
A careful study of the legislative history behind the Act and the Act itself discloses that the overriding concern of Congress and the proponents of the Act was the maintenance of the family and tribal relationships existing in Indian homes and to set minimum standards for the removal of Indian children from their existing Indian environment. It was not to dictate that an illegitimate infant who has never been a member of an Indian home or culture, and probably never would be, should be removed from its primary cultural heritage and placed in an Indian environment over the express objections of its non-Indian mother. Section 1902 of the Act makes it clear that it is the declared policy of Congress that the Act is to adopt minimum federal standards “for the removal of Indian children from their [Indian] families.” Numerous provisions of the Act support our conclusion that it was never the intent of Congress that the Act would apply to a factual situation such as is before the court.
Included in the congressional findings to support the Act is § 1901(4) to the effect “that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them . . . .” Section 1911(a) provides exclusive jurisdiction in the Indian tribe “over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation . . . .” Section 1912(d) provides that efforts should be made to prevent the breakup of the Indian family while subsections (e) and (f) refer to “the continued custody of the child by the parent or Indian custodian” and the potential for emotional or physical damage to the child. Section 1914 again refers to the removal of the child from the parent or Indian custodian. Sections 1916(b), 1920 and 1922 also reflect the underlying thread that runs throughout the entire Act to the effect that the Act is concerned with the removal of Indian children from an existing Indian family unit and the resultant breakup of the Indian family. In this case Baby Boy L. is only 5/16th Kiowa Indian, has never been removed from an Indian family and so long as the mother is alive to object, would probably never become a part of the Perciado or any other Indian family. While it is true that this Act could have been more clearly and precisely drawn, we are of the opinion that to apply the Act to a factual situation such as the one before us would be to violate the policy and intent of Congress rather than uphold them. Professor Barsh states in his article cited earlier:
“Under the Act, a child custody proceeding may be either a foster care placement, a preadoptive placement, an adoption, or a termination of parental rights. In all four categories, the common element is the parents’ loss of control over the child. Involuntary investigations and home interventions by social welfare agencies implicitly are excluded.
“Expressly excluded from the definition of child custody proceeding are placements based on acts of a child that are essentially criminal in nature, such as the institutionalization of a minor for theft or joyriding. Also expressly excluded are custody awards in divorce proceedings. Thus, the Indian Child Welfare Act does not disturb the power of states to intervene in Indian homes as a preventive measure, to remove or institutionalize Indian children on grounds of juvenile delinquency, or to determine the custody of Indian children when their parents seek a divorce. The Act principally applies to cases where a state court attempts to remove an Indian child from his or her home on grounds of the alleged incompetence or brutality of the parents.” p. 1305.
We conclude the trial court was correct in its determination that the ICWA, by its own terms, does not apply to these proceedings and therefore its rulings on the various petitions filed by appellants were correct.
Appellants, of course, along with some legal writers, do not agree with our interpretation of the Act. However, for the sake of argument, if we were to hold that the ICWA applied to these proceedings, then we still fail to see where any reversible error could exist. It has been stated that only two prerequisites exist for the application of the Act: (1) a “child custody proceeding” (2) involving an “Indian child,” as those terms are defined in the Act. Wamser, Child Welfare Under the Indian Child Welfare Act of 1978: A New Mexico Focus, 10 N.M.L. Rev. 413, 419-22 (1980).
Section 1903, the definitional section of the Act, provides in part:
“[T]he term — (1) ‘child custody proceeding’ shall mean and include
(ii) ‘termination of parental rights’ which shall mean any action resulting in the termination of the parent-child relationship;
(iv) ‘adoptive placement’ which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.
“(4) ‘Indian child’ means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”
It is undisputed that Baby Boy L. is the biological child of Perciado, who is %ths Kiowa Indian and a member of the Kiowa Tribe. It is also undisputed that the Kiowa Tribe requires that for a person to be eligible for enrollment in the tribe, such person must be at least one-fourth Kiowa Indian by degree of blood relationship. Baby Boy L. is five-sixteenths Kiowa Indian by degree of blood relationship and therefore meets the tribal requirements. Thus, as defined by the Act, Baby Boy L. must be considered an “Indian child” within the definitions of the Act. Appellees make much of the fact that the child’s mother objected to his enrollment in the tribe but we find nothing in the record or in the Act that precludes the enrollment of an otherwise qualified child into an Indian tribe because of the opposition of one of its parents.
Continuing with the assumption that the Act does apply to these proceedings we will briefly address appellants’ second and third points. Appellants contend it was error to refuse to allow the Kiowa Tribe to intervene. If the Act were applicable we would agree. Section 1911(c) provides:
“In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child’s tribe shall have a right to intervene at any point in the proceeding.”
Thus, it is obvious that if the Act were applicable the trial court was in error in refusing to allow intervention by the Kiowa Tribe. However, even if such were the case, the error would have been harmless at best.
The mother of Baby Boy L. gave a consent to the appellees to adopt her child. The consent was limited to the two named appellees and was for their benefit only. She has made it clear that if this adoption was denied for any reason, or if an attempt was made to place the child for adoption under the terms of the Act, she would revoke her consent and again take custody of her child, and never consent to his placement with his father or with the father’s extended Indian family, the Kiowa Tribe, the grandparents or anyone else. Section 1913(c) of the Act provides:
“In any voluntary proceeding for termination of parental rights to, or adoptive placement of, an Indian child, the consent of the parent may be withdrawn for any reason at any time prior to the entry of a final decree of termination or adoption, as the case may be, and the child shall be returned to the parent. ” (Emphasis added.)
In Treiber v. Stong, 5 Kan. App. 2d 392, 617 P.2d 114, rev. denied 228 Kan. 807 (1980), the Court of Appeals held:
“The irrevocability of a consent under K.S.A. 59-2102 applies to disputes between a natural parent or parents and the prospective adoptive parents and the consent, when withdrawn, is not binding on the consenting parent in a custody dispute between the natural parents.” Syl. f 3.
Under either the Act or Kansas law, any proceedings which the Kiowa Tribe might have undertaken if allowed to intervene would have been useless. Any attempt to effect the preferential placement contemplated by the Act would necessarily result in the removal of the baby from the custody of appellees and thereupon there being no consent by the mother to any such action, the child would be returned to her. We do not believe that the Congress intended such ridiculous results nor do we believe that the Kiowa Tribe could in good faith recommend such a procedure. Any error which might have occurred by refusal of the Kiowa Tribe’s petition to intervene would be harmless. It is elementary that the law, including the ICWA, and the courts do not require citizens and litigants to perform useless acts and be subjected to useless court proceedings when there is no possibility of any positive result for anyone.
In 73 Am. Jur. 2d, Statutes, we find:
§ 249. Generally. In the construction of statutes, the courts start with the assumption that the legislature intended to enact an effective law, and the legislature is not to be presumed to have done a vain thing in the enactment of a statute. Hence, it is a general principle that the courts should, if reasonably possible to do so interpret the statute, or the provision being construed, so as to give it efficient operation and effect as a whole.” p. 422.
“§ 251. Although the courts can only interpret a statute as framed, notwithstanding difficulties in its application, a construction of an ambiguous statute should be avoided which would render the application of the statute impracticable, or inconvenient, or which would require the performance of a vain, idle, or futile thing, or attempt to require the performance of an impossible act.” p. 424.
“§ 265. A statute subject to interpretation is presumed not to have been intended to produce absurd consequences, but to have the most reasonable operation that its language permits. If possible, doubtful provisions should be given a reasonable, rational, sensible, and intelligent construction. These rules prevail where they are not restrained by the clear language of the statute. Under this rule, general terms in a statute should be so limited in their application as not to lead to absurd consequences.” p. 434.
Next the appellants assert error in the failure of the court to consider their petition to transfer jurisdiction to the Court of Indian Offenses at Anadarko, Oklahoma. Section 1911(b) of the Act provides:
“In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child’s tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child’s tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.” (Emphasis added.)
In the instant case, it is clear that the mother of Baby Boy L. objected to the transfer of the adoption proceeding to the Court of Indian Offenses and as specifically provided by the statute such a transfer could not be made over her objection. In addition, there would certainly appear to be good cause not to transfer such proceedings. All of the parties involved, the child, the adoptive parents, the biological parents and necessary witnesses were located in Sedgwick County and there was no showing that any of the parties had any contact or connection with the Indian court at Anadarko, Oklahoma. Assuming the mother had not objected to a transfer of jurisdiction, the court would still have been justified in refusing transfer on the basis of “good cause to the contrary.”
Finally it is asserted the appellants had the right to petition for a change of temporary custody. Assuming the Act applied, they would have the right to file such a petition. However, under the Act, the granting of such a petition is discretionary with the court and a denial under the facts in this case would not constitute an abuse of discretion.
Therefore, we conclude, first, that the ICWA by its own terms and intent was not applicable to this action and, second, assuming arguendo the Act did apply, the trial court did not commit reversible error in denying the petition of the Kiowa Tribe to intervene or in finding the petition to change jurisdiction and petition for change of temporary custody were moot. Appellants’ first three points on appeal lack merit.
For those interested in further authorities on the ICWA, see Note, The Indian Child Welfare Act of 1978: Provisions and Policy, 25 S.D. L. Rev. 98 (1980); Note, Indian Child Welfare: A Jurisdictional Approach, 21 Ariz. L. Rev. 1123 (1979); Guerrero, Indian Child Welfare Act of 1978: A Response to the Threat to Indian Culture Caused by Foster and Adoptive Placements of Indian Children, 7 Amer. Indian L. Rev. 51 (1979); Note, In re D.L.L. & C.L.L., Minors: Ruling on the Constitutionality of the Indian Child Welfare Act, 26 S.D. L. Rev. 67 (1981).
We will now turn to appellants’ attack upon the adoption proceedings and the decree granted by the trial court. Appellants contend that there was insufficient evidence to show that Perciado was unfit to assume parental duties and in the alternative that the question of his fitness is not an issue in this case. For reasons which will hereafter become clear, we are of the opinion that the fitness of Perciado was a relevant issue in these proceedings.
The trial court, in ruling that Perciado was unfit and that his consent to the adoption was not required, made the following statement:
“THE COURT: All right. Having examined the file, heard the evidence over a period of several months and through several hearings, I make the following findings of fact and conclusions of law:
“I find that the subject matter of this adoption, baby boy L, is the child of an unmarried, non-Indian woman, that was born on January 29th, 1981, at Wichita, Kansas. That the natural mother . . . executed her consent to the adoption of this child by the Petitioners .... That the natural mother informed, at least, the Petitioners’ attorney that the father of the child was one Carmon E. Perciado, who was, at the time the petition was filed in January of 1981, was incarcerated at the Kansas State Penitentiary — Industrial Reformatory, I guess K.S.I.R., in Hutchinson, Kansas. That notice was served upon the natural father whom I shall refer to herein as Respondent or hereafter. That the Respondent filed his pleading in which he acknowledged paternity, objected to the adoption by the Petitioners and requested the Court to appoint an attorney for him, and that he be present for the hearings on the petition. The Court, in response to his pleading, appointed Legal Aid Society of Wichita, Inc., to represent the Respondent which organization, through Ms. Susan Ellis, has represented the Respondent throughout these proceedings. That the Respondent has been present in court each time the matter has been before the Court.
“That the matter proceeded to trial on March 30th, 1981. The Court took judicial notice of certain of its own court files: 79 CR 1298, 79 CR 619, 80 CR 1672, all of which are felony convictions, the last of which the Respondent was serving time at the reformatory at Hutchinson as a result of a plea of guilty.
“The Court heard further testimony as to the Respondent’s attitude and conduct and with respect to his position in society. I find that the Defendant, on numerous occasions, prior to his incarceration at Hutchinson, was either drinking alcoholic beverages or was drunk, was taking drugs, was engaged in fighting, picking fights with people, other persons. That the Respondent either pled guilty or was tried and found guilty in Municipal Court of numerous offenses consisting of battery of police officers, resisting arrest, battery, inciting a riot and spent, it would appear to be, several months incarcerated, certainly, as a result of these convictions.
“I find that probably the Respondent has had contact with small children, specifically his nieces and nephews and another child of the natural mother of baby boy L. He has had no experience in taking care of children in providing for their needs, hasn’t been concerned with children, to speak of.
“I find that the Respondent has admitted to numerous crimes, including armed robbery, that [he] apparently has never been charged with. I find that while he was on probation to this Court that he violated the conditions of his probation. I find that the Respondent not only uses drugs, but uses toluol; that he has spent some several months at Larned Hospital, the reason for which is not clear. But I think the Court can take judicial notice that Lamed State Hospital is a hospital for the mentally ill or the criminally insane. The Court is of the opinion that, at least prior to his incarceration, if he didn’t have a complete disregard for the law, he had, at least, a substantial disregard for the law and the rights of other people, and for that reason would not be a fit and proper person to have the care, custody and control of his child. I don’t think under the law that he’s entitled to a chance to demonstrate his fitness. He’s had his chance. He didn’t take advantage of it. The law that’s applied is that as a putative father or a father of an illegitimate child he’s entitled to notice of the hearing and a right to be heard as to the fitness. He’s not entitled to any trial period, so to speak, to demonstrate that he now can or will in the future be able to take care of the child. I think that the Court has to go on what his conduct was in the past. The evidence is that he has been recommended to meet the parole board, but there is no indication that he’s going to be granted a parole. It appears to me that the Respondent’s main interest in seeking to obtain the custody of the child is for the benefit of his mother and father which, I think, is a noble gesture, but I am not able to come to the conclusion that it’s because he wants the child because he’s the father of the child.
“The Court concludes that the Respondent is unfit within the meanings of In Re Vallimont, Finney v. Finney and the other case law applicable to these type of situations in Kansas.
“The Court, therefore, concludes that the consent of the natural father is not necessary to confer jurisdiction on the Court for the adoption.”
The court thereafter made “a further finding that the Respondent called the natural mother during the time that she was pregnant and advised her that he had the money for her to have an abortion.”
Later, at the conclusion of the evidence on the adoption, the court found that the petitioners were suitable persons to be granted the adoption of Baby Boy L. and that it was in the best interests of the child that the adoption be granted.
In addition to the findings of the court, which were all based upon substantial evidence, there was evidence that Perciado was violent toward members of his own family, that he beat and abused the child’s mother, before and during the time she was pregnant, and that he broke into her house and stole personal property from her. The evidence in this case is overwhelming that Perciado is unfit to assume parental duties based upon any known community standards or degree of proof. See Finney v. Finney, 201 Kan. 263, 440 P.2d 608 (1968), and In re Vallimont, 182 Kan. 334, 321 P.2d 190 (1958). Appellant argues that no one knows whether he would be a fit parent because he has never had the opportunity to have the child. We know of no law anywhere that would require this court or any other court to submit a helpless infant to an environment and standard of conduct displayed by this father. To do so could very well endanger the physical well-being and perhaps even the life of this child. We find no error in the trial court’s finding that Perciado is unfit to assume his parental duties, even if he were in a position to do so.
Finally, appellants contend that the adoption must be set aside because there was no showing that the father had failed to support the child for two years [K.S.A. 59-2102(3)] and that our statute which requires only the consent of the mother of an illegitimate child [K.S.A. 59-2102(2)] is unconstitutional as a violation of the equal protection clause of the Fourteenth Amendment as interpreted in Caban v. Mohammed, 441 U.S. 380, 60 L.Ed.2d 297, 99 S.Ct. 1760 (1979). While this argument was not presented to the trial court and ordinarily would not be considered for the first time on appeal, we deem the issue raised under Caban of such significance that we will address the issue. It is appellant’s argument that the consent of both parents to an adoption is necessary unless it falls under K.S.A. 59-2102(3), (4) or (5).
K.S.A. 59-2102 provides in part:
“Before any minor child is adopted, consent must be given to such adoption:
(1) by the living parents of a legitimate child or
(2) by the mother of an illegitimate child or
(3) by one of the parents if the other has failed or refused to assume the duties of a parent for two (2) consecutive years or is incapable of giving such consent or
The United States Supreme Court has recognized in a trilogy of cases the constitutional rights of the father of an illegitimate child when the father-child relationship may be affected. In Stanley v. Illinois, 405 U.S. 645, 31 L.Ed.2d 551, 92 S.Ct. 1208 (1972), the court reviewed proceedings from the State of Illinois in which the State, upon the death of the mother of certain illegitimate children, instituted proceedings to declare the children wards of the State and to place them with court-appointed guardians. The proceedings were conducted pursuant to Illinois statutes under which an unwed father is subject to being deprived of the custody of his illegitimate children in dependency proceedings without any hearing as to his fitness as a parent whereas married or divorced parents or unwed mothers raising their children can be deprived of custody only through proceedings in which the parent is entitled to a hearing on fitness. The court held that the Illinois procedure violated the due process and equal protection rights of Stanley, who had lived with and supported the children’s mother and the children for years.
“The State of Illinois assumes custody of the children of married parents, divorced parents, and unmarried mothers only after a hearing and proof of neglect. The children of unmarried fathers, however, are declared dependent children without a hearing on parental fitness and without proof of neglect. Stanley’s claim in the state courts and here is that failure to afford him a hearing on his parental qualifications while extending it to other parents denied him equal protection of the laws. We have concluded that all Illinois parents are constitutionally entitled to a hearing on their fitness before their children are removed from their custody. It follows that denying such a hearing to Stanley and those like him while granting it to other Illinois parents is inescapably contrary to the Equal Protection Clause.” Stanley v. Illinois, 405 U.S. at 658.
Certainly the safeguards prescribed in Stanley were met in the instant case. Perciado was furnished counsel and personally participated in the hotly contested hearings in which testimony was received from at least thirteen witnesses.
In Quilloin v. Walcott, 434 U.S. 246, 54 L.Ed.2d 511, 98 S.Ct. 549 (1978), the court was faced with a controversy from the State of Georgia between a stepfather and the biological father of an illegitimate eleven-year-old child. The stepfather, who had been married to the child’s mother for approximately nine years, desired to adopt the child and under Georgia law, the consent of the father of an illegitimate child was not required. Mr. Justice Marshall, writing for a unanimous court, stated the issue and facts as:
“The issue in this case is the constitutionality of Georgia’s adoption laws as applied to deny an unwed father authority to prevent adoption of his illegitimate child. The child was born in December 1964 and has been in the custody and control of his mother, appellee Ardell Williams Walcott, for his entire life. The mother and the child’s natural father, appellant Leon Webster Quilloin, never married each other or established a home together, and in September 1967 the mother married appellee Randall Walcott. In March 1976, she consented to adoption of the child by her husband, who immediately filed a petition for adoption. Appellant attempted to block the adoption and to secure visitation rights, but he did not seek custody or object to the child’s continuing to live with appellees. Although appellant was not found to be an unfit parent, the adoption was granted over his objection.
“In Stanley v. Illinois, 405 U.S. 645 (1972), this Court held that the State of Illinois was barred, as a matter of both due process and equal protection, from taking custody of the children of an unv/ed father, absent a hearing and a particularized finding that the father was an unfit parent. The Court concluded, on the one hand, that a father’s interest in the ‘companionship, care, custody, and management’ of his children is ‘cognizable and substantial,’ id., at 651-652, and, on the other hand, that the State’s interest in caring for the children is ‘de minimis’ if the father is in fact a fit parent, id., at 657-658. Stanley left unresolved the degree of protection a State must afford to the rights of an unwed father in a situation, such as that presented here, in which the countervailing interests are more substantial.
“Generally speaking, under Georgia law a child born in wedlock cannot be adopted without the consent of each living parent who has not voluntarily surrendered rights in the child or been adjudicated an unfit parent. Even where the child’s parents are divorced or separated at the time of the adoption proceedings, either parent may veto the adoption. In contrast, only the consent of the mother is required for adoption of an illegitimate child.” pp. 247-248.
Thus it may be seen that the essential part of the Georgia statute was similar to K.S.A. 59-2102(2). Quilloin, the biological father, attempted to block the proposed adoption of his illegitimate child by seeking to have the child legitimized under existing Georgia statutes, by seeking visitation rights and by objecting to the adoption. After a full evidentiary hearing on all of Quilloin’s contentions, the court found that it was in the best interests of the child to grant the adoption, and that to grant the father’s request for legitimation and visitation rights would not be in the best interests of the child, and both requests were denied. The trial court was affirmed by the Georgia Supreme Court and an appeal was taken to the U.S. Supreme Court where Quilloin alleged his due process and equal protection rights were violated. The due process argument was based upon a failure of the trial court to find him unfit and the equal protection argument was based upon the disparate treatment between fathers of illegitimate children and those of legitimate children. The court found that under the facts of the case, the “best interests of the child” standard was sufficient to satisfy the due process attack.
Insofar as the equal protection argument was concerned, the court stated:
“We think appellant’s interests are readily distinguishable from those of a separated or divorced father, and accordingly believe that the State could permissibly give appellant less veto authority than it provides to a married father.” p. 256.
The court found that the difference in the extent of the commitment to the welfare of the child that obviously exists between fathers of illegitimate children and those of children born in wedlock was sufficient to satisfy the State’s interest in the welfare of its children in setting different veto authority to an adoption, and that such a different standard or requirement did not violate Quilloin’s equal protection rights.
Finally, only a year later, Caban v. Mohammed, 441 U.S. 380, was decided by the court. Under a New York statute similar to ours, the court held that the statute which granted an unwed mother the authority to block the adoption of her child simply by withholding consent but did not give an unwed father a similar right was unconstitutional as a violation of the gender-based prohibition against denial of equal protection of the laws. Caban and Maria Mohammed had lived together out-of-wedlock for several years in New York City during which time two children were born. Caban was the acknowledged father and contributed to their support over the years. After he and Maria separated, and she married Mohammed, Caban continued to maintain contact with the children and throughout the years maintained a close personal and familial relationship with them. Maria’s new husband desired to adopt the two Caban children. Section 111 of the New York Domestic Relations Law (McKinney 1977) provided in part:
“Subject to the limitations hereinafter set forth, consent to adoption shall be required as follows:
1. Of the adoptive child, if over fourteen years of age, unless the judge or surrogate in his discretion dispenses with such consent;
2. Of the parents or surviving parent, whether adult or infant, of a child born in wedlock;
3. Of the mother, whether adult or infant, of a child born out of wedlock;
4.....”
Certain exceptions and limitations were contained within the statute which are not relevant to our decision here.
As is obvious, the New York statute as it applies to the father of an illegitimate child is essentially identical to our own statute now before this court for examination. A sharply divided court (5 to 4), held in Caban that the New York statute, when applied under the specific facts of the case as an absolute bar to the rights of the father to object to the adoption of his illegitimate child, was unconstitutional as a gender-based violation of the equal protection clause. The New York court in approving the adoption had relied exclusively on Section 111(3) of their statute and not upon possible statutory exceptions. A careful reading of Caban reveals that it is directed to the specific factual situation before the court. Caban had demonstrated that he was a capable and loving father; he had established and maintained a close family relationship with Maria and the children for several years and continued to maintain contact with and an interest in the children after he and Maria had separated and even after her marriage to Mohammed. The court specifically pointed out that in Quilloin the court had recognized the importance of the actual factual relationship that exists. The court also indicated that its ruling might be different in a situation where an infant is involved as opposed to older children. In addition, the court stated that in cases where the father never has come forward to participate in the rearing of his child, “nothing in the Equal Protection Clause precludes the State from withholding from him [the biological father] the privilege of vetoing the adoption of that child.” p. 392. It also recognized that a different result might be reached if the father was found unfit after a notice and hearing as required in Stanley. Thus it is clear that the Caban decision was a narrow one based upon its particular facts and that not all factual situations give the father of an illegitimate child veto power over adoption.
Mr. Justice Stewart, in his dissenting opinion, stated:
“The Constitution does not require that an unmarried father’s substantive parental rights must always be coextensive with those afforded to the fathers of legitimate children. In this setting, it is plain that the absence of a legal tie with the mother provides a constitutionally valid ground for distinction. The decision to withhold from the unwed father the power to veto an adoption by the natural mother and her husband may well reflect a judgment that the putative father should not be able arbitrarily to withhold the benefit of legitimacy from his children.
“Even if it be assumed that each married parent after divorce has some substantive due process right to maintain his or her parental relationship, cf. Smith v. Organization of Foster Families, 431 U.S. 816, 862-863 (opinion concurring in judgment), it by no means follows that each unwed parent has any such right. Parental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring. The mother carries and bears the child, and in this sense her parental relationship is clear. The validity of the father’s parental claims must be gauged by other measures. By tradition, the primary measure has been the legitimate familial relationship he creates with the child by marriage with the mother. By definition, the question before us can arise only when no such marriage has taken place. In some circumstances the actual relationship between father and child may suffice to create in the unwed father parental interests comparable to those of the married father. Cf. Stanley v. Illinois, supra. But here we are concerned with the rights the unwed father may have when his wishes and those of the mother are in conflict, and the child’s best interests are served by a resolution in favor of the mother. It seems to me that the absence of a legal tie with the mother may in such circumstances appropriately place a limit on whatever substantive constitutional claims might otherwise exist by virtue of the father’s actual relationship with the children.
“The appellant’s equal protection challenge to the distinction drawn between the unwed father and mother seems to me more substantial. Gender, like race, is a highly visible and immutable characteristic that has historically been the touchstone for pervasive but often subtle discrimination. Although the analogy to race is not perfect and the constitutional inquiry therefore somewhat different, gender-based statutory classifications deserve careful constitutional examination because they may reflect or operate to perpetuate mythical or stereotyped assumptions about the proper roles and the relative capabilities of men and women that are unrelated to any inherent differences between the sexes. Cf. Orr v. Orr, 440 U.S. 268. Sex-based classifications are in many settings invidious because they relegate a person to the place set aside for the group on the basis of an attribute that the person cannot change. Reed v. Reed, 404 U.S. 71; Stanton v. Stanton, 421 U.S. 7; Frontiero v. Richardson, 411 U.S. 677; Weinberger v. Wiesenfeld, 420 U.S. 636; Orr v. Orr, supra. Such laws cannot be defended, as can the bulk of the classifications that fill the statute books, simply on the ground that the generalizations they reflect may be true of the majority of members of the class, for a gender-based classification need not ring false to work a discrimination that in the individual case might be invidious. Nonetheless, gender-based classifications are not invariably invalid. When men and women are not in fact similarly situated in the area covered by the legislation in question, the Equal Protection Clause is not violated. See, e.g., Schlesinger v. Ballard, 419 U.S. 498. Cf. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 59 (concurring opinion).
“In my view, the gender-based distinction drawn by New York falls in this latter category. With respect to a large group of adoptions — those of newborn children and infants — unwed mothers and unwed fathers are simply not similarly situated, as my Brother Stevens has demonstrated. Our law has given the unwed mother the custody of her illegitimate children precisely because it is she who bears the child and because the vast majority of unwed fathers have been unknown, unavailable, or simply uninterested. See H. Clark, Law of Domestic Relations 176-177 (1968); H. Krause, Illegitimacy; Law and Social Policy 29-32 (1971). This custodial preference has carried with it a correlative power in the mother to place her child for adoption or not to do so.
“The majority of the States have incorporated these basic common-law rules in their statutes identifying the persons whose participation or consent is requisite to a valid adoption. See generally Note, 59 Va. L. Rev. 517 (1973); Comment, 70 Mich. L. Rev. 1581 (1972). These common-law and statutory rules of law reflect the physical reality that only the mother carries and gives birth to the child, as well as the undeniable social reality that the unwed mother is always an identifiable parent and the custodian of the child — until or unless the State intervenes. The biological father, unless he has established a familial tie with the child by marrying the mother, is often a total stranger from the State’s point of view. I do not understand the Court to question these pragmatic differences. See ante, at 392. An unwed father who has not come forward and who has established no relationship with the child is plainly not in a situation similar to the mother’s. New York’s consent distinctions have clearly been made on this basis, and in my view they do not violate the Equal Protection Clause of the Fourteenth Amendment.
See Schlesinger v. Ballard, supra.
“In this case, of course, we are concerned not with an unwilling or unidentified father but instead with an unwed father who has established a paternal relationship with his children. He is thus similarly situated to the mother, and his claim is that he thus has parental interests no less deserving of protection than those of the mother. His contention that the New York law in question consequently discriminates against him on the basis of gender cannot be lightly dismissed. For substantially the reasons expressed by Mr. Justice Stevens in his dissenting opinion, post, at 412-413, I believe, however, that this gender-based distinction does not violate the Equal Protection Clause as applied in the circumstances of the present case.
“It must be remembered that here there are not two, but three interests at stake: the mother’s, the father’s, and the children’s. Concerns humane as well as practical abundantly support New York’s provision that only one parent need consent to the adoption of an illegitimate child, though it requires both parents to consent to the adoption of one already legitimate. If the consent of both unwed parents were required, and one withheld that consent, the illegitimate child would remain illegitimate. Viewed in these terms the statute does not in any sense discriminate on the basis of sex. The question, then, is whether the decision to select the unwed mother as the parent entitled to give or withhold consent and to apply that rule even when the unwed father in fact has a paternal relationship with his children constitutes invidious sex-based discrimination.” pp. 397-400.
Mr. Justice Stevens in his dissenting opinion addressed the constitutional issues and found no violation in the New York statute and also set forth his ideas on the limited application of the majority opinion as follows:
“There is often the risk that the arguments one advances in dissent may give rise to a broader reading of the Court’s opinion than is appropriate. That risk is especially grave when the Court is embarking on a new course that threatens to interfere with social arrangements that have come into use over long periods of time. Because I consider the course on which the Court is currently embarked to be potentially most serious, I shall explain why I regard its holding in this case as quite narrow.
“The adoption decrees that have been entered without the consent of the natural father must number in the millions. An untold number of family and financial decisions have been made in reliance on the validity of those decrees. Because the Court has crossed a new constitutional frontier with today’s decision, those reliance interests unquestionably foreclose retroactive application of this ruling. See Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107. Families that include adopted children need have no concern about the probable impact of this case on their familial security.
“Nor is there any reason why the decision should affect the processing of most future adoptions. The fact that an unusual application of a state statute has been held unconstitutional on equal protection grounds does not necessarily eliminate the entire statute as a basis for future legitimate state action. The procedure to be followed in cases involving infants who are in the custody of their mothers— whether solely or jointly with the father — or of agencies with authority to consent to adoption, is entirely unaffected by the Court’s holding or by its reasoning. In fact, as I read the Court’s opinion, the statutes now in effect may be enforced as usual unless ‘the adoption of an older child is sought,’ ante, at 392, and the ‘father has established a substantial relationship with the child and [is willing to admit] his paternity.’ Ante, at 393. State legislatures will no doubt promptly revise their adoption laws to comply with the rule of this case, but as long as state courts are prepared to construe their existing statutes to contain a requirement of paternal consent ‘in cases such as this,’ ibid.., I see no reason why they may not continue to enter valid adoption decrees in the countless routine cases that will arise before the statutes can be amended.
“In short, this is an exceptional case that should have no effect on the typical adoption proceeding. Indeed, I suspect that it will affect only a tiny fraction of the cases covered by the statutes that must now be rewritten. Accordingly, although my disagreement with the Court is as profound as that fraction is small, I am confident that the wisdom of judges will forestall any widespread harm.” pp. 415-417.
We agree and concur with the views expressed by Mr. Justice Stewart and Mr. Justice Stevens.
With the foregoing factual situation and legal principles illucidated in Stanley, Quilloin and Caban before us, we now turn to the validity of K.S.A. 59-2102(2) as applied to the factual situation of Perciado.
Kansas has not ignored the rights of an unwed father in adoption proceedings. See Note, Constitutional Law - Rights of an Unwed Father in an Adoption Proceeding, 27 Kan. L. Rev. 483 (1979). In In re Lathrop, 2 Kan. App. 2d 90, 575 P.2d 894 (1978), the court was faced with two issues: (1) whether the natural father of an illegitimate child has a paramount right over non-parents to custody of the child; and (2) whether K.S.A. 59-2102(2), which requires the consent of the unwed mother but not the unwed father is unconstitutional. The Court of Appeals affirmed a trial court ruling that the natural father of an illegitimate child has a paramount right to custody as against non-parents where both the adopting parents and the father are found to be fit. The Court of Appeals also held that the statute did not violate either the due process or equal protection clauses of the Constitution. The mother of the infant child consented two days after birth to the baby’s adoption by the appellees and they were given immediate care and custody. At the adoption hearing the natural father objected and, after a hearing in which the father and the adoptive parents were all found to be fit, the court denied the adoption. After giving careful consideration to Stanley v. Illinois and Quil loin v. Walcott, along with the parental preference doctrine as recognized in Kansas, the court held:
“The rights to conceive and raise one’s children are ‘essential rights’ protected by the due process and equal protection clauses of the Fourteenth Amendment even though the family relationship is unlegitimized by marriage.” Syl. ¶ 1.
“In an appeal by prospective adoptive parents from a district court order denying their petition to adopt a baby girl, held: the father of the illegitimate child who appeared and sought custody of the child and who had not been found unfit was properly granted custody as against the prospective adoptive parents.” Syl. ¶ 2. (Emphasis added.)
“The father of an illegitimate child is an ‘interested party’ within the meaning of K.S.A. 59-2278 and must be given notice of the pending adoption of his child.” Syl. f 3.
“If after being given notice of the pending adoption the father appears and asserts his desire to assume parental responsibilities toward the child, his rights in the child must be given preference over those of third-party adoptive parents unless he has failed to assume parental responsibilities for the statutory period of two years or he is found to be unfit. However, if he chooses not to appear and make known his desire to care for the child, his rights are de minimis and may be terminated without his consent by finalizing the adoption.” Syl. f 4. (Emphasis added.)
The court went on to hold that K.S.A. 59-2102(2) did not offend the due process and equal protection guarantees of the constitution.
In Aslin v. Seamon, 225 Kan. 77, 587 P.2d 875 (1978), the Supreme Court was faced with a determination of whether the father of an illegitimate child could give consent to an adoption when the child had been abandoned by its unwed mother. In Aslin this court stated:
“We emphasize in the instant case that we are asked only to determine whether the father of an illegitimate child can give his consent to adoption under K.S.A. 59-2102(3). Here a simple reading of the Kansas statutory provision indicates paragraph three does not differentiate between legitimate and illegitimate children. The unadjudicated natural father, William Thompson, notoriously recognized his paternity not only by taking his children in; acknowledging them as his own; giving them parental support; and finding them a home with his sister and her husband, but also by recognizing them in writing when he consented to the adoption petition. The trial court found for purposes of the adoption William Thompson was the natural father of the children and could give his consent. It should not be prerequisite, in a situation such as we have in this case, that the father first be adjudicated the natural father in separate proceedings. When the question arises whether or not the mother has abandoned her illegitimate children, and the father has notoriously and in writing acknowledged his paternity before the court, he should be allowed to consent to their adoption. Such a holding places no limitation on the due process notice requirements to the parent who is alleged to have abandoned the child.” pp. 81-82.
Appellants argue, however, that the fitness of Perciado is not an issue in this case and that Caban should be applied to strike down all adoptions where the trial court relies upon K.S.A. 59-2102(2) in dispensing with the necessity for the consent of the father of an illegitimate child. We think appellants construe Caban too broadly.
Appellants rely principally upon In re Adoption of Wilson, 227 Kan. 803, 610 P.2d 598 (1980), and Treiber v. Stong, 5 Kan. App. 2d 392, 617 P.2d 114, rev. denied 228 Kan. 807 (1980), to support their contentions. In Treiber the court was faced with a custody battle between the unwed parents. Although an adoption had been involved, the adopting parents evidently grew discouraged over the litigation, dismissed the adoption proceedings and relinquished custody to the mother. The court in its opinion stated:
“[I]f the parental rights of a natural father of an illegitimate child have not been severed and those rights have been asserted by him, he has preference to custody of the child over prospective adoptive parents unless he has failed or refused to assume his parental duties for two consecutive years. In re Lathrop, 2 Kan. App. 2d 90, 575 P.2d 894 (1978); K.S.A. 59-2102(3).” p. 395.
Appellants contend that as the Court of Appeals failed to include the unfitness of the father in the foregoing statement, they were modifying Lathrop. It should be noted that the statement and Syl. ¶ 1 are pure dicta in that the issue of consent to adoption became moot when the adoption proceedings were dismissed and any discussion on the point relied upon by the appellants is not controlling. See Flax v. Kansas Turnpike Authority, 226 Kan. 1, Syl. ¶¶ 1, 2, 596 P.2d 446 (1979).
In Wilson the dispute was between the natural father of two children and the adoptive parents, and principally involved a finding that the father had failed to assume the duties of a parent for two (2) consecutive years under K.S.A. 59-2102(3). The children were born in wedlock and no question as to the application of K.S.A. 59-2102(2) was before the court. While the trial court stated “the fitness of a parent is not an issue in determining whether such parent’s consent to a proposed adoption is required by K.S.A. 59-2102,” the statements of the court must be read in light of the facts of the case. The question of whether fitness is an issue under K.S.A. 59-2102(2) when an illegitimate child is involved, was not before the court.
In examining the constitutionality of any statute there are certain basic principles which must be adhered to:
“We start with the proposition that the constitutionality of a statute is presumed; that all doubts must be resolved in favor of its validity, and before the statute may be stricken, it must clearly appear the statute violates the Constitution. It is the court’s duty to uphold the statute under attack, if possible, rather than defeat it. If there is any reasonable way a statute may be construed constitutionally permissible, that should be done.” Board of Greenwood County Comm’rs v. Nadel, 228 Kan. 469, Syl. ¶ 1, 618 P.2d 778 (1980).
“A statute, apparently valid upon its face, may be unconstitutional in its application to a particular set of facts, circumstances or classifications.” Flax v. Kansas Turnpike Authority, 226 Kan. 1, Syl. ¶ 6, 596 P.2d 446 (1979).
The corollary of Flax, of course, is that a statute apparently void on its face may be constitutional when limited and construed in such a way as to uphold its constitutionality by reading the necessary judicial requirements into the statute. This has often been done when it is clear that such an interpretation will carry out the intent of the legislature. State v. Motion Picture Entitled "The Bet", 219 Kan. 64, 70, 547 P.2d 760 (1976); State v. Gunzelman, 210 Kan. 481, 502 P.2d 705 (1972); State v. Hart, 200 Kan. 153, 434 P.2d 999 (1967).
With the foregoing principles in mind it is obvious that K.S.A. 59-2102(2) is not unconstitutional in all adoption cases involving an unwed father. The extremes involving application of the statute would be (1) where the father is unknown or the child is the result of rape, it is obvious that consent would not be required; and (2) in a case such as Caban where the children were several years old, the father had established a close-knit familial relationship with the children and their mother and had supported and nurtured them for years, consent would be necessary. Is there a middle ground in which K.S.A. 59-2102(2) is constitutional based upon the facts of the case? We think so. In Caban the Supreme Court indicated that the adoption of an illegitimate infant or one whose father had failed to come forth and provide support would probably not require consent so long as the safeguards of Stanley and Quilloin were observed. The court has often recognized that the State has a definite interest in the welfare of its children and a detailed discussion of the State’s role as parens patraie would unduly extend this already too lengthy opinion.
Appellants contend that the appellees should have first prevailed upon the mother to bring relinquishment proceedings under K.S.A. 38-113a. Such proceedings are not a part of the adoption statutes and while they have no application to the facts before us, the statute is indicative of the legislative intent involving illegitimate children and reveals certain factual situations which are pertinent to our discussion. The statute provides that the mother of an illegitimate child may relinquish her child for adoption pursuant to K.S.A. 38-112a without the consent of the father when:
“(1) The father abandoned or neglected the child after having knowledge of the child’s birth;
(2) the father is unfit as a parent;
(3) the father has made no reasonable efforts to support or communicate with the child after having knowledge of the child’s birth;
(4) the father failed without reasonable cause to provide support for the mother during the six months prior to the child’s birth;
(5) the father abandoned the mother after having knowledge of the pregnancy; or
(6) the birth of the illegitimate child was the result of rape of the mother.”
While we do not consider such factual situations to be exclusive, we believe they are descriptive of situations where, applying the requirements of Caban, the adoption of an illegitimate child without the father’s consent pursuant to K.S.A. 59-2102(2) would not be unconstitutional.
We hold that under the facts of this case the consent of Mr. Perciado to the adoption of his illegitimate child is not required and the application of K.S.A. 59-2102(2) is constitutional and does not violate either the due process or equal protection guarantees of the Fourteenth Amendment.
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The opinion of the court was delivered by
Fromme, J.:
William C. Woods filed a complaint with the Kansas Commission on Civil Rights September 6, 1977, alleging differential treatment of white and black employees by Midwest Conveyor Company, Inc. and improper termination of his employment because of his race. A hearing was held before the Commission January 21, 1980. The hearing examiner found in favor of Woods and ordered Midwest to pay him back wages in the amount of $23,700.90 and damages for pain, suffering, and humiliation in the amount of $12,000.00. On appeal the district court tried the case de novo from the transcript of the hearing before the Commission and affirmed, adopting the Commission’s findings of fact and conclusions of law. Midwest appeals. We reverse and remand with directions.
A highly summarized statement of facts is as follows:
The complainant was employed by respondent. He was a black male and was employed at entry level as a laborer. He received job training and was promoted twice until he held the classification of painter, second class, at the end of three years. During a reduction in work force another employee with more seniority “bumped” him from painter second class to the classification of production operator, which position he occupied until the time of his termination a month and a half later. Prior to termination complainant chose not to join the labor union but nevertheless took advantage of grievance procedures through union channels on numerous occasions.
The company maintained an absence control policy and points were assessed for absences from work. Complainant received disciplinary action on a number of occasions: three verbal warnings, three written warnings, and three suspensions. He received further disciplinary action for two instances of using abusive language toward supervisors. When complainant was notified of termination a confrontation between himself and the company personnel manager occurred, at which time the manager was threatened with a wrench by complainant. The manager was restrained from leaving the room, and further restrained from using the telephone to call the police. However, there was evidence of unequal treatment of whites and blacks. White employ ees were not held to the absence control policy and instances of absences from work and tardiness of whites were overlooked by the supervisors.
In charging discrimination complainant alleged harassment by the foreman, failure to provide equal training for black employees, disparate disciplinary action and denial of seniority rights. The KCCR found discrimination by the employer.
Appellant first contends it was inappropriate for the trial court to consider any instances occurring more than six months prior to September 6, 1977, when the complaint was filed. K.S.A. 44-1005 requires a charge of discrimination be filed with the Commission “within six (6) months after the alleged act of discrimination, unless the act complained of constitutes a continuing pattern or practice of discrimination in which event it will be from the last act of discrimination.”
It is clear from the facts Woods alleged a continuing pattern of discrimination against him and other black employees. Further, prior instances are relevant to the court’s determination of whether the ultimate termination was discriminatory. We hold a charge of discrimination is required by K.S.A. 44-1005 to be filed with the Kansas Commission on Civil Rights within six months after the alleged act of discrimination occurred unless the act complained of constitutes part of a continuing pattern or practice of discrimination, in which event the charge must be filed within six months after the last act of discrimination occurred. The charge was filed within six months of the last act of discrimination. This issue is without merit.
Appellant next contends the trial court erred in placing the burden of proof. K.S.A. 44-1009 states:
“(a) It shall be an unlawful employment practice:
“(1) For an employer, because of the race, religion, color, sex, physical handicap, national origin or ancestry of any person to refuse to hire or employ, or to bar or to discharge from employment such person or to otherwise discriminate against such person in compensation or in terms, conditions, or privileges of employment; or to limit, segregate, separate, classify or make any distinction in regards to employees; or to follow any employment procedure or practice which, in fact, results in discrimination, segregation or separation without a valid business motive.”
The burden of proving an unlawful employment practice falls on the complainant. In discussing the burden of proof the district court stated:
“5. With respect to the burden of proof, it is incumbent upon the Complainant in the first instance to establish a prima facie case and thereafter in order to rebut the prima facie showing, the Respondent is required by clear and convincing evidence to establish that its acts or conduct were justified or nondiscriminatory. If the Respondent is successful in rebutting the prima facie showing of the Complainant, the Complainant is granted the opportunity to show by competent evidence that the acts and conduct of the Respondent were a pure pretext.”
Later the trial judge ruled Woods had established a prima facie case but Midwest had not met the burden of showing by clear and convincing evidence its actions were justified or nondiscriminatory.
Appellant claims it was error to require it to show by clear and convincing evidence its acts were justified or nondiscriminatory. It cites Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 67 L.Ed.2d 207, 101 S.Ct. 1089 (1981), a case dealing with Title VII of the Federal Civil Rights Act, 42 U.S.C. 200e et seq. In the opinion Justice Powell wrote for a unanimous court:
“In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), we set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment. First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant ‘to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.’ Id.., at 802. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id., at 804.
“The nature of the burden that shifts to the defendant should be understood in light of the plaintiff’s ultimate and intermediate burdens. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. See Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25, n. 2 (1978); id., at 29 (Stevens, ]., dissenting). . . .
“The burden of establishing a prima facie case of disparate treatment is not onerous. . . . The prima facie case serves an important function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiff’s rejection. See Teamsters v. United States, 431 U.S. 324, 358, and n. 44 (1977). . . . Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee. If the trier of fact believes the plaintiff’s evidence, and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case.
The burden that shifts to the defendant, therefore, is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons. See Sweeney, supra, at 25. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff’s rejection. The explanation provided must be legally sufficient to justify a judgment for the defendant. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity. Placing this burden of production on the defendant thus serves simultaneously to meet the plaintiff’s prima facie case by presenting a legitimate reason for the action and to frame the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext. The sufficiency of the defendant’s evidence should be evaluated by the extent to which it fulfills these functions.
“The plaintiff retains the burden of persuasion. She now must have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that she had been the victim of intentional discrimination. She may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence. See McDonnell Douglas, 411 U.S. at 804-805.”
We note the federal court was careful in Burdine to point out that the ultimate burden of persuading the trier of fact that the respondent intentionally discriminated against the complainant remains at all times with the complainant. The burden of proof never shifts to the respondent. It is the burden of going forward with the evidence that is placed on defendant after plaintiff has established a prima facie case.
Federal court decisions concerning Title VII are not controlling on this court. Harder v. Kansas Comm’n on Civil Rights, 225 Kan. 556, 559, 592 P.2d 456 (1979). They are persuasive authority, however. McCabe v. Board of Johnson County Comm’rs, 5 Kan. App. 2d 232, 235, 615 P.2d 780 (1980). Especially is this true when they concern general law in the field of civil rights. We accept and embrace the rules stated in Burdine as to burden of proof, prima facie case and burden of going forward with the evidence in discrimination cases.
The burden of proof in a proceeding under the Kansas Acts Against Discrimination, K.S.A. 44-1001 et seq., is on the complainant to prove by a preponderance of the evidence that the respondent is guilty of a discriminatory practice. Initially, the complainant must present a prima facie case of discrimination. Then the burden of going forward with the evidence shifts to respondent and this burden may be discharged by evidence of a legitimate, nondiscriminatory reason for respondent’s conduct. Once the respondent discharges this obligation, the complainant must continue with the burden of proving by a preponderance of the evidence that the reasons offered by respondent were merely a pretext for discrimination.
The record discloses the complainant’s evidence was determined by the trier of fact to establish a prima facie case of discrimination. At that point in the proceeding the burden of going forward with the evidence shifted to the respondent to introduce evidence of some legitimate, nondiscriminatory reason for respondent’s conduct. We do not reach the question of whether respondent met this burden. To give evidence of some legitimate, nondiscriminatory reason for conduct does not require proof by clear and convincing evidence. The trier of fact erred in imposing such a burden of proof on the respondent.
The appellant’s next issue on appeal concerns the allowance by the KCCR and the district court of $12,000.00 in damages for pain, suffering, and humiliation. Appellant makes a two-pronged argument: First, it argues the Kansas statute does not authorize the allowance of compensatory damages for pain, suffering, and humiliation, and second, the record in this case is entirely lacking in any substantial evidence to support such an award. If the first prong of the argument is upheld it will not be necessary to examine the sufficiency of evidence question.
We will first examine the statutory authority of the Commission. K.S.A. 44-1005 provides for the kind of remedial orders that may be issued by the Commission. It provides in pertinent part:
“If, upon all the evidence in the hearing, the hearing commissioners or hearing examiner shall find a respondent has engaged in or is engaging in any unlawful employment practice or unlawful discriminatory practice as defined in this act, the hearing commissioners or hearing examiner shall state the findings of fact and shall issue and cause to be served on such respondent an order requiring such respondent to cease and desist from such unlawful employment practice or such unlawful discriminatory practice and to take such affirmative action, including but not limited to the hiring, reinstatement, or upgrading of employees, with or without back pay, and the admission or restoration to membership in any respondent labor organizations; the admission to and full and equal enjoyment of the goods, services, facilities, and accommodations offered by any respondent place of public accommodation denied in violation of this act, as, in the judgment of the hearing commissioners or hearing examiner, will effectuate the purposes of this act, and including a requirement for report of the manner of compliance.” Emphasis supplied.
The above provisions of the Kansas Act are almost identical to a parallel provision of Title VII of the Federal Civil Rights Act, 42 U.S.C. 2000e-5(g) which reads:
“If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable. No order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him or any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of section 2000e-3 (a) of this title.”
The federal courts uniformly hold that an award of either punitive or compensatory damages, except for back pay or front pay, cannot be recovered. DeGrace v. Rumsfeld, 614 F.2d 796, 808 (1st Cir. 1980), addresses this subject as follows:
“The enforcement provision of Title VII, 42 U.S.C. § 2000e-5 (g), authorizes the court, upon a finding that a defendant ‘has intentionally engaged in . . . an unlawful employment practice charged in the complaint,’ to enjoin the defendant and to order ‘such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay ... or any other equitable relief as the court deems appropriate.’ All of the circuits which have addressed the matter have concluded that 42 U.S.C. § 2000e-5 (g) does not authorize an award of either punitive or compensatory damages of the nature plaintiff seeks. [Citations omitted.]”
For those who would like to explore the federal cases further we suggest the Annot., Title VII-Compensatory Damages, 48 A.L.R. Fed. 338. The author collects and analyzes the federal cases which bear upon the availability of compensatory damages in actions for violation of the federal civil rights act which forbids discriminatory employment practices.
As previously stated, the federal court decisions concerning Title VII are not controlling but they are persuasive when one considers the comparability of the provisions of the two statutes.
The Kan. Const, art. 3 § 1 provides: “The judicial power of this state shall be vested exclusively in one court of justice.” The KCCR is an administrative agency. Administrative agencies are creatures of statute and their power is dependent upon the authorizing statutes, so that we must find within the statute warrant for the exercise of any authority which they claim. They have no general or common law powers. They have only such powers as have been conferred upon them by law, expressly or by clear implication. 1 Am. Jur. 2d, Administrative Law § 70, p. 866; Bennett v. Corporation Commission, 157 Kan. 589, 596, 142 P.2d 810 (1943), 150 A.L.R. 1140 (1944).
Absent an express grant of power, an administrative agency has no power and may not determine damages and award a personal money judgment therefor. 1 Am. Jur. 2d, Administrative Law § 184, p. 988; Straube v. Bowling Green Gas Co., 360 Mo. 132, 227 S.W.2d 666, 18 A.L.R.2d 1335 (1950).
We note that the powers and duties of the KCCR in K.S.A. 44-1004 include:
“(8) To issue such final orders after a public hearing as may remedy an> existing situation found to violate this act and prevent its recurrence.”
K.S.A. 44-1005 contains the authority of the KCCR for issuing remedial orders. The enumeration includes cease and desist orders, orders requiring affirmative action in hiring, reinstatement, upgrading, orders as to back pay, admission or restoration to membership in labor organizations, admission to full and equal enjoyment of goods, services, public facilities and accommodations. Nowhere in the Act do we find authority to order the payment of damages for pain, suffering, and humiliation. We can find no statutory authority for payment of punitive damages. There are provisions for criminal penalties for certain unlawful practices, such as may be found in K.S.A. 44-1013, 44-1016, 44-1027, and 44-1041. These criminal penalties are limited as to dollar amount, or such violations are punished as misdemeanors.
K.S.A. 44-1042 has been mentioned as a source of authority for awarding compensatory damages for pain, suffering, and humiliation. This section of the statute does not purport to authorize the KCCR to award any type of damages. It does refer to and require a reduction from the amount of any compensation awarded the complainant. Credit must be given for compensation previously received by complainant until the time such order is entered. K.S.A. 44-1005 does authorize the KCCR to enter an award for back pay to correct acts of discrimination in firing and in the amount of pay received by a complainant. Such an award for back pay is for compensatory damages. It compensates the complainant for wages he or she should have received. K.S.A. 44-1042 cannot be read to authorize compensatory damages for pain, suffering, and humiliation. It merely provides for a reduction in the amount of any award allowed for wages so that the proper amount of wages is received and prior wages received will be taken into consideration. See similar provision for interim earnings in the Federal Civil Rights Act, 42 U.S.C. 2000e-5 (g).
Next it is suggested that an allowance for pain, suffering, and humiliation has been authorized by the KCCR in administrative regulation K.A.R. 21-45-21. It is true this regulation provides that an order of the examiner and the KCCR may include:
“(3) Compensation damages: Awarding of compensatory damages to the persons aggrieved by such practice, as will effectuate the purposes of the law; and
“(4) Punitive damages: Awarding of punitive damages to the persons aggrieved by such practice, as will effectuate the purposes of the law.”
However, the Commission cannot pull itself up by its own boot straps. The power to adopt rules and regulations is administrative in nature, not legislative, and to be valid must be within the authority conferred. An administrative rule or regulation which goes beyond that which the legislature has authorized, or which violates the statute, or which alters, extends, or limits the source of its legislative powers is void. State, ex rel., c. Columbia Pictures Corporation, 197 Kan. 448, Syl. ¶ 4, 417 P.2d 255 (1966); Willcott v. Murphy, 204 Kan. 640, 465 P.2d 959 (1970); Rhodes v. Harder, 211 Kan. 820, Syl. ¶ 3, 508 P.2d 959 (1973); Country Club Home, Inc. v. Harder, 228 Kan. 756, Syl. ¶ 8, 620 P.2d 1140 (1980).
It is apparent after reading the authorizing statutes K.S.A. 44-1004 and 44-1005 that K.A.R. 21-45-21 adopted by rule goes far beyond any authority in the statutes and inasmuch as it does exceed statutory authority that portion of such rule or regulation is void.
Appellee asserts that Hutchinson Human Relations Comm. v. Midland Credit Management, Inc., 213 Kan. 308, 517 P.2d 158 (1973), recognizes that recovery of damages may be proper. That case was one brought for specific performance of a “conciliation agreement” entered into and signed by the employer. No question was raised concerning the authority of the parties to enter into the agreement, and the action for specific performance of the agreement was originally brought in the district court which was exercising its judicial powers to require specific performance of a contract. It was not an appeal case reviewing a KCCR order. The case is not persuasive, for the only damages suggested were those which can be assessed by a district court in lieu of specific performance of a contract.
The appellee cites various cases from other states, which cases authorize awards of damages in administrative proceedings where acts of unlawful discrimination have been found. One such case cited is Bournewood Hosp., Inc. v. Mass. Comm’n Against Discrimination, 371 Mass. 303, 358 N.E.2d 235 (1976). The authority of the Massachusetts commission is set out in Mass. Ann. Laws ch. 151B, § 4 (Michie/Law. Co-op. 1976) and includes specific authority to award “damages” not to exceed one thousand dollars on each violation. Two violations were found by the commission in the above case and its award was affirmed by the court; so the award of $2,000.00 in damages was specifically authorized by statute. Such an award amounts to a civil penalty, and should not be confused with a general unlimited award for pain and suffering.
We note there are cases from other states which hold on the basis of their respective statutes an award of damages for pain and suffering is proper. However, limited authority has been exercised when it comes to the allowance of awards for pain and suffering. Most awards which have been approved do not exceed $1,000.00, and none even approach the amount allowed for pain, suffering, and humiliation in our present case.
It has been suggested that this court has determined that the Workmen’s Compensation Director, an administrative officer, performs functions which are essentially judicial by making awards for physical disabilities. See Gawith v. Gage’s Plumbing & Heating Co., Inc., 206 Kan. 169, 476 P.2d 966 (1970). Again, one must consider the statute which authorizes and empowers the agency or administrative officer to act. It is immediately apparent on reading the workmen’s compensation statutes that there is no shortage of statutory direction and authority to make dollar awards based upon bodily disabilities. Upon determination of specific bodily disabilities the workmen’s compensation statute provides for the exact method of arriving at the amount of the statutory awards for both scheduled and nonscheduled injuries. See K.S.A. 44-510, 44-510a, 44-510b, 44-510c, 44-510d, 44-510e, 44-510f, and 44-510g. The agency was granted the specific statutory authority to make awards for bodily disabilities based upon and limited by statutory formulae. These workmen’s compensation statutes do not authorize the agency or the director to award damages for pain and suffering. No award for such has ever been attempted under the workmen’s compensation statutes, and any attempt by the director to award damages for pain and suffering would be unauthorized by statute.
An action to recover damages for pain, suffering, and humiliation is in the nature of a suit at common law. 1 Am. Jur. 2d, Administrative Law § 153, p. 959. Such actions are legal actions. In Equal Employment Op. Com’n v. Detroit Edison Co., 515 F.2d 301, 308 (6th Cir. 1975), Judge Lively states:
“Back pay in Title VII cases is considered a form of restitution, iiot an award of damages. Since restitution is an equitable remedy a jury is not required for the award of back pay. Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1125 (5th Cir. 1969). Damages are a legal, not an equitable remedy, and the Seventh Amendment requires a jury trial in a statutory action ‘if the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law.’ Curtis v. Loether, 415 U.S. 189, 194, 94 S.Ct. 1005, 1008, 39 L.Ed.2d 260 (1974).”
The Seventh Amendment to the United States Constitution states:
“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.” See also Kan. Const. Bill of Rights, § 5.
There is no provision for a jury in the proceedings before the KCCR. It has been suggested that the judicial review in the district court, provided by K.S.A. 44-1011, is sufficient to comply with the constitutional requirements. This statute authorizes the commission to secure enforcement of its final orders by resort to the district court. The statute also provides for review as follows:
“The court shall hear the appeal by trial de now with or without a jury in accordance with the provisions of K.S.A. 60-238, and the court may, in its discretion, permit any party or the commission to submit additional evidence on any issue. Said appeal shall be heard and determined by the court as expeditiously as possible. After hearing, the court may affirm the adjudication. If the adjudication by the commission is not affirmed, the court may set aside or modify it, in whole or in part, or may remand the proceedings to the commission for further disposition in accordance with the-order of the court.”
The jurisdiction and authority of the district court on review can b.e no greater than the authority of the KCCR even if the matter is heard on appeal in the nature of a trial de novo. The statute provides that the court shall hear the appeal with or without a jury and the court, in its discretion, may permit additional evidence on any issue. As the statute reads, neither party has an absolute right to introduce additional evidence. “The review shall be heard on the record without requirement of printing.” Under these circumstances review in the district court can hardly cure a lack of due process before the agency. The provision for a jury in K.S.A. 44-1011 is tied to the provisions of K.S.A. 60-238. The latter statute provides:
“(a) Right preserved. The right of trial by jury as declared by section 5 of the bill of rights in the Kansas constitution, and as given by a statute of the state shall be preserved to the parties inviolate.
“(b) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than ten (10) days after the service of the last pleading directed to such issue. Such demand may be indorsed upon a pleading of the party.” Emphasis supplied.
As appears in this statute, the right of trial by jury is dependent upon filing a demand “not later than ten (10) days after the service of the last pleading directed to such issue.” In a proceeding before the KCCR, a verified complaint must be filed with the Commission (K.S.A. 44-1005), and it is only after failure to arrive at a conciliation agreement that the respondent is required to answer the charges. A request for trial by jury before the KCCR would be futile for there is no provision for such in the hearings before that agency. On appeal to the district court under K.S.A. 44-1011 the person aggrieved files “a written appeal praying that such order be modified or set aside.” This is filed with the clerk of the district court and a copy is sent to the KCCR. Thereupon the record made before the KCCR is forwarded to the district court. No additional pleadings are provided for and it is not clear when a request for jury should be filed. It appears clear from the statute that trial by jury would be at the discretion of the district judge, and the record made before the KCCR would be read to the jury.
It seems apparent from the statutes that neither the proceedings before the KCCR nor the appeal proceedings before the district court contemplate a truly evidentiary jury trial. Review proceedings on the record supplemented with additional evidence would not appear to be an evidentiary jury trial under constitutional guidelines.
The enforcement provisions of the Kansas Act Against Discrimination to recover back pay are initially in the hands of the KCCR. The proceedings are no different than those before many other agencies. Enforcement under the anti-discrimination law is similar in nature to enforcement of the Wage Payment Act, K.S.A. 44-313 et seq., by the secretary of the Department of Human Resources. Under that Act the payment of Wages on termination of employment are mandated and the secretary is authorized to hold hearings and order payment of wages plus damages as specified in K.S.A. 44-315. The damages are set and they amount to one percent of the unpaid wage for each day “upon which such failure continues.” The secretary may apply to the district court to enforce the orders of that agency. Appeals to the district court, similar to appeals from an order of the KCCR, are provided for in K.S.A. 44-322a. In this and other similar statutes authorizing an administrative agency to assess damages as penalties, the damages or penalties, without exception, are limited by the authorizing statute. No agency in Kansas has been authorized by statute to award unlimited amounts for pain and suffering.
The Tenth Circuit Court of Appeals in an analogous case has construed the federal anti-discrimination act not to authorize, punitive damages. Pearson v. Western Elec. Co., Etc., 542 F.2d 1150 (10th Cir. 1976). In Pearson the employee was discharged from employment as in the present case and under Title VII of the Civil Rights Act it was said:
“ ‘If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice . . . the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate’ (Emphasis supplied). The back pay award provided as relief in Title VII is not punitive in nature but equitable, intended to restore the recipients-to their rightful economic status. [Citations omitted.]” 542 F.2d at 1151-52. Emphasis supplied.
The court in Pearson pointed out that the award of punitive damages is a legal rather than an equitable remedy and accordingly, punitive damages should not be allowed. The wording of the federal act, almost identical to that of K.S.A. 44-1005, indicated to that court that Title VII was not enacted to seek punishment of the responsible party, but rather to compensate the victim of discrimination for back pay and to restore his civil rights. Awarding damages for pain and suffering in discrimination cases is in truth nothing more than assessing punitive damages, for there are no physical injuries out of which pain and suffering arise.
Other states with anti-discrimination statutes similar to ours have refused to extend the authority of their administrative agencies to permit allowance of damages for pain, suffering, or humiliation. See Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758 (Iowa 1971); Gutwein v. Easton Publishing Co., 272 Md. 563, 325 A.2d 740 (1974); Mendota Apts. v. District of Columbia Com’n on H.R., 315 A.2d 832 (D.C. App. 1974); Ohio Civil Rights Comm. v. Lysyj, 38 Ohio St. 2d 217, 313 N.E.2d 3 (1974); Pa. Human Relations Comm. v. Feeser, 29 Pa. Commw. Ct. 437, 371 A.2d 549 (1977); Indiana Civil Rights Com’n v. Holman,_i_ Ind. App. _, 380 N.E.2d 1281 (1978); Pa. Human Rel. Com’n v. Zamantakis, 478 Pa. 454, 387 A.2d 70 (1978).
Accordingly we hold the Kansas Commission on Civil Rights is not authorized under the Kansas Acts Against Discrimination, .K.S.A. 44-1001 et seq., to order an employer to pay an employee damages for pain, suffering, and humiliation arising from employer discrimination. There is no statutory authority permitting the adoption of K.A.R. 21-45-21 permitting orders of the KCCR covering compensatory and punitive damages and that portion of said regulation is void.
The judgment of the trial court is reversed and the case is remanded for a new trial on all issues. | [
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The opinion of the court was delivered by
Fromme, J.:
This is a wrongful death action brought by Xanthippe and Xavier Stevens against their stepmother, Mary Connie Stevens, for the death of their father, Gary Stevens. The defendant, Mary Connie Stevens, filed a motion to dismiss the action on the ground interspousal tort immunity would have barred an action by the father against his wife and under the wrongful death statute, K.S.A. 60-1901, an action by the children is barred also.
The children’s claim is brought on two theories: First, that the father’s death was the result of negligence; and second, that the death was the result of an intentional tort of the wife. The trial court treated the motion to dismiss as a motion for summary judgment and overruled the same. The court concluded that public policy reasons for interspousal immunity do not exist in this case. The court stated that on the death of the husband there was no longer any interspousal harmony left to preserve. Hence, the trial court held the action by the children against the stepmother might be maintained under a theory of either negligent or intentional tort. This interlocutory appeal followed.
The father of Xanthippe and Xavier died as a result of a gunshot wound inflicted by a gun in the hands of his wife. By the wife’s account, the shooting was accidental. She alleged her husband had been drinking and playing with the handgun. The husband tossed the gun to her and told her to shoot it. She believed the gun was unloaded. They were standing a few feet apart. She pointed and fired the gun. The husband was killed.
As previously stated, the claim filed against the stepmother by the children includes both a theory of negligence and a theory of intentional tort. We were informed on oral argument the stepmother was convicted of involuntary manslaughter. We have little or no additional factual information on this occurrence but assume the petition adequately states a claim based on both theories. The record does not contain a copy of the petition but both parties acknowledge that both theories were pled.
K.S.A. 60-1901 provides:
“If the death of a person is caused by the wrongful act or omission of another, an action may be maintained for the damages resulting therefrom if the former might have maintained the action had he or she lived, in accordance with the provisions of this article, against the wrongdoer, or his or her personal representative if he or she is deceased.” Emphasis supplied.
In Guffy v. Guffy, 230 Kan. 89, 631 P.2d 646 (1981), this court reexamined the historical origins of interspoiisal immunity and continued to hold that neither spouse may maintain an action against the other for tortious personal injury occurring during marriage. In that case it was pointed out: “This decision does not deal with intentional torts . . . .” 230 Kan. at 97.
The only case we have where the doctrine of interspousal immunity is applied to an intentional tort is reported in Fisher v. Toler, 194 Kan. 701, 401 P.2d 1012 (1965). In Fisher a divorce action was pending and the husband drove his automobile against an automobile driven by the wife with the alleged intention of killing her. This resulted in her serious injury. The Fisher court in a 5-2 decision held that neither spouse may maintain an action in tort for damages against the other, and an exception to the rule is not created by alleging that the injury was intentionally inflicted.
Pursuant to K.S.A. 60-1901 et seq., if the death of a person is caused by the wrongful act or omission of another, an action may be maintained for the damages resulting therefrom if the decedent might have maintained the action against the wrongdoer had the decedent lived. Under the clear wording of the statute a wrongful death action is barred to the children in this case if we abide by the decision in the Fisher case and hold that the husband could not have maintained an action against his wife, Mary Connie Stevens, for injuries inflicted upon him willfully and intentionally, had he survived the injuries.
Of the various jurisdictions which recognize interspousal immunity from tort actions, at least six states provide an exception to interspousal tort immunity for intentional torts. See Windauer v. O’Connor, 107 Ariz. 267, 485 P.2d 1157 (1971); Self v. Self, 58 Cal. 2d 683, 26 Cal. Rptr. 97, 376 P.2d 65 (1962); Lusby v. Lusby, 283 Md. 334, 390 A.2d 77 (1978); Flores v. Flores, 84 N.M. 601, 506 P.2d 345 (Ct. App.), cert. denied 84 N.M. 592, 506 P.2d 336 (1973); Apitz v. Dames, 205 Or. 242, 287 P.2d 585 (1955); and Bounds v. Caudle, 560 S.W.2d 925 (Tex. 1977).
As pointed out in Guffy v. Guffy, 230 Kan. 89, perhaps the foremost justification for immunity is based on the premise that personal tort actions between husband and wife will disrupt and destroy the peace and harmony of the home and this is contrary to the public policy of the state. In light of our Kans. Const, art. 15, § 6 and the Kansas Married Women’s Act, K.S.A. 23-201(c) and (b), and 23-203 there is no constitutional or statutory interspousal immunity. When a spouse inflicts intentional harm upon the person of the other spouse, peace and harmony in that home has been so damaged that there is little danger that it will be further impaired by maintenance of an action for damages. See Apitz v. Dames, 205 Or. at 262-63. Accordingly, an exception to the doctrine of interspousal tort immunity is now created and declared by this court as regards willful and intentional torts. The case of Fisher v. Toler, 194 Kan. 701, holding otherwise, is hereby overruled. One spouse may maintain an action for willful and intentional torts committed against him or her by the other spouse.
We are well aware of the various arguments put forth that the entire doctrine of interspousal immunity should be abrogated. Mr. Justice Prager in his dissenting opinion in Guffy v. Guffy, 230 Kan. beginning at p. 97, thoroughly covers and advocates these arguments. It would serve no purpose to go back over the counter arguments set forth in the majority opinion in Guffy. Suffice it to say a majority of this court believe it is now in the best interests of the people of this State to retain the doctrine of interspousal immunity for injuries and death resulting from negligent or even reckless acts and to carve an exception as regards willful and intentional torts.
Turning to our present case, we hold the husband could have maintained an action against his wife, Mary Connie Stevens, for injuries inflicted upon him willfully and intentionally had he survived the injuries. The children as heirs-at-law of the deceased father now may maintain the action for the wrongful death of the father against their stepmother when their action is based on a willful and intentional infliction of injuries by the stepmother which resulted in the death of the father.
The judgment of the district court overruling the motion for summary judgment by defendant is affirmed as to plaintiffs’ claim based on willful and intentional tort and reversed as to plaintiffs’ claim based on negligent or reckless tort.
Schroeder, C.J., dissents in the foregoing opinion. | [
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The opinion of the court was delivered by
Fromme, J.:
This controversy is between a bank and a credit company, both claiming prior security interests in three vehicles allegedly sold by a car dealer. The trial court held that the bank’s security interests were prior and ordered the. vehicles released to the bank. The credit company appeals.
Heritage Ford Lincoln Mercury, Inc., (Dealer) of El Dorado, Kansas, was in the business of selling new cars. On February 18, 1981, it quit business. On February 24, 1981, it voluntarily surrendered its entire new car inventory to the credit company. Vehicle 1 and Vehicle 2 were on the new car lot and were listed in the documents when the cars were surrendered to the credit company.
Ford Motor Credit Company (Credit Company) had entered into an agreement with the Dealer in April, 1978, extending a continuing line of credit by which the Dealer purchased vehicles from the manufacturer. This inventory financing is generally called a floor plan, and under such a plan a car dealer gives a credit company a purchase money security interest in all motor vehicles then owned and thereafter acquired, and in all proceeds from the sale thereof. This was done in the present case. The Credit Company also filed a financing statement with the Secretary of State on May 11,1978, giving notice that it held a security interest in all new and used motor vehicles held by the Dealer, and in the proceeds.
This floor plan agreement provides:
“5. Dealer’s Possession and Sale of Merchandise
“Dealer’s possession of the merchandise financed hereunder shall be for the sole purpose of storing and exhibiting the same for sale or lease in the ordinary course of Dealer’s business. Dealer shall keep such merchandise brand new and subject to inspection by Ford Credit and free from all taxes, liens and encumbrances. . . . Dealer shall not mortgage, pledge or loan any of such merchandise, and shall not transfer or otherwise dispose of the same except by sale or lease in the ordinary course of Dealer’s business. ... As used in this paragraph 5, ‘sale in the ordinary course of Dealer’s business’ shall include only (i) a bona fide retail sale to a purchaser for his own use at the fair market value of the merchandise sold, and (ii) an occasional sale of such merchandise to another dealer at a price not less than Dealer’s cost of the merchandise sold, provided such sale is not a part of a plan or scheme to liquidate all or any portion of Dealer’s business.” Emphasis supplied.
Tom Overton was the president of the dealer corporation. Robert Magill was vice-president. Robert Ward is Robert Magill’s father-in-law and he had invested upwards of $100,000.00 in the dealership. These three men were more or less active in the dealership and at times drove cars referred to in the business as demonstrators. The dealership was in financial trouble and it may be inferred that Overton and Magill decided to double finance certain new cars held under floor plan to raise operating cash for the business.
As to Vehicle 1, which was a new Lincoln Continental automobile, Tom Overton issued dealer papers to himself and obtained financing at First National Bank and Trust Company of El Dorado (Bank). Overton signed a note and security interest which were issued to and held by the Bank on this vehicle. Notice of security interest was sent in to the Division of Motor Vehicles. The loan proceeds were deposited directly in the dealer account at the Bank. The dealer’s wholesale cost of the vehicle was $18,992.27. The Bank loaned $17,992.27 on this vehicle. The retail value was $22,386.00. Overton paid no down payment. The vehicle was not personally licensed by Overton and it remained on the new car lot where it was available at all times for new car sale. The proceeds from this alleged sale were never paid to the Credit Company. The vehicle was on the premises and was turned over to the Credit Company when the Dealer went out of business in February, 1981. The Dealer had continued to carry insurance on the vehicle.
As to Vehicle 2, which was also a new Lincoln Continental automobile, Robert Magill issued dealer papers to himself and obtained financing at the Bank. Magill signed a note and security interest which were issued to and held by the Bank. The date of the alleged sale was February 3, 1981. This security interest was never perfected by filing. The loan proceeds were deposited in the Dealer account in the Bank. The Dealer’s wholesale cost of Vehicle 2 was $15,394.62. The Bank loaned $15,394.62 on the vehicle. The retail value was $18,052.00. Magill made no down payment and the Credit Company was never paid the proceeds. The car was not licensed in Magill’s name. It remained on the Dealer’s new car lot where it was available for new car sale until the Dealer went out of business and turned it over to the Credit Company in February, 1981. The Dealer had continued to carry insurance on the vehicle.
When the dealership closed its doors and turned over the cars to the Credit Company, the Bank immediately filed suit to prevent the removal of these cars from the Dealer’s premises and to establish a prior claim thereto. During the course of this action the trial court ordered the three vehicles delivered to the Bank and the Bank sold them and now holds the proceeds. We will set forth additional facts as to Vehicle 3 later in this opinion since the facts and applicable law are dissimilar.
We turn now to the Uniform Commercial Code, K.S.A. 1981 Supp. 84-9-312 relating to priorities among conflicting security interests in the same collateral. Section 84-9-312(3) provides:
“A perfected purchase money security interest in inventory has priority over a conflicting security interest in the same inventory and also has priority in identifiable cash proceeds received on or before the delivery of the inventory to a buyer if
“(a) the purchase money security interest is perfected at the time the debtor receives possession of the inventory.”
Then follows subparagraphs (b) (c) and (d) as to notice which provisions of the statute are not pertinent to our discussion.
The Credit Company’s purchase money security interest in inventory was perfected by filing with the Secretary of State and under the above section is to receive top priority, subject, however, to the rights of certain purchasers in particular sales which are made in ordinary course of Dealer’s business and thus are contemplated by the parties in the floor plan agreement. Credit Company held a purchase money security interest within the definition appearing in K.S.A. 84-9-107(h):
“A security interest is a ‘purchase money security interest’ to the extent that it is
“(b) taken by a person who by making advances or incurring an obligation gives value to enable the debtor to acquire rights in or the use of collateral if such value is in fact so used.”
Credit Company paid the manufacturer the Dealer’s wholesale cost of these cars when they were first delivered to the Dealer.
Both the floor plan agreement and K.S.A. 1981 Supp. 84-9-307 recognize that a buyer in ordinary course of business will take free of a security interest created by the seller-dealer. K.S.A. 1981 Supp. 84-9-307 provides:
“(1) A buyer in ordinary course of business (subsection (9) of section 84-1-201) other than a person buying farm products . . . takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer knows of its existence.”
A buyer in the ordinary course of business is defined in K.S.A. 1981 Supp. 84-1-201(9) as follows:
“ ‘Buyer in ordinary course of business’ means a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind but does not include a pawnbroker.”
In the Official Comment 2 under 84-9-307 it is suggested that by reading 84-9-307 and 84-1-201(9) together, “it results that the buyer takes free if he merely knows that there is a security interest which covers the goods but takes subject if he knows, in addition, that the sale is in violation of some term in the security agreement not waived by the words or conduct of the secured party.”
There can be no question in the present case that both Overton and Magill, who were officers in the Dealer corporation, arranged these sham sales in violation of the terms of the floor plan security agreement. There can be little doubt, Overton and Magill were not buyers in ordinary course of business under the above definition. They did not obtain licenses on these cars for personal use and they placed these vehicles on the new car lot where the cars were displayed for sale. These vehicles remained there until the business of the Dealer was closed down. The vehicles were not sold for fair market value as required by the floor plan agreement.
Even Robert Saferite, vice-president of the Bank, by his own testimony, was aware that these cars were not being sold in ordinary course of business. Under questioning by defendant’s lawyer he testified:
“Q. All right. On any of the vehicles did you actually ever go through the steps of obtaining a title on any of the vehicles?
“A. No sir, I did not.
“Q. Those vehicles then were used in a short term, is that a correct assumption?
“A. Yes sir.
“Q. And then would be sold?
“A. Yes sir.
“THE COURT: I am curious. Were you using them as demonstrators or what —I don’t understand?
“MR. SAFERITE: They would be used either one — either personal or for demonstrator purposes.
“Q. (By Mr. Hargrove) About how long did Overton or Magill keep one of the vehicles before they paid off-their notes?
“A. It varied from a few days to several months.”
We wish to emphasize that in this case the Bank is not a buyer, it is a financier of the alleged buyers, and although section 84-9-307(1) would allow a buyer in ordinary course to take free of Credit Company’s security interest in the inventory, the Bank has no such rights for it is the financier, not a buyer. See Clark, The Law of Secured Transactions Under the Uniform Commercial Code § 3.4[3] n. 55 (1980).
The case cited by plaintiff Bank in support of the trial court’s judgment establishing priority, has been considered by this court and is not persuasive as to plaintiff’s claim.
Plaintiff Bank attempts to distinguish the case of Borg-Warner Acceptance Corp. v. Atlantic Bank, 364 So.2d 35 (Fla. Dist. Ct. App. 1978). We find it supports a holding in favor of the floor planner Credit Company in this case. In the Borg-Warner case Borg-Warner was the floor planner and perfected the security interest which eventually covered the motor home in question. A dealer named Hill’s World held the motor home in inventory. Hill’s World then obtained a bank loan from Atlantic Bank. Title certificate was issued by the Department of Motor Vehicles showing Hill’s World as owner and Atlantic Bank as lien holder. As to priority of liens between Borg-Warner, the floor planner, and Atlantic Bank, the Florida court determined that since there was no sale to a buyer in the ordinary course of business, judgment should be entered in favor of the floor planner Borg-Warner.
A security interest continues in collateral notwithstanding sale, exchange or other disposition thereof unless the disposition was authorized by the secured party in the security agreement or otherwise, and also continues in any identifiable proceeds. K.S.A. 1981 Supp. 84-9-306(2). Under the Official Comment 3 following this section of the statute it is stated:
“In most cases when a debtor makes an unauthorized disposition of collateral, the security interest, under prior law and under this Article, continues in the original collateral in the hands of the purchaser or other transferee. That is to say, since the transferee takes subject to the security interest, the secured party may repossess the collateral from him or in an appropriate case maintain an action for conversion. Subsection (2) codifies this rule. The secured party may claim both proceeds and collateral, but may of course have only one satisfaction.”
In the context of the present case the trial court erred in holding the sales of Vehicle 1 and Vehicle 2 were in ordinary course of business. The floor plan security interest continued in those two vehicles and in the proceeds. The trial court wrongfully permitted plaintiff Bank to take possession and to sell the same. On remand, the trial court is directed to determine the amount of proceeds received by the Bank from the sale of these vehicles and enter judgment in favor of defendant for such amounts, together with interest from the date the Bank sold these vehicles.
Now turning to Vehicle 3 — a different procedure was followed by the Dealer in the case of Vehicle 3. On the surface this vehicle was sold to Robert Ward for $23,561.19. This appeared to be a Dealer-financed sale with the installment sale paper bearing the name, if not the signature, of Robert Ward. The Dealer then discounted the installment sale paper to the Bank for which the Bank paid $17,489.86. This represented a discount on the paper of several thousand dollars. A certificate of title in the name of Robert Ward was issued by the Department of Motor Vehicles showing a lien in favor of the Bank. However, during the trial questions were raised concerning the regularity of this sale. There was testimony that Ward never possessed, never had custody, and never operated this vehicle. Although the vehicle was not located on the Dealer’s new car lot when the inventory of new cars was audited by Credit Company, later the car was voluntarily delivered to the Bank by Magill and Ward after the Bank’s court action had been on file against Credit Company for some time.
There was testimony by an officer of the Credit Company that he was familiar with the signature of Robert Ward and the signature on the installment sale contract was not that of Robert Ward. The home address of Robert Ward was Chanute, Kansas, but the address listed on the installment sale contract for Robert Ward was that of the dealership in El Dorado, Kansas. The identification number for the car as listed on the installment paper omitted the last two figures from the actual identification number of the car. This vehicle was surrendered to the Bank February 28, 1981, before the first payment on the installment paper fell due. The trial court made no findings of fact on which it based its final conclusion that the Bank held a prior security interest in the vehicle by reason of its purchase of the installment sale contract.
K.S.A. 1981 Supp. 84-9-308 provides:
“A purchaser of chattel paper or an instrument who gives new value and takes possession of it in the ordinary course of his business has priority over a security interest in the chattel paper or instrument
“(a) which is perfected under section 84-9-304 (permissive filing and temporary perfection) or under section 84-9-306 (perfection as to proceeds) if he acts without knowledge that the specific paper or instrument is subject to a security interest; or
“(b) which is claimed merely as proceeds of inventory subject to a security interest (section 84-9-306) even though he knows that the specific paper or instrument is subject to the security interest.”
K.S.A. 1981 Supp. 84-9-105(6) states:
“ ‘Chattel paper’ means a writing or writings which evidence both a monetary obligation and a security interest in or a lease of specific goods.”
K.S.A. 84-1-103 states:
“Unless displaced by the particular provisions of this act, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause shall supplement its provisions.”
In regard to the formal requisites and validity of security interests, K.S.A. 1981 Supp. 84-9-203(1) more specifically provides:
“[A] security interest is not enforceable against the debtor or third parties with respect to the collateral and does not attach unless
“(a) the collateral is in the possession of the secured party pursuant to agreement, or the debtor has signed a security agreement which contains a description of the collateral . . . and
“(b) value has been given; and
“(c) the debtor has rights in the collateral.” Emphasis supplied.
This latter statute points out that in order for a security agreement to be enforceable it must be signed by the debtor. In the present case there was testimony that the signature on the installment contract was not that of Robert Ward. The trial court made no findings. The evidence would seem to support findings that Vehicle 3 was not sold to Robert Ward in ordinary course of Dealer’s business. In addition the evidence would seem to support a finding that the installment contract was not signed by the purported debtor Robert Ward. This court is not at liberty to arrive at its own findings of fact except in case of uncontroverted evidence. The statute K.S.A. 60-252(a) provides that in all actions tried upon the facts without a jury, the judge shall find, and either orally or in writing state the controlling facts. He did not do so in this case.
In addition to the lack of findings we note that the trial court erred in refusing to grant defendant time to complete discovery of relevant evidence as to the circumstances surrounding the alleged sale and the alleged execution of the chattel paper on Vehicle 3.
Defendant did not learn of the fact that Vehicle 3 had been returned to the Bank until on or about March 30. Trial was had as to Vehicle 3 on April 15, 1981, over the objection of defendant who argued to the court that prior efforts to discover dealership records had been frustrated and service of process on Overton and Magill had not been successful. Defendant requested a continuance to make further discovery but the request was denied.
To show the prejudice which resulted from this refusal to allow time to complete discovery and take the depositions of Tom Overton and Robert Magill, defendant sets forth in the reply brief certain testimony of Robert Magill obtained in a subsequent federal proceeding. Magill testified under oath that he knew his father-in-law’s signature when he saw it; that the name Robert Ward affixed to the installment contract covering Vehicle 3 was not Robert Ward’s signature; that it appeared to be a signature that he, Robert Magill, put on the instrument. Magill further testified that Mr. Ward was not buying Vehicle 3 and that it was a method used to raise needed cash for the dealership. Magill further stated that Mr. Saferite, vice-president of the Bank, was aware of the purpose of this financing and that it was to raise cash and was not a personal purchase of the car by Robert Ward.
We do not consider this testimony of Robert Magill as any part of the evidence in the case before us, except for the purpose of supporting defendant’s claim of prejudice from the refusal of the trial court to permit a continuance.
The pleading which brought Vehicle 3 into issue in this case was filed March 31. The trial of this issue was set for April 15, over the objection of defendant. Under the circumstances, the trial court abused its discretion in requiring a trial on the issues 15 days after the issues were joined and before discovery had been completed. The judgment as to Vehicle 3 is reversed and the issues raised by the counterclaim and answer to counterclaim both filed on March 31, should be fully retried on remand.
In summary, the judgment of the district court as to Vehicles 1 and 2 is reversed and the court is directed to enter judgment against the First National Bank and Trust Company of El Dorado, Kansas, and in favor of the Ford Motor Credit Company for the amounts received by the Bank on the sales of these two vehicles plus interest and costs. The judgment of the district court as to Vehicle 3 is reversed and the case is remanded with directions to grant a new trial on the issues joined by the counterclaim and the answer to the counterclaim. | [
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The opinion of the court was delivered by
McFarland, J.:
Randolph P. Topham appeals his jury trial convictions of two counts of first degree murder (K.S.A. 21-3401). The murder victims were defendant’s wife and mother-in-law.
Two issues are raised on appeal. The first issue is whether defendant’s statutory right to a speedy trial was violated. K.S.A. 22-3402 (Ensley) provides in pertinent part:
“(1) If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) days after such person’s arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).
“(3) The time for trial may be extended beyond the limitations of subsections (1) and (2) of this section for any of the following reasons:
“(b) A proceeding to determine the defendant’s competency to stand trial is pending and a determination thereof may not be completed within the time limitations fixed for trial by this section;
“(d) Because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed for trial by this section. Not more than one continuance of not more than thirty (30) days may be ordered upon this ground.”
The facts relevant to this issue are as follows: The crimes occurred on September 8,1980, with the defendant being arrested the same date. On September 18, 1980, the county attorney filed a motion to determine defendant’s competency to stand trial pursuant to K.S.A. 22-3302 [this statute and all others cited subsequently in this opinion refer to the K.S.A. Ensley edition unless otherwise noted]. The trial court granted the motion and ordered the defendant transferred to the State Security Hospital at Larned for a competency examination. In early December 1980, trial was set for March 16, 1981. Defendant was arraigned on December 30,1980, at which time he was found competent to stand trial. On the same date, defendant filed a notice of intent to rely upon the defense of insanity pursuant to K.S.A. 22-3219. At the competency hearing, defendant objected to the court considering written reports from the Larned facility contending he should have been afforded an opportunity to cross-examine the medical experts. The court considered the reports in making its determination. At the same hearing a mental evaluation was ordered for defendant, the particulars to be set out later.
The clock on the statutory speedy trial requirements commenced to run on December 30, 1980, the date of defendant’s arraignment. The defendant was in custody throughout the period. On January 20, 1981, the defendant was again ordered transferred to the Larned facility for: (1) a mental examination for competency pursuant to K.S.A. 22-3302; and (2) a mental examination for sanity pursuant to K.S.A. 22-3219(2). Ten days later, defendant was physically transported to Larned. At some unspecified time, defendant’s March 16 trial date was continued to April 22, 1981. On March 17, 1981, defendant was transported back to the county jail from Larned. On March 27, 1981, defendant was again found competent to stand trial.
On April 8,1981, defendant filed a motion for discharge noting that on March 30 the 90-day time limit to trial had expired. This motion was heard at the pretrial conference held the same date and denied. At the same pretrial conference the trial court granted defendant’s motion that he be examined and evaluated by a Menninger Foundation psychiatrist, Dr. Herbert Modlin. Due to availability problems of Dr. Modlin, trial was subsequently con tinued at defendant’s request from April 22 to May 13, 1981. One hundred thirty-four days elapsed between arraignment and date of trial.
Were defendant’s statutory speedy trial rights violated? We think not. On December 30, 1980, defendant was arraigned and gave notice of his intent to rely on the defense of insanity. The statute setting forth the procedural requirements for asserting the insanity defense is K.S.A. 22-3219, which provides:
“(1) Evidence of mental disease or defect excluding criminal responsibility is not admissible upon a trial unless the defendant serves upon the prosecuting attorney and files with the court a written notice of such defendant’s intention to rely upon the defense of insanity. Such notice must be served and filed before trial and not more than thirty days after entry of the plea of not guilty to the information or indictment. For good cause shown the court may permit notice at a later date.
“(2) A defendant who files a notice of intention to rely on the defense of insanity thereby submits and consents to abide by such further orders as the court may make requiring the mental examination of the defendant and designating the place of examination and the physician or physicians by whom such examination shall be made. No order of the court respecting a mental examination shall preclude the defendant from procuring at such defendant’s own expense an examination by a physician of such defendant’s own choosing. A defendant requesting a mental examination pursuant to K.S.A. 22-4508 may request a physician of such defendant’s own choosing. The judge shall inquire as to the estimated cost for such examination and shall appoint the requested physician if such physician agrees to accept compensation in an amount in accordance with the compensation standards set by the board of supervisors of panels to aid indigent defendants. A report of each mental examination of the defendant shall be filed in the court and copies thereof shall be supplied to the defendant and the prosecuting attorney.”
Section (1) of the statute requires that such notice be filed before trial and within 30 days after entry of a not guilty plea. Section (2) provides that a defendant filing such notice “submits and consents to abide by such further orders” as the court may make relative to mental examination. It is anticipated that the filing of the notice triggers at least one mental examination on the question of insanity. Such determination relates to sanity or legal insanity at the time of the commission of the offense and is wholly separate and apart from any mental examinations relative to competency to stand trial. In the usual case, at least one side is dissatisfied with the results of the first sanity examination and seeks another medical opinion. Hence, a foreseeable consequence of filing a notice of intent to rely on the insanity defense is delay in the commencement of trial.
We conclude that the filing of notice of intent to rely on the insanity defense, pursuant to K.S.A. 22-3219, operates as a waiver by said defendant of the requirements of the speedy trial statute (K.S.A. 22-3402) insofar as any such trial delay was reasonably occasioned by and attributable to the assertion of the insanity defense. In the case before us, 134 days elapsed between arraignment and the commencement of trial. Of such period, defendant was physically at the State Security Hospital at Larned for a court-ordered sanity examination for a period of 46 days. Subtraction of just this Larned time from the 134-day total results in defendant having gone to trial within the statutory 90-day period. There is no need to compute the number of other delays equally chargeable to the insanity defense or occasioned by the direct request of defendant.
The second issue is whether the trial court erred in refusing to adopt the doctrine of diminished responsibility and instruct on second degree murder and voluntary manslaughter in accordance therewith. The evidence in the case portrayed the defendant as having murdered the two women in accordance with a preconceived plan. The defendant did not dispute this, but rather asserted an insanity defense based on having committed the murders in response to being told to do so in a dream.
Defendant argues the jury had only two choices — guilty of first degree murder or not guilty by reason of insanity. He argues that Kansas should adopt the doctrine of diminished responsibility and permit the jury to consider whether defendant, although legally sane, was deprived of the mental ability to form the requisite specific intent. The jury then should have had the opportunity to consider the lesser offenses.
In State v. Dargatz, 228 Kan. 322, 332, 614 P.2d 430 (1980) this court was asked to adopt the doctrine of diminished responsibility. We held:
“The doctrine of diminished mental capacity, while never specifically rejected by this court, is inconsistent with the law of this state and we decline to adopt it.”
We continue to decline to adopt the doctrine of diminished mental capacity. Said determination concludes this issue as the defendant contends he was entitled to the instructions solely under the doctrine of diminished responsibility.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
Panhandle Agri-Service, Inc., is a Texas corporation engaged in the purchase and sale of hay, feed yard chemicals, conditioners, and preservatives. It entered into a contract with Norman Becker, a farmer at Garden City, Kansas, to purchase 10,000 tons of alfalfa at $45.00 a ton to be delivered at the Becker farm near Garden City during the 1978 hay season. Becker was short of hay at the end of the 1978 season. The president of Panhandle, Jake Holster, and Becker then agreed that the balance of the hay due under the contract, 912 tons and 256 pounds, would be supplied from the 1979 hay crop.
Difficulties arose in 1979. It was alleged that Becker failed or refused to supply the balance of hay, and Panhandle brought suit to recover damages for breach of the contract.
Some of the difficulties which brought about the breach included certain financial difficulties of Panhandle. Although Panhandle had paid Becker for all hay delivered in 1978, it had incurred considerable outside indebtedness. In attempting to satisfy its creditors it sold its fleet of trucks which had been used to haul the hay from Kansas to Texas. Panhandle also had become involved in a lawsuit with LeRoy Nichols, a resident of Kansas, over payment of commissions. Nichols obtained a $3,000.00 judgment against Panhandle. The president of Panhandle, Jake Holster, quit the company and a Walter Nelson moved into the presidency.
In May, 1979, Nelson called Becker by telephone to verify that they still had a contract. Becker later called Nelson and told him he could pick up the hay. However, because of Panhandle’s financial troubles, of which Becker was aware, it was stipulated that the hay must be paid for before loading. Panhandle agreed. Panhandle arranged with a Gale McCoy to haul the hay and he was given a check for the first load. Then McCoy learned of the judgment which Nichols held against Panhandle. Nichols threatened to attach the trucks by legal process if the hay was picked up. McCoy refused to get involved and returned the check for hay to Panhandle sometime later.
By this time in 1979, the market price of hay at Garden City had risen by $62.00 per ton. Nelson then contacted Becker. Nelson testified at trial that Becker told him he would not deliver anymore hay. No reason was given. Suit was filed and the trial court awarded Panhandle damages for breach of contract in the sum of $12,698.63. There was testimony by Nelson that he had contracted to sell the hay in Texas for $67.00 per ton or at a profit of $22.00 per ton, and the cost of hauling the hay from Kansas to the Texas market was figured at $7,371.00. The trial court arrived at the $12,698.63 by multiplying 912.256 tons by $22.00 per ton to arrive at a figure of $20,069.63; then it subtracted the $7,371.00 cost of hauling to arrive at the amount of judgment.
Both parties have appealed. At the outset it must be pointed out the trial court improperly used 912.256 tons instead of 912 tons 256 pounds.
The plaintiff/cross-appellant argues that the cost of hauling should not have been deducted from the lost profits and that judgment should have been for $20,069.63. Defendant/appellant argues the plaintiff had no standing to bring the action because it was a foreign corporation not registered to do business within the state, but in any event, if this court determines otherwise, the proper damages should not exceed $4,560.64. He arrives at this figure by deducting McCoy’s trucking rate, $17.00 per ton, from the anticipated profit claimed by Panhandle of $22.00 per ton to arrive at a net figure of $5.00 per ton on 912 tons and 256 pounds or $4,560.64.
We will first examine the appellant’s contention that Panhandle was a foreign corporation, not authorized to do business within the state, and therefore, without authority to maintain this action.
K.S.A. 17-7307(o) provides:
“A foreign corporation which is required to comply with the provisions of K.S.A. 17-7301 and 17-7302 and which has done business in this state without authority shall not maintain any action or special proceeding in this state, unless and until such corporation has been authorized to do business in this state and has paid to the state all taxes, fees and penalties which would have been due for the years or parts thereof during which it did business in this state without authority. This prohibition shall not apply to any successor in interest of any such foreign corporation.”
K.S.A. 17-7303 states:
“Every foreign corporation that has an office or place of business within this state, or a distributing point herein, or that delivers its wares or products to resident agents in this state for sale, delivery or distribution, shall be held to be doing business in this state within the meaning of this act.” Emphasis supplied.
K.S.A. 17-7301 and 17-7302 require all foreign corporations, before doing business in this state, to file an application in the office of the Secretary of State for authority to engage in business in this state as a foreign corporation. Annually, after registration, each foreign corporation doing business within the state must file a certificate of good standing.
A foreign corporation is required to comply with the provisions of K.S.A. 17-7301 and 17-7302 before doing business in this state, and if it fails to comply and has done business in this state without authority it may not maintain any action in this state. K.S.A. 17-7307(a).
Plaintiff argues it was not doing business in Kansas. This brings up the question of what constitutes doing business in this state so as to require registration. The phrase “doing business in this state” so as to require registration before maintaining an action is defined by K.S.A. 17-7303 and requires the establishment of an office or place of business within this state, or a distributing point herein, or delivery of its wares or products to resident agents in this state for sale, delivery or distribution. In the present case plaintiff had none of these. It merely sent its agents and trucks into this state to purchase and pick up the hay which was to be sold in Texas. It had no office, place of business or distributing point in Kansas. It did not deliver any wares or products to resident agents in this state for sale, delivery, or distribution. Panhandle was not doing business as that term is defined by K.S.A. 17-7303, was not required to register as a foreign corporation, and was not prohibited by K.S.A. 17-7307(a) from bringing the present action.
Defendant Becker next contends the trial court erred in failing to enter summary judgment in his favor based on K.S.A. 84-2-309, which provides:
“(1) The time for shipment or delivery or any other action under a contract if not provided in this article or agreed upon shall be a reasonable time.
“(2) Where the contract provides for successive performances but is indefinite in duration it is valid for a reasonable time but unless otherwise agreed may be terminated at any time by either party.
“(3) Termination of a contract by one party except on the happening of an agreed event requires that reasonable notification be received by the other party and an agreement dispensing with notification is invalid if its operation would be unconscionable.”
Becker contends the contract provided for successive deliveries of hay and the petition does not allege an agreed extension of the 1978 contract. Therefore, he insists the contract could be terminated at anytime because it was indefinite in duration.
This statute does not apply under the facts of the present case. The contract was for the sale of a definite amount of hay, 10,000 tons. It was originally to be completed during the 1978 crop year but because of the 1978 crop shortage the contract was extended so that the balance of 912 tons 256 pounds could be furnished from the 1979 crop. The contract was not indefinite in duration. In the official UCC Comment following the statute it is pointed out:
“7. Subsection (2) applies a commercially reasonable view to resolve the conflict which has arisen in the cases as to contracts of indefinite duration. The ‘reasonable time’ of duration appropriate to a given arrangement is limited by the circumstances. When the arrangement has been carried on by the parties over the years, the ‘reasonable time’ can continue indefinitely and the contract will not terminate until notice.
“8. Subsection (3) recognizes that the application of principles of good faith and sound commercial practice normally call for such notification of the termination of a going contract relationship as will give the other party reasonable time to seek a substitute arrangement. An agreement dispensing with notification or limiting the time for the seeking of a substitute arrangement is, of course, valid under this subsection unless the results of putting it into operation would be the creation of an unconscionable state of affairs.” K.S.A. 84-2-309, Official UCC Comment.
The contract was not terminable at will. Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. K.S.A. 60-256(c). In this case every material fact was contested and in issue and entry of a summary judgment would not have been proper.
We next consider the question of whether the trial court found a breach of contract. It is true the journal entry does not contain the statement that defendant breached the contract. However, the allowance of damages can only imply that a breach of contract was found. In all actions tried upon the facts without a jury, the judge should find the controlling facts. K.S.A. 60-252(o). However, his failure to do so in this case did not prejudice the defendant. Defendant did not request this finding or conclusion and at most it would constitute harmless error. K.S.A. 60-261.
It appears that although Panhandle was willing to pay for the hay before taking delivery, no one ever showed up with a check to take delivery of the hay. The president of Panhandle testified that he called and was advised by Becker that he was not going to deliver the hay. It is a basic rule of law that a party should not be required to perform a useless act to perfect a cause of action. The trial judge believed Nelson, the president of Panhandle, when he testified that Becker refused to deliver the hay and thus failed to complete the contract. Becker himself testified he was not ready to deliver the hay at the time of trial. There was competent evidence to support a finding of breach of contract and this court on appeal will not reweigh the evidence. International Petroleum Services, Inc. v. S & N Well Service, Inc., 230 Kan. 452, Syl. ¶ 8, 639 P.2d 29 (1982).
We now turn to the question of what was the proper method of arriving at the amount of damages. As previously stated Panhandle argues on appeal it should be entitled to loss of profits of $20,069.63. Becker argues the entire judgment should be set aside but, if not, the judgment should be reduced to $4,560.64, which would show a deduction from the loss of profits claimed by plaintiff of the costs of trucking from Kansas to Texas. McCoy was going to charge $17.00 per ton.
Under the facts of this case we believe both contentions are in error. The Uniform Commercial Code concerning sales provides:
“(1) Subject to the provisions of this article with respect to proof of market price (section 84-2-723), the measure of damages for nondelivery or repudiation by the seller is the difference between the market price at the time when the buyer learned of the breach and the contract price together with any incidental and consequential damages provided in this article (section 84-2-715), but less expenses saved in consequence of the seller’s breach.
“(2) Market price is to be determined as of the place for tender or, in cases of rejection after arrival or revocation of acceptance, as of the place of arrival.” K.S.A. 84-2-713.
The trial court determined that the market price of alfalfa hay at Garden City, Kansas, in 1979, was $62.00 per ton. The contract price agreed on by the parties was $45.00. So the measure of damages for nondelivery or repudiation by the seller would be $62.00 less $45.00 or $17.00 per ton, provided no incidental or consequential damages are recoverable in this case, and provided there was no evidence that “cover” was not possible.
The meaning of the word “cover” as used in the Uniform Commercial Code relating to sales is explained in K.S.A. 84-2-712 and refers roughly to the buyer’s procurement of substitute goods when the seller nondelivers or repudiates. The philosophy underlying this “cover option” appears to be that an aggrieved buyer can obtain substituted goods without having to suffer any great loss. See the Official UCC Comment following K.S.A. 84-2-712.
Trucking or transportation expense was not deductible from the above figure. Under the Code it is assumed the buyer will attempt to “cover” the merchandise lost by seller’s nondelivery at the seller’s shipping point. If the buyer seeks a replacement of the merchandise at the shipping point, he would incur replacement shipping costs roughly equivalent to those on the original contract. Thus, by comparison with such a replacement contract there would be no expenses saved in consequence of the seller’s breach because we assume the buyer must pay the expenses for shipment under the new contract as well. White & Summers, Uniform Commercial Code § 6-4, pp. 231-232 (2nd ed. 1980).
The Official UCC Comment, appearing after the text of K.S.A. 84-2-713, at paragraphs one and two states:
“1. The general baseline adopted in this section uses as a yardstick the market in which the buyer would have obtained cover had he sought that relief. So the place for measuring damages is the place of tender (or the place of arrival if the goods are rejected or their acceptance is revoked after reaching their destination) and the crucial time is the time at which the buyer learns of the breach.
“2. The market or current price to be used in comparison with the contract price under this section is the price for goods of the same kind and in the same branch of trade.”
As to incidental damages resulting from the seller’s breach there was no evidence to support any of the items listed in K.S.A. 84-2-715(1). Incidental damages concern expenses when goods are tendered and rejected or have to be transported and cared for, or which concern charges in connection with effecting cover.
As to consequential damages K.S.A. 84-2-715(2)(a) provides:
“(2) Consequential damages resulting from the seller’s breach include
“(a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise.”
Failure of the buyer to utilize the remedy of cover when such is reasonably available will preclude recovery of consequential damages, such as loss of profits. White & Summers § 6-6, 234 n. 103, § 6-7, 250, § 10-4, 396. However, K.S.A. 84-2-712, which provides for cover, i.e., the buyer’s procurement of substitute goods, states:
“(3) Failure of the buyer to effect cover within this section does not bar him from any other remedy.”
Therefore, cover is not a mandatory remedy for the buyer. The buyer is free to choose between cover and damages for nondelivery. In the present record we find no evidence which would support a finding that cover was attempted but found unavailable. We find nothing which would justify the trial court in arriving at damages using loss of business profits which are consequential damages. Consequential damages are limited under K.S.A. 84-2-715(2)(a) to those instances where it is established that the loss could not reasonably be prevented by cover or otherwise. A buyer does not have to cover under K.S.A. 84-2-712(3); however, on failure to attempt cover, consequential damages, including loss of profits, cannot be recovered. K.S.A. 84-2-715(2)(a). International Petroleum Services, Inc. v. S & N Well Service, Inc., 230 Kan. 452, Syl. ¶ 7.
In view of our ultimate decision that loss of profits are not a proper basis for damages in this case it will not be necessary to address appellant’s claim that it was error to disallow the testimony of Jake Holster as to the amount of profit ordinarily realized on a ton of hay bought and sold by Panhandle.
The proper measure of damages under K.S.A. 84-2-713 based on the evidence before the trial court in this case is the difference between the contract price of $45.00 per ton and the market price of $62.00 at the place of delivery and at the time the buyer learned of nondelivery and repudiation. There was no evidence to indicate the buyer attempted and was unable to obtain cover. The proper award in this case is to be arrived at by subtracting $45.00 from $62.00 to make $17.00 per ton, the basis for arriving at damages. Multiplying 912 tons 256 pounds by $17.00 equals $15,506.18, which is the correct amount of the judgment to be entered in favor of plaintiff, plus interest and costs. Accordingly, the judgment of the district court is affirmed as modified herein. | [
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Per Curiam:
On January 29 and 30,1981, a panel of the Kansas Board for Discipline of Attorneys held a hearing on a complaint against respondent James R. Martin, a member of the bar of this state, who formerly practiced in Osborne County. The panel filed its report with findings and recommendations on August 12, 1981. The matter is now before this court pursuant to Supreme Court Rule 212 (228 Kan. xcv-xcvi).
The formal complaint filed by the disciplinary administrator alleged in substance that Martin had neglected a legal matter entrusted to him to the detriment of his client, Dwight Peterson. A judgment for $19,842.12 had been entered against his client without Martin or Mr. Peterson being present at the trial. It was further alleged that sworn testimony was offered by Martin in court which testimony he knew to be false; that he advised his client Peterson to ignore a subpoena; and that Martin appeared in court in Nebraska on the same day he was scheduled to appear for trial in Kansas, after falsely advising the trial judge he was too ill to appear in court in Smith Center, Kansas.
After hearing the testimony of some 25 witnesses, the panel made findings of fact and based on those findings concluded:
“1. There is evidence in this record that Respondent advised Dwight Peterson to ignore a lawful subpoena ordering him to appear on January 10, 1980, for the trial in Case No. 78-C14. This evidence does not reach the standard of clear and convincing evidence and accordingly that issue is resolved in favor of Respondent.
“2. There is evidence in this record that Respondent made material and serious misrepresentation to Judge Charles Worden during a telephone conversation on the evening of January 9, 1980. This evidence does not reach the standard of clear and convincing evidence and accordingly that issue is resolved in favor of the Respondent.
“3. There is clear and convincing evidence, indeed compelling evidence, that Respondent was guilty of professional misconduct in the following particulars:
“(A) Violation of DR6-101(a)(3) and DR7-101(A)(3) by the Respondent’s total neglect of Dwight Peterson’s interests in Case 78-C14 which interests Dwight Peterson had entrusted to Respondent. This total neglect caused judgment to be rendered against Dwight Peterson for $19,842.12 together with interest and costs while at the same time Dwight Peterson was denied his ‘day in court,’ all as detailed in the findings of fact above.
“(B) Violation of DR6-101(A)(2) by Respondent’s failure to prepare any defense in Case 78-C14 for and on behalf of Dwight Peterson prior to January 10, 1980," and/or by Respondent’s failure to refer his responsibility for preparation of the defense of Dwight Peterson to another competent counsel.
“(C) Violation of DR1-102(A)(5) by Respondent’s failure to timely file a motion for continuance of the trial in 78-C14 upon the grounds that Respondent’s health was sufficiently impaired to preclude his availability for trial on January 10, 1980, which motion should have been set for hearing pursuant to court rule, notice of the hearing given to all counsel, and medical submitted to the court at the time of hearing sufficient to sustain the allegation of disability.
“(D) Violation of DR7-102(A)(3) by Respondent’s failure to disclose to Dwight Peterson and to Judge Charles Worden that Respondent was going to Nebraska on January 10, 1980, promptly upon Respondent deciding to make said trip.”
The first conclusion of the panel exonerated respondent because of conflicting evidence on the subject. Peterson testified that Martin advised him to ignore a subpoena and Martin testified he did not advise Peterson to do so. The clear and convincing standard of proof was not met.
The second conclusion of the panel resulted when the trial judge testified that Martin advised him he was too ill to appear in court in Smith Center on January 10, yet Martin appeared in Kansas City on business for his bank the day before and he appeared at a sentencing hearing in Nebraska on the day of the trial. Martin, on the other hand, introduced evidence that he was in ill health on those dates from pneumonia and from injuries received in a car wreck occurring on December 1, a month and ten days prior to the date set for the trial of the Peterson matter. He testified he was physically unfit to try the case on January 10.
After considering the various conflicts in the evidence concerning misrepresentations made to the judge, the panel concluded the evidence was not clear and convincing on the first two conclusions.
In support of the third conclusion the panel found:
“1. On April 28, 1978, James L. Bush of Windscheffel and Bush, Chartered, filed a suit styled ‘Smith Center Co-op Mill and Elevator, Plaintiff, v. Dwight and Don Peterson, Defendants, No. 78-C14’ (hereafter 78-C14), filed in the District Court of Smith County, Kansas. The case was thereupon assigned to Judge Charles E. Worden.
“2. Dwight Peterson, one of the above Defendants, retained James N. Reardon of Bloomer, Bloomer and Bloomer, Osborne, Kansas, to represent him. Thereafter, Mr. Reardon left Osborne and arranged for Robert Bloomer to represent Mr. Peterson.
“3. On October 12, 1979, Mr. Bloomer was permitted to withdraw as counsel for Mr. Peterson following his recommendation to settle made to Mr. Peterson who refused to accept said recommendation.
“4. Near the middle of October, 1979, Mr. Peterson retained Respondent to represent him in 78-C14. Respondent agreed to represent Dwight Peterson through trial in the District Court on payment of a fee in the amount of $1,000.00. Mr. Peterson paid Respondent said $1,000.00, one-half at their first conference and the balance within 30 days thereafter.
“5. On November 7, 1979, and following two conferences between Respondent and Mr. Peterson, both appeared before Judge Worden on plaintiff’s motion for a jury trial. During that appearance the case was scheduled for trial beginning in the morning of January 10, 1980. Thereafter, Mr. Peterson conferred once more with Respondent at which time Respondent advised he was closing his office and moving to Hutchinson but stating that he would handle Mr. Peterson’s defense.
“6. During November, 1979, Respondent closed his law office in Osborne and moved his residence to Hutchinson with the plan of resuming his law practice in Hutchinson.
“7. Respondent did not prepare any defense for Dwight Peterson and made no analysis or recommendations to either settle or to try Case 78-C14. Respondent did not notify Dwight Peterson of his new address or telephone number at Hutchinson.
“8. On December 1, 1979, Respondent was involved in an automobile accident. He suffered a fracture of six ribs, a blow and cut to the head and injuries to his leg, all of which required five days of hospitalization. During his hospitalization and through the month of December and into January, Respondent was treated by Wilbur P. Neel, M.D., of Hutchinson.
“9. On December 15, 1979, Respondent drove or was driven the 130 miles from Hutchinson to Osborne to hand out Christmas bonus checks to employees of the First State Bank which Respondent controlled.
“10. On December 19, 1979, at the request of Respondent, Judge Worden granted a continuance in a criminal case which was scheduled for trial beginning December 21,1979. Respondent, at that time, advised Judge Worden that he could do nothing until the first of the year. Judge Worden conditioned his agreement to continue the case upon Respondent furnishing to the Court a medical report.
“11. By letter dated December 20, 1979, Dr. Neel advised that Respondent would be unable to return to full time work before January 1,1980. This letter was not filed with the District Court until January 18,1980, and then as an attachment to Respondent’s motion for a new trial on behalf of Dwight Peterson. Respondent did not offer any competent medical evidence from any of his treating physicians which would alter Dr. Neel’s opinion that Respondent could resume his law practice after January 1, 1980.
“12. On December 26, 1979, Respondent accompanied his two sons on an automobile trip to Colorado so that his sons would have the ski trip promised them. They returned to Hutchinson by automobile three or four days later. Respondent did not ski.
“13. Respondent did not provide Judge Charles Worden with any medical evidence whatsoever of his physical disability or alleged disability prior to January 18, 1980.
“14. On January 3, 1980, Respondent drove or was driven to Osborne for a previously scheduled meeting with officials of the First State Bank of Osborne.
“15.. On January 8, 1980, Respondent flew from Hutchinson to Kansas City, Missouri, for an important morning and afternoon meeting on January 9, 1980, regarding capital deficiencies at the First State Bank of Osborne.
“16. On January 8, 1980, Dwight Peterson was served with a subpoena commanding his appearance in 78-G14 for 9:00 o’clock A.M. on January 10,1980. The subpoena was issued at the request of counsel for Plaintiff.
“17. On January 8 and 9, 1980, Dwight Peterson attempted to locate Respondent concerning trial of 78-C14. On January 9th Mr. Peterson tried the First State Bank at Osborne thinking Respondent had some connection with the bank. He located Respondent’s former law secretary, who was now a bank employee, at the bank and told her of his concern. The secretary Debbie Anderson, inquired of a bank officer who called Respondent at Kansas City some time between 11:00 o’clock A.M. and noon on January 9th. Respondent, by telephone, requested Miss Anderson call Judge Worden and ask for a continuance in 78-C14. Judge Worden inquired of Miss Anderson where Respondent was, called Respondent at Kansas City and found that Respondent had already left his morning meeting. Thereupon,. Judge Worden denied the request for continuance. Dwight Peterson was then instructed to go home and assured that Respondent would call later that afternoon or that evening.
“18. Respondent called Judge Worden at his parents’ home at 8:00 o’clock P.M. on January 9,1980, advising that he was not well enough to attend the trial scheduled for the next day. Judge Worden recalled that on December 19th Respondent advised he would be able to practice after the first of the year; Judge Worden recalled his request for medical on December 19, 1979, which was not filed or provided; Judge Worden knew that Respondent had been in Kansas City, Missouri, that day; taking these three factors into account plus Respondent’s failure to file a motion for continuance and noticing the same for hearing and also because of the lateness of the hour with reference to a trial which had been scheduled more than two months previously, Judge Worden denied the request for continuance.
“19. Respondent then called Dwight Peterson at approximately 8:30 P.M. on January 9th to advise him that the Court had denied his request for continuance; that Respondent was unable to appear for the trial the next morning because of his ill health; that he had not been in contact with Dwight Peterson earlier because of his ill health and that he did not understand the Court’s refusal of a continuance. Respondent advised Mr. Peterson that he would not appear for trial the following morning.
“20. On the morning of January 10, 1980, Respondent flew to Cedar County, Nebraska, located in the farthest Northeast Corner of that state, to appear for a sentencing in a criminal case where the defendant had been found guilty some two months earlier. [State of Nebraska v. Richard L. McCoy, No. 6658.) Respondent was one of two attorneys appearing in person for the defendant in Cedar County that day.
“21. On January 10, 1980, Case 78-C14 was tried before Judge Worden with all parties and counsel present except Respondent and Dwight Peterson. Following presentation of evidence, the Court found the co-defendant had no liability to plaintiff and granted plaintiff judgment against Dwight Peterson for $19,842.12, interest and costs.
“22. Dwight Peterson thought he owed a feed bill somewhere between $4,000 and $8,000 and felt that the interest he had been charged was excessive. Mr. Peterson felt that plaintiff was charging for more feed than delivered and imposing interest charges greater than permissible. For.these reasons Dwight Peterson had retained Respondent and paid the $1,000 fee quoted for his defense in the trial in Case 78-C14.
“23. Dwight Peterson has hired new counsel and appealed from the above judgment, which appeal is pending. In addition, Dwight Peterson has filed an action for malpractice against Respondent which is pending.”
The foregoing findings are.supported by clear and convincing evidence, except for certain inconsequential matters not material to the panel’s conclusions. These findings support the third conclusion of the panel. Martin neglected his client’s interests and this neglect resulted in a judgment against his client for $19,842.12, without any defense being prepared and without the appearance of Martin at the trial. The date of trial, January 10, 1980, had previously been set at a pretrial conference on November 7, 1979, over two months before.
The respondent filed exceptions to the report of the hearing panel quarreling largely with failure of the panel to include in its findings certain mitigating circumstances claimed by respondent to have caused or contributed to his failure to properly represent and protect his client.
Petitioner’s behavior unquestionably constitutes serious misconduct. Failure to communicate with and inattention to the needs of a client, standing alone, constitute proper grounds for discipline. State v. Goering, 230 Kan. 561, 639 P.2d 1130 (1982); State v. Richardson, 230 Kan. 23, 631 P.2d 221 (1981). Similarly, discipline has been imposed for accepting compensation for legal services but failing to render such services. Grove v. State Bar, 66 Cal. 2d 680, 683, 58 Cal. Rptr. 564, 427 P.2d 164 (1967). Even if an attorney’s misconduct is not willful or dishonest, gross carelessness and negligence constitute a violation of the oath of an attorney to “discharge your duties as an attorney . . . to the best, of your knowledge and ability.” The attorney-client rela tionship is a fiduciary one which binds the attorney to the highest degree of fidelity to the client’s interest. Doyle v. State Bar, 15 Cal. 3rd 973, 126 Cal. Rptr. 801, 544 P.2d 937 (1976). When an attorney’s failure to render services is combined with failure to communicate with the client and with misrepresentation severe discipline is justified. In deciding what discipline is warranted each case must be decided on its own facts and there are no fixed standards as to appropriate discipline.
In State v. Scott, 230 Kan. 564, Syl. ¶ 4, 639 P.2d 1131 (1982), we set forth mitigating factors to be considered in determining the nature and extent of the discipline for a breach of professional responsibility. Those factors listed are:
“(1) Whether restitution has been made; (2) previous violations or the absence thereof; (3) previous good character and reputation in the community; (4) the present and past attitude of the attorney as shown by his cooperation during the hearing and acknowledgement of the transgression; (5) letters from clients, friends and lawyers in support of the character and general reputation of the attorney; and (6) any statement by the complainant expressing satisfaction with restitution and requesting no discipline.” 230 Kan. 564, Syl. ¶ 4.
In addition to this list of mitigating factors is the factor of personal misfortunes of the attorney if such misfortunes have contributed to violation of the code of professional responsibility. All such mitigating factors will not excuse a violation and are to be considered only when determining the nature and extent of discipline to be administered. Annot., Attorney - Negligence - Discipline, 96 A.L.R. 2d 823, § 14, p. 855. See also Matter of McCallum, 289 N.W.2d 146 (Minn. 1980); Matter of Naughton, 51 App. Div. 2d 337, 381 N.Y.S.2d 525 (1976); Riccio v. New York State Bar Assn, 56 App. Div. 2d 668, 391 N.Y.S.2d 199 (1977); and In re Chapman, 69 Ill. 2d 494, 372 N.E.2d 675 (1978).
In the present case there was no medical testimony by a licensed doctor as to respondent’s physical and mental condition during the critical period from November to and including January 10, the date of the trial. Respondent testified to having pneumonia and being hospitalized from December 1 to December 5 as a result of a car wreck. He testified that he had received a head concussion and fractured ribs. He was taking a drug called percodan during this entire period. Friends of respondent verified his appearance of suffering pain; however, others testified he appeared to be physically and mentally normal.
There was evidence introduced before the panel that respon dent took his two boys on a ski trip to Colorado from December 26 to December 30. There was further testimony he made several trips to Osborne during December and passed out Christmas bonus checks to the employees of his bank. From November 7 to January 7 or 8, respondent did nothing to prepare a defense, to obtain a continuance, or to withdraw from the case. On January 7 or 8 he first attempted to contact the trial judge. On January 9 respondent and others in the Osborne bank flew to Kansas City and appeared before the regional director of the Federal Deposit Insurance Corporation. The bank was under a cease and desist order due to the dishonesty of a former president of the bank. At 8:30 p.m. on January 9, Martin contacted the trial judge by telephone and asked for a continuance of the Peterson trial. The judge refused because the oral request was untimely and a previous request for medical documentation of his physical and mental condition had not been supplied in a previous case. Martin denied that the judge had made such a request. Martin failed to advise the judge that he was going to fly to Nebraska on the 10th of January to appear at a sentencing hearing.
In mitigation respondent testified he was mentally and physically unfit to do business during the period from December 1 to January 10, 1980. He further testified he had closed his office in Osborne and had not re-established his office anywhere else. He is now practicing at Hutchinson, Kansas.
The nonattention to his client’s case, for which he had received a $1,000.00 retainer, contributed to the judgment against Dwight Peterson. Peterson testified that execution was issued on the $19,842.12 judgment and a quarter of his farm land was sold to satisfy the judgment.
After hearing all witnesses, the panel recommended that respondent be indefinitely suspended from the practice of law because of his misconduct. After considering evidence in the transcript it appears to this court that such discipline is justified. However, because of respondent’s personal problems which existed during the period in question it may be that respondent can or will correct these problems and be able to properly attend to his duties as an attorney in the future.
Therefore, it is considered, ordered and adjudged that James R. Martin be and he is hereby suspended from the practice of law for an indefinite period. Costs of this proceeding are taxed to the respondent. Because of the mitigating circumstances respondent is advised his application for reinstatement may be filed with this court and will be considered after the expiration of one full year from the date this opinion is filed. | [
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The opinion of the court was delivered by
Herd, J.:
This is an action by the State of Kansas, ex rel., Perry Murray, Thomas County attorney and Robert T. Stephan, attorney general, to recover civil penalties under K.S.A. 75-4320(a) from the appellants, former county commissioners and hospital trustees in Thomas County, for violation of the Kansas Open Meetings Act (KOMA). K.S.A. 75-4317 et seq.
This case is the continuation of an intense and bitter controversy over the proposed construction of a new hospital in Thomas County. The dispute is familiar to this court. Decisions in Pratt v. Board of Thomas County Comm’rs, 226 Kan. 333, 597 P.2d 664 (1979), and Thomas County Taxpayers Ass’n v. Finney, 223 Kan. 434, 573 P.2d 1073 (1978), set aside two county bond elections for hospital construction because of legal irregularities and effectively halted construction of a tax-supported hospital in Thomas County. Following the last decision, a group of Thomas County residents gave up the quest for a tax-supported hospital and began searching for an alternate method of providing medical care for the county. They formed a non-profit corporation and launched a fund drive for the building of a private non-profit hospital. During this time Harold Palmgren, William Randall and John Renner made up the Board of County Commissioners. Samuel Friesen, Eugene Karlin, Woodrow Kemp, Marilyn Rail, Lloyd Theimer and Harold Upchurch sat on the county hospital board of trustees, members of which are appointed by the county commission. These public officials opposed the construction of a new hospital. They sought to frustrate the construction of the non-profit hospital by preparing a proposal for remodeling the existing county hospital.
In furtherance of their plan, on November 3, 1979, the three commissioners, along with trustee Theimer, Upchurch and Karlin, met with an architect, John Shaver of Salina, to discuss Shaver’s work on a preliminary energy audit and the possibility of obtaining federal funds for energy-related improvements to Thomas County Hospital. The meeting was requested by the architect. Upchurch took the lead in notifying the commissioners and trustees. The time was set for 10:00 a.m., November 3, 1979. The meeting was held according to plan and resulted in a letter from Shaver to the commissioners notifying them he had informed the Kansas Energy Office they were interested in obtaining federal energy funds for the hospital. The application was completed, awaiting official approval prior to filing.
There are two other meetings complained of in the State’s petition. They occurred on November 23 and November 30, 1979, and were the result of the trustees’ dissatisfaction with the hospital management under Hospital Affiliates International (HAI). Coincidentally, HAI supported the building of the non-profit hospital.
On November 23 four of the hospital trustees journeyed to Goodland in Karlin’s car and met with Bill Wilson, administrator of the Northwest Kansas Medical Center. During the meeting attended by Wilson on the one hand and Karlin, Theimer, Up-church and Friesen on the other, they discussed their plans to terminate HAI. They also inquired of Wilson’s management policies, philosophy and experience as a hospital administrator and asked if he would be interested in administering their hospital.
Wilson expressed interest but advised the trustees he would not offer them a contract while HAI was providing management services. In spite of his statement, the next day Wilson discussed the trustees’ proposal with Northwest’s attorney and requested him to draft a contract accordingly. Wilson also discussed the Thomas County proposal with his board which authorized him to enter into a ninety-day contract.
On November 27, the appellant trustees met in an open meeting and voted unanimously to terminate the HAI contract. There was no discussion. On November 29 the attorney for Northwest submitted the proposed contract to Wilson.
The next meeting complained of occurred on November 30, 1979. It also took place in Goodland where trustees Karlin, Theimer and Upchurch met with Wilson. Once again the topic for discussion was the possibility of contracting with Wilson to manage Thomas County Hospital, now that the HAI was terminated. Wilson was asked to present his contract proposal to the full board of trustees. Appellant Karlin, chairman of the trustees, testified the Goodland meetings were prearranged and were for the purpose of “looking for an administrator” for the hospital.
The trial court found all the meetings were prearranged, not open to the public, held for the purpose of discussing the business or affairs of the body and attended by a majority of a quorum, thus violating KOMA. The county commissioners and trustee Friesen were fined $10 each for attending one meeting. Karlin, Upchurch and Theimer were fined $30 each for attending all three meetings. Rail and Kemp who attended none of the meetings were absolved. Costs were taxed to appellants. They appeal.
Appellants first complain the trial court erred in refusing to permit discovery in support of their defense of discriminatory prosecution. They filed a Request for Production of Documents asking for all files, reports, documents, tapes, transcripts, field notes, and all other documents in the office of the attorney general or county attorney of Thomas County which in any way relate to any investigation or complaint of alleged violations of the KOMA from 1972-80. They also requested all documents relating to investigations of alleged violations of the KOMA by the Kansas Corporation Commission (KCC) and officials in Galena and Wichita. Finally, they requested all tapes, video or audio, transcripts, press releases, position statements or similar items disseminated to any newspaper, magazine, radio or television station in Kansas in which the attorney general discussed KOMA or any investigation of violations thereof and all tapes, statements and transcripts of a TV program from Wichita titled “Access.”
The trial court denied the motion.
In January 1981 appellants served appellees with the following interrogatories:
“Interrogatory No. 1. State the number of complaints received by your office alleging violations of KOMA since its enactment, and with reference thereto, state:
“A. The number of complaints received during your term of office:
“B. The number of complaints investigated in some manner by your office, and of those investigated, state the number of complaints investigated by the KBI.
“Interrogatory No. 3. Regarding such complaints or requested opinions, state the number of instances since the enactment of KOMA, in which it was determined by your office, either formally or informally, that at least a ‘technical’ violation of KOMA had occurred. With regard to such instances, state:
“A. The number of such apparent violations resulting in the filing of legal proceedings by your office, giving the date of filing, the Court where filed, and the style and number of each such case;
“B. As to each such legal action instituted, state the legal remedy sought by your office in such proceeding;
“C. Identify each such legal action where either civil or criminal penalties were sought;
“D. State the criteria or circumstances distinguishing each apparent violation resulting in legal proceedings from those apparent violations where no such proceedings were instituted.”
The State filed a motion for a protective order on the grounds the trial court had previously denied the request for production of documents which pertained to the same material covered by the interrogatories. It also claimed the information requested was neither relevant nor material and to furnish it would burden the attorney general’s office. After argument at pretrial, the trial court granted the protective order and ruled appellants were barred from asserting the defense of discriminatory prosecution under the doctrine of separation of powers.
The discretion whether or not to prosecute has long been the sacred domain of the prosecutor and stems from the common law nolle prosequi. State v. Greenlee, 228 Kan. 712, 717, 620 P.2d 1132 (1980). Nevertheless, discriminatory prosecution is now generally recognized to constitute a valid defense to a criminal charge. Annot., 95 A.L.R.3d 280, 296.
To be successful, a defendant alleging discriminatory prosecution must show: 1) Others who are similarly situated are not generally prosecuted for conduct similar to that for which defendant is being prosecuted, and 2) the defendant has been intentionally and purposefully singled out for prosecution on the basis of an arbitrary or invidious criterion. Annot., 95 A.L.R.3d at 287. See also Barton v. Malley, 626 F.2d 151, 155 (10th Cir. 1980). The defense is solidly based on the Equal Protection Clause of the 14th Amendment. See Yick Wo v. Hopkins, 118 U.S. 356, 30 L.Ed. 220, 6 S.Ct. 1064 (1886). Mere failure to enforce the law against other violators, however, does not establish a claim of discriminatory prosecution. Oyler v. Boles, 368 U.S. 448, 7 L.Ed.2d 446, 82 S.Ct. 501 (1962); Gladen v. State, 196 Kan. 586, 590, 413 P.2d 124 (1966).
Clearly a constitutionally based claim such as discriminatory prosecution should always be available to a defendant. To hold, as the trial court did here, that separation of powers prohibits a defendant from asserting this defense is to ignore the very constitution from which this doctrine is derived. Granted, the decision whether or not to prosecute is most often solely that of the prosecutor. This decision, however, must be made with constitutional limits on discretion in mind. When the decision purports to deny a defendant his basic constitutional rights, it is up to the judiciary to weigh the prosecutor’s adherence to constitutional principles. See Marbury v. Madison, 5 U.S. 137, 1 Cranch 49, 2 L.Ed. 60 (1803).
Even though the trial judge’s reasoning was erroneous, he reached the correct result. Most federal courts have held a defendant must prove a “colorable entitlement” to the defense of discriminatory prosecution before discovery is allowed. This procedure is used to avoid the use of the defense as a means of obtaining information to which a defendant is otherwise not entitled. United States v. Murdock, 548 F.2d 599, 600 (5th Cir. 1977). See also United States v. Johnson, 577 F.2d 1304, 1309 (5th Cir. 1978); United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974); United States v. Berrigan, 482 F.2d 171, 181 (3rd Cir. 1973). The test, the 5th Circuit Court of Appeals has said, “is materiality, the court is entitled to have the defendant demonstrate the materiality of what he seeks by proving a colorable entitlement to the defense before discovery is allowed.” Murdock, 548 F.2d at 600. Support for this position is found in K.S.A. 60-226(b)(l) which states: “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . .”
Here there was no showing by appellants of a colorable entitlement to the defense. No specific instances of other violations of the KOMA were ever supplied to the trial court. There is no showing of abuse of discretion. The issue is without merit.
Appellants next argue KOMA is a penal statute and must be construed strictly against the State, which the trial court failed to do.
K.S.A. 75-4320(a) provides up to $500 in civil penalties may be assessed against any person who violates the act. Appellants argue since the KOMA threatens a monetary penalty for its violation, it must be considered a penal statute and therefore strictly construed. Indeed', Rlack’s Law Dictionary 1289 (4th ed. 1951) defines penal as “containing a penalty.” This court has long adhered to the rule a penal statute should be strictly construed. See, e.g., State v. Kearns, 229 Kan. 207, 208, 623 P.2d 507 (1981); State v. Doyen, 224 Kan. 482, 488, 580 P.2d 1351 (1978). Thus, if the KOMA can be characterized as penal, it might arguably be strictly construed. This theory, however, flies in the face of the purpose of the KOMA, stated in K.S.A. 75-4317(a): “In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the policy of this state that meetings for the conduct of government affairs and the transaction of governmental business be open to the public.” Obviously, the intent behind the statute is to protect the public. In Johnson v. Killion, 178 Kan. 154, 158-59, 283 P.2d 433 (1955), this court stated: “It is fundamental that where a statute is designed to protect the public, the language must be construed in the light of the legislative intent and purpose and is entitled to a broad interpretation so that its public purpose may be fully carried out.” See also Smith v. Marshall, 225 Kan. 70, 75, 587 P.2d 320 (1978).
Other courts have used various methods of reaching the conclusion an act providing for civil penalties should be liberally construed. In State v. O’Neill Investigations, Inc., 609 P.2d 520 (Alaska 1980), the Alaska Supreme Court dealt with that state’s Unfair Trade Practices and Consumer Protection Act. Even though the Act provided for a civil penalty of up to $5,000 the court held the statute was not penal and thus should not be strictly construed. The court found the legislature’s characterization of the penalty as civil made the statute remedial and subject to a broad interpretation. (Two other justices concurred, stating that because the statute’s thrust was regulatory rather than crimi nal it should not be strictly construed.) Similarly, in State v. Strong Oil Co., Inc., 105 Misc.2d 803, 433 N.Y.S.2d 345 (1980), the court interpreted a state statute designed to discourage price gouging by merchants of home heating oil, stating, “[W]here a statute is found to be beneficial to the public, though penal as to some persons, it will receive an equitable construction in order not to defeat its general as well as its specific purpose.” Finally, in State v. Hamilton, 388 So. 2d 561, 563 (Fla. 1980), the court began its examination of state environmental protection legislation with the principle, “ ‘A statute enacted for the public benefit should be construed liberally in favor of the public even though it contains a penal provision.’ City of Miami Beach v. Berns, 245 So. 2d 38, 40 (Fla. 1971).”
Other states with open meetings acts have construed their statutes broadly. In Board of Public Instruction of Broward Co. v. Doran, 224 So. 2d 693, 699 (Fla. 1969), the Florida Supreme Court stated: “The fact that the statute contains a penal provision does not make the entire statute penal so that it must be strictly construed.” Statutes enacted for the public benefit, the Florida court said, must be interpreted favorably to the public. See also Wolfson v. State, 344 So. 2d 611, 613 (Fla. Dist. Ct. App. 1977); Laman v. McCord, 245 Ark. 401, 404, 432 S.W.2d 753 (1968).
Finally, a recent amendment to the KOMA is further evidence the act should be liberally interpreted. K.S.A. 1981 Supp. 75-4320a(h) discourages any comparison with criminal actions, stating: “In any action hereunder, the burden of proof shall be on the public body or agency to sustain its action.”
We hold the KOMA is remedial in nature and therefore subject to broad construction in order to carry out the stated legislative intent.
Appellants next contend the KOMA is unconstitutionally vague and overbroad. They argue a broad construction of the act will insure this result. Pertinent parts of the act are as follows:
K.S.A. 75-4317a:
“Meeting defined. As used in this act, ‘meeting’ means any prearranged gathering or assembly by a majority of a quorum of the membership of a body or agency subject to this act for the purpose of discussing the business or affairs of the body or agency.”
K.S.A. 1981 Supp. 75-4318:
“Meetings of state and subdivisions open to public; exceptions; secret ballots; notice; agenda, cameras, photographic lights, recording devices, (a) Except as otherwise provided by state or federal law or by rules of the house or senate, and except with respect to any impeachment inquiry or other impeachment matter referred to any committee of the house of representatives prior to the report of such committee to the full house of representatives, all meetings for the conduct of the affairs of, and the transaction of business by, all legislative and administrative bodies and agencies of the state and political and taxing subdivisions thereof, including boards, commissions, authorities, councils, committees, subcommittees and other subordinate groups thereof, receiving or expending and supported in whole or in part by public funds shall be open to the public and no binding action by such bodies shall be by secret ballot, but any administrative body that is authorized by law to exercise quasi-judicial functions shall not be required to have open meetings when such body is deliberating matters relating to a decision involving such quasi-judicial functions.”
Let us first consider the rules of construction on the constitutional challenge of a statute. We have stated on innumerable occasions the constitutionality of a statute is presumed; all doubts must be resolved in favor of its validity, and before a statute may be stricken it must clearly appear there is a constitutional violation. We have gone on to say, in determining constitutionality, it is the court’s duty to uphold the statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, it should be done. Statutes are not stricken unless the infringement of the superior law is clear beyond a reasonable doubt. Von Ruden v. Miller, 231 Kan. 1, 642 P.2d 91. (1982); In re Brooks, 228 Kan. 541, 543, 618 P.2d 814 (1980); State v. Huffman, 228 Kan. 186, 189, 612 P.2d 630 (1980); Colby Distributing Co. v. Lennen, 227 Kan. 179, 186-87, 606 P.2d 102 (1980); State v. Meinert, 225 Kan. 816, 817, 594 P.2d 232 (1979).
Against this background let us examine the rules regarding vagueness and overbreadth:
“The test to determine whether a criminal statute is unconstitutionally void by reason of being vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. If a statute conveys this warning it is not void for vagueness. Conversely, a statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process. At its heart the test for vagueness is a commonsense determination of fundamental fairness.” State v. Kirby, 222 Kan. 1, 4, 563 P.2d 408 (1977).
See also State v. Meinert, 225 Kan. at 817; 16A Am. Jur. 2d, Constitutional Law § 818 at p. 988. The test for noncriminal statutes is essentially the same. See Broadrick v. Oklahoma, 413 U.S. 601, 37 L.Ed.2d 830, 93 S.Ct. 2908 (1973); Keyishian v. Board of Regents, 385 U.S. 589, 17 L.Ed.2d 629, 87 S.Ct. 675 (1967); Jordan v. De George, 341 U.S. 223, 95 L.Ed. 886, 71 S.Ct. 703, reh. denied341 U.S. 956 (1951). The standards of certainty in a statute punishing for criminal offenses, however, are higher than in those depending primarily upon civil sanction for enforcement. State v. Conley, 216 Kan. 66, 67, 531 P.2d 36 (1975); State v. Hill, 189 Kan. 403, 411, 369 P.2d 365 (1962). For example, in In re Brooks, 228 Kan. at 544, we held standards for judging the vagueness of statutes pertaining to termination of parental rights should rest somewhere between the rigid standards governing criminal statutes and the more flexible rules regarding statutes which regulate business. Where a noncriminal statute is set out in terms the ordinary person exercising ordinary common sense can sufficiently understand and comply with, the statute is not unconstitutionally vague. CSC v. Letter Carriers, 413 U.S. 548, 37 L.Ed.2d 796, 93 S.Ct. 2880 (1973); Harris v. McRae, 448 U.S. 297, 311 n. 17, 65 L.Ed.2d 784, 100 S.Ct. 2671, reh. denied 448 U.S. 917 (1980).
Finally, it should be noted that where First Amendment rights are involved, “stricter standards of permissible statutory vagueness” apply to a statute, i.e., the government may regulate in this area only with narrow specificity. Smith v. Goguen, 415 U.S. 566, 573, 39 L.Ed.2d 605, 94 S.Ct. 1242 (1974); Smith v. California, 361 U.S. 147, 151, 4 L.Ed.2d 205, 80 S.Ct. 215 (1959); State v. Stauffer Communications, Inc., 225 Kan. 540, 546, 592 P.2d 891 (1979).
While a vague statute leaves persons of common intelligence to guess at its meaning, an overbroad statute makes conduct punishable which under some circumstances is constitutionally protected. State v. Huffman, 228 Kan. at 189; State v. Stauffer Communications, Inc., 225 Kan. at 547. Obviously, almost every law is potentially applicable to constitutionally protected acts. A successful overbreadth challenge can thus be made only when 1) the protected activity is a significant part of the law’s target, and 2) there exists no satisfactory method of severing that law’s constitutional from its unconstitutional applications. See Tribe, American Constitutional Law § 12-24, p. 711 (2nd ed. 1978).
The challenge for overbreadth can be easily dismissed. Appellants argue the KOMA has a potential inhibiting effect on the “rights of public officials to assemble and discuss public affairs.” It is urged citizens have the right to unfettered discussion of governmental affairs in private while retaining anonymity. Appellants’ claim reveals a basic misconception regarding the nature of a public official’s position. The First Amendment does indeed protect private discussions of governmental affairs among citizens. Everything changes, however, when a person is elected to public office. Elected officials are supposed to represent their constituents. In order for those constituents to determine whether this is in fact the case they need to know how their representative has acted on matters of public concern. Democracy is threatened when public decisions are made in private. Elected officials have no constitutional right to conduct governmental affairs behind closed doors. Their duty is to inform the electorate, not hide from it. The KOMA places no constraints on purely private discussions by public officials. It regulates only the conduct of public business. As such the KOMA is not unconstitutionally overbroad.
Let us now turn to appellant’s constitutional challenge of KOMA based on vagueness. Their first claim of vagueness comes from a comparison of K.S.A. 75-4317a and K.S.A. 1981 Supp. 75-4318. K.S.A. 75-4317a clearly defines a meeting as “any prearranged gathering .... for the purpose of discussing the business or affairs of the body or agency.” While K.S.A. 1981 Supp. 75-4318 states all meetings “for the conduct of the affairs of, and the transaction of business by” such a body or agency shall be open to the public. Appellants argue it is impossible to determine what type of meeting of public officials must be open. They claim the restrictive language of K.S.A. 1981 Supp. 75-4318 implies “binding action” is necessary before a meeting comes under the act. We do not agree. K.S.A. 75-4317a and K.S.A. 1981 Supp. 75-4318 shall be read together. They are not incompatible. We construe the two sections to mean all prearranged gatherings by a majority of a quorum of all legislative and administrative bodies, agencies of the state and political and taxing subdivisions thereof, including boards, commissions, authorities, councils, committees, subcommittees, and other subordinate groups thereof, receiving or expending and supported in whole or in part by public funds shall be open to the public when the purpose of the gathering is to discuss, conduct or transact the business or affairs of the body or agency. American Heritage Dictionary of the English Language 278 (2nd ed. 1969), defines “conduct” as: “To direct the course of; manage; control.” Similarly, “transact” is defined as: “To do, carry out, perform, manage, or conduct . . . .” p. 1362. The two terms are essentially synonymous. When examined in light of the legislative purpose set out in the initial section of KOMA no vagueness exists. Words such as “discuss,” “conduct,” and “transact” should be construed according to the legislative purpose of the statute and the approved usage of the language. Since they are words in common usage they should be given their natural and ordinary meaning. Coe v. Security National Ins. Co., 228 Kan. 624, 629-30, 620 P.2d 1108 (1980). As such, an average person exercising ordinary common sense can understand the words sufficiently to comply with the act. See generally, Tacha, The Kansas Open Meeting Act: Sunshine on the Sunflower State? 25 Kan. L. Rev. 169 (1977); Smoot and Clothier, Open Meetings Profile: The Prosecutor s View, 20 Washburn L.J. 241 (1981). We hold the words “discuss,” “conduct,” and “transact,” as used in the act, are not vague.
Next appellants argue the act is vague as to the governmental groups covered. They maintain it is unclear whether “subordinate groups thereof,” such as the board of trustees of a county hospital, must receive and expend public funds themselves to be included in the act or whether it is enough that only the parent body, such as the board of county commissioners, receive and expend public funds. Smoot and Clothier suggest the following test to determine what public body falls within the ambit of KOMA:
“First the group of people meeting together must be a ‘body or agency’ within the meaning of the Act. Second, the group must have legislative or administrative powers or at least be legislative or administrative in its method of conduct. Third, the body must be part of a governmental entity at the state or local level, whether it is the governing body or some subordinate group. Fourth, it must receive or expend public funds or be a subordinate group of a body subject to the Act. Finally, it must be supported in whole or in part by public funds or be a subordinate group of a body which is so financed.” 20 Washburn L.J. at 256-57.
Professor Tacha’s article removes any doubt regarding the “public funds” terminology:
“If the section were interpreted as it grammatically should be, so long as the parent state or local body meets the public funding test, all subordinate groups would automatically be covered by the Act regardless of the degree or existence of public funding.” 25 Kan. L. Rev. at 186.
The Thomas County Board of County Commissioners receives and expends public funds; the board of trustees of the Thomas County Hospital is a “subordinate group thereof” and is therefore covered by KOMA. We hold the KOMA is not unconstitutionally vague.
Appellants next argue the trial court’s finding: “The record does not show that the acts of the defendants on these occasions were committed with any intent to violate the open meetings act,” eliminates them from penalties under K.S.A. 75-4320(a). That statute provides:
“Any member of a body or agency subject to this act who knowingly violates any of the provisions of this act or who intentionally fails to furnish information as required by subsection (b) of K.S.A. 75-4318 shall be liable for the payment of a civil penalty in an action brought by the attorney general or county or district attorney, in a sum set by the court of not to exceed five hundred dollars ($500) for each violation.”
Appellants maintain that they were advised by the county attorney their meetings were not covered by KOMA and that a “good faith” violation is in fact not a violation at all. This argument flies in the face of an impressive body of authority and the ancient maxim, “Ignorance of the law is no excuse.” Further, appellants’ interpretation of the statute is not in accord with Kansas law.
In State v. Millhaubt, 144 Kan. 574, 581, 61 P.2d 1356 (1936), a criminal prosecution, the court stated:
“Where the statute defines the duties of a county officer and specifies acts he shall not do, if he intentionally does certain of those acts, and their being done is prohibited, he intentionally violates the law.”
Appellee makes a further comparison to criminal statutes:
“Analogously, this Court should note the Kansas prosecutor’s burden in criminal prosecutions is to establish a general criminal intent as an essential element of every crime defined by the criminal code, by proof of ‘willful conduct.’ K.S.A. 21-4301(1). ‘Willful conduct’ is defined as
. . . conduct that is purposeful and intentional and not accidental. As used in this code (criminal code), the terms ‘knowing,’ ‘intentional,’ ‘purposeful,’ and ‘on purpose’ are included within the term ‘willful’ K.S.A. 21-3201(2). (Emphasis supplied.)
Moreover, proof of ‘criminal intent’ does not.require proof of knowledge of the existence or constitutionality of the statute under which the accused is prosecuted, or the scope or meaning of the terms used in that statute. K.S.A. 21-3202(1). (Emphasis supplied.)
“Accordingly, in State v. Hodge, 204 Kan. 98, 460 P.2d 596 (1969), the Court rejected defendant’s argument that the term ‘willfully violates’ as it was used in the Kansas Securities Act required proof of a specific intent to violate the securities law to obtain a conviction. The Court stated: ‘No specific intent is necessary to constitute the offense where one violates the securities act except the intent to do the act denounced by the statute.’ 204 Kan. at 107. (Emphasis supplied.) The Court further noted, ‘all that is required is proof that the person acted intentionally in the sense that he was aware of what he was doing . . . .’ 204 Kan. at 108 and Syllabus 10.”
Thus, it is logical not to set more stringent standards in a case imposing civil penalties than those imposed in a criminal prosecution.
Appellants knowingly held three prearranged meetings for the purpose of discussing, conducting and transacting governmental affairs and business. A majority of a quorum of the governmental body was present each time but none of the three meetings were open to the public. Appellants violated the Act and are subject to its penalties. This issue is without merit.
Appellants next argue the trial court did not specify the State’s burden of proof and, no matter what standard of proof is used, the State did not meet its burden.
It should be noted that K.S.A. 1981 Supp. 75-4320a(b), not in effect during the time periods relevant to this case, now states “the burden of proof shall be on the public body or agency to sustain its action.” Certainly, then, something less than the criminal standard of beyond a reasonable doubt was intended.
Even under the strictest standard, however, the evidence is sufficient to support the trial court. To prove its case the State had to show: 1) A meeting of a body or agency subject to the act occurred; 2) a majority of a quorum of the members were present; 3) the meeting was prearranged; 4) the meeting was conducted for the purpose of discussing, conducting, or transacting the business or affairs of the body or agency; and 5) the meeting was not open to the public. As the foregoing evidence clearly demonstrates there was substantial evidence to support the State’s case. The, issue is without merit.
Appellants next argue the trial court erred in refusing to admit certain exhibits into evidence. The excluded exhibits fall into two categories. Group One supports appellants’ defense of discriminatory prosecution. It consists of exhibits 2, 3, 12A and 12D. Exhibit 2 includes letters from appellants Rail and Theimer to the attorney general complaining of violations of KOMA by official boards in Thomas County. Exhibit 3 is a reply to exhibit 2 by an assistant attorney general. Exhibits 12A and 12D are letters from appellant Rail to the Board of County Commissioners of Thomas County and the Board of Trustees of Thomas County Hospital, requesting notice of all meetings of the boards. This evidence was offered to prove the instant action was filed for political reasons to force appellants to resign from office, which they did.
Under K.S.A. 60-401(h) and 407(f), all relevant evidence is admissible. Relevancy is a matter of logic and experience and the trial court naturally possesses a certain amount of discretion in this area. Farmers Ins. Exchange v. Schropp, 222 Kan. 612, 624, 567 P.2d 1359 (1977); State v. Faulkner, 220 Kan. 153, 155, 551 P.2d 1247 (1976). The trial court properly excluded the evidence. The self-serving letters written by appellants to the attorney general after the investigation in this case had begun are irrelevant to the issue of discriminatory prosecution.
Group Two is exhibit 1 and consists of all the attorney general’s opinions concerning the KOMA and was offered to prove the KOMA is vague and overbroad. At the time the exhibit was offered, the court had already ruled on vagueness and over-breadth. The exclusion of the exhibit was proper.
Finally, appellants contend the trial court erred in assessing the costs of the action against all of the appellants when two were not found in violation of the act. We construe the trial court’s order to assess the costs against the appellants adjudged in violation of the act.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Herd, J.:
This is an appeal from a jury conviction of rape (K.S.A. 21-3502) and aggravated sodomy (K.S.A. 21-3506).
At approximately 10:00 p.m., July 4, 1980, the victim, a twenty-one-year-old student at Emporia State University, went to an Emporia private club called “The Attic.” The club opened late because of a fireworks display that night. The victim was the club’s first customer that evening. She testified she went to the club because she was upset over a recent breakup with her boyfriend.
Shortly after the victim arrived at the club, Elmore Marks, Jr. entered. He made his way to her booth and sat down. A conversation ensued with the victim talking about school and work. Marks fabricated a grandiose story about his being a Ph.D and an M.D. and how he was in the process of writing an analytical book about people. He indicated the background for the book consisted of a series of interviews with people of varied experiences. The victim naively swallowed Marks’ line and agreed to be interviewed for the book.
After two drinks and an hour and a half discussion the victim agreed to go with Marks to the house of one of his friends in order that he might arrange a trip to Nassau to pay her for assisting with the book. They drove to the house, which actually belonged to Marks, and there he pretended to make reservations for the trip. Later Marks told his victim she looked nervous and gave her a small white pill as a remedy. She took the pill and became dizzy and light-headed. Marks then produced another pill virtually forcing it down her. Her dizziness grew worse. Marks led her to the bedroom where she laid down. Marks then pulled up a chair, took pad and pencil in hand and began interrogating the victim about her sex life. When she refused to answer, Marks became angry and started taking off her clothing. He also choked her briefly and attempted smothering her with a pillow. The victim fought back but her dizziness prevented her from escaping. Marks threatened if she did not stop fighting he would kill her. After a long struggle he succeeded in removing the victim’s clothing and forced her to have sexual intercourse and oral sodomy with him. After giving his victim a shower and massage, Marks drove her to her car.
Upon returning to her apartment, the victim tearfully related the episode to her roommate who called the police and drove her to the hospital. The examining physician found a lacerated area near the opening of the victim’s vagina but no other bruises or marks.
Several days later the. victim rode with the police and guided them to Marks’ residence. A search warrant was obtained and the house was searched. Marks was arrested and charged with rape and aggravated sodomy. After conviction this appeal followed.
Appellant first challenges the sufficiency of the affidavit to obtain the search warrant. The affidavit was made by Detective Michael Lopez and consisted of a very detailed account of the assault and surrounding circumstances. It was based on Lopez’s interview with the victim.
K.S.A. 22-2502 governs the issuance of search warrants:
“A search warrant shall be issued only upon the oral or written statement of any person under oath or affirmation which states facts sufficient to show probable cause that a crime has been or is being committed and which particularly describes a person, place or means of conveyance to be searched and things to be seized.”
The search warrant affidavit must set forth particular facts and circumstances to allow the magistrate to make an independent evaluation of the existence of probable cause. Franks v. Delaware, 438 U.S. 154, 165, 57 L.Ed.2d 667, 98 S.Ct. 2674 (1978). Bald conclusions, mere affirmations of belief or suspicions are not enough. An affidavit may be based on hearsay, but it must state “sufficient affirmative allegations of fact as to affiant’s personal knowledge” to allow the magistrate to rationally reach his independent decision. State v. Williams, 226 Kan. 688, 693, 602 P.2d 1332 (1979); State v. Morgan, 222 Kan. 149, 563 P.2d 1056 (1977).
“Probable cause” to issue a search warrant is not easily defined. This court has, however, compared it to a jigsaw puzzle where, “[b]its and pieces of information are fitted together until a picture is formed which leads a reasonably prudent person to believe a crime has been or is being committed and that evidence of the crime may be found on a particular person or in a place or means of conveyance.” State v. Morgan, 222 Kan. at 151. In any event, probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction. State v. Weigel, 228 Kan. 194, 197, 612 P.2d 636 (1980).
Here the affidavit stated in detail the facts surrounding the alleged rape. It contained much more than bald conclusions or suspicions. We conclude the magistrate who examined the affidavit was justified in issuing the warrant.
Appellant next contends certain items taken from his residence which are not listed on the search warrant were erroneously admitted into evidence. The search warrant authorized police to seize:
“[A] multi-flowered print Hawaiian style shirt; men’s sandals; a gold chain necklace having a gold coin on it with the figure of Christ standing with arms outstretched; small white tablets with disecting [sic] lines across the center; yellow/green flowered shower curtain; body hair located in the tub of the bathroom; flower print bedspread; bed sheet located on bed of the bedroom; and to take photographs of the exterior and interior of the premises of 305 Cottonwood and the 1965 Plymouth Barracuda bearing Michigan license SHP938 and a 1977 Plymouth bearing Michigan license NBD409.”
Officers actually seized numerous other items including a shower brush, several gold rings, a plastic bag containing “green vegetation” and a hashish pipe.
An examination of the record shows there is no merit to appellant’s contention. The only items from the search admitted in evidence at trial were the necklace, the Hawaiian shirt, and photographs taken of appellant’s car. The items seized but not listed on the search warrant were not offered into evidence at trial. There was no erroneous admission of evidence.
Appellant next argues there was no probable cause for his warrantless arrest.
Appellant was arrested July 8, 1980, at the same time the search warrant was executed. Officers based their decision to arrest Marks on the same information that was contained in the affidavit for the search warrant. K.S.A. 22-2401 states: “A law enforcement officer may arrest a person when: . . . (c) He has probable cause to believe that the person is committing or has committed (1) A felony . . . .”
“Probable cause for arrest without a warrant depends upon the probabilities arising from known facts and circumstances and exists when the practical considerations of everyday life would lead a reasonable and prudent officer to believe a felony has been or is being committed.” State v. Brocato, 222 Kan. 201, 203, 563 P.2d 470 (1977).
See also State v. Morgan, 231 Kan. 472, 646 P.2d 1064 (1982).
There was ample evidence to support the warrantless, arrest. The information provided by the victim was detailed and thorough. Police also had within their knowledge the doctor’s report that the victim suffered from a laceration near her vaginal opening. The arresting officers were justified in believing Elmore Marks had committed a felony.
Appellant next challenges the victim’s pretrial identification of him from a photographic lineup.
On July 24, 1980, Detective Lopez assembled a photographic lineup consisting of mug shots of eight different men whose facial characteristics were similar. Out of those eight the victim picked appellant’s picture as the one that came “closest to the guy.” Appellant claims this pretrial identification was suggestive because his picture was the only one showing the date of “7-9-80” and appellant was the only person wearing a T-shirt bearing the letters “LYSO,” which stands for Lyon County Sheriff’s Office.
In State v. Nesmith, 220 Kan. 146, 551 P.2d 896 (1976), this court stated the test regarding the propriety of a pretrial “photographic identification is whether it was ‘so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ ” See also Manson v. Brathwaite, 432 U.S. 98, 109-14, 53 L.Ed.2d 140, 97 S.Ct. 2243 (1977). Even if it is assumed the pretrial identification procedure was unnecessarily suggestive it must nonetheless be remembered that “reliability is the linchpin in determining the admissibility of identification testimony . . . .” Manson v. Brathwaite, 432 U.S. at 114. Thus an in-court identification may be capable of standing on its own even though preceded by a deficient pretrial confrontation. State v. Ponds, 227 Kan. 627, 630, 608 P.2d 946 (1980).
In Neil v. Biggers, 409 U.S. 188, 199-200, 34 L.Ed.2d 401, 93 S.Ct. 375 (1972), the Supreme Court suggested a number of factors to be considered in resolving the reliability inquiry:
“[T]he opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.”
See also State v. Baker, 227 Kan. 377, 379, 607 P.2d 61 (1980); State v. Hall, 220 Kan. 712, 717, 556 P.2d 413 (1976); State v. Bey, 217 Kan. 251, 257, 535 P.2d 881 (1975).
At trial the victim identified appellant as the person who assaulted her. The foregoing factors support the reliability of the identification. The victim spent two or three hours with her assailant. The victim was further able to describe appellant’s clothes and facial characteristics accurately before the confrontation. At both the preliminary hearing and trial the victim demonstrated an adequate degree of certainty that her identification was correct. We find the in-court identification reliable.
Appellant contends he was denied his 6th Amendment right to counsel because his attorney was not present at the pretrial photographic lineup.
The 6th Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.” That right only applies, however, to so-called “critical” stages of the proceedings. See United States v. Wade, 388 U.S. 218, 224, 18 L.Ed.2d 1149, 87 S.Ct. 1926 (1967). In United States v. Ash, 413 U.S. 300, 301, 37 L.Ed.2d 619, 93 S.Ct. 2568 (1973), the issue was:
“[Wjhether the Sixth Amendment grants an accused the right to have counsel present whenever the government conducts a post-indictment photographic display, containing a picture of the accused, for the purpose of allowing a witness to attempt an identification of the offender.”
The court held it did not, reasoning:
“Since the accused himself is not present at the time of the photographic display ... no possibility arises that the accused might be misled by his lack of familiarity with the law or overpowered by his professional adversary. Similarly, the counsel guarantee would not be used to produce equality in a trial-like adversary confrontation.” 413 U.S. at 317.
United States v. Ash is controlling. Appellant had no right to counsel at the pretrial photographic lineup.
Appellant next argues the trial court erred in conducting a conference for the exercise of peremptory challenges outside his presence.
Voir dire was conducted in the presence of the prospective jurors, the judge, the prosecutor, defense counsel and appellant. Appellant and his counsel then discussed which jurors should be stricken from the panel. Subsequently the judge, prosecutor and defense counsel held a conference in the judge’s chambers for the purpose of announcing the peremptory challenges allowed each party under K.S.A. 22-3412(l)(¿). The judge then reconvened the prospective jurors and stated on the record the panel members to be struck. Appellant argues he should have been allowed to attend the conference in the judge’s chambers.
K.S.A. 22-3405(1) provides: “The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law.”
In State v. Mantz, 222 Kan. 453, 565 P.2d 612 (1977), we discussed the effect of the defendant’s absence from an in-chamber conference among the trial judge and counsel concerning instructions. In holding this absence did not amount to reversible error we stated:
“The general rule clearly appears to be that a defendant’s constitutional and statutory rights to be present at his trial do not encompass proceedings before the court involving matters of law. Such rights are violated only if the defendant is absent when the jury is hearing the case or where he is prevented from such other proceedings where his presence is essential to a fair and just determination of a substantial issue.” 222 Kan. at 463.
See also State v. Sanders, 227 Kan. 892, 893, 610 P.2d 633 (1980); State v. Sandstrom, 225 Kan. 717, 721, 595 P.2d 324, cert. denied 444 U.S. 942 (1979).
We hold Mantz controls. The conference regarding the peremptory challenges dealt with a matter of law. It was held outside the presence of the jury. Appellant’s presence was not essential to a fair trial.
Appellant next contends the State did not comply with the statutory discovery directives of K.S.A. 22-3212. Specifically he argues the State did not provide defense counsel with the results of the rape kit laboratory report.
The record reveals the State did provide appellant with the results of the examination. Indeed, the KBI laboratory report showing the presence of acid phosphatase, an enzyme found in high concentration in seminal fluid, was given to defense counsel before trial. Essentially, appellant objects because he was not provided the “negative findings” of the rape kit examination which were contained in the working notes of the laboratory technicians.
Arguably, since the appellant did not deny he had sexual intercourse with the victim, basing his whole defense on consent, the results of the rape kit examination are irrelevant. However, due to the seriousness of appellant’s claim that the State should have provided him with the working notes of those who conducted the laboratory experiments on the rape kit, we will examine the issue.
K.S.A. 22-3212 states, in pertinent part:
“(1) Upon request, the prosecuting attorney shall permit the defendant to inspect and copy or photograph any relevant . ... (b) results or reports of physical or mental examinations, and of scientific tests or experiments made in connection with the particular case, or copies thereof, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney ....
“(7) . . . If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this section or with an order issued pursuant to this section, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems just under the circumstances.”
We hold this statute entitles a defendant to the working notes of the forensic chemist who examines a rape kit. It does not, however, require the prosecutor to obtain those notes for defense counsel unless they are in the State’s file. All the prosecutor must do is “permit the defendant to inspect and copy or photograph any relevant” notes taken during the rape kit examination. Here the State provided defense counsel with the actual laboratory report. The working notes were not contained in its file and were not seen by the prosecutor prior to trial. They were, however, available to defense counsel upon request from those who performed the experiments. Additionally, K.S.A. 22-3212 grants to the trial court a certain amount of discretion. State v. McGee, 224 Kan. 173, 177, 578 P.2d 269 (1978). Here the trial court gave defense counsel every opportunity to discover the worksheets. Prior to trial it allowed counsel to call the two criminalists involved and inquire as to what they would testify to. Then at trial when the two witnesses brought their working notes with them the trial court called a recess to allow defense counsel time to copy and examine the notes. In light of all the circumstances no reversible error was shown.
Next appellant objects to the evidence of the results of the rape examination kit as admitted through the testimony of the two criminalists who performed the experiments. Appellant argues there was no showing the report supported an inference of sexual intercourse. This argument is baseless. The presence of acid phosphatase was relevant in proving sexual intercourse. In addition appellant admitted sexual intercourse took place. As such the rape kit evidence was corroborated and admissible.
Appellant next attacks the admission of the expert testimony of Dr. Herbert Modlin, a board certified psychiatrist and neurologist who practices psychiatry and teaches at the Menninger Foundation. He is also one of a small number of doctors to be certified in the field of forensic psychiatry.
During his testimony Dr. Modlin discussed the diagnosis and treatment of “post traumatic stress disorders.” The condition is caused when a person experiences a “very frightening, stressful event” and manifests itself in a kind of “psychological hangover.” According to Dr. Modlin a type of post traumatic stress disorder labeled “rape trauma syndrome” is the result of a sexual assault. Symptoms of rape trauma syndrome include fear of offender retaliation, fear of being raped again, fear of being home alone, fear of men in general, fear of being out alone, sleep disturbance, change in eating habits and sense of shame.
Dr. Modlin examined the victim two weeks after the rape. Based upon his psychiatric evaluation Dr. Modlin testified he was of the opinion she had been the victim of “a frightening assault, an attack” and that she was suffering from the post-traumatic stress disorder known as rape trauma syndrome.
Admission of expert testimony is governed by K.S.A. 60-456(¿>) and (d):
“(b) If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (I) based on facts or data perceived by or personally known or made to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.
“(d) Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of fact.”
Appellant does not contend Dr. Modlin lacks the requisite “special knowledge, skill, experience or training,” to testify as an expert in this area. He argues that expert testimony regarding rape trauma syndrome should be per se inadmissible in a case where consent is the defense because it invades the province of the jury.
The identification of rape trauma syndrome is a relatively new psychiatric development. Even so, if the presence of rape trauma syndrome is detectable and reliable as evidence that a forcible assault did take place, it is relevant when a defendant argues the victim consented to sexual intercourse. As such an expert’s opinion does not invade the province of the jury. It is merely offered as any other evidence, with the expert subject to cross-examination and the jury left to determine its weight.
In State v. Washington, 229 Kan. 47, 53, 622 P.2d 986 (1981), we stated “before a scientific opinion may be received in evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert’s particular scientific field.” See also Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (D.C. Cir. 1923). Although Washington involved physical scientific evidence, the same test is applicable to the admission of testimony regarding a psychiatric diagnosis. See e.g., Hughes v. Mathews, 576 F.2d 1250, 1258 (7th Cir. 1978).
An examination of the literature clearly demonstrates that the so-called “rape trauma syndrome” is generally accepted to be a common reaction to sexual assault. See McCombie, The Rape Crisis Intervention Handbook, pp. 124-26 (1980); Comprehensive Textbook of Psychiatry §§ 21.Id, 24.15, pp. 1519, 1804-05 (3rded. 1980); Warner, Rape & Sexual Assault, pp. 145-49 (1980); Burgess & Holmstrom, Rape: Crisis & Recovery, pp. 35-47 (1979); Katz & Mazur, Understanding the Rape Victim, pp. 215-31 (1979); E. Hilberman, The Rape Victim, p. 36 (1976); Burgess & Holmstrom, Rape: Victims of Crisis, pp. 37-51 (1974). As such, qualified expert psychiatric testimony regarding the existence of rape trauma syndrome is relevant and admissible in a case such as this where the defense is consent.
Appellant argues even if testimony concerning rape trauma syndrome is generally admissible, Dr. Modlin’s testimony here was not based on “data perceived by or personally known or made known to the witness at the hearing.” Essentially, his contention is that Dr. Modlin’s opinion was based solely on what the victim told him during psychiatric evaluation and that because of this his conclusion was grounded upon incompetent hearsay evidence.
Appellant relies on Klein v. Wells, 194 Kan. 528, 400 P.2d 1002 (1965), wherein a physician gave an expert opinion based upon a history given by the plaintiff, consultation with the attending physician to the plaintiff, the attending physician’s notes and records and upon x-rays and hospital records. There the court stated:
“It has long been settled that an expert witness may base his opinion upon matters within his personal knowledge or observation, or upon competent evidence in the case, or upon both. Likewise, it has been held that a physician may not testify as to what a patient said in respect to past history of the case, or the cause or duration of the injury. Neither can he give an opinion based partially upon his personal examination and partially upon what the patient told him in reference to the past history of the case, and also upon statements of third persons in reference thereto. [Citations omitted.] The history of the case is within the hearsay rule and therefore is not a proper foundation for an opinion based on competent evidence. If, however, the so-called ‘history’ is made up of facts which in themselves are competent evidence, and which are in evidence, then any objection to the use of such history must fall.” 194 Kan. at 539.
Although the history was within the hearsay rule the court held the doctor’s testimony was competent because the facts comprising the history had actually been put in evidence.
This case is well within the exception noted in Klein v. Wells. The “history” of this case is made up of facts which were received into evidence through the testimony of the victim and her roommate. Further, Dr. Modlin’s testimony was based on symptoms he noted during his psychiatric evaluation of the victim. In this sense his conclusions were based on data personally perceived by him.
Admissibility of expert testimony pursuant to K.S.A. 60-456(h), lies within the sound discretion of the trial court, and the courfis decision will not be reversed on appeal unless it is shown that discretion was abused. State v. Washington, 229 Kan. at 56; Lindquist v. Ayerst Laboratories, Inc., 227 Kan. 308, 316, 607 P.2d 1339 (1980); State v. Reed, 226 Kan. 519, 521, 601 P.2d 1125 (1979). Here the judge considered the qualifications of Dr. Modlin, the basis and relevancy of his testimony and allowed him to testify. There is no showing of abuse of discretion.
Appellant finally contends the trial court acted “prejudicially, arbitrarily and without justification” in sentencing appellant to two concurrent terms of ten to twenty years.
K.S.A. 21-4606 states:
“(1) In sentencing a person to prison, the court, having regard to the nature and circumstances of the crime and the history, character and condition of the defendant, shall fix the lowest minimum term which, in the opinion of said court, is consistent with the public safety, the needs of the defendant, and the seriousness of the defendant’s crime.
“(2) The following factors, while not controlling, shall be considered by the court in fixing the minimum term of imprisonment:
“(d) The defendant’s history of prior criminal activity;
“(b) The extent of the harm caused by the defendant’s criminal conduct;
“(c) Whether the defendant intended that his criminal conduct would cause or threaten serious harm;
“(d) The degree of the defendant’s provocation;
“(e) Whether there were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
“(f) Whether the victim of the defendant’s criminal conduct induced or facilitated its commission;
“(g) Whether the defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.”
Both aggravated sodomy and rape are class B felonies. The minimum term for a class B felony is five to fifteen years; the maximum is twenty years to life. K.S.A. 21-4501. When a sentence is within the statutory limits as set forth by the legislature, it will not be disturbed on appeal in the absence of special circumstances showing an abuse of discretion. State v. McDaniel & Owens, 228 Kan. 172, 185, 612 P.2d 1231 (1980); State v. Goering, 225 Kan. 755, Syl. ¶ 8, 594 P.2d 194 (1979).
Here the sentence was within the limits of K.S.A. 21-4501. Further, the record reveals the trial court gave careful consideration to all the factors set out in K.S.A. 21-4606. There was no abuse of discretion.
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal by Daniel Carpenter (plaintiff/appellant) from summary judgment entered against him and in favor of the Board of Commissioners of Shawnee County, Kansas, and the State of Kansas (defendants/appellees). The district court found the governmental entities immune from suit under provisions of the Kansas Tort Claims Act (KTCA). K.S.A. 1981 Supp. 75-6101 et seq.
The facts are brief and undisputed. In the early morning hours of August 12, 1979, Daniel Carpenter was a passenger in an automobile being driven by Damon Johnson. The vehicle was proceeding in an easterly direction on Northeast 46th Street when, about one-tenth of a mile west of the intersection of Northeast 46th Street and Highway K-4, the vehicle left a curve and struck an embankment. It is undisputed that, at the time of the accident, the curve was not marked with any warning signs.
Carpenter, the passenger, sustained injuries and brought suit against Damon Johnson, the State of Kansas, Jefferson County, and Shawnee County. He later moved to dismiss his actions against Damon Johnson and Jefferson County. The court ordered dismissal of the actions against these defendants with prejudice. The cause of action against the State and Shawnee County alleged that these governmental entities failed to properly maintain the roadway or, in the alternative, failed to correct a defect in the roadway by failure to erect a warning sign in accordance with the Manual on Uniform Traffic Control Devices. The State and Shawnee County filed separate motions for summary judgment. The court sustained those motions, finding K.S.A. 1981 Supp. 75-6104(g) of the Kansas Tort Claims Act prohibits this action against the governmental entities. The plaintiff duly perfected his appeal to the Court of Appeals. The case was transferred to the Supreme Court on motion of the appellant. K.S.A. 20-3017.
A single issue is presented on appeal: whether the trial court erred in finding the governmental entities immune from suit pursuant to K.S.A. 1981 Supp. 75-6104(g), an exception to liability pertaining to warning signs.
The Kansas Tort Claims Act, K.S.A. 1981 Supp. 75-6101 et seq., a so-called “open ended” tort claims act, makes liability the rule and immunity the exception. K.S.A. 1981 Supp. 75-6103(c) states the general rule:
“Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state.” (Emphasis added.)
See generally Note, Governmental Liability: The Kansas Tort Claims Act [or The King Can Do Wrong], 19 Washburn L. J. 260 (1980).
Although liability is the rule, as emphasized above, it is not a rule without limitations. Exceptions from liability enumerated in K.S.A. 1981 Supp. 75-6104 indicate the legislature has not rejected the concept of immunity. Robertson v. City of Topeka, 231 Kan. 358, 360, 644 P.2d 458 (1982). The manner in which the Kansas Tort Claims Act changed prior law remains to be analyzed as specific factual situations come before this court.
Carpenter, the plaintiff-appellant in this action, argues the general law in Kansas before the Tort Claims Act recognized the right of a person to sue the government for damages sustained resulting from the negligent failure to post warning of a curve or turn. K.S.A. 1978 Supp. 68-419 (repealed L. 1979, ch. 186, § 33) imposed liability on the State for defects in a state highway. K.S.A. 68-301 (repealed L. 1979, ch. 186, § 33) imposed liability for defects on county and township roads. See e.g., Hampton v. State Highway Commission, 209 Kan. 565, 498 P.2d 236 (1972); Carder v. Grandview Township, 2 Kan. App. 2d 7, 573 P.2d 1121, rev. denied 225 Kan. 843 (1978); Annot., 55 A.L.R.2d 1000. Municipalities had a common law liability for street defects. Grantham v. City of Topeka, 196 Kan. 393, 411 P.2d 634 (1966). Three specific circumstances convince us this prior law concerning highway defects should not be engrafted onto the Tort Claims Act. First, the legislature specifically repealed the highway defect statutes. Second, under the prior law, the alleged defect was the sole focus of the inquiry regardless of any discretion which might have been exercised. Hampton v. State Highway Commission, 209 Kan. at 577-78. Third, under the prior law, no essential distinction existed between defects resulting from maintenance or failure to place signs. Compare Grantham v. City of Topeka, 196 Kan. 393, with Carder v. Grandview Township, 2 Kan. App. 2d 7. As discussed more fully herein, the Tort Claims Act distinguishes between sign maintenance and sign placement, with the exercise of discretion a significant inquiry with regard to liability for sign placement.
It is important, for purposes of background, to note the Kansas Tort Claims Act contains a discretionary function exception patterned after the discretionary function exception in the Federal Tort Claims Act. 28 U.S.C. § 2680(c). The Kansas exception, at K.S.A. 1981 Supp. 75-6104, provides:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:
“(d) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion be abused.”
The KTCA contains a further specific signing exception patterned after the Oklahoma Political Subdivision Tort Claims Act, Okla. Stat. Ann. tit. 51, § 151 et seq. (West 1981 Supp.), specifi cally at § 155(15). The Federal Tort Claims Act contains no parallel provision. K.S.A. 1981 Supp. 75-6104(g) provides exemption from liability resulting from:
“[T]he malfunction, destruction or unauthorized removal of any traffic or road sign, signal or warning device unless it is not corrected by the governmental entity responsible within a reasonable time after actual or constructive notice of such malfunction, destruction or removal. Nothing herein shall give rise to liability arising from the act or omission of any governmental entity in placing or removing any of the above signs, signals or warning devices when such placement or removal is the result of a discretionary act of the governmental entity.”
In addition, K.S.A. 1981 Supp. 75-6104 contains a catch-all provision which provides:
“The enumeration of exceptions to liability in this section shall not be construed to be exclusive nor as legislative intent to waive immunity from liability in the performance or failure to perform any other act or function of a discretionary nature.”
A fundamental rule of statutory construction, to which we adhere, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statutes. E.g., Brinkmeyer v. City of Wichita, 223 Kan. 393, 396-97, 573 P.2d 1044 (1978). The most cursory reading of the provisions of the statute quoted above reveals the legislature has given special consideration to traffic signs. The signing exception, K.S.A. 1981 Supp. 75-6104(g), plainly and unambiguously bifurcates liability for traffic signs into the areas of maintenance and placement or removal of signs. This distinction has been recognized in other jurisdictions. See, e.g., Crucil v. Carson City, 95 Nev. 583, 600 P.2d 216 (1979); Gallison v. City of Portland, 37 Or. App. 145, 586 P.2d 393 (1978), rev. denied 285 Or. 319 (1979); Bd. of Comm’rs. v. Briggs, 167 Ind. App. 96, 337 N.E.2d 852 (1975). We express no opinion as to the holdings in these cases.
The case before us raises a question of liability for sign placement or, more precisely, failure to place a sign. The discretionary element in that decision is crucial to resolution of the issue. An exception written into a tort claims act constitutes a jurisdictional bar, if established. See, e.g. Baird v. United States, 653 F.2d 437, 440 (10th Cir. 1981), cert. denied 454 U.S. 1144 (1982); In re Air Crash Disaster Near Silver Plume, Colo., 445 F. Supp. 384, 400 (D. Kan. 1977). See also Wheat v. Finney, 230 Kan. 217, 221, 630 P.2d 1160 (1981).
To determine whether or not the failure to place these signs is within the exercise of discretion which is excepted from liability, we first must examine the duty of the governmental entities. K.S.A. 8-2003 requires the secretary of transportation to adopt a manual and specifications for a uniform system of traffic-control devices within the state.
“The secretary of transportation shall adopt a manual and specifications for a uniform system of traffic-control devices consistent with the provisions of this act for use upon highways within this state. Such uniform system shall correlate with and so far as possible conform to the system set forth in the most recent edition of the manual on uniform traffic-control devices for streets and highways and other standards issued or endorsed by the federal highway administrator.”
Pursuant to this statute, the secretary adopted the Manual on Uniform Traffic Control Devices for Streets and Highways published by the United States Department of Transportation. The 1971 edition was in effect at the time of this 1979 accident.
K.S.A. 8-2004 requires the secretary to place such signs as he shall deem necessary in accordance with the manual and specifications.
“(a) The secretary of transportation shall place and maintain such traffic-control devices, conforming to the manual and specifications adopted under K.S.A. 8-2003, upon all state highways as the secretary shall deem necessary to indicate and to carry out the provisions of this act or to regulate, warn or guide traffic.”
K.S.A. 8-2005 addresses the obligation of local authorities:
“(a) Local authorities in their respective jurisdictions shall place and maintain such traffic-control devices upon highways under their jurisdiction as they may deem necessary to indicate and to carry out the provisions of this act or local traffic ordinances or to regulate, warn or guide traffic. All such traffic-control devices hereafter erected shall conform to the state manual and specifications.”
The district court concluded that discretion remains with the local authorities whether or not to erect the warning signs urged to be necessary in this case. According to the district court’s reasoning, conformity with the state-approved manual and specifications becomes important only after the decision to erect a sign is made. The district court reviewed provisions of the Manual on Uniform Traffic Control Devices to substantiate its conclusion that placement of warning signs is left to the discretion of the governing authority. See sections 1A-3 (Engineering Study Required), 1A-4 (Meanings of “Shall,” “Should” and “May”), 2C-1 (Application of Warning Signs), 2C-4 (Turn Sign), and 2C-9 (Large Arrow Sign). We quote section 1A-3 of the manual:
“The decision to use a particular device at a particular location should be made on the basis of an engineering study of the location. Thus, while this Manual provides standards for design and application of traffic control devices, the Manual is not a substitute for engineering judgment. It is the intent that the provisions of this Manual be standards for traffic control devices installation, but not a legal requirement for installation.” (Emphasis supplied.)
It would not be profitable to quote extensively from the Manual, but two further provisions serve to illustrate our point of divergence from the reasoning of the district court. Section 2A-1 provides:
“Signs should be used only where warranted by facts and field studies. Signs are essential where special regulations apply at specific places or at specific times only, or where hazards are not self-evident.” (Emphasis added.)
Section 2C-5.provides:
“The Curve sign ... is intended for use where engineering investigations of roadway, geometric, and operating conditions show the recommended speed on the curve to be in the range between 30 and 60 miles per hour and equal to or less than the speed limit established by law or by regulation for that section of highway. Additional protection may be provided by use of the Advisory Speed plate.”
It is apparent from our reading of the Manual on Uniform Traffic Control Devices that state and local highway engineers are guided by rather detailed recommendations in placement of warning signs. The question becomes whether those employees are exercising discretion within the meaning of the KTCA or merely exercising professional judgment within established guidelines. Cases construing the Federal Tort Claims Act have made such a distinction. See, e.g., Barton v. United States, 609 F.2d 977 (10th Cir. 1979); Jackson v. Kelly, 557 F.2d 735 (10th Cir. 1977); Downs v. United States, 522 F.2d 990 (6th Cir. 1975); In re Air Crash Disaster Near Silver Plume, Colo., 445 F. Supp. 384.
Our court was confronted with the nature of the discretionary function in the KTCA in Robertson v. City of Topeka, 231 Kan. 358. There the court concluded it is the nature and quality of the discretion exercised which should be our focus of attention rather than the status of the employee exercising that discretion. That reasoning is equally applicable to the signing exception. K.S.A. 1981 Supp. 75-6104(g). The test is whether the judgments of the government employee are of the nature and quality which the legislature intended to put beyond judicial review. For the guid anee of the bench and bar the court in Robertson, citing Downs v. United States, 522 F.2d at 997, said as follows:
“In Downs, the survivors of victims who died in an airplane hijacking alleged an FBI agent’s negligence in handling the situation caused the deaths. The government argued the actions of the agent fell within the discretionary function exception. The court noted that ‘[jludgment is exercised in almost every human endeavor’ (522 F.2d at 995), so that factor alone cannot be determinative of immunity. The court determined the intent of the federal act to be protection at the policy formulation level. 522 F.2d at 996. Since handbook procedures had been developed for use in responding to a hijacking, the agent’s actions were not within the discretionary function exception.” 231 Kan. at 361.
We believe professional judgment rather than governmental discretion is at issue in the case at bar. Our conclusion is buttressed by reference to the Maintenance Manual on Signs and Markers for Highways in Kansas, a manual prepared by the State Highway Commission of Kansas from the Manual on Uniform Traffic Control Devices. Arlen Tappan, the Highway Marking Engineer for the Kansas Department of Transportation, testified in his deposition:
“Q. As far as determining what signs are located at what locations on State highway systems, is that your responsibility?
“A. Yes, basically, uh-huh.
“Q. Is that delegated to any other employees under your jurisdiction or under your supervision?
“A. I have four people working under me in my section and we use the manual as the, you know, law for what sign is determined to be used where and then we administer that to our districts.”
The power to adopt rules and regulations is administrative in nature, not legislative, and to be valid must be within the authority conferred by the legislature. Rules and regulations adopted by an administrative board, here the Department of Transportation, to carry out the policy declared by the legislature in the statute, have the force and effect of laws. Goertzen v. State Department of Social & Rehabilitation Services, 218 Kan. 313, 543 P.2d 996 (1975); State, ex rel., v. Columbia Pictures Corporation, 197 Kan. 448, 417 P.2d 255 (1966). The 1962 edition of the Maintenance Manual on Signs and Markers for Highways in Kansas which was in effect at the time the road in question was built provides specifically at page 29:
[ILLUSTRATED SIGN]
“W1-1
30" x 30"
“The Turn sign showing an arrow bent at a right angle . . . shall be used to mark curves on which a ball-blank indicator shows banks of 10 degrees or more at a speed of 30 miles per hour. Where a Turn sign is warranted, a Large Arrow sign shall be used on the outside of the turn. Additional protection shall be provided by use of the Advisory Speed plate. Curve Sign (Wl-2)
[ILLUSTRATED SIGN]
“Wl-2
30" x 30"
“The Curve sign, showing a curved arrow . . . shall be used to mark a curve where a test with a ball-blank indicator gives readings of 10 degrees or more at speeds between 21 and 66 miles per hour.
“Additional protection shall be provided by the use of the Advisory Speed plate.”
These particular provisions in Kansas serve to distinguish an Oklahoma Tort Claims case relied upon by both governmental defendants. Ochoa v. Taylor, 635 P.2d 604 (Okla. 1981). The court in Ochoa relied also on prior Oklahoma case law holding installation and maintenance of traffic signs to be discretionary governmental functions. 635 P.2d at 608. The Kansas court has never so held.
In conclusion, the trial court held that K.S.A. 1981 Supp. 75-6104(g), the signing exception of the Kansas Tort Claims Act, constituted an absolute bar, as a matter of law, to any action against a governmental entity for failure to cause the initial placement of any traffic signal, road sign or warning device. In so doing, the trial court reasoned that such determination was a wholly discretionary function expressly excepted from the Kansas Tort Claims Act. We do not agree.
Whether or not the placement of a warning sign on the particular curve in controversy herein was discretionary or mandatory depends upon the totality of the circumstances involved and may not be determined as a matter of law without regard thereto. We therefore conclude the trial court erred in sustaining the motion for summary judgment in favor of the governmental entities.
We express no opinion as to the merits of the case, nor as to the proper parties to the action. Because of its determination that the KTCA prohibits the action, the district court did not reach the issue of whether or not the State was a proper party.
The judgment of the lower court is reversed and remanded for further proceedings consistent with this opinion. | [
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The opinion of the court was delivered by
Holmes J.:
Plaintiff, Virginia C. Armacost, appeals from the granting of summary judgment in favor of the defendant, State Farm Mutual Automobile Insurance Company, in an action to recover personal injury protection (PIP) disability benefits pursuant to her automobile insurance contract with State Farm and the Kansas Automobile Injury Reparation Act, K.S.A. 40-3101 et seq. (the Act). As the facts were undisputed, both parties filed motions for summary judgment. Defendant prevailed and plaintiff appeals.
Plaintiff is a school teacher and has been regularly employed by Shawnee Mission Unified School District No. 512 since 1976. Her employment contract for the 1979-80 school year was entered into June 25, 1979, and was to cover a teaching period from August 30, 1979, through June 6, 1980, and provided she would be paid in twelve monthly installments beginning September 20, 1979. Plaintiff performed her duties satisfactorily until March 10, 1980, when she was injured in an automobile accident which prevented her from working the rest of the school year. The record does not reflect what, if any, compensation she received from her employer after March 10, 1980. On May 28, 1980, plaintiff entered into a new contract with U.S.D. No. 512 for the 1980-81 school year beginning August 28,1980. However, due to the continuing disability from the automobile accident, she was unable to enter upon her duties under the 1980-81 contract.
Following the accident, plaintiff sought PIP benefits from State Farm and received disability payments for the period from March 10,1980, to March 10,1981, except for the period from June 5th through August 28th, 1980. Plaintiff, in this action, seeks benefits for that period and the defendant denies she is entitled to them. It is conceded that plaintiff was disabled and unable to work during the period in question but it is defendant’s position that as the plaintiff had not intended to work during her vacation she has lost nothing and is not entitled to disability benefits. Plaintiff concedes she had not intended to work during the summer. Based upon the foregoing undisputed facts, the trial court found plaintiff was not a “regularly employed person” as contemplated in K.S.A. 40-3103 and that the injury was not the proximate cause of her not working during her vacation period.
The Kansas automobile injury reparation act, K.S.A. 40-3101 et seq., was designed to provide prompt compensation to automobile accident victims in lieu of liability for damages under certain limited conditions set forth in the act.
K.S.A. 40-3103 provides in pertinent part:
“(b) ‘Disability benefits’ means allowances for loss of monthly earnings due to an injured person’s inability to engage in available and appropriate gainful activity, subject to the following conditions and limitations: (1) The injury sustained is the proximate cause of the injured person’s inability to engage in available and appropriate gainful activity; . . .
“(1) ‘Monthly earnings’ means: (1) In the case of a regularly employed person or a person regularly self-employed, one-twelfth (VI2) of the annual earnings at the time of injury; . . . .”
The statute goes on to indicate the method of computing the monthly earnings of persons who are not regularly employed or who are unemployed. The insurance policy issued by the defendant to the plaintiff complies in all respects with the requirements of the statute and provides the same coverage as that in the statute.
It was the opinion of the trial court that because plaintiff did not intend to work during the summer vacation she could not qualify for benefits under the act because “Plaintiff’s injury was not the proximate cause for [her] not working between the period of June 6, 1980, and August 28, 1980, but rather her decision to remain at home with her child.”
While plaintiff’s intent not to work during her vacation may have been prior to the accident, the proximate cause of her not working as determined by the trial court, it was her injury which was the proximate cause of her inability to work. As we view the facts in this case, the crucial determination is whether plaintiff was a “regularly employed person” within the purview of the statute and, if she was, then her monthly earnings are calculated on the basis of l/12th of her annual salary. If it is determined that a person is regularly employed and that the person’s injury is the proximate cause of an inability to work, the monthly benefits provision only comes into play in determining the amount of disability benefits payable. Is a person’s scope of employment to be determined by the length of one’s vacation? We think not. It is true that most school teachers have an unusually long summer vacation by comparison to most employees but when a teacher has been employed for several years in the same position and has her contract renewed regularly from year to year, we cannot say that she is regularly employed only during the school year and that she becomes an unemployed person each summer for approximately two months. As a part of the teaching profession, many teachers are required to take additional training and education during the summer months to keep their current status or advance to a better one.
While some may envy the length of the school teacher’s vacation period, it is a necessary factor inherent in the teaching profession and does not result in the career teacher being any less regularly employed than the factory worker who may receive only one or two weeks vacation. If the length of one’s vacation is the determining factor where do we draw the line? There is nothing to prevent any employee from seeking temporary employment during the vacation period, regardless of its duration, but does the failure of one to work during his vacation automatically result in that person being unemployed? The answers are obvious. It may also be noted that in times of economic distress many factory and industrial workers, as well as others, may be forced to endure a non-scheduled layoff; however, they are not terminated as employees, continue to have a job to return to at the end of the layoff period and probably consider themselves regularly employed.
Other areas of our law recognize that school teachers are regularly employed persons and under certain conditions they have a vested right to the renewal or continuance of their employment from year to year. K.S.A. 72-5411 and 72-5437. K.S.A. 44-706(k) provides that school teachers, among others who are employed by educational institutions, are ineligible for unemployment compensation benefits during the summer break between contract years.
The trial court relied upon Morgan v. State Farm Mut. Auto. Ins. Co., 5 Kan. App. 2d 135, 613 P.2d 684 (1980), in reaching its decision. In Morgan the plaintiff had been unemployed for over five years, had no work experience and no definite possibilities of future employment. In view of our determination that the plaintiff in this case qualified as a regularly employed person, reliance upon Morgan is misplaced.
Defendant argues that the Act only covers actual economic loss. In Hand v. State Farm Mut. Auto. Ins. Co., 2 Kan. App. 2d 253, 577 P.2d 1202, rev. denied 225 Kan. 844 (1978), the claimant was the surviving widow of the deceased insured. The parties had been separated and the deceased had not been providing support to his estranged wife prior to his death. The court held that it was not necessary for the survivor to show an actual economic loss to recover benefits under the Act.
We hold that under the facts of this case, the plaintiff was a regularly employed person within the purview of K.S.A. 40-3101 et seq. during the period of her vacation from teaching duties in 1980 and is entitled to payment of PIP disability benefits for that period from June 5, 1980, through August 28, 1980.
Plaintiff’s next point on appeal is that the past due payments should draw interest at 18% per annum under K.S.A. 40-3110(b) and that she is entitled to reasonable attorney fees under K.S.A. 40-3111(b). In Coe v. Security National Ins. Co., 228 Kan. 624, 620 P.2d 1108 (1980), we held:
“When there is a good faith controversy as to the amount of survivors’ benefits due under K.S.A. 1979 Supp. 40-3103(0 an insurer should not be penalized by applying the eighteen percent (18%) interest provision contained in K.S.A. 1979 Supp. 40-3110.” Syl. ¶ 3.
K.S.A. 40-3111(h) provides in part:
“(b) An attorney is entitled to a reasonable fee for advising and representing a claimant in an action for personal injury protection benefits which are overdue. The attorney’s fee shall be a charge against the insurer or self-insurer in addition to the benefits recovered, if the court finds that the insurer or self-insurer unreasonably delayed in making proper payment.”
In the instant case, the trial court held for the defendant and denied attorney fees. The opinion of this court is less than unanimous and the issue presented on appeal is one of first impression under our statutes. Obviously, there has been a good faith controversy and we cannot say the defendant unreasonably refused to pay plaintiff’s claim. Interest and attorney fees are not warranted in this case.
The case is remanded to the trial court with directions to enter judgment for the plaintiff consistent with the foregoing opinion. | [
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WHEREAS, on the 17th day of March, 1982, Arno Windscheffel, Disciplinary Administrator for the State of Kansas, filed a disciplinary complaint against Ross R. Freeman, an attorney admitted to the practice of law in the State of Kansas; and
WHEREAS, the complaint alleged that Ross R. Freeman, while employed as a senior vice-president of Security Benefit Life Insurance Company, did between the dates of February 4, 1980, and October 28, 1980, cause four checks to be issued by Security Benefit to fictitious payees in a total amount of $59,991.25 and then converted such sum of money to his own personal use; and
WHEREAS, the complaint had been duly set for hearing before a panel of the Kansas Board for Discipline of Attorneys on the 7th day of July, 1982; and
WHEREAS, Ross R. Freeman voluntarily surrendered his certificate to practice law to the Clerk of the Supreme Court on the 6th day of July, 1982; and
WHEREAS, after due consideration, the Cout finds that the certificate to practice law of Ross R. Freeman should be cancelled and declared void and the voluntary relinquishment of his right to practice law be accepted.
NOW, THEREFORE, IT IS ORDERED AND DECREED that Ross R. Freeman be and he is hereby disbarred from the practice of law in the State of Kansas and the privilege of Ross R. Freeman to practice law in the State of Kansas is hereby revoked and the Clerk of the Supreme Court is directed to strike the name of Ross R. Freeman from the roll of attorneys in the State of Kansas.
IT IS FURTHER ORDERED that the certificate of Ross R. Freeman to practice law in the State of Kansas is hereby cancelled and declared null and void and the costs of this action are assessed to Ross R. Freeman.
IT IS FURTHER ORDERED that this order shall be pub lished in the official Kansas Reports and that the Clerk shall comply with the requirements of Rule 217.
BY ORDER OF THIS COURT dated and effective this 7th day of July, 1982. | [
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Per Curiam:
This petition in error is brought to this court for the purpose of reversing an order of the district court discharging an attachment. The facts of the case are substantially as follows:
On May 13, 1881, the defendant, H. Mabbett, was indebted to Smith & Keating and the Smith & Keating implement company, in the sum of $7,580, and in order to secure this indebtedness, Mabbett delivered to Smith & Keating, as collateral security, the notes of third persons to Mabbett, amounting to the sum of $1,800; and also transferred to the plaintiff, P. S. Brown, trustee for Smith & Keating and the Smith & Keating implement company, certain goods of the value of $3,969.24, which were to be sold and the proceeds applied to the payment of Mabbett’s said debt. Immediately after the transfer of these goods from Mabbett to Brown, Brown returned them to Mabbett, with the understanding that Mabbett should sell them and apply all the proceeds thereof in payment of his said debt to Smith & Keating, and to the Smith & Keating implement company. On June 8, 1881, Mabbett entered into another agreement with Smith & Keating and the Smith & Keating implement company, under the terms- of which agreement Mabbett was to pay Smith & Keating and the Smith.& Keating implement company the sum of $200 per week, until the entire debt from Mabbett to Smith & Keating and to the Smith & Keating implement company should be paid. Whether this agreement was to supersede the arrangement made between Mabbett and Smith & Keating, and the Smith & Keating implement company and Brown, on May 13,1881, or whether it was to affect that arrangement in any manner whatever, the testimony does not clearly show, and such testimony is conflicting. The plaintiff, Brown, claims that the $200 per week was to'be paid by Mabbett, in addition to the proceeds of sales of all goods which had been transferred to Brown, and returned by Brown to Mabbett; while Mabbett claims that he was only to pay the $200 per week, including .the proceeds of such sales. After June 8, 1881, Mabbett did not keep any separate account of such sales. But such sales in the aggregate did not amount to $200 per week. From June 8, 1881, up to October 13, 1881, Mabbett paid Smith & Keating and the Smith & Keating implement company $3,960 in cash, and delivered to them, in goods, $140 — making a total of $4,100; and on October 13, 1881, delivered to Brown, with the consent of Smith & Keating and the Smith & Keating implement company, all the goods and property still remaining in his hands which had been transferred to Bi’own on May 13, 1881, amounting to $2,382.78. From May 13, 1881, up to October 13, 1881, Mabbett had sold of the goods which he had transferred to Brown, and which had been redelivered to him, an amount aggregating in value the sum of $1,446.46, which last-mentioned goods he of course did not redeliver to Brown; and Brown then commenced this action against Mabbett for the proceeds of such goods, and obtained an order of attachment in the suit, upon the ground that the supposed liability of Mabbett for the proceeds of such goods was “fraudulently incurred.” The defendant Mabbett moved to discharge the attachment, and upon the evidence introduced, the court below sustained the motion; and this petition in error is instituted in this court for the purpose of reversing the order.of the court below, so. discharging said attachment.
It will be observed from the foregoing facts, that from June 8, 1881, up to October 13, 1881, Mabbett paid Smith & Keating and the Smith & Keating implemént company more than $200 per week in money, besides delivering to them some goods; and it will also be seen that he paid to Smith & Keating and to the Smith & Keating implement company an amount much greater than the entire amount of all the proceeds of all the sales of the goods which had been transferred to Brown and redelivered to Mabbett. Hence, according to Mabbett’s understanding of the agreement made on June 8, 1881, Mabbett fully complied with all .the obligations which he was under to Smith & Keating and to Smith & Keating implement company, and to Brown, their trustee. Upon this question, as we have before stated, the evidence was conflicting; but it was principally in parol, and that portion of it sustaining Mabbett’s theory of the case was amply sufficient;' and as the court below upon this evidence sustained Mabbett’s theory of the case, we think the decision of the court below is conclusive. Upon Mabbett’s theory of the case, the supposed obligation or liability of Mabbett to Brown for the proceeds of the sale of the goods for which this suit was brought, was certainly not “fraudulently incurred.” Therefore, the order and judgment of the court below discharging the attachment will be affirmed. | [
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The opinion of the court was delivered by
Valentine, J.:
This action was brought by Mary F. Stickel and John Culler, to perpetually enjoin the defendants, the road overseer, the township trustee, and the board of county commissioners, from removing the plaintiffs’ fence, and opening what the defendants claim to be a public highway across the plaintiffs’ land. It is admitted by the parties that in July, 1871, this highway was duly and legally located and established as a public county road by the board of county commissioners of Greenwood county, and that the county board duly ordered that it be opened for public use and travel. A portion of said highway was established along the section line running south from the southeast corner of section 16, township 25, range 10, to the southeast corner of section 33, and the southwest corner of section 34, in said township and range. The plaintiffs’ land is situated immediately east of this section line, and is the southwest quarter of said section 34. The land over which this road was located was unoccupied, and there was nothing to prevent the public from traveling over any portion of it, except certain ravines, which partially prevented travel on the line of the road where it crossed the plaintiffs’ land and for about one- fourth of a mile north of the plaintiffs’ land. The road continued to be in this condition until the year 1879, when the-owners of the land immediately west of the plaintiffs’ land fenced their land, and thereby fenced the west half of that portion of the road which was situated on the west side of the plaintiffs’ land; and afterward, and in the spring of 1881, the plaintiffs fenced their land so as to fence up the east half of the road, situated on their land. The road overseer then threw down the plaintiffs’ fence, and the plaintiffs then rebuilt the same, and then commenced this action to perpetually enjoin the road overseer, togethér with the township trustee and the board of county commissioners, from again entering upon their premises or disturbing the same, and to obtain a decree declaring the road vacated and annulled. Just how much travel there was upon this road does not appear. From anything appearing in the case there may have been a great deal, except at the point where the ravines crossed the road and thereby interfered with the travel. At that point but little travel followed the exact line of the road as located and established by the board of county commissioners, but the principal portion of the travel passed around the places where these ravines crossed the road, leaving the road from eighty feet to one hundred yards, and again returning to the road. Some.travel, however, actually passed along and over the road where the road crossed these ravines; but •as found by the court below, there was not enough of such travel “ to make a well-defined and beaten wagon-track.” It does not appear that any work or labor has ever been done or performed in improving this road; and it does not appear what, if anything, the road overseer has done in opening the same. Now from the fact that the public travel generally did not pass over the road where the same crossed these ravines, the plaintiffs claim that the road has been vacated, abrogated and annulled by virtue of § 1, ch. 150, of the Laws of 1879. (Comp. Laws of 1879, p. 817, ¶ 5075.) This section reads as follows:
“Section 1. That any county road or part thereof which has heretofore or may hereafter be authorized, which shall remain unopened for public use for the space of seven years at any one time after the order made or the authority granted for opening the same, shall be and the same is hereby vacated, and the authority granted for erecting the.same is barred by lapse of time; and any state road or part thereof which has heretofore and may hereafter be authorized, which shall remain unopened for public use for the space of ten years after the passage of the act authorizing the same, shall be vacated, and the authority for opening it repealed for non-use.”
Now we certainly do not think that the fact that but little travel has ever passed over or along the road where the same •crosses these ravines, will, by virtue of said § 1, ch. 150, of the Laws of 1879, wholly vacate or destroy the road, or any part or portion thereof. The legislature certainly did not mean that the provisions of said section 1 should cover just such cases as this. With reference to the opening of public roads or highways, § 12 of the road law provides as follows:
“ Sec. 12. It shall be the duty of each and every road overseer to open, or cause to be opened, all county and state roads and highways which have been or may hereafter be laid out or established through any part of the district assigned to such overseer, first giving notice to the owner or owners, or their agent or agents, if residing in the county; or if such owner be a minor, idiot, or insane person, then to the guardian of such person, if a resident of the county, through whose inclosed or cultivated lands such road is laid out or established, notifying such owners aforesaid to open said road through their lands within ninety days after service of such notice; and if the person or persons so notified do not open such road within the time named in such notice, .it shall be lawful for such overseer, or any person under his direction, to enter upon said lands and open said road,” etc. (Comp, Laws of 1879, p. 811.)
From this section it appears that when a public road is established, it is the duty of the road overseer to open the same; and in doing so he will give notice to all persons through whose inclosed and cultivated lands the road is located. If, in passing along the road, he finds that the road passes over only such lands as are uncultivated, uninclosed and unimproved, as is the case in the present case, his entire duties in opening the road are performed, except, perhaps, in making some improvements on the road where improvements are necessary. Now everything was certainly done in the present case for the purpose of opening the road in question that was necessary to be done, except the filling-up of said ravines or building bridges or culverts over them. Except for said ravines, as found by the court below, the road was a fairly good natural road; and it was used and traveled by the public. In the present case it would seem that there was more than one ravine; but suppose there had been only one; and that that crossed the road in the open and uninclosed prairie; and that a few feet' east or west of the road was a good natural crossing over such ravine; and that for seven years the public travel had passed over this crossing, and not on the exact line of the road : would this vacate or annul the entire length of the road? Or would it vacate or annul that small portion of the road, (few feet only,) which was not used by the public? Or would it really have no effect upon the existence of the road, or of any portion thereof? We would certainly think that it would not have any effect upon the existence of the road, or any portion thereof — and certainly not the effect to destroy the same, Now the case supposed is precisely the case that we now have under consideration, except that there were more ravines than one, and except that the travel passed ■outside of the road from eighty feet to 100 yards, instead of ■only a few feet, and except that there was about three-quarters of a mile of the road that was not generally and uniformly traveled by the public, instead of only a few feet; but the principle covering the supposed case and the one now under consideration is the same. We suppose that the public found fair crossing, in the present case, over the ravines by simply passing outside of the road from eighty feet to 100 yards; and that .the whole country in that vicinity was vacant and unoccupied, and that the land over which the travel passed was wholly unobstructed by any improvements. We would think that said § 1 of the statute was intended to apply only to cases where it would seem, from the acts and omissions of the public, that the public intended to wholly abandon the use of the road, and not to eases where the travel merely passed out of the road for the temporary purpose of avoiding an obstruction. Where the public travel passes out of a road merely for the purpose of avoiding an obstruction, it does not show any intention on the part of the public to wholly abandon the use of the road, or even of that portion of it which the public for the time being fails to use; but it merely shows an intention on the part of each individual using the road not to use the same at that particular point at that particular time. Undoubtedly, many of fhe public roads-of this state are in the same condition as the one now in question. Many of them pass over uncultivated prairie land, and many of them have places where, for short distances, they are not used; and probably some of such places have not been used for years.
We perceive no error in the ruling and judgment of the-court below, and therefore the judgment will be affirmed.
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The opinion of the court was delivered by
Brewer, J.:
This was an action in' the district court of Leavenworth county, tried upon an appeal from the assessment of damages for the right of way appropriated by the plaintiff in error. The commissioners assessed the value of the land taken at $366, and the other damage to defendant in error’s farm, by reason of such appropriation, at the sum of $600. From this assessment defendant in error appealed to the district court, and on trial in that court before a jury recovered the sum of $3,000, of which $500 was for the right of way appropriated, and $2,500 for the damage done to the remainder of the farm. From such judgment the railroad company brings error to- this court. The errors alleged are in the admission of testimony, the matter of instructions, and in the refusal of the court to submit one question propounded by the company.
I. After several witnesses had testified to the value of the farm, before and after the taking, and had stated upon what grounds they based their opinion as to the diminution of value, two witnesses were called and sworn, who testified that they did not know, the market value of the farm, but knew the farm itself, its situation and condition, both before and after the appropriation. They were then asked if they knew what per cent, of difference there was in the value before and after the appropriation. This testimony* was objected to, but the objection was overruled and the testimony admitted. This is the only question presented as to the admission of testimony.
II. The plaintiff’s testimony was that of himself and of several farmers, eleven in number. The defendant offered the testimony of four real-estate agents, whose valuation of the land taken and of the damages done to the farm was essentially different, and much less than that of the plaintiff’s witnesses. Upon this, the court gave this instruction :
“ Where a considerable number of witnesses, apparently in telligent and reliable, substantially agree in estimating the value of or injury to a particular thing, that is a circumstance proper for the consideration of a jury.”
This is objected to as tending to induce the jury to place too great reliance on the number of witnesses presented by the plaintiff.
III. The plaintiff had testified that the strip of land taken ran through his orchard, which prior thereto had been wholly surrounded by a substantial hedge fence, and that by the building of the road two openings were made in this fence at some little distance from his house. In indicating wherein the farm was damaged, both the plaintiff and other witnesses testified that one matter which they took into consideration was the greater facility which was afforded to tramps and thieves for entering this orchard and stealing his fruit. Upon this the company asked this instruction:
“That the opinions of witnesses as to value, based upon the assumption of the probability of tramps or thieves entering the premises of plaintiff and committing the larceny of fruit or other things by reason of the construction of the road, shall not be considered or weighed by them in making up their verdict.”
This instruction the court refused to give, and the refusal is alleged as error.
IV. The court gave this.instruction:
“ If it were reasonable and proper that the plaintiff should construct and maintain a fence on each side of the road, then the cost thereof would be an item to be considered in estimating the damages; and I would suppose that the inconvenience in handling and caring for live stock would be a proper subject for consideration in estimating the damages, but the supreme court of the state, whose decision is binding upon you and me, has decided otherwise, and that excludes it.”
The giving of this instruction is also alleged as error.
V. The defendant asked the court to give this instruction:
“That the plaintiff after the condemnation of the strip of land is still the owner of the hundred feet in width, subject to the easement of the railroad company, and has the right to every use of it which can be made without interfering with the operation of the road, 'and to all grass and other vegetation which shall grow thereon.”
But the court refused to give it, and this refusal is alleged, as error’.
YI. The defendant asked the court to submit this question to the jury:
“ If the land was worth less after than before the appropriation of the right of way, state what facts constituted the depreciation in value, each item separately, and the amount of each.”
But the court declined to submit the question, and this is alleged as error. These we think present all the matters which require notice at our hands; and of them in their order.
And first, in reference to the admission of testimony. This matter has embarrassed us not a little. We have great doubts as to whether the testimony was competent. It has already been decided in this court that as a general rule the opinion of a witness as to the amount of damages which the landowner sustains by reason of the establishment of a road across his land is not admissible as evidence. (Roberts v. The Comm’rs of Brown County, 21 Kas. 247.) It has also been decided that a witness may testify as to the value of land before the right of way was laid out, and also as to the value of land after it has been appropriated. (Rld Co. v. Allen, 24 Kas. 33.) Now this testimony touches both of these propositions. It is almost an expression of the witnesses’ opinion as to the amount of damages, and it is but little more than a statement of the difference in values before and after the appropriation. It is a familiar rule of evidence that witnesses are to state facts, and the jury form opinions. So stringent was this rule at one time, that a witness was not permited to testify as to values. (1 Greenl. on Ev., 13th ed., § 440, p. 494, and cases cited in note 2.) This was upon the theory that values were mere matters of opinion.
By degrees the rule was changed so far as to permit testimony as to-values. Some authorities considered it an exception to the rule 'forbidding the witness to give opinions, (see Sedgwick on the Measure of Damages, p. 592,) while others regarded values as facts, and testimony as to values simply testimony as to facts. See Clark v. Baird, 5 Selden (N. Y.), 183, where many prior cases are reviewed and considered. Doubtless there is something of truth in both of these views. In some cases the question of market value is a mere question of fact. As for instance, in a grain center like Chicago, the market value of any grain is known, and as certain as any ordinary fact. Parties who are engaged in the grain business are as fully and certainly aware of the market value and the changes from day to day therein as of any other fact in business. While on the other hand, the values of real estate, especially in localities where there are few changes in property, are not so absolutely certain, and cannot be determined with absolute exactness; and in respect to them the testimony of witnesses partakes largely of the nature of opinions. And yet from the necessities of the case it has come to be recognized that such testimony is competent. It is -the best that, in the nature of things, can be obtained; for a description by a witness of the locality of any given tract, its improvements and surroundings, would ordinarily throw little light upon the question of its value. So many things enter into and affect such value that a witness would be unable to describe them all or even to comprehend them all fully. Hence it has become pretty generally established that a witness who testifies that he is acquainted with the values of real estate in the locality, may give his opinion as to the value of any particular tract. Therefore the great bulk of the testimony, which was offered in this case as to the value of the land before and after the appropriation, was clearly admissible. Now the testimony of these two witnesses was testimony simply as to relative, and not to absolute values. • In some cases this would be the only testimony attainable. Take this instance: Suppose trespassing cattle should break down a corn crib and scatter and trample upon the corn; perhaps the only parties who saw the corn crib before and after the trespass might be unacquainted with the market value, and yet able to state the relative value of the crib of corn, both before and after the injury. Would not such testimony be competent? —-leaving to other witnesses, familiar with the market value of uninjured corn, to testify as to that. Only thus could the real extent of the injury be ascertained. Now these witnesses in the case at bar testified, that they knew the farm both before and after the appropriation of the right of way; knew its condition, its improvements, the changes made in it by the taking of the right of way, and the effect which the same had upon the farm, and also the relative values of the farm both before and after the injury. With some hesitation we hold that such testimony was competent, or perhaps more correctly that the error, if error it be in its admission, is not under the circumstances of this ease such an one as requires a reversal of the judgment. Doubtless such testimony is to be received with caution. It is not strictly the best testimony which the nature of the case admits of. Perhaps in many eases it would afford sufficient ground for setting aside a judgment. But beyond the doubt that exists as to whether'such testimony is or is not competent, these further facts appear: Some ten witnesses had previously shown themselves cognizant of the values; had given competent testimony as to such values before and after the taking; and no one of them had testified to a smaller difference in value than did these two witnesses. Further than that, after all the testimony had been received the jury were sent out by the court, and made a personal examination of the farm, and their verdict was less than two-thirds of the lowest valuation of the damage given by any of the plaintiff’s witnesses. Putting all these things together, we think we should not be justified in reversing the judgment because of the admission of this testimony. See as supporting the foregoing conclusions the following authorities: Harrison v. Rld. Co., 36 Iowa, 323; Curtis v. Rld. Co., 20 Minn. 28; Rld. Co. v. Henry, 79 Ill. 290.
As to the second matter complained of, there can be no doubt that the instruction given by the court is correct as an abstract proposition. The jury are to be governed by the testimony, and where a considerable number of witnesses, apparently intelligent and reliable, substantially agree, such agreement is certainly a matter entitled to the respectful consideration of the jury. In this very case, some five witnesses were called by the defendant, who substantially agreed, and their agreement was certainly a matter to challenge the attention of the jury. The court did not instruct that the case was to be decided by the mere number of witnesses, as it ought not to; for oftentimes the better knowledge of the few, their greater disinterestedness, freedom from bias, or other reason, may justify or even compel the jury to place more •confidence in the testimony of the few than of the many witnesses. On the contrary, the court instructed that the “jury were not bound by the testimony of any one witness or any number of witnesses, but must come to their own conclusions from all the evidence in the case.” Perhaps an instruction •in this case would have been proper, calling the attention of ■the jury to the question of the means of knowledge of the witnesses on the two sides. No such instruction was asked, and therefore the court committed no error in not so instructing-
As to the third matter complained of, the jury, in response to a special question, replied that they allowed the plaintiff no damages on account of 'the -liability of his fruit or other property to be stolen. As they did not take that matter into consideration in estimating the damages which they awarded, we think the failure of the court to give the instruction asked was a matter of no moment.
As to the fourth matter, we think that the cost of constructing a fence, if the construction of a fence was reasonable and proper under the circumstances under which the defendant’s road ran through the farm, was a proper matter for the consideration of the jury. The plaintiff had testified that he had already constructed a fence all along the line of the right of way, and in view of the manner in which as he states the road ran through his orchard and other parts of his farm, we think the building of a fence was reasonable and proper.
As to the fifth matter, we remark, that the court had partially instructed the jury upon the questions involved in the instruction refused. It had told them that the fee-simple title remained in the plaintiff, subject to the use by the railroad company for the purposes of its road. Now there was nO’ testimony tending to show how much of this right of way would actually be used by the railroad company. They would have a right to use every foot of it, covering it all with sidetracks or buildings. The extent of their use is a question of fact, and it was unnecessary, in the absence of any testimony, to particularize all the possible uses and advantages which the the plaintiff might retain in the land.
With reference to the last matter, we think it would be difficult for a jury in mány eases, among them the case at bar, to give a full, accurate and just answer to such a question. So many different matters combine to cause the depreciation in value, that it would be almost impossible to mention each of them, or that twelve men should agree as to the proportionate degree of each in causing such depreciation. One juror would naturally place more stress upon one cause than another, and while they might all agree that the market value of the farm was diminished a certain amount, yet they might come very far from agreeing as to’ the proportionate amount which each of the several causes contributed thereto. It would doubtless be proper when any particular matter or matters had been spoken of as tending to cause a depreciation in value, to submit questions as to such matters, and so counsel did; but to require a jury to state every consideration, which in their judgment tended to make the appropriation of the right of way an injury to the farm and the exact amount of the injury attributable to each of such considerations, would in many cases needlessly tend to perplex and embarrass them. Taking the whole case together, we think the judgment must be affirmed. We do this, as already indi cated, with some hesitation, in view of the first matter considered; and still we are not prepared to say that there was any such error in the proceedings as yrould justify us in disturbing the judgment, and it will therefore be affirmed.
The case immediately preceding this, the Leavenworth, Topeka & Southwestern Eailway Company v. E. J. Holman, presents the same questions as this, with the exception of the one first named; and for the same reasons, the judgment in that case will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action brought by plaintiff in error against the defendant in error to quiet his title to one hundred and sixty acres of land in Dickinson county. Plaintiff alleged in his petition that he was a married man, the head of a family, and the legal owner of and in' the actual possession of the premises, occupying the same as a homestead; that the defendant claimed title under a deed executed to him by one Needham; that Needham fraudulently obtained the signature of the plaintiff to a blank form of deed which was afterward fraudulently filled up as a conveyance to himself of the premises, and filed of record without the knowledge or consent of plaintiff; that plaintiff never acknowledged said deed, and that the wife of plaintiff never joined in the execution of said pretended conveyance or ever consented to any alienation of the homestead, and that the defendant had notice of all thesé facts when he accepted the conveyance from Needham. The defendant demurred to the petition upon the ground that there was a defect of parties plaintiff in the action, in this, that the wife of the plaintiff was a necessary party. The court sustained the demurrer, and rendered judgment for defendant for costs.
It is the contention of the defendant, that because the petition set forth that the premises therein described were a homestead, it disclosed the fact that the wife was a necessary party to the action. We do not think this necessarily follows. For the purposes of the demurrer, the allegations of the petition are to be taken as true. If true, the so-called conveyance to Needham set forth in the petition is absolutely void; and the plaintiff being in the actual possession of the premises, the defendant and every other person was bound to take notice of his homestead interests. (Moore v. Reaves, 15 Kas. 150; Chambers v. Cox, 23 Kas. 393.) If the premises were a homestead, the separate deed of the plaintiff, even if lawfully obtained, did not divest him of title, nor estop him from alleging the deed to be a nullity; and being the owner of the premises and in the possession thereof, he was entitled under § 594 of the code to bring his action against the defendant without making his wife a party plaintiff. Her interest therein was in no way adverse to him, and upon the facts stated in the petition the wife was not so united in interest with plaintiff as to render it necessary for her to be joined as a plaintiff. We do not decide that the defendant might not have obtained the consent of the court to make the wife a party. This point is not presented. All that we do decide is, that the facts set forth in the petition do not show a defect of parties plaintiff, and therefore that the court erred in sustaining the demurrer. This is not like an action brought against the wife alone, to foreclose a mortgage upon a homestead, (Dollman v. Harris, 5 Kas. 597,) nor like the case of Revalk v. Kræmer, 8 Cal. 66, to which we are cited.
Counsel suggest that if the plaintiff could maintain the action he could compromise it. In the absence of the wife being a party, of course he could not conclude by any compromise any of her rights, nor would any compromise in the case affect his right to the homestead not consented to by the wife, any more than the separate execution of a deed by himself.
The order and judgment of the district court will be reversed, and the case remanded with direction to the court below to overrule the demurrer.
All the Justices concurring. | [
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Per Curiam:
The questions in this case are precisely like those in Quinlan, Montgomery & Co. v. Danford, just decided; and therefore the order of the district judge must be affirmed. | [
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The opinion of the court was delivered by -
Brewer, J.:
This was an action in the district court of Leavenworth county, brought by plaintiff in error (plaintiff below), to recover on an account for work and labor. The case was tried before a jury, but after the testimony had been all received the court instructed them to-return a verdict for the defendant. The parties were each a witness in his own behalf, and testified directly against each other, so that there was presented a disputed question of fact; and this, counsel for plaintiff in error insists, should have been submitted to the jury, and that the court erred in taking it from them. Of course if the case turned on the decision of this question of fact, then counsel is right; for under our system of jurisprudence the jury are the triers of fact, and their decision upon a doubtful and disputed question is final and conclusive. To sustain the ruling of the district court, it must clearly appear that though the facts be as plaintiff claims, still the law compels a decision against him. This then is the real question presented: Conceding the facts to be just as plaintiff says they were, was defendant entitled to a verdict and judgment? Now the facts are these: The defendant made a contract with one Liddell to do some work on his house. The latter made a sub-contract with plaintiff to do the painting. After plaintiff had about half finished his contract he became fearful that he was not going to get his pay, and declined to go ahead with the work. Thereupon defendant agreed to become responsible, and to pay plaintiff for the work if he would finish the painting. He did so, and then insisted that defendant should pay. The defendant denied any such promise. But whether he made it or not, we shall' not stop to inquire, nor whether it was, if made, simply a promise to pay the debt of another as defendant claims, and therefore not binding because not in writing; for we think another matter compels an affirmance of the ruling of the district court. That matter is this: The plaintiff, after the house was completed, brought one action against the defendant for part of this work, recovered- judgment therefor, and after the filing of an appeal bond the judgment was settled and paid. Now counsel for defendant very properly say that the plaintiff, by bringing one action and recovering judgment thereon, is estopped from any further action on .the same contract; that it matters not whether plaintiff claimed or recovered in the first action all that he was entitled to by reason of his contract; it is enough to say that there was but one single and indivisible contract. If that existed, but one action could be maintained on it; and whether the plaintiff recovered much or little, and whether he claimed all or less than all he was entitled to, is entirely immaterial. One contract gives one cause of action, and the plaintiff maintaining one is estopped from any future or further action! This rule of law is familiar, rests upon the soundest principles,.¿pd we think is controlling in the present case. In 2 Smith’s Leading Cases, 671, the author says: “As an entire cause of action cannot be divided, a judgment in favor of or against the plaintiff for part, will be as conclusive against the right to maintain an action for the residue as if it had embraced the whole. Simes v. Zane, 12 Harris, 242; Benderagle v. Cock, 19 Wend. 207, 209; Secor v. Sturgis, 16 N.Y. 548, 549. The rule,’ said Lowery, J., in Simes v. Zane, that prevents a party from splitting up his cause of action into small fragments, takes away his remedy for the residue entirely, and having once claimed by action or defense a part of an entire subject-matter, the law allows him no remedy for the other part; else there could be no end to litigation. A recovery in trespass or trover for one of several chattels carried off or converted at the same time, or for any other indivisible act or wrong, will accordingly be a bar to a subsequent action for the others.’ (Farrington v. Payne, 15 Johns. 432; Phillips v. Berick, 16 id. 136; Cunningham v. Harris, 5 Cal. 81; Cracraft v. Cochran, 16 Iowa, 301, 304; Veghte v. Hoagland, 5 Dutcher, 125.)” And again: “A vendor who sells goods .at the same time, and place, to the same person, cannot multiply costs by bringing as many suits as there are parcels, but must include the whole in one action, even when they were delivered at different periods. (Smith v. Jones, 15 Johns. 229; Miller v. Covert, 1 Wend. 487; Cunningham v. Harris, 5 Cal. 81.) And the principle is the same syhen the consideration consists of work and labor done, or services rendered. (Logan v. Caffey, 6 Casey, 196.)”
It is often difficult to determine whether separate items of a claim constitute a single, or separate cause of action. The rule is clear, but the application is often difficult. There was a disposition at one'time in the courts to extend the scope of this rule, and to hold thatlfthere was but one cause of action as to many items of claim which in fact sprang out of different and independent contracts. The cases of Guernsey v. Carver, 8 Wend. 492, and Colvin v. Corwin, 15 Wend. 557, illustrate this tendency. But the later authorities apply it more correctly. In the case of Secor v. Sturgis, 16 N. Y. 558, the court thus interprets the rule:
. “The true distinction between demands or rights of action which are single and entire and those which are several and •distinct, is, that the former immediately arise out of one and the same act or contract, and the latter-out of different acts or contracts. Perhaps as simple and safe a test as the subject admits of by which to determine whether a case belongs to one class or the other, is by inquiring whether it rests upon one or several acts or agreements. In the case of torts, each trespass, or conversion, or fraud, gives a right of action, and but a single one, however numerous the' items of wrong or damage may be. In respect, to contracts, express or implied, each contract affords one, and only one, cause of action. The •case of a contract containing several stipulations to be performed at different times is no exception, although an action may be maintained upon each stipulation, as it is broken, before the time for the performance of the others. The ground of action is the stipulation, which is in the nature of a several contract. Where there is an account for goods sold, or labor performed, or where money has been lent to or paid for the use of a party at different times, or several items of claim spring in any way from a contract, whether one only or separate rights of action exist, will in each ease •depend upon whether the case is covered by any one or separate contracts.”
In the case from 6 Casey, supra, the court says: “The entirety of - the contract has regard to the obligation of the defendant, for it is upon that the action is founded.” See also Comm’rs v. Plumb, 20 Kas. 147; Bond v. Machine Co., 23 Kas. 119. Now that there was but one contract, is clear. Plaintiff does not pretend to having but one conversation with defendant, or to receiving more than- the one promise from him. We quote his language:
“I had done part of the work on the house, and Carr? the-architect of the improvement, wanted me to go on and paint the window-blinds, and I told him I would not do any more work till I knew who- was going to pay. The defendant Smith told me to go on and paint the blinds and he would pay me. I went on and painted the window-blinds, and completed the other work. The whole amount was $840,. besides the> window-blinds. About half of the work had been done when I had this talk with Mr. Smith.”
No testimony indicates any other conversation, any other-contract or promise on the part of defendant. In his first action, plaintiff sued for the blinds, of which he speaks in his testimony above quoted, things which he calls extra work, and then in this action for the balance which would be due-under his contract with Liddell, and also a few extra matters.. Now counsel for plaintiff says that a party may in one conversation enter into several independent contracts. He may make one promise, which, referring to distinct matters or embodying distinct stipulations, really creates so many independent contracts. He may give a note, which, containing a promise to pay the principal at its maturity, and interest at a given rate at certain intervening times, thereby creates as many separate contracts, which may be enforced by separate actions, as there are times in which interest becomes due. So-in this case there was the regular contract work and the extra work; the defendant promised to pay each amount. Therefore there were two contracts — one to pay the amount which Liddell would have owed under the original contract, and one to pay for the extra work thereafter ordered. We do not think this argument sound. It is true that extra work some times implies a second contract and a second promise. But so far as the defendant is concerned, there was no extra work. He did not employ plaintiff to do a certain amount of painting, and then employ him to do more; but finding him engaged in painting the house and about to stop, he tells him to go ahead, and promises payment for his entire work. As to defendant, every item of painting stood upon the same basis. It matters not what arrangement existed between plaintiff and Liddell — defendant made but one promise to pay for the painting. The blinds- may not have been included in plaintiff’s contract with Liddell, but they were part of the work on the house already determined on, and a part of the work which plaintiff told defendant to go on and do, and for which he promised payment, and for all of which, and as an entirety, he made but a single promise. Suppose plaintiff had brought his action against Liddell upon the original contract: it would not be pretended that he could maintain more than one action. Although the contract was for different items of work, such as the painting of doors, windows, walls, etc., and although separate prices were placed upon each item of work, yet when he made the contract to do the whole for $840, everything was merged in the one contract, and upon this he could maintain but the one action. So when the defendant made his promise, it was a promise to pay for all the work then undertaken by the plaintiff. It was a single promise, and a promise to pay for it as a whole.' It could not be considered as a guaranty of two separate contracts made by Lid-dell, for as a guaranty it was worthless.- He was liable, if at all, only1 as an original promisor, and not as a guarantor; and as an original promise, his promise was to pay for all the painting which the plaintiff had undertaken to do. It was a single promise to pay for all the work as a whole, and not a separate contract to pay for each item of it. "We think, therefore, that the ruling of the district court was correct, and that it must be affirmed.
We have not considered the case in the light of the othey question presented and discussed by counsel, and we have given to the plaintiff’s testimony the fullest extent of meaning which its language would permit. A narrow reading of it would limit its scope very much. The plaintiff says: “ The defendant, Smith, told me to go on and paint the blinds and he would pay me.” That might mean that he would pay for paintipg the blinds, and that he had done. We have taken the language however to mean, in our consideration of the case, that the defendant promised to pay for all the work; and for the reasons given, even with that interpretation of it, the ruling of the district court wás right, and the judgment will be affirmed.
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The opinion of the court was delivered by
Valentine, J.:
This is an action of mandamus, brought originally in this court in the name of the state of Kansas, on the relation of W. A. Johnston, attorney general, to compel J. B. Rhodes, N. J. Reynolds and Otto F. Fabricius, as the board of county [commissioners of Anderson county, Kansas, to order an election in Walker township, in said county, to determine the question whether the electors of that township will authorize the subscription of $25,000 to the capital stock of the Fort Scott, Topeka & Lincoln rail road company, and authorize the issue of that amount of the bonds of the township in payment.for such stock. An alternative writ of mandamus was issued, and the defendant, by way of return and answer to the writ, set-up four defenses. A trial was had in this court on April 4, 1882; and upon the pleadings and evidence, we find in favor of the plaintiff and against the defendant upon all the defenses, except the fourth, and upon that defense we 'find in favor of the defendant and against the plaintiff. The fourth defense is substantially as follows: On December 26, 1881, a petition was filed in the county clerk’s office for a division of said Walker township into two townships, by a line running east and west, the northern township to contain about fifteen square miles, and the southern township to contain about' thirty square miles; the northern township to retain the name of “ Walker,” and the southern township to be named “Union.”
The time for the hearing of this petition by the board of county commissioners was fixed for April 12,1882, and proper notice was given to that effect. The petition for calling an election in said Walker township, and submitting to the qualified voters of said township the proposition to subscribe $25,000 to the capital stock of the Fort Scott, Topeka & Lincoln railroad company, and to issue the bonds of the township to such railroad company, was presented to the county commissioners on February 13, 1882; and as the question whether the township should be divided, or not, was then pending, the county commissioners refused to call the election in Walker township for the purpose of determining the proposition whether such stock should be subscribed for, and such bonds issued, until the question whether the township should be divided, or not; should first be settled and determined by the board. It is probable that the county commissioners might legally and properly have ordered the election at once; but we think it was entirely proper for them to postpone the consideration of the question until the other question, as to whether they should divide the township, or not, should first be disposed of. If the township should be divided, then it is possible that the interests of the two townships would not be identical; it is possible that the railroad would not be beneficial to one or to the other of the townships; and it is possible, also, that one or the other of the townships might not wish to subscribe to the capital stock of the railroad • company, and issue bonds in payment for such stock, and thereby become involved in debt for something which the township might possibly regard as of no value. It is true, that the commissioners might have so called the election as to make it take place .prior to April 12, 1882, and before the township could be divided. But if they believed that in the end and on that day the township must be divided, we think they exercised a sound discretion in refusing to order the election at that time. At the time, however, when this case was submitted to us, an election could not have been so called or ordered that it would take place prior to said April 12,1882; for, as we have before stated, the case was not submitted to us until April 4, 1882; and the law requires that at least thirty days’ notice shall be given of such election after the election is ordered and before it takes place. The 12th of April, 1882, is now past; and whether the township has been divided, or not, we do not know, judicially. Outside of the case, however, we know that in fact it has been divided; but that those who opposed the division claim that the division is illegal and utterly void. These questions we cannot settle in this case. All that we can do in this case is to decide the case upon the alternative theory, that the township either may, or may not, be divided, without knowing which. If the township is legally divided, then it is possible, and even probable, that no valid election could be called upon the present petition. The law requires that no township shall be allowed to issue evidences of indebtedness to the extent of more than $15,000, and five per cent, additional of the assessed value of the property of such township; and in no case shall the' total amount of township aid to any railroad com - pany exceed $4,000 per mile for each mile of railroad constructed in the county. (Comp. Laws 1879, pp. 792, 793, § 1.) And before any election can be called for the purpose of authorizing aid to a railroad company, at least two-fifths of the resident tax-payers must petition the county commissioners for such an election.
Now can any one say that all these conditions have been fulfilled, as to each or either of these townships into which Walker township may have been divided? And if Walker township has been so divided, in which of the two townships should the election be held; or should it be held in both? And if it should be held in only one, then have two-fifths of the resident tax-payers of that township petitioned for such an election? And is the sum of $25,000 not more than $15,000 and 5 per cent, additional of the assessed value of the property of such township? These questions cannot be answered from the pleadings and evidence presented in this case. Besides, there are other questions which must eventually be answered: If Walker township has been divided into two townships, then which one of the two is the old township, and which the new? Or are they both new? And can a new township be created with less than thirty square miles? (Comp. Laws of 1879, p. 277, § 24.) The northern township has the larger population, and is allowed to' retain the old name; but the southern township has the larger area — and what is there in a name?
With all these difficulties in the way, this court thinks that no peremptory writ of mandamus should be issued to compel the board of county commissioners to call an election) even if we should be of the opinion that we have the authority to allow the writ. Exercising a sound judicial discretion, we think we ought to refuse the writ; and that this court has a degree of discretion in allowing or refusing writs of mandamus, has been frequently held by this court, as well as by other courts. Among other cases, see The State v. Marston, 6 Kas. 524, 537, and cases there cited; A. T. & S. F. Rld. Co. v. Comm’rs of Jefferson County, 12 Kas. 136; Golden v. Elliot, 13 Kas. 92; The State v. Breese, 15 Kas. 125.
The peremptory writ of mandamus will be refused in this case, and judgment will be rendered in favor of the defendant and against the plaintiff, for costs.
All the Justices concurring. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
Plaintiff William F. Robertson appeals from a judgment dismissing a negligence action for failure to state a claim upon which relief can be granted. K.S.A. 60-212(h)(6). Robertson sued the City of Topeka and three officers of the Topeka Police Department for damages sustained to real property he owns in the City of Topeka. He alleges the officers negligently failed to evict a trespasser from the property. The discretionary function exception in the Kansas Tort Claims Act, K.S.A. 1981 Supp. 75-6101 et seq., is implicated.
Whether dismissal pursuant to K.S.A. 60-212(h)(6) was appropriate must be decided from the well-pleaded facts of plaintiff’s petition. Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, 413, 479 P.2d 875 (1971); Robertson v. McCune, 205 Kan. 696, 700, 472 P.2d 215 (1970); Knight v. Neodesha Police Dept., 5 Kan. App. 2d 472, 475, 620 P.2d 837 (1980). For purposes of review, this court assumes the facts pleaded to be true.
Briefly, the petition reveals the following. On March 17, 1980, Leroy Danner was on property owned by the plaintiff at 1628 East Third Street in Topeka. Plaintiff called the police to assist in removing Danner from the property. Officer Mills, Weckwerth, and Fox, defendants in this action, responded to the call. Plaintiff advised the officers that Danner had no right to be on the property, that he was intoxicated, and that he would most likely burn the house down if he remained. The officers refused to remove Mr. Danner from the premises and directed plaintiff to leave the premises. Approximately fifteen minutes later, the house burned.
After the Board of Commissioners of the City of Topeka denied a claim for reimbursement for fire damage, plaintiff filed this negligence action on November 24, 1980, alleging defendants failed to carry out a duty to protect plaintiff’s property. On January 15, 1981, the defendants moved to dismiss for failure to state a claim upon which relief could be granted. In its memorandum decision and order of August 6, 1981, the trial court found the actions of the police officers discretionary and as such exempt from liability under K.S.A. 1981 Supp. 75-6104(d) of the Kansas Tort Claims Act. K.S.A. 1981 Supp. 75-6101 et seq. Accordingly, the court sustained the defendants’ motion to dismiss. Plaintiff appeals from that order, contending the trial court erred in dismissing the action.
The scope of our review on a motion to dismiss has been stated in the following manner:
“The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in plaintiff’s favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.” Weil & Associates v. Urban Renewal Agency, 206 Kan. at 413. Followed in: Knight v. Neodesha Police Dept., 5 Kan. App. 2d at 475.
Even with the advent of notice pleading, it is incumbent upon a person asserting a claim against a public officer to make at least some allegation which, if true, would tend to establish that immunity was not a bar to the claim. Hendrix v. City of Topeka, 231 Kan. 113, Syl. ¶ 5, 643 P.2d 129 (1982).
Determination of the issue in this case requires examination of the Kansas Tort Claims Act, K.S.A. 1981 Supp. 75-6101 et seq. We will make no attempt to survey the history of governmental immunity in Kansas. Instead, we refer the reader to our past decisions which have been reviewed extensively. See, e.g., Report on Kansas Legislative Interim Studies to the 1979 Legislature, filed with the Legislative Coordinating Council December 1978, pp. 269-73; Note, Governmental Liability: The Kansas Tort Claims Act [or the King Can Do Wrong], 19 Washburn L.J. 260 (1980); Harley and Wasinger, Governmental Immunity: Despotic Mantle or Creature of Necessity, 16 Washburn L.J. 12 (1976); Comment, Governmental Immunity in Kansas: Prospects for Enlightened Change, 19 Kan. L. Rev. 211 (1971).
The Kansas Tort Claims Act charts a new course, establishing governmental liability for tort claims as the general rule subject to enumerated exceptions. We would note at the outset, however, that the number of exceptions enumerated in K.S.A. 1981 Supp. 75-6104 indicates there has been no wholesale rejection of immunity by the Kansas Legislature.
K.S.A. 1981 Supp. 75-6103(a) states the general rule:
“Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state.” (Emphasis added.)
The specific exception to liability relied on by the trial court in dismissing this action is included among exceptions enumerated in K.S.A. 1981 Supp. 75-6104:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:
“(d) Any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion be abused.”
The Federal Tort Claims Act, codified at 28 U.S.C. § 2671 et seq., contains a similar provision at § 2680(a):
“The provisions of this chapter and section 1346(b) of this title shall not apply to —
“(a) Any claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”
Federal cases interpreting that “discretionary function” exception employ a variety of rationales. One federal court surveyed the cases and stated: “Rather than a seamless web ... we found the law in this area to be a patchwork quilt.” Blessing v. United States, 447 F. Supp. 1160, 1167 (E.D. Pa. 1978). Extensive footnotes in the Blessing opinion detail approaches federal courts have taken in applying the discretionary function exception generally. See also 2 Jayson, Personal Injury, Handling Federal Tort Claims § 249.07 (1978). The more narrow area of claims based on law enforcement evokes equally varied approaches. See generally Annot., 36 A.L.R. Fed. 240.
Dalehite v. United States, 346 U.S. 15, 97 L.Ed. 1427, 73 S.Ct. 956 (1953), the seminal decision interpreting the discretionary function exception of the Federal Tort Claims Act, relied on a planning level-operational level test to determine events leading to an explosion of ammonium nitrate fertilizer fell within the discretionary function. “The decisions held culpable were all responsibly made at a planning rather than operational level and involved considerations more or less important to the practicability of the Government’s fertilizer program.” 346 U.S. at 42. Dalehite was distinguished in Indian Towing Co. v. United States, 350 U.S. 61, 100 L.Ed. 48, 76 S.Ct. 122 (1955), a suit to . recover damages resulting from the government’s alleged negligent operation of a lighthouse. The court held the government exercised discretion in establishing the lighthouse but, once established, there was a duty to maintain it. With the Indian Towing opinion the debate was on as to the parameters of the discretionary function exception and the validity of a so-called planning level-operational level test. See 2 Jayson, Personal Injury, Handling Federal Tort Claims § 249.07 (1978).
Another test developed within the federal circuits: “[W]hether the judgments of a Government employee are of ‘the nature and quality’ which Congress intended to put beyond judicial review.” Downs v. United States, 522 F.2d 990, 997 (6th Cir. 1975). In Downs, the survivors of victims who died in an airplane hijacking alleged an FBI agent’s negligence in handling the situation caused the deaths. The government argued the actions of the agent fell within the discretionary function exception. The court noted that “[j]udgment is exercised in almost every human endeavor” (522 F.2d at 995), so that factor alone cannot be determinative of immunity. The court determined the intent of the federal act to be protection at the policy formulation level. 522 F.2d at 996. Since handbook procedures had been developed for use in responding to a hijacking, the agent’s actions were not within the discretionary function exception. Other courts have rejected the planning level-operational level test with its primary focus on the employee’s status. See, e.g., Smith v. United States, 375 F.2d 243 (5th Cir.), cert. denied 389 U.S. 841 (1967); Luizzo v. United States, 508 F. Supp. 923 (E.D. Mich. 1981); DePass v. United States, 479 F. Supp. 373 (D. Md. 1979).
We turn now to interpretation of the discretionary function exception in the Kansas Tort Claims Act. Our review of the federal cases convinces us that it is the nature and quality of the discretion exercised which should be our focus rather than the status of the employee exercising that discretion. In the case at bar, Topeka police officers responding to a call were allegedly negligent in refusing to remove Danner from the plaintiff’s property when requested to do so. Assuming the facts alleged in the plaintiff’s petition to be true, as we must, the officers had no clear-cut remedy. They were faced with a situation in which, to keep the peace, someone had to be evicted from the property. They exercised their judgment and asked the plaintiff to leave. We believe this to be, an exercise of discretion within the discretionary function exception. It would be virtually impossible for police departments to establish specific guidelines designed to anticipate every situation an officer might encounter in the course of his work. Absent such guidelines, police officers should be vested with the necessary discretionary authority to act in a manner which they deem appropriate without the threat of potentially large tort judgments against the city, if not against the officers personally.
It may be vigorously argued that police officers should not direct the owner of real property to leave his premises where a trespasser intrudes on the premises and the police officers are summoned to remove the trespasser. It can be said this interferes with the owner’s right to protect his property.
Failure to distinguish between the time frame in which police officers are required to take action and the factual situation presented to the court by a claimant in his petition, as here, could lead to disastrous results. The court is in the position of a Monday-morning quarterback. The facts with which the court must deal are established. The critical time material to the exercise of judgment by the police officers was at the scene of the incident on March 17,1980, at 1628 East Third Street in the City of Topeka. At that time Mr. Danner, if intoxicated, was not in a public place. The police officers were required to make a determination of the factual situation within a few minutes without any opportunity to investigate whether the plaintiffs were in fact the owners of the premises or whether Mr. Danner was autho rized to be on the premises. In our opinion the legislature did not intend to impose on police officers the obligation to ascertain the true state of the facts within such limited time frame at their peril. The police officers were not required to exercise judgment at their peril. This interpretation of the discretionary function exception in the Kansas Tort Claims Act gives it substance.
Lest our decision be misconstrued as an unwarranted restriction on the general rule imposing liability, we note two other exceptions to liability related to police functions. K.S.A. 1981 Supp. 75-6104 provides as exemptions from liability:
“(c) [E]nforcement of or failure to enforce a law, whether valid or invalid, including, but not limited to, any statute, regulation, ordinance or resolution;
“(m) failure to provide, or the method of providing, police or fire protection.”
The appellant, citing Broadhurst Foundation v. New Hope Baptist Society, 194 Kan. 40, 397 P.2d 360 (1964), urges that because the discretionary function provision is an exception to the general rule of liability, it must be construed narrowly. It is true that “ordinarily a strict or narrow interpretation is applied to statutory exceptions,” but the Broadhurst opinion itself also states “statutes must ... be construed in their entirety with a view of giving effect to the legislative intent.” 194 Kan. at 44. While we have found no legislative history speaking directly to the discretionary function exception, we feel our application of the discretionary function exception to the facts in the case at bar is consistent with other exceptions protective of law enforcement functions.
There is a second reason, grounded in tort law, which made dismissal appropriate in this case. Actionable negligence must be based on a duty owed the plaintiff by the defendant. Prosser, Law of Torts § 30 (4th ed. 1971). It is generally held that the duty of a law enforcement officer to preserve the peace is a duty owed to the public at large, not to a particular individual. Commercial Union Ins. Co. v. City of Wichita, 217 Kan. 44, 53, 536 P.2d 54 (1975); 70 Am. Jur. 2d, Sheriffs, Police, and Constables § 54. Absent some special relationship with or specific duty owed an individual, liability will not lie for damages. Hendrix v. City of Topeka, 231 Kan. at 120, Massengill v. Yuma County, 104 Ariz. 518, 456 P.2d 376 (1969); Tomlinson v. Pierce, 178 Cal. App. 2d 112, 2 Cal. Rptr. 700 (1960); Crouch v. Hall, _ Ind. App. _, 406 N.E.2d 303 (1980).
A special relationship or specific duty has been found to exist when an informant is endangered because of his assistance, Swanner v. United States, 309 F. Supp. 1183 (M.D. Ala. 1970), or when one who creates a foreseeable peril, not readily discoverable, fails to warn. Johnson v. State of California, 69 Cal. 2d 782, 73 Cal. Rptr. 240, 447 P.2d 352 (1968). No such special relationship or specific duty exists in the case at bar.
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The opinion of the court was delivered by
Prager, J.:
This is an appeal from an order of the district court denying admission of a will to probate on the basis of undue influence in violation of K.S.A. 59-605. The decedent is Owen R. Robinson. The adversaries in this case are Owen’s widow, Sally L. Robinson, and Owen’s nephew and niece, R. Michael Jennings and Anne Irving. The trial court, in its order denying admission of the will to probate, made extensive findings of fact and conclusions of law.
The facts in the case are not really in dispute and are essentially as follows: The decedent, Owen R. Robinson, died on June 26, 1978, in Wichita at the age of 71 years. He was survived by his widow, Sally, his only heir at law. The parties had no children. Owen was a retired dentist and rancher whose major interest at the time of his death was his one-half interest in the Santa Robin Ranch in Butler County. Owen and Sally were married September 2, 1930. They began married life in Kansas City and then after one year moved to Graham County. In 1935 they moved to Hays were Owen went to college. Owen entered dental school in Kansas City in 1940 and graduated in 1944. Sally worked while Owen attended college and dental school. Following dental college, Owen practiced dentistry in Kansas City. They moved to Garden City and, thereafter, they moved 38 times during their married life and finally settled at the ranch in Butler County.
Owen had a nephew and niece, R. Michael Jennings and Anne Jennings Irving, with whom Owen had a close personal relationship. Sally had three nephews, Richard Schleufer, Douglas Schleufer, and Michael R. Weigel, who visited the couple from time to time. Owen and Sally worked hard and got along fairly well until Owen developed a drinking problem around 1955. In 1963, the couple underwent a trial separation and divided their property in half. They reconciled on several occasions, but Sally finally left because Owen in his drinking would become belligerent, violent, and abusive towards her. The couple were formally divorced on September 2, 1965. On September 3, 1965, Owen executed a will leaving all of his property to R. Michael Jennings and Anne Jennings Irving.
The parties reconciled within a year and were married in Oklahoma in October of 1966. From that time on until Owen’s death, the marriage continued. When the parties were remarried in 1966, Sally still owned about % of her property remaining from the property division, while Owen had one-fourth left. They pooled their resources and began purchasing real estate. They bought a house, then a ranch, and finally the Santa Robin Ranch. The title to the Santa Robin Ranch was held by Sally and Owen equally as joint tenants with right of survivorship.
Owen did not drink for several years after his remarriage to Sally, but then he began drinking again and trouble ensued. Owen was treated for alcoholism at Valley Hope. On February 20, 1976, Sally placed Owen in the St. Joseph Alcoholic Treatment Unit and threatened to get a court order to keep him there. Owen was released from the treatment unit in the spring of 1976. He did not want to get a divorce from Sally, but was fearful that Sally was considering a divorce. Dr. Robinson, in addition to being a dentist, raised cattle. Sally kept the records as well as the books on the ranch, while Owen did all of the outside work. Sally also helped in the pastures and fields.
Although not specifically stated in the findings of fact of the trial court, the evidence was undisputed that Dale Cooper of Wichita was Owen’s and Sally’s attorney from 1970 on. Cooper’s office records showed that he had conferences with Owen alone. on at least 15 separate occasions commencing in 1970 until September of 1975. In 1974, Dale Cooper represented Owen in a DWI case in Harvey County and a collateral motor vehicle license revocation hearing. Cooper’s records show that he represented Owen in a court proceeding in September of 1975. Cooper was clearly the family attorney for both Owen and Sally during the 1970’s. According to Dale Cooper, he discussed with Owen and Sally the estate tax benefits which would result from severing the joint tenancy in the Santa Robin Ranch. Cooper discussed with Owen the disposition of his estate on numerous occasions. In discussing the disposition of Owen’s estate, Owen told Cooper on a number of occasions that he wanted to leave everything to Sally outright with no restrictions. There never was a discussion, however, in regard to contingent beneficiaries.
One of Owen’s personal and business friends was Richard Smethers, a farm and ranch appraiser and investment manager for Prudential Insurance Company. In the spring of 1966, Smethers appraised some land for Owen. On three occasions he made farm and ranch loans to the Robinsons. Smethers would also locate buyers for Owen’s cattle. Smethers testified, and the court found, that his relationship with Owen Robinson started out on a business basis and grew and developed into a personal friendship. They were involved in various projects together, and Smethers would see Owen at his home several times a month. Smethers would act as a business adviser to Owen and Sally. Smethers testified that Owen began talking about a will about two years before Owen suffered a severe stroke on August 16, 1976. One morning in June, 1976, Owen Robinson called Smethers, wanting to see him. Smethers went to the ranch where Owen wanted to talk about a will and an estate plan and stated, “I just don’t think I’m going to be around very much longer.” At that time Owen was very concerned about estate taxes and about protecting the operating entity of the Santa Robin Ranch. Owen wanted it to remain intact and for his wife Sally to be taken care of. Owen also indicated that he held his property in joint tenancy with his wife Sally and that she had contributed more than he had. Owen and Smethers then discussed the tax advantages of severing the title to the ranch by the giving of cross-deeds and wills. Smethers advised Owen to discuss it with a lawyer. He also told Robinson that beneficiaries would have to be designated who would take over after the doctor and his wife were gone but none were discussed at that time.
Three or four days after Owen had his stroke on August 16, 1976, Smethers visited him at Wesley Hospital in Wichita. On September 18 or 19, 1976, Smethers discussed with Owen the drawing of a power of attorney that would give Sally the right to sell cattle and manage the ranch. Smethers also asked Owen if he wished to go ahead with the will and estate plan they had discussed previously. Owen indicated that he wanted to go ahead with it. Sally was present during this discussion.
On Monday, September 20, 1976, Smethers called attorney Dale Cooper. Smethers told Cooper that they needed to get together to draft the will and sever the joint tenancy. It is important to note that Smethers made the first call to Dale Cooper and this initial call was confirmed by both Smethers and Cooper in their testimony. Sally also called Cooper for the purpose of setting up an appointment to discuss the drafting of the will, the power of attorney, and the severance of the joint tenancy. A conference was then held in which Smethers, Cooper, and Sally discussed the power of attorney, the severance of the joint tenancy, and the will, insofar as it was to leave all the estate to Sally.
Dale Cooper testified that during the 1970’s he had several discussions with Owen and Sally about severing the joint tenancy and the creation of a tenancy in common and its tax advantages. Cooper knew that Owen wanted Sally to have the entire interest in the estate should Owen die first, rather than just a beneficial interest. Cooper testified that Owen was not in favor of trusts. Smethers told Cooper that Owen wanted the will prepared in accordance with their previous discussions. Dale Cooper testified categorically that there was no question in his mind where Owen wanted his total estate to go on his death and Sally wanted her total estate to go on her death. Contingent remainders were not discussed because information about Sally’s contributions was not forthcoming.
On September 20, Cooper, Smethers, and Sally met in Cooper’s office where the power of attorney, deeds severing the joint tenancy, and the will were prepared by Cooper. The controversy really arose in this case because Sally brought to Cooper a list of her three nephews, stating they were to be the contingent beneficiaries. They discussed the desirability of getting the will signed because of Owen’s stroke.
On September 22,1976, Dale Cooper and his secretary brought the power of attorney, the will, and the deeds to Owen Robinson’s room in the hospital in Wichita. Smethers and Cooper drove to the hospital. When they got there, they found Owen and Sally, and Owen’s friend, Virgil Mattox. Sally had told Owen that Cooper was coming with some papers for him to sign. The court found that Smethers told Owen that Cooper had brought the power of attorney and cross-deeds and that the will had been prepared the way he had wanted it. At that point Cooper stepped up and explained the power of attorney, but did not read it. Cooper also explained the deeds and both read and explained the will. According to Cooper, in the hospital on September 22, 1976, he explained to Owen that everything would go to Sally if she survived. The trial court found that Cooper explained to Owen Robinson the deeds and showed him the deeds that would sever the joint tenancy. After explaining the deeds and after reading and explaining the will, Cooper asked Owen Robinson if that was what he wanted to do. Although the doctor could not speak, he nodded up and down in an affirmative fashion and smiled.
There was a factual controversy at the trial as to whether Owen Robinson understood what he signed. The trial court resolved this controversy by concluding from the testimony of the wit nesses that, “in the absence of undue influence or other illegality, Dr. Owen Robinson had testamentary capacity sufficient to make a will on September 22, 1976.”
From the record, it is a fair conclusion that Owen and Sally were not in agreement as to where their property should go in the event of the death of the survivor. The evidence presented by Michael Jennings and Anne Irving indicated that Owen wanted the property to go to them after Sally’s death. Sally, on the other hand, wanted the property to go to her nephews. The naming of Sally’s nephews as contingent beneficiaries in Owen’s will was a matter which had mot been discussed by Cooper and Smethers with Owen prior to the execution of the will.
Owen died on June 26, 1978, just short of two years after the will was executed. Sally employed Dale Cooper as the attorney to file the petition to probate the will dated September 22, 1976. Michael Jennings and Anne Irving opposed the admission of the will to probate on the basis of undue influence, contending that the will was executed in violation of K.S.A. 59-605, which provides as follows:
“59-605. Preparation of will by principal beneficiary. If it shall appear that any will was written or prepared by the sole or principal beneficiary in such will, who, at the time of writing or preparing the same, was the confidential agent or legal adviser of the testator, or who occupied at the time any other position of confidence or trust to such testator, such will shall not be held to be valid unless it shall affirmatively appear that the testator had read or knew the contents of such will, and had independent advice with reference thereto.”
The forerunner of K.S.A. 59-605 was R.S. 1923, 22-214 which was first enacted in 1905. Since that time, this court has had a number of cases which have considered the application of the statute to specific factual situations. It would be helpful to consider in a general way the approach this court has taken in the past in considering the statute. It is clear from the various decisions that the statute is not to be applied in a technical way to defeat a will, where to do so would defeat the clear intention of the testator. One of our first cases involving this statute was Sellards v. Kirby, 82 Kan. 291, 108 Pac. 73 (1910), where the will was actually written by the daughter of the testator and named her as executrix and principal beneficiary under the will. In Sellarás on page 296 of the opinion, the court states:
“The real question in each case is whether all the circumstances so far as shown are such as to lead the court to believe that in fact the will does not actually express the voluntary purpose of the testator.”
Stated in another way, it is the obligation of the court to uphold the will, if by doing so it can carry out the true intent of the maker of the instrument.
K.S.A. 59-605 is a statute which legislatively reinforces the common-law doctrine of undue influence, which, in the absence of a statute, permits a court to deny admission of a will to probate under certain circumstances. In re Estate of Ziegelmeier, 224 Kan. 617, 622, 585 P.2d 974 (1978), defined undue influence as follows:
“Generally, undue influence or fraud, to invalidate a will, must amount to coercion, compulsion or constraint which destroys the testator’s free agency, and by overcoming his power of resistance obliges him to adopt the will of another instead of exercising his own, and it must be brought to bear directly on the testamentary act. ... Of course, the burden of proof is on the party claiming ■undue influence. . . . Legitimate influence is not improper; that is, influence obtained by kindness and affection will not be regarded as undue.”
In considering R.S. 1923, 22-214, this court in Flintjer v. Rehm, 120 Kan. 13, 241 Pac. 1087 (1926), noted:
“It will be observed that the statute applies only (1) when the will is written or prepared by the sole or principal beneficiary; (2) who is the confidential agent or legal adviser, or who occupies some other position of confidence or trust to the testator. When these conditions exist, the will shall not be held to be valid unless two things shall be affirmatively shown: (1) That the testator read or knew the contents of such will, and (2) had independent advice with reference thereto.” p. 15.
Thus, in order for K.S.A. 59-605 to apply, the opponent of the will must show that the two conditions exist, and if they do exist, the will is to be held invalid unless the proponent of the will shows that the testator read or knew the contents of the will and had independent advice with reference thereto. If the will was not written or prepared by the sole or principal beneficiary, who at the time was the legal adviser or confidential agent of the testator or who occupied at that time any other position of confidence or trust to such testator, then the question of independent advice becomes immaterial. In re Estate of Horton, 154 Kan. 269, 274, 118 P.2d 527 (1941); In re Estate of Schippel, 169 Kan. 151, 218 P.2d 192 (1950).
The district court held that the conditions under the statute had been satisfied and found that the proponents of the will had failed to show that the testator read or knew the contents of the will and had independent advice with reference thereto. We have considered the record in this case and have concluded that the trial court was in error and that under the undisputed evidence this was not a proper case for the application of K.S.A. 59-605.
First, we find that under the undisputed factual circumstances, Sally Robinson was not the confidential agent or legal adviser of the testator, nor did she occupy a position of confidence or trust to the testator as contemplated by the statute. She was simply his wife. The trial court, in concluding that Sally occupied a position of confidence or trust to the testator, relied on the following language in Woodworth v. Gideon, 136 Kan. 116, 12 P.2d 722 (1932):
“It is true that a confidential relation exists between husband and wife. It is proper that such a relation should exist. The fact that it does exist is not evidence of fraud or undue influence.” p. 118.
The trouble in this case arose because the trial court did not take into consideration other Kansas cases where the meaning of the phrase “confidential relationship” under the statute is more closely examined and determined. In In re Estate of Horton, 154 Kan. 269, the court stated that our statute (59-605) contemplates something more than a mere confidential relationship. Klose v. Collins, 137 Kan. 321, 20 P.2d 494 (1933), holds that the fact that the two principal beneficiaries advised the testator about matters such as religious or charitable contributions, the purchase of clothing and furniture, and helped her look after the building of a new dwelling did not imply a confidential relationship under the statute and that the statute was not applicable since there was nothing to show that they occupied a fiduciary relation with the testatrix.
In In re Estate of Schippel, 169 Kan. 151, the will was prepared by an attorney at the request of Jennerson, the principal beneficiary, who came to live in the home of the testator as a small boy and continued to work with the testator in a close relationship in farming operations. It was held that Jennerson was not the confidential agent of nor did he occupy a position of confidence or trust to the testator within the meaning of the statute.
In Warwick v. Zimmerman, 126 Kan. 619, 270 Pac. 612 (1928), it was held that lawful influence, such as that arising from legitimate family or social relations, must be allowed to produce its natural results, even in influencing last wills. However great the influence thus generated may be, it has no taint of unlawfulness. In Jemberg v. Evangelical Lutheran Home for the Aged, 156 Kan. 167, 174, 131 P.2d 691 (1942), the court, in holding the statute was not applicable, noted that the relation between the beneficiary and the testator was more like that of a parent and child or husband and wife, which, without more, did not create a situation in which independent advice is requisite to the sustaining of a gift. The court cited Carmen v. Kight, 85 Kan. 18, 116 Pac. 231 (1911), and Woodworth v. Gideon, 136 Kan. 116.
From these cases, we have concluded that the mere relationship of husband and wife is not alone sufficient to create the kind of relationship required by K.S.A. 59-605. The courts in other jurisdictions, in construing similar statutes, hold that a relationship other than that of husband and wife must be established to create the relationship required for application of the statute. See, for example, In re Estate of Thompson, 153 Neb. 375, 44 N.W.2d 814 (1950), where it was held that the mere opportunity of the wife, when living happily with the husband, to influence the execution of the will favorable to herself is not alone sufficient to warrant submission to the jury of the question of undue influence. Likewise, in Detsch v. Detsch, Administratrix, 191 Or. 161, 229 P.2d 264 (1951), the court stated that a faithful wife ought to have great influence over her husband, and it is one of the necessary results of proper marriage relations, and that it would be monstrous to deny to a woman who is generally an important agent in building up domestic prosperity the right to express her wishes concerning its disposal. In Atkinson, Law of Wills § 101, p. 550 (2nd ed. 1953), the author states that the presumption of undue influence does not ordinarily apply in the case of the spouse procuring the instrument.
From all of the factual circumstances present in this case which made it clear that the testator, Owen Robinson, was a man of strong will who was not easily influenced, who managed his affairs, and whom the court found to have testamentary capacity at the time the will was signed, we have concluded that K.S.A. 59-605 should not have been applied, because there was no adequate showing that Owen’s wife, Sally Robinson, was Owen’s confidential adviser as contemplated by the statute.
We have also concluded that the trial court erred in holding that the will of September 22, 1976, was written or prepared by Sally Robinson within the meaning of K.S.A. 59-605. The evidence was undisputed in this case that Dale Cooper prepared and wrote the will and that he had served as attorney for Owen Robinson in the conduct of his personal and business affairs for a period of at least six years prior to Owen’s death. As noted above, Cooper’s office records established that he had had conferences with Owen alone on 15 separate occasions between September 1970, and September 1975, and that he had represented Owen Robinson in court in 1974 and 1975. The evidence was undisputed that Cooper had discussed with Owen Robinson the disposition of his estate on numerous occasions and that the preparation of the will was but one part of a general plan to change the ownership of the Santa Robin Ranch from one in joint tenancy with right of survivorship to a tenancy in common.
Furthermore, the evidence was undisputed that Richard Smethers also discussed the ownership of the property with Owen Robinson and that it was Smethers, not Sally, who first called attorney Cooper about the need to draft the power of attorney, deeds, and will. Under these circumstances, we do not see how it could reasonably be contended or that the court could find that Sally Robinson wrote or prepared the will within the meaning of K.S.A. 59-605. The mere fact that Sally Robinson furnished the names of her nephews to be included as contingent beneficiaries does not establish that the will was either written or prepared by her. In this regard see In re Estate of Peirano, 155 Kan. 48, 53, 122 P.2d 772 (1942), and also In re Estate of Arney, 174 Kan. 64, 254 P.2d 314 (1953). Under all the circumstances, we hold that there is no substantial competent evidence to support the finding of the trial court that Sally Robinson wrote or prepared the will in question as contemplated by K.S.A. 59-605.
Having concluded that K.S.A. 59-605 is not applicable under the undisputed factual circumstances in this case, we turn to the question whether the evidence was sufficient to show fraud or undue influence so as to justify the trial court’s denial of admission of the will to probate. Where the factual circumstances are such that K.S.A. 59-605 does not apply, the common-law rules with reference to undue influence or duress become applicable. Woodworth v. Gideon, 136 Kan. 116. Under the facts in this case, it is probable that through Sally’s efforts her nephews were named as contingent beneficiaries in the will rather than Owen’s nephew and niece, R. Michael Jennings and Anne Irving. If Sally had not survived Owen, the provision for contingent beneficiaries would then have become operable to leave the estate to Sally’s nephews. If that had occurred, a bona fide controversy would have existed between the nephew and niece of Owen Robinson and the nephews of Sally Robinson as to whether or not the admission of the will to probate should be denied because of Sally’s fraud. We find it unnecessary in this case, however, to determine that hypothetical controversy.
Since Sally survived Owen Robinson, she would be entitled to take the property as the sole beneficiary under Owen’s will, if that was Owen’s actual intention. The evidence in this case is clear and undisputed that before the deeds and the will were executed, Sally Robinson and Owen Robinson owned their Santa Robin Ranch as joint tenants with right of survivorship. On Owen’s death, Sally would have acquired title to the entire property as the surviving joint tenant. It was actually not in her self-interest to change the ownership of the Santa Robin Ranch from a joint tenancy to a tenancy in common. She had no sinister reason whatsoever to use undue influence to compel Owen to execute a will leaving the property to her. Furthermore, the evidence was absolutely undisputed from the testimony of Dale Cooper and Richard Smethers, that Owen Robinson desired the execution of deeds to change the ownership of the Santa Robin Ranch from a joint tenancy to a tenancy in common and to have a new will executed to give all of his property to Sally upon his death. Under these circumstances, the general rule is that parts of a will may be held valid, notwithstanding other parts are invalid on account of undue influence or fraud exercised upon the testator, provided the parts so affected are separable so that the invalid provisions can be deleted without defeating the will of the testator. See 79 Am. Jur. 2d, Wills § 397, p. 555, and the annotation at 64 A.L.R.3d 261, and the many cases cited therein.
The general rule has been recognized and followed in Kansas. See Holmes v. Campbell College, 87 Kan. 597, 125 Pac. 25 (1912), where it is stated at p. 599: “A portion of a will may be refused probate because of undue influence, while the remainder is admitted.” The rule of severability is also followed in Fennell v. Fennell, 80 Kan. 730, 106 Pac. 1038 (1909), and more recently in Harvey v. Harvey, 215 Kan. 472, 524 P.2d 1187 (1974), both cases holding that where one provision of a will is invalid for any reason and the testamentary scheme of the testatrix can be determined and carried out regardless of the void. provision, that provision will be severed and stricken out and this testamentary plan given effect. Applying this general rule to the fapts.-in'the' present case, we hold that the trial court, instead of holding the entire will invalid and refusing to admit it into probate, should have stricken the provision in the will pertaining to contingent beneficiaries and upheld that portion of the will awarding Owen Robinson’s entire estate to Sally Robinson in the event she survived him.
The judgment of the district court is reversed and remanded to the trial court with directions to uphold and admit to probate the will of Owen Robinson dated September 22, 1976, deleting therefrom only that portion pertaining to contingent beneficiaries discussed above. | [
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The opinion of the court was delivered by
Holmes, J.:
This case is before the court on a petition for review of the decision of the Court of Appeals in Sells v. U.S.D. No. 429, 6 Kan. App. 2d 968, 637 P.2d 422 (1981). Margalee Sells, a tenured school teacher, appealed from a decision of the district court affirming the decision of the school board of U.S.D. 429 to nonrenew Ms. Sells’ teaching contract for the school year 1979-80. The Court of Appeals reversed the decision of the district court and we granted review on the petition of the school district. The facts are set forth in detail in the opinion of the Court of Appeals and need not be repeated at length herein.
Suffice it to say, U.S.D. 429, along with four other school districts, had been providing special education services mandated by K.S.A. 72-933 and 72-966(a) through the Doniphan County Special Education Cooperative (the co-op) formed pursuant to K.S.A. 72-967(a)(4), 72-968 and 72-969. U.S.D. 429 was the sponsoring district.
Desiring a more equal share in the responsibility for administration of their special education programs, the five school districts executed a new agreement in November of 1978 as authorized by K.S.A. 72-8230 and K.S.A. 12-2901 et seq. The programs would thereafter be offered and administered by a separate legal entity to be known as the Doniphan County Education Cooperative (hereinafter, the interlocal).
Pursuant to the new agreement, Ms. Sells was given a notice that she would be nonrenewed in the following form:
“Pursuant to K.S.A. 72-5438 you are hereby notified that USD 429 will not be the sponsoring district of the Special Education Program after June 30,1979. This is the reason for nonrenewal of all contracts of the Special Education Program.
“If you desire a hearing, you may file with the clerk of the Board of Education of USD 429 within fifteen (15) days of this notice.”
The sole issue on appeal is whether the notice given Ms. Sells states “good cause” for her nonrenewal as a teacher by U.S.D. 429. Counsel for appellant concedes that ordinarily the elimination of the teaching position is good cause for nonrenewal but asserts that elimination of the position because of the termination of the co-op and the formation of the interlocal is insufficient due to IC.S.A. 1981 Supp. 12-2904(c) unless the new interlocal hires the teacher. We disagree.
K.S.A. 1981 Supp. 12-2904(e) provides:
“No agreement made pursuant to this act shall relieve any public agency of any obligation or responsibility imposed upon it by law except that to the extent of actual and timely performance thereof by a joint board or other legal or administrative entity created by an agreement made hereunder, said performance may be offered in satisfaction of the obligation or responsibility.”
It is to be noted that the statute is a part of the interlocal cooperation act, K.S.A. 12-2901 et seq., which applies to all forms of local governmental units, including school districts. The purpose of 12-2904(e) is to preclude an existing local unit of government from entering into an interlocal cooperation agreement and in doing so avoid its legal responsibilities. What were the obligations and responsibilities imposed by law upon U.S.D. 429 when the co-op was terminated and the interlocal established? Was it required to continue to hire all fifteen special education teachers if the interlocal declined to do so? We think not.
The legal responsibility of U.S.D. 429 insofar as Ms. Sells was concerned was to either renew her contract for the ensuing year or give her written notice that her contract would not be renewed, stating the reasons for nonrenewal and advising the teacher of the right to a due process hearing. The reasons stated must constitute good cause for nonrenewal of the contract. Gillett v. U.S.D. No. 276, 227 Kan. 71, 605 P.2d 105 (1980); K.S.A. 72-5411 and 72-5436 et seq. Those responsibilities were complied with by U.S.D. 429. The notice clearly states that the school district would no longer be sponsoring the special education program, i.e., the school district no longer would have need, or positions available, for special education teachers. As stated by appellant’s counsel:
“We are not expecting 429 to give her a contract next year. We know they have changed their way of doing business. We know they have an agent that’s taking care of this. But we expect that agent to either give her a contract or a reason why they are not giving her one. And they have not done it.”
In Gillett, this court said:
“We hold that under the Kansas due process statute (K.S.A. 1977 Supp. 72-5436 et seq.) a tenured teacher may be terminated or nonrenewed only if good cause is shown, including any ground which is put forward by the school board in good faith and which is not arbitrary, irrational, unreasonable, or irrelevant to the school board’s task of building up and maintaining an efficient school system.” p. 78.
The reason given by the school board for the nonrenewal of Ms. Sells’ contract was, in effect, the discontinuation of special education programs under the aegis of U.S.D. 429. It does not appear factually anywhere that the stated reason was a subterfuge. Since nothing appears in evidence to indicate that the school board’s decision was arbitrary, irrational, unreasonable or irrelevant to building up an efficient school system, we find the school board has shown “good cause” for not renewing Ms. Sells’ contract. We hold that the dissolution of the co-op and the formation of the new interlocal constituted good cause for the nonrenewal of the contracts of the tenured special education teachers.
U.S.D. 429 has complied with its legal responsibilities under K.S.A. 1981 Supp. 12-2904(e) in that the notice provided stated good cause for the nonrenewal of Ms. Sells’ contract.
The opinion of the Court of Appeals is reversed and the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
McFarland, J.:
This appeal involves a dispute among NEA-Valley Center, Unified School District No. 262, and the Sedgwick County Area Educational Services Interlocal Cooperative relative to what rights, if any, 54 special education teachers have to continued employment when the school district they serve joins an interlocal special education cooperative and nonrenews said teachers’ contracts as a result thereof.
In the 1980-81 school year and for several school years previous thereto, U.S.D. 262 served as the sponsoring district in an agreement pursuant to K.S.A. 72-968 and -969 to provide special education services to nine school districts in Harvey, Sumner and Sedgwick counties. U.S.D. 262 employed 54 special education teachers to fulfill its obligation to provide such special services to the nine districts, including its own. During the 1980-81 school year, the nine districts decided to terminate this method of providing the service. In its place an interlocal cooperative, composed of the same nine districts, was created, effective July 1, 1981, pursuant to K.S.A. 72-8230 and K.S.A. 12-2901 et seq. All special education teachers, whether tenured or nontenured, were sent timely notices of intent to nonrenew their contracts for the 1981-82 school year by the school board. This lawsuit resulted.
The major holdings of the trial court may be summarized as follows:
1. The joining of an interlocal cooperative and the discontinuation of its own special education program do not constitute a valid reason for a school district to nonrenew the contracts of its special education teachers.
2. The new interlocal cooperative is legally obligated to employ all special education teachers presently employed by the school district.
3. The terms and conditions of employment of these special education teachers as employees of the new interlocal cooperative would be subject to all of the provisions of any negotiated agreement reached between the school district and the teachers’ association.
4. Each teacher employed by the interlocal cooperative is to be granted tenure rights to the same extent as if he or she were still employed by the school district.
The interlocal appeals from the trial court’s decision.
The keystone issue herein is whether the school board had the legal right to nonrenew the 54 special education teachers under the circumstances. Determination of this issue is controlled by Sells v. U.S.D. No. 429, 231 Kan. 247, 644 P.2d 379 (1982).
Sells arose from a similar factual background but the nonrenewal was challenged by only one tenured teacher. In Sells this court held:
“Under the Kansas due process statute (K.S.A. 72-5436 et seq.) a tenured teacher may be terminated or nonrenewed only if good cause is shown, including any ground which is put forward by the school board in good faith and which is not arbitrary, irrational, unreasonable, or irrelevant to the school board’s task of building up and maintaining an efficient school system.
“The termination of a special education cooperative and the transfer of the administrative duties of a sponsoring school district to an interlocal cooperative formed pursuant to K.S.A. 72-8230 and K.S.A. 12-2901 et seq., whereby the former sponsoring school district no longer provides special education services, constitutes good cause for the former sponsoring school district to nonrenew the teaching contracts of its tenured special education teachers.” Syl. ¶¶ 1, 2.
In the present case, as in Sells, it does not appear factually anywhere that the stated reason for nonrenewal was a subterfuge. Nothing appears in the evidence to indicate the school board’s decision was arbitrary, irrational, unreasonable or irrelevant to building up an efficient school system, nor did the trial court so find. Based on the rationale of Sells, we conclude the school district had good cause to nonrenew the teaching contracts of its tenured special education teachers. This being true, a fortiori, the school board’s nonrenewal of its nontenured teachers can be no less valid.
We turn now to the issue of whether the trial court erred in holding that the interlocal was legally obligated to employ all special education teachers then employed by the school district. At first blush, this issue appears to be separate from the issue of whether the school district lawfully nonrenewed the teachers’ contracts. Closer inspection reveals the contrary is true. The trial court’s determination of both issues is predicated upon the following rationale:
“21. [K.S.A. 1981 Supp. 12-] 2904(e) and [K.S.A. 72-] 8230(g) indicate that the Kansas Legislature intends that no rights be lost or interrupted or interfered with by the formation of a cooperative, either administrative or separate legal, under the Interlocal Cooperative Act and specifically provides, in all possible cases, for a smooth transference and continuum of all existing rights, duties, powers and obligations.”
From this conclusion the trial court reasoned: (1) The school board had no right to nonrenew teachers’ contracts solely because of the formation of the interlocal cooperative; and (2) the interlo cal cooperative was, in effect, to be substituted for the school board as the official teachers’ employer. The decision in the Sells case is the antithesis of the trial court’s basic concept of legislative intent herein. In Sells we held the formation of the interlocal is sufficient reason to nonrenew a tenured teacher. Such nonrenewal wholly severs the employer-employee relationship between the school board and the teacher with neither having further rights against or duties to the other. It would be incongruous to conclude a school district may nonrenew a tenured teacher by reason of joining an interlocal cooperative and then hold the interlocal cooperative is bound, in essence, to take over the employment of that teacher in the name of preserving a nonexistent continuity.
The nine school districts comprising the interlocal cooperative were previously united for special education services, with U.S.D. 262 being the sponsoring district. Accordingly, all of the special education teachers involved are employees of U.S.D. 262, the sponsoring district. There is nothing legally, however, to preclude nine school districts from going directly from total independence to an interlocal cooperative. Under the trial court’s rationale, such interlocal would be legally obligated to employ every affected teacher from all nine districts — such employment to be under the same terms as if the employment had not changed. This would appear to result in an administrative nightmare for the interlocal and preclude any improved efficiency of operation.
There is no statute which requires an interlocal cooperative to employ teachers whose contracts are nonrenewed by member districts as a result of the formation of the interlocal. If interlocal cooperatives are to be so burdened, it should be by express legislative directive.
We conclude the trial court erred in holding that the interlocal cooperative was legally obligated to employ the nonrenewed teachers herein. This determination renders moot the issues herein as to the propriety of the various conditions of teacher employment imposed upon the interlocal cooperative by the trial court.
The judgment is reversed and remanded with directions to enter judgment in favor of the defendants in accordance with this opinion. | [
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The opinion of the court was delivered by
Prager, J.:
This is a criminal action in which the defendant, Eugene Carpenter, was charged with two misdemeanors. Count 1 of the complaint charged the offense of obstructing legal process or official duty (K.S.A. 21-3808). Count 2 charged the offense of operating a vehicle with defective equipment (K.S.A. 8-1701). At the commencement of the trial, the trial court dismissed the second count, holding the statute, K.S.A. 8-1701, to be unconstitutionally vague. The case then proceeded to trial on count 1. The defendant was convicted of obstructing legal process or official duty. The State has appealed from the trial court’s holding that K.S.A. 8-1701 is unconstitutionally vague. The defendant has cross-appealed his conviction on count 1, contending that the trial court erred in failing to give a requested instruction on the lesser offense of disorderly conduct (K.S.A. 21-4101).
The facts in this case are undisputed. The defendant, Eugene Carpenter, was stopped by a Shawnee County sheriff’s officer because his car had a broken windshield. The defendant immediately became uncooperative and belligerent toward the officer. He became combative when the officer tried to arrest him. Another officer had to assist in restraining the defendant. The defendant was arrested and taken to the Shawnee County jail where he was charged with obstructing legal process or official duty under K.S.A. 21-3808 and operating a motor vehicle with defective equipment under K.S.A. 8-1701.
The State’s appeal raises a single issue: That the trial court erred in holding K.S.A. 8-1701 unconstitutional on the grounds of vagueness. K.S.A. 8-1701(o) provides as follows:
“(a) It is a misdemeanor for any person to drive or move or for the owner to cause or knowingly permit to be driven or moved on any highway any vehicle or combination of vehicles, which is in such unsafe condition as to endanger any person; or which does not contain those parts or is not at all times equipped with such lamps and other equipment in proper condition and adjustment as required in this article, or which is equipped in any manner in violation of this article, or for any person to do any act forbidden or fail to perform any act required under this article.” (Emphasis supplied.)
The trial court held unconstitutional that portion of K.S.A. 8-1701(a) that makes it a misdemeanor for any person to drive a motor vehicle “which is in such unsafe condition as to endanger any person.” The remaining portions of K.S.A. 8-1701(o) declare, in substance, that it is a misdemeanor for any person to drive a motor vehicle “which does not contain those parts or is not at all times equipped with such lamps and other equipment in proper adjustment as required in this article [art. 17] or which is equipped in any manner in violation of this article, or for any person to do any act forbidden or fail to perform any act required under this article.”
In order to consider the issue in proper perspective, it is important to note the other sections of K.S.A., article 17, chapter 8. K.S.A. 8-1701 through 8-1760 are a part of the Uniform Act Regulating Traffic on Highways which was adopted at the time of a major revision of the chapter by the legislature in 1974. Article 17 covers the equipment required on motor vehicles and sets forth with great specificity the requirements for lamps, lighting equipment, brakes, and other miscellaneous equipment such as horns, warning devices, mufflers, mirrors, windshields, windows, tire equipment, safety glazing materials, flares or warning devices, air-conditioning equipment, television receivers, and safety belts and shoulder harnesses. K.S.A. 8-1750 through 8-1760 provide for motor vehicle inspection. K.S.A. 8-1701 is the general section which makes it a misdemeanor to drive a motor vehicle which is not equipped as required by the various sections in article 17. It should be noted that the language in K.S.A. 8-1701 goes beyond the specific equipment requirements discussed above. It contains a general prohibition against driving a motor vehicle “which is in such unsafe condition as to endanger any person.” It is this particular provision of K.S.A. 8-1701 which we have before us for consideration.
At the trial, the defendant contended and the trial court held that the portion of K.S.A. 8-1701 which makes it a misdemeanor to drive a motor vehicle “which is in such unsafe condition as to endanger any person” is unconstitutionally vague in that it fails to sufficiently identify the prohibited conduct as required by section 10 of the Kansas Bill of Rights and the Fifth and Fourteenth Amendments to the United States Constitution. We have concluded that the ruling of the trial court was correct.
When statutes are challenged as unconstitutional on the grounds of vagueness, certain principles have been adopted as a guide for this court’s consideration. In State v. Meinert, 225 Kan. 816, 594 P.2d 232 (1979), it was held that long and well established rules of this court are that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. The test to determine whether a criminal statute is unconstitutional by reason of being vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process. At its heart, the test for vagueness is a commonsense determination of fundamental fairness. These general principles have been recognized in other Kansas cases. See for example State v. Kirby, 222 Kan. 1, 563 P.2d 408 (1977); Kansas City Millwright Co., Inc. v. Kalb, 221 Kan. 658, 562 P.2d 65 (1977); State v. Hill, 189 Kan. 403, 369 P.2d 365 (1962).
In Kirby, it was held that the phrase “endangering of life” is vague and ambiguous, since there is no universally accepted definition of the term “endangering of life” which exists within the common knowledge of the population of this state. It was further held that K.S.A. 1976 Supp. 21-3431 was not sufficiently definite in its description of the acts or conduct forbidden, when measured by common understanding and practice, as to satisfy the constitutional requirements of due process of law. More recently in State v. Meinert, 225 Kan. 816, the test discussed above was applied and it was held that K.S.A. 21-3608(l)(a), which charged the offense of endangering a child, was unconstitutionally vague.
In the recent case of City of Altamont v. Finkle, 224 Kan. 221, 579 P.2d 712 (1978), a city traffic ordinance which charged the defendant with an “unlawful exhibition of speed or acceleration” was held unconstitutionally vague on the basis that the ordinance was so vague and indefinite that a person charged in such terms could not be expected to understand the nature and elements of the alleged violation. In the opinion, the court pointed out that nowhere in the ordinance was any attempt made to define the term “exhibition of speed or acceleration” or to delineate the proscribed conduct.
With the foregoing general principles in mind, we now turn to the issue of whether that portion of K.S.A. 8-1701 which makes it a misdemeanor for a person to drive a motor vehicle “which is in such unsafe condition as to endanger any person” is unconstitutionally vague. The trial court held that a person reading the statute could not reasonably be expected to know what “unsafe condition as to endanger any person” referred to. The court whimsically commented that, in regard to a windshield, a person could not know whether a little crack was sufficient or whether the windshield had to be hit by a herd of elephants. We cannot disagree with the trial court’s conclusion. We note that K.S.A. 8-1741 covers the subject of windshields on motor vehicles. That section provides as follows:
“8-1741. Windshields and windows; obstruction or impairment prohibited; wipers, (a) No person shall drive any motor vehicle with any sign, poster or other nontransparent material upon the front windshield, side wings or side or rear windows of such vehicle which materially obstructs, obscures or impairs the driver’s clear view of the highway or any intersecting highway.
“(b) The windshield on every motor vehicle shall be equipped with a device for cleaning rain, snow or other moisture from the windshield, which device shall be so constructed as to be controlled or operated by the driver of the vehicle.
“(c) Every windshield wiper upon a motor vehicle shall be maintained in good working order.”
It should be noted that there is nothing in K.S.A. 8-1741 which makes it an offense to drive a motor vehicle which contains a crack in the windshield. If the legislature had so desired, it could have legislated in that area, but it did not do so.
The legal conclusion that the challenged language in K.S.A. 8-1701 is unconstitutionally vague is supported by case law from other jurisdictions. We note for example State v. Pigge, 79 Idaho 529, 322 P.2d 703 (1957). In Pigge, an Idaho statute prohibited the operation of a motor vehicle on public highways “in such manner as to endanger or be likely to endanger persons or property.” The Supreme Court of Idaho held the statute to be unconstitutionally vague, stating that operators of vehicles on a public highway have a right to know what acts are prohibited and condemned and what act or acts are to be avoided.
In State v. Huffman, 202 Neb. 434, 275 N.W.2d 838 (1979), a Nebraska statute provided that any person who operates a vehicle in a manner “so as to endanger or be likely to endanger any person or property” shall be guilty of careless driving. The Supreme Court of Nebraska held the statute to be unconstitutionally vague, stating that a statute which forbids doing of an act in terms so vague that men of common intelligence must necessarily guess as to its meaning and differ as to its application, violates the first essential element of due process of law. Citing an earlier case, it noted that, in a broad sense, the mere operation of a motor vehicle endangers the safety of others to some extent.
In People v. Firth, 3 N.Y.2d 472, 168 N.Y.S.2d 949 (1957), a New York statute provided that no person shall operate a motor vehicle or motorcycle upon a public highway “at such a speed as to endanger the life, limb or property of any person, nor at a rate of speed greater than will permit such person to bring the vehicle to a stop without injury to another or his property.” The Court of Appeals of New York held that this statute was too vague and indefinite to constitute a sufficient definition of criminal conduct, since it did not contain a sufficient standard by which a driver’s conduct could be tested.
Eased upon the Kansas cases and the cases from other jurisdictions mentioned above, we hold that that portion of K.S.A. 8-1701 which makes it a misdemeanor for any person to drive a motor vehicle “which is in such unsafe condition as to endanger any person” is unconstitutionally vague. In so holding, it then becomes necessary for us to determine whether the language “which is in such unsafe condition as to endanger any person” is severable from the remainder of K.S.A. 8-1701 so that those words may be stricken from K.S.A. 8-1701 and the balance of that statute upheld. In this regard, the rule is well recognized that whether this court may sever an unconstitutional portion of a statute and leave the remainder in force and effect depends on the intent of the legislature. If, from the examination of a statute, it can be said that the act would have been passed without the objectionable portion and if the statute would operate effectively to carry out the intention of the legislature with such portion stricken, the remainder of the statute will stand. Felten Truck Line v. State Board of Tax Appeals, 183 Kan. 287, 300, 327 P.2d 836 (1958). In Felten Truck Line, the court noted that whether or not the legislature provided for a severability clause is of no importance, and this court will assume severability, if the unconstitutional part can be severed without doing violence to the legislative intent. See also Gumbhir v. Kansas State Board of Pharmacy, 228 Kan. 579, 588, 618 P.2d 837 (1980), and State, ex rel., v. City of Overland Park, 215 Kan. 700, 527 P.2d 1340 (1974).
We have no hesitancy in holding that, after striking from K.S.A. 8-1701 the phrase “which is in such unsafe condition as to endanger any person,” the balance of that statute may be upheld. The removal of that portion would not appear to affect, impair, or invalidate the remainder thereof. The valid portion of the statute remaining can then be read and applied as follows:
“8-1701. Scope and effect of sections in article 17; unlawful acts, (a) It is a misdemeanor for any person to drive or move or for the owner to cause or knowingly permit to be driven or moved on any highway any vehicle or combination of vehicles . . . which does not contain those parts or is not at all times equipped with such lamps and other equipment in proper condition and adjustment as required in this article, or which is equipped in any manner in violation of this article, or for any person to do any act forbidden or fail to perform any act required under this article.”
It is obvious, from an analysis of article 17 of chapter 8 as a whole, that K.S.A. 8-1701 is the general section which makes it a misdemeanor for a motor vehicle to be driven on any highway which does not meet the requirements of those sections of article 17 pertaining to the equipment of motor vehicles. We, therefore, hold that, although the particular portion of K.S.A. 8-1701 discussed above is unconstitutionally vague, the balance of the statute, after deleting that portion, is constitutional and enforceable.
We now turn to consider defendant’s cross-appeal in which he contends that the trial court erred in failing to give to the jury an instruction on disorderly conduct under K.S.A. 21-4101 as a lesser offense of obstructing legal process or official duty under K.S.A. 21-3808. In determining this issue, we should note the language of those two statutes. K.S.A. 21-3808 provides as follows:
“21-3808. Obstructing legal process or official duty. Obstructing legal process or official duty is knowingly and willfully obstructing, resisting or opposing any person authorized by law to serve process in the service or execution or in the attempt to serve or execute any writ, warrant, process or order of a court, or in the discharge of any official duty.
“Obstructing legal process or official duty in a case of felony is a class E felony. Obstructing legal process or official duty in a case of misdemeanor or a civil case is a class A misdemeanor.”
K.S.A. 21-4101 defines disorderly conduct as follows:
“21-4101. Disorderly conduct. Disorderly conduct is, with knowlege or probable cause to believe that such acts will alarm, anger or disturb others or provoke an assault or other breach of the peace:
“(a) Engaging in brawling or fighting; or
“(b) Disturbing an assembly, meeting, or procession, not unlawful in its character; or
“(c) Using offensive, obscene, or abusive language or engaging in noisy conduct tending reasonably to arouse alarm, anger or resentment in others.
“Disorderly conduct is a class C misdemeanor.”
The issue presented is whether disorderly conduct K.S.A. 21-4101 is a lesser offense of obstructing legal process or official duty under K.S.A. 21-3808. K.S.A. 21-3107(2) and (3) provide:
“(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
“(a) A lesser degree of the same crime;
“(b) An attempt to commit the crime charged;
“(c) An attempt to commit a lesser degree of the crime charged; or
“(d) A crime necessarily proved if the crime charged were proved.
“(3) In cases where the crime charged may include some lesser crime it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced, even though such instructions have not been requested or have been objected to.”
In State v. Woods, 214 Kan. 739, 522 P.2d 967 (1974), it was held that, if a lesser offense is to be considered a lesser included offense under the law, all elements necessary to prove the lesser offense must be present and be required to establish the elements of the greater offense charged. If each is a separate and distinct offense, requiring proof of an element not necessary in the other, then neither can be a lesser degree of the other offense. In State v. Arnold, 223 Kan. 715, 576 P.2d 651 (1978), it was held that a lesser offense is considered a lesser included offense under K.S.A. 21-3107(2)(d) when all elements necessary to prove the lesser offense are present to establish the elements of the greater offense. If the lesser offense requires proof of an element not necessary in the greater it is not a lesser included offense and the court should not give an instruction on the lesser offense. In comparing K.S.A. 21-4101 and K.S.A. 21-3808, it is clear that there are no common elements except that each of the crimes must be done willfully and knowingly. There are no required elements of proof under K.S.A. 21-4101 which exist in the offense proscribed by K.S.A. 21-3808. We have concluded that there are no identical elements existing between the two statutes which would require an instruction on disorderly conduct under K.S.A. 21-4101 where a defendant is charged with the offense of obstructing legal process or official duty under K.S.A. 21-3808.
The judgment of the district court is affirmed both as to the appeal of the State and the cross-appeal of the defendant. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This case is before the court on a Petition for Review of the Court of Appeals published opinion, Binyon v. Nesseth, 7 Kan. App. 2d 110, 638 P.2d 946 (1981).
Roy Nesseth (defendant-appellant) appealed a decision of the Sedgwick County District Court, rendering default judgment against him for $9,326.06 actual and $100,000.00 punitive damages for fraud on the lease of a 1976 Cadillac to plaintiffs. The default was imposed as a sanction pursuant to K.S.A. 60-237(b)(2) for failure to comply with court orders regarding discovery. The Court of Appeals affirmed the district court’s decision, and we granted review.
The facts are undisputed, and we will summarize them in this opinion. Extensive portions of the journal entry of judgment are set out in the Court of Appeals opinion, 7 Kan. App. 2d at 111-13.
On July 15, 1976, Dr. and Mrs. Kernie W. Binyon went to Dahlinger Pontiac-Cadillac, Inc. (Dahlinger) in Wichita to buy or lease an automobile. Discussions with Dahlinger employees resulted in a decision to lease. A lease agreement for a 1976 Cadillac was reached some time after 5:00 p.m. The specific provisions of the lease agreement are not relevant to this appeal; it was basically a lease for two years with monthly rental payments and one balloon payment at the expiration of the lease should the Binyons decide to purchase the Cadillac. Personal property taxes and license tags were to be paid by the dealership. Because of the late hour, the Binyons signed a blank printed lease form with the understanding it would be completed in accordance with the terms agreed upon.
The Binyons timely made all monthly rental payments, but they were deprived of use of the automobile for a period of time due to a dispute with Dahlinger over payment of the personal property taxes and license tag fees. Nesseth apparently decided the lease as entered provided an insufficient margin of profit for the dealership. Although the lease retained by Dahlinger in its files provided Dahlinger was to pay personal property taxes and furnish license tags, Nesseth caused to be furnished to the Binyons a lease which provided the contrary. This lease and assignment of the monthly payments due under it to General Motors Acceptance Corporation (G.M.A.C.) led to a tangle of circumstances resulting in the Binyons’ suit against Nesseth, Dahlinger, G.M.A.C., and the Kansas Department of Revenue. Only the proceedings relative to Nesseth are pertinent to this appeal.
After repeated unsuccessful attempts to force Nesseth’s compliance with discovery orders, the court entered a default judgment pursuant to K.S.A. 60-237(h)(2). In its journal entry of judgment, the trial court found:
“28. The foregoing acts, omissions and refusals to act of and by Nesseth, were done maliciously, fraudulently and willfully, with total and wanton disregard for the rights of Plaintiffs, were oppressive and unlawful and were done for the purpose and intent of defrauding Plaintiffs, for his own personal benefit and gain.
“29. At all times material hereto, Nesseth has controlled Dahlinger; as the alter ego of Dahlinger, Nesseth has, at all times material hereto, conducted, managed and controlled the affairs of Dahlinger as though it were his own business . . .
The court awarded plaintiffs actual and punitive damages for fraud in the leasing of the automobile to plaintiffs.
Nesseth timely perfected appeal to the Court of Appeals, raising three issues: (1) Default judgment as a sanction for refusal to permit discovery, under the facts of this case, was so severe as to constitute an abuse of discretion; (2) he was given inadequate notice of the proposed entry of the default judgment; and (3) the $100,000 punitive damage award was so excessive as to constitute an abuse of discretion. The Court of Appeals affirmed the district court, and defendant Nesseth sought this court’s review of those three issues. Review was granted.
Defendant admits in his brief on Petition for Review that the general principles governing sanctions for refusal to make discovery are well summarized in the Court of Appeals decision. He contends, however, that a careful review of his responses to interrogatories and requests for production of documents will reveal abuse of discretion in ordering default in this case. We will reverse our normal order of discussion and review the general principles before detailing Nesseth’s conduct.
Both Kansas appellate courts have recognized the severity of judgment by default as a sanction for failure to comply with discovery orders, and each court has emphasized the importance of careful exercise of judicial discretion before imposition of that sanction. Lorson v. Falcon Coach, Inc., 214 Kan. 670, 677-78, 522 P.2d 449 (1974); Williams v. Consolidated Investors, Inc., 205 Kan. 728, 733, 472 P.2d 248 (1970); Independent Mfg. Co. v. McGraw-Edison Co., 6 Kan. App. 2d 982, 988, 637 P.2d 431 (1981); Fields v. Stauffer Publications, Inc., 2 Kan. App. 2d 323, 328, 578 P.2d 1138, rev. denied 225 Kan. 843 (1978); Prather v. Olson, 1 Kan. App. 2d 142, 147, 562 P.2d 142 (1977).
In its opinion reported in 7 Kan. App. 2d at 114-15, the Court of Appeals identified the prerequisites to imposition of the sanction of default. Those factors, enumerated below, aid an appellate court in determining whether a trial court abused its discretion in ordering default. (1) Was the discovery sought related to a dispositive issue? See, e.g., Vickers v. City of Kansas City, 216 Kan. at 93. (2) Was discovery not available by alternative means? Or could the party seeking discovery not be protected by imposition of another sanction? See, e.g., Vickers v. City of Kansas City, 216 Kan. at 93. (3) Was the defendant afforded a hearing at which he could have offered evidence of excusable neglect or good faith? See, e.g., Lorson v. Falcon Coach, Inc., 214 Kan. at 677-78, quoting Williams v. Consolidated Investors, Inc., 205 Kan. at 733; Mansfield Painting & Decorating, Inc. v. Budlaw Services, Inc., 3 Kan. App. 2d 77, 81, 589 P.2d 643, rev. denied 225 Kan. 844 (1979). See generally Fields v. Stauffer Publications, Inc., 2 Kan. App. 2d 323.
The standard of review on appeal is abuse of discretion. Lorson v. Falcon Coach, Inc., 214 Kan. at 678. “Thus, the trial judge will be reversed only where no reasonable man would take the view adopted by the trial court.” Fields v. Stauffer Publications, Inc., 2 Kan. App. 2d at 328. See also Vickers v. City of Kansas City, 216 Kan. at 92.
With these principles in mind we turn to the facts in this case. The Court of Appeals set out a chronology of events in 7 Kan. App. 2d at 113-14 to which we refer the reader. In brief, that chronology reveals four full months of delay and dilatory tactics in the face of numerous orders by the court to answer interrogatories, be deposed, or produce documents. At that point plaintiffs filed their motion for sanctions. A hearing was held on that motion June 8,1979. The court found a deliberate attempt on the part of Nesseth to frustrate the progress of the lawsuit. In sustaining plaintiffs’ motion to impose sanctions, the court: (1) Ordered Nesseth’s answer and counterclaim stricken; (2) prohibited him from presenting any claims, asserting any defenses, or presenting any evidence; and (3) ordered a default hearing at a later time for plaintiffs’ presentation of evidence to support their claim. K.S.A. 60-237(h)(2)(B), (C).
The information sought by plaintiffs related to the lease of the car and Nesseth’s relationship with Dahlinger. It was information unavailable to the plaintiffs from other sources. Nesseth had the lease under his control, he passed the certificate of title to G.M.A.C., and he controlled documentation of his dealings with Dahlinger funds. Over the course of four months, five at the time of the hearing on the sanctions, one oral deposition had been begun but recessed before completion, no satisfactory answers to interrogatories had been obtained, and no documents had been produced. Any lesser sanctions than those imposed would have allowed Nesseth to profit from the course of delay he pursued. In addition, he offered no credible justification for his conduct at the June 8 hearing on the motion.
Adequate sanctions are necessary for the enforcement of dis covery procedures. 8 Wright and Miller, Federal Practice and Procedure: Civil § 2281 (1981 Supp.); Wright, Handbook of the Law of Federal Courts § 90 (3rd ed. 1976). A review of the record reveals a willful and deliberate disregard of reasonable and necessary orders of the court. We cannot say the trial court abused its discretion in ordering the most severe of sanctions.
Defendant’s second point on appeal relates to the notice he received of the evidentiary hearing on plaintiffs’ claim. The order imposing sanctions was entered June 8,1979. On March 25, 1980, plaintiffs filed their application for default judgment, with the hearing three days after. Notice was mailed to Nesseth in California. On March 28, 1980, the court heard evidence relating to the damages issue and entered judgment. On April 17, 1980, Nesseth moved to set aside the default judgment pursuant to K.S.A. 60-260(fc)(1), (4), (6), alleging improper notice. That motion was overruled.
K.S.A. 60-255(a) provides in pertinent part:
“Upon request and proper showing by the party entitled thereto, the judge shall render judgment against a party in default for the remedy to which the party is entitled. ... If the party against whom judgment by default is sought has appeared in the action, he or she (or, if appearing by representative, his or her representative) shall be served with written notice of the application for judgment at least three (3) days prior to the hearing on such application.”
On appeal, the defendant contends that, since service was by mail, he was entitled to three extra days’ notice, citing K.S.A. 60-206(e):
“Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him or her and the notice or paper is served upon him or her by mail, three (3) days shall be added to the prescribed period.” (Emphasis added.)
Assuming, as the Court of Appeals did, that the issue is properly before us, defendant had neither the right nor the duty to take any action in response to the notice. The sanctions imposed by the trial court precluded presentation of claims, assertion of defenses, or presentation of evidence. Defendant, in his briefs, cites federal cases in support of his contention that he was still in court on the issue of damages despite the imposition of sanctions. Cases interpreting the Federal Rules of Civil Procedure are persuasive authority in interpretation of our own discovery rules because of the substantial similarity between the federal and Kansas rules. See, e.g., Brookover Feed Yards, Inc. v. Carlton, Commissioner, 213 Kan. 684, 690, 518 P.2d 470 (1974); Reed v. Chaffin, 205 Kan. 815, 819, 473 P.2d 102 (1970); McCabe v. Board of Johnson County Comm’rs., 5 Kan. App. 2d 232, 235, 615 P.2d 780 (1980). The federal cases cited by the defendant, however, are distinguishable because in them the court had not precluded participation as part of the sanction. The trial court did not abuse its discretion in refusing to set the default judgment aside for lack of adequate notice.
Defendant’s final contention is that the $100,000 punitive damage award was so excessive as to constitute an abuse of discretion. Again, the defendant acknowledges the Court of Appeals decision correctly states the principles governing the award of punitive damages.
An appellate court will not find a punitive damage award excessive unless it is of a size to shock the conscience of the appellate court. See, e.g., Cantrell v. R. D. Werner Co., 226 Kan. 681, 686, 602 P.2d 1326 (1979); Henderson v. Hassur, 225 Kan. 678, 697, 594 P.2d 650 (1979). The Court of Appeals in 7 Kan. App. 2d at 118 quoted Henderson v. Hassur on principles of law governing the extent of punitive damages allowed. That portion of Henderson reads:
“It is difficult, if not impossible, to lay down precise rules by which to test the question of when a verdict for punitive damages is excessive. Motor Equipment Co. v. McLaughlin, 156 Kan. 258, 273, 133 P.2d 149 (1943). Punitive damages are imposed by way of punishing a party for malicious or vindictive acts or for a willful and wanton invasion of another party’s rights, the purpose being to restrain him and to deter others from the commission of like wrongs. Koch v. Merchants Mutual Bonding Co., 211 Kan. 397, 402, 507 P.2d 189 (1973). The law establishes no fixed ratio between actual and exemplary damages by which to determine excessiveness. In assessing punitive damages the nature, extent, and enormity of the wrong, the intent of the party committing it, and all circumstances attending the transaction involved should be considered. Any mitigating circumstances which may bear upon any of the above factors may be considered to reduce such damages. Will v. Hughes, 172 Kan. 45, 55, 238 P.2d 478 (1951). In fixing an award of punitive damages a jury may consider the amount of actual damages recovered, defendant’s financial condition and the probable litigation expenses. Ayers v. Christiansen, 222 Kan. 225, 229, 564 P.2d 458 (1977).” 225 Kan. at 694.
See also Cantrell v. R. D. Werner Co., 226 Kan. at 686; Newton v. Hornblower, Inc., 224 Kan. 506, 524-25, 582 P.2d 1136 (1978); Townsend v. Seefeld, 102 Kan. 302, 306, 169 Pac. 1157 (1918); U.S.D. No. 490 v. Celotex Corp., 6 Kan. App. 2d 346, 356, 629 P.2d 196 (1981); Sanders v. Park Towne, Ltd., 2 Kan. App. 2d 313, 318-19, 578 P.2d 1131 (1978); 25 C.J.S., Damages §§ 117(1)-127.
The Court of Appeals considered the trial court’s findings, the defendant’s net worth, and the amount of actual damages and concluded the collective conscience of the court was not shocked by the amount of the award.
The Court of Appeals found, and our reading of the record substantiates, that the amount was not increased as an additional sanction for defendant’s refusal to make discovery.
We have some difficulty with the use of evidence of defendant’s expenditure of corporate assets for his personal benefit. A careful review of the trial court’s findings and the record in the case reveals isolated statements which suggest outrage with Nesseth’s general course of conduct. Like the Court of Appeals, however, we conclude “their main purpose to have been to demonstrate Nesseth’s domination and control of the corporation so as to justify piercing the corporate veil.” 7 Kan. App. 2d at 119. We find no abuse of discretion in the amount of punitive damages awarded by the trial court.
The judgment of the trial court and the Court of Appeals is affirmed. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This is a criminal action in which Randy Lynn Mahlandt (defendant-appellant) appeals convictions by a Sedgwick County jury of robbery (K.S.A. 21-3426) and aggravated kidnapping (K.S.A. 21-3421).
The facts are not in dispute. On October 5, 1980, Ms. S. was working as a night clerk at the Save-A-Trip store in Mulvane, Sedgwick County, Kansas. At approximately 5:15 a.m. a man identified as the defendant, who had been in the store off and on during the night “killing time,” asked for a package of Kool cigarettes. After Ms. S. handed them to him, he demanded that she open up the cash register. She complied and he removed the money from the register. The defendant then forced Ms. S. to go with him to his car, hitting her in the face and head several times when she put up a struggle. The victim jumped out of the defendant’s car as he began backing up, and, upon the arrival of other people in the parking lot, the defendant drove off.
Later that same morning, at approximately 5:45 a.m., a man identified as the defendant entered the Seven-Eleven store in Rose Hill, Butler County, Kansas, where Ms. W. was employed as the night clerk. When Ms. W. opened up the cash register to ring up his gasoline purchase, the defendant leaped over the counter and removed the money from the register. The defendant told Ms. W. he was taking her with him and he pulled her out of the store and pushed her into his car.
The defendant drove Ms. W. to a dirt road in Sedgwick County, then stopped and raped and sodomized her. After the rape the victim saw a large amount of money under one of the front seats, which was later identified as the money stolen from the Save-A-Trip store in Mulvane. The victim had also seen the defendant smoking a Kool cigarette while they were in the car. Ms. W. was abandoned out in the country and made her way to a house for help.
The defendant was apprehended later that day by John Dailey, an officer with the Sedgwick County Sheriff’s Department, who investigated both the Sedgwick and Butler County incidents. A search of the defendant’s car produced the money identified as that stolen from the store in Mulvane and a package of Kool cigarettes.
The defendant was charged with robbery, aggravated kidnapping, rape and aggravated sodomy in Butler County in two separate criminal actions in connection with the Rose Hill incident. These cases were consolidated for trial. Prior to trial the State moved for permission to introduce evidence of the Mulvane incident under K.S.A. 60-455 to prove motive, opportunity, intent, preparation, plan and identity. Finding that identification of the defendant was in controversy, the trial court granted the motion over the defendant’s protests that doing so could possibly result in double jeopardy.
At trial in Butler County on April 20, 1981, Ms. S. testified concerning the robbery of the Save-A-Trip store in Mulvane. She identified the defendant, and described how he asked for the Kool cigarettes and then robbed her by taking money from the cash register, forced her to go to his car, and beat her when she tried to fight him. A picture of Ms. S. taken a few days after the beating was admitted and shown to the jury. Ms. S. described how she jumped out of the car when the defendant was backing up, and also identified a check found in the defendant’s car as one taken from the Mulvane store.
Another witness, Bob Hause, identified the defendant as having been in the Mulvane store the night of the robbery. He further testified that he saw the defendant physically put Ms. S. in his car and he identified the defendant’s car as the one involved in the Mulvane incident. Officer John Dailey testified concerning the cigarettes and money found in the defendant’s car, the money later identified by Ms. S. as that stolen from the Mulvane store.
In Butler County the defendant was found guilty of robbery of the Rose Hill store and of the aggravated kidnapping, rape and attempted aggravated sodomy of Ms. W.
Concurrently with the Butler County action the defendant was charged in Sedgwick County with robbery and aggravated kidnapping in connection with the incident at the Save-A-Trip store in Mulvane. After the Butler County trial concluded, the defendant moved to have the Sedgwick County action dismissed, claiming that it amounted to double jeopardy under K.S.A. 21-3108(2)(a), because facts concerning the Mulvane matter testified to in the Butler County prosecution could have been, but were not, charged in that action as required by the statute. The trial court denied the motion.
During trial Ms. S., Bob Hause and Officer Dailey testified to essentially the same evidence as was presented by them in the Butler County case. The defendant again raised his double jeopardy objection prior to the close of the trial, which was overruled. The defendant was convicted of robbery and aggravated kidnapping. Appeal has been duly perfected, raising two issues on appeal.
The defendant first contends the Sedgwick County prosecution was barred because of the evidence admitted in the prior Butler County prosecution. This claim of double jeopardy is based on K.S.A. 21-3108(2)(a), the compulsory joinder statute, which states in pertinent part:
“(2) A prosecution is barred if the defendant was formerly prosecuted for a different crime, or for the same crime based upon different facts, if such former prosecution:
“(a) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint, indictment or information filed in such former prosecution or upon which the state then might have elected to rely . . .
As was stated by the Court of Appeals in the case of In re Berkowitz, 3 Kan. App. 2d 726, 602 P.2d 99 (1979), the object of 21-3108(2)(a) is to prevent the prosecution from substantially proving a crime in a trial in which the crime is not charged, and then in effect retrying the defendant for the same offense in a trial where it is charged. 3 Kan. App. 2d at 743. The opinion in that case discussed in great length the law of double jeopardy under the Fifth and Fourteenth Amendments and the historical background of the compulsory joinder rule now embodied in 21-3108(2)(a), which is unnecessary to repeat here. Benton v. Maryland, 395 U.S. 784, 23 L.Ed.2d 707, 89 S.Ct. 2056 (1969).
As the court pointed out in Berkowitz, three elements must be present under 21-3108(2)(a) to bar a subsequent prosecution. First, the prior prosecution must have resulted in a conviction or acquittal, second, evidence of the present crime must have been introduced in the prior prosecution, and third, the charge in the second prosecution must have been one which could have been charged as an additional count in the prior case. 3 Kan. App. 2d at 743.
The first two elements are clearly present in this case. The defendant was convicted of the crimes charged and there is no dispute that the evidence of the crimes charged in Sedgwick County was admitted in the Butler County trial. However, the statute does not apply unless the last element is present — that crimes charged in the Sedgwick County prosecution could have been included as additional counts in the Butler County prosecution. We must necessarily determine whether the robbery and kidnapping charges appealed here from Sedgwick County could have been brought in Butler County.
The defendant argues that under the venue statutes, specifically K.S.A. 22-2603 and 22-2609, both the robbery and the kidnapping charges could have been brought in Butler County. K.S.A. 22-2603 states:
“Where two or more acts are requisite to the commission of any crime and such acts occur in different counties the prosecution may be in any county in which any of such acts occur.”
K.S.A. 22-2609 states:
“When property taken in one county by theft or robbery has been brought into another county, the venue is in either county.”
Without question the money stolen from the Mulvane store in Sedgwick County was brought into Butler County when the defendant robbed the Rose Hill store and abducted Ms. W. Thus, under 22-2609, it seems clear the robbery charge could have been prosecuted in Butler County and the double jeopardy provisions of 21-3108 apply.
However, the kidnapping charge presents a greater problem. The kidnapping occurred in Sedgwick County and was completed in Sedgwick County when the victim jumped out of the defendant’s car while still in the Mulvane store parking lot. Thus, the kidnapping venue statute, K.S.A. 22-2614, does not apply in Butler County. It states:
“A person charged with the crime of kidnapping may be prosecuted in any county in which the victim has been transported or confined during the course of the crime.”
The kidnapping charge could not have been brought along with the robbery charge under 22-2603. The kidnapping clearly was not an act necessary to the accomplishment of the robbery, as 22-2603 requires. Instead, the facts show that the robbery was completed prior to the time when the victim was forced out of the store and into the defendant’s car. The commission of the robbery would not have been altered had the kidnapping not occurred. We find no basis upon which to found venue in Butler County for the kidnapping of Ms. S. Jurisdiction is essential before jeopardy attaches. State v. Hendren, 127 Kan. 497, 500, 274 Pac. 274 (1929). Without a basis for venue, Butler County lacked jurisdiction over the kidnapping charge. State v. Moore, 226 Kan. 747, 602 P.2d 1359 (1979).
Furthermore, the kidnapping charge could not have been brought in Butler County under 22-3202 governing the joinder of charges. This statute provides:
“(1) Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”
The long established test for the joinder of charges and consolidation of trials was stated in State v. Ralls, 213 Kan. 249, 256-57, 515 P.2d 1205 (1973):
“When all of the offenses are of the same general character, require the same mode of trial, the same kind of evidence and occur in the same jurisdiction the defendant may be tried upon several counts of one information or if separate informations have been filed they may be consolidated for trial at one and the same trial.” (Emphasis added.)
All the charges arising out of the two incidents could have been charged in Sedgwick County, because the fruits of the Rose Hill robbery and Ms. W. were brought into Sedgwick County. The fact that the two counties chose to prosecute the actions separately did not prejudice the defendant or place him in jeopardy. It should be noted that the defendant did not move the trial court to consolidate the Butler and Sedgwick County actions. On the facts in this case, when evidence of the Mulvane robbery was admitted in the Butler County prosecution the double jeopardy prohibition of 21-3108(2)(a) was violated. The appellant’s conviction of robbery in the Sedgwick County trial court was erroneous and his conviction on this count is reversed.
The defendant contends the trial court erred in its refusal to give instructions on four lesser included offenses in the charged crime of aggravated kidnapping. The defendant requested instructions for the crimes of attempted aggravated kidnapping, attempted kidnapping, aggravated battery and criminal injury to persons.
The trial court could not have given the requested instruction on criminal injury to persons because that statute was repealed in 1978 after it was held unconstitutionally vague in State v. Kirby, 222 Kan. 1, 563 P.2d 408 (1977).
The defendant argues that only an attempt to kidnap Ms. S. occurred, primarily on the ground that her abduction was prevented by the victim’s struggle before the defendant forced her into his car, and a substantial confinement was prevented because the victim jumped out of his car. He argues an instruction for attempted kidnapping was necessary because the requirements for kidnapping under K.S.A. 21-3420, a taking or confining of a person, did not occur.
The defendant was charged under 21-3420(c) which provides:
“Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person:
“(c) To inflict bodily injury or to terrorize the victim or another . . .
An attempt is defined in 21-3301 as:
“[A]ny overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.”
In State v. Awad, 214 Kan. 499, 520 P.2d 1281 (1974), this court stated the question of whether there was a completed act or a thwarted attempt evidenced by an overt act is a question for the jury “unless the evidence is so conclusive as to preclude the submission of one in favor of the other.” (Emphasis added.) 214 Kan. at 500. The duty to instruct on lesser included offenses arises only when there is evidence under which the defendant might reasonably have been convicted of the lesser crime. State v. Everson, 229 Kan. 540, 626 P.2d 1189 (1981); State v. Ponds and Garrett, 218 Kan. 416, 543 P.2d 967 (1975); K.S.A. 21-3107.
The issue here turns on the degree of asportation required to constitute a “taking” under the statute. In State v. Buggs, 219 Kan. 203, 214, 547 P.2d 720 (1976), this court construed the statute as requiring no particular distance of removal, nor any particular time or place of confinement. Rather, it is the fact and not the distance of the taking that supplies the necessary element of kidnapping.
Here the evidence was sufficient to establish an actual taking of the victim. Either the defendant was guilty of kidnapping under the statute or he was not guilty, depending on the jury’s belief of the evidence. There was no evidence of an attempt to kidnap.
The uncontroverted evidence here shows that the victim was forced from the store despite her attempt to fight and get away, and was physically placed by the defendant in his car. It was only after the defendant went around to the other side of his car to get in, and started up the car to drive away that the victim was able to escape. Once the defendant secured the victim in his car it is clear that she was under his control and a taking had occurred.
On the evidence in this case the trial court properly refused to give an instruction on attempted kidnapping and all other lesser offenses requested by the defendant.
The judgment of the lower court is reversed in part and affirmed in part. | [
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ORDER OF PUBLIC CENSURE
On December 15, 1981, a duly constituted panel of the Board for Discipline of Attorneys filed its report with the Clerk of the Appellate Courts in which they found the respondent, Earl C. Moses, Jr., a member of the bar of this State, guilty of a violation of the Code of Professional Responsibility, DR 2-103. 228 Kan. cvi. The panel recommended that respondent receive public censure pursuant to Rule 203(a)(3). 228 Kan. xc. The respondent has filed no exceptions to the report of the disciplinary panel. The report of the panel reads:
“REPORT OF HEARING PANEL
“THIS COMPLAINT, dated September 14, 1981, came on for hearing at 10:00 a.m. on November 18, 1981, at Topeka, Kansas, pursuant to assignment and notice. The panel of three attorneys for the hearing were duly appointed and consisted of John F. Stites, Chairman, David M. Mills and Tim Degginger, members.
“Roger N. Walter appeared as the attorney for the disciplinary administrator, hereinafter called Complainant. The Respondent appeared in person and by and through his attorney, Arthur E. Palmer, Topeka, Kansas.
“THEREUPON, all parties including the Respondent waived any objection to the panel as constituted and had no objection as to proper notice being given herein.
“THEREUPON, the parties announced that the parties hereto had entered into a Stipulation of Facts which had been duly signed by all parties herein and also by Arthur E. Palmer, attorney for Respondent. Said Stipulation of Facts was marked Complainant’s Exhibit “1” and there was no objection to the introduction of said Stipulation of Facts into evidence.
“THEREUPON, the parties announced that there were no other preliminary matters which should be called to the attention of the Board.
“THEREUPON, Complainant rested.
“THEREUPON, Respondent was duly sworn in and gave evidence.
“THEREUPON, both parties rested and the attorney for Respondent argued to the panel.
“THEREUPON, there being no further evidence or statements, the panel took an adjournment and thereafter re-appeared with all parties appearing as before.
“THEREUPON, the panel made the following findings, conclusions and recommendations:
“FINDINGS OF FACT
“1. That the Respondent on approximately May 15, 1981, sent out approximately 150 letters to persons whose names he had gathered from the Realtors Multiple Listing.
2. That the approximately 150 people whom letters had been sent to had not sought the Respondent’s advice regarding his employment as a lawyer.
3. That by sending out the approximately 150 letters, copy of which is attached to the Formal Complaint, and the Stipulation marked Complainant’s Exhibit “1”, the Respondent recommended his own employment as a private practitioner.
“CONCLUSIONS OF LAW
“Ry reason of Stipulation of Facts as entered by the parties hereto and by reason of the statements of Respondent, there is clear and convincing evidence that the Respondent was in violation of the code of professional responsibility, as set forth in DR 2-103 in that the Respondent recommended himself as a private practitioner to laypersons who had not sought his advice regarding employment as a lawyer.
“RECOMMENDATIONS
“It is the unanimous opinion of the panel that the Respondent receive a public censure by the Supreme Court of the State of Kansas pursuant to Rule 203(a)(3).
DATED this 18th day of November, 1981.”
The letter, on respondent’s professional stationery clearly identifying him as an- attorney, which respondent mailed to various named individuals who were in the process of attempting to sell their homes, following the personal and individualized salutation, reads:
“As homeowners of today, you are by now well aware of the harsh realities restraining the current real estate market. Inflation, unemployment, and high interest rates all combine to make selling a home a difficult prospect indeed.
“Selling your home ‘Ry Owner’, will not only save you thousands of dollars, but will increase your chances of selling by offering a lower, but fair, market price. However, many sellers are reluctant to do this — mainly because they feel inexperienced in the legal requirements and technicalities.
“As a real estate consultant with 33 years of experience, my $300.00 fee includes all the necessary paperwork, contracts, deeds, and related materials to assist you in selling your home. In addition, you will receive expert advice and any necessary consultations.
“If your house is listed, it’s easy to terminate the listing contract by simply calling your broker and advising him you want to cancel your listing contract and have him send you the contract marked ‘cancelled’.
“For additional information, call my office at 273-2392 for an appointment,
Monday through Friday.
Yours truly,
s/ Earl C. Moses, Jr.
Earl C. Moses, Jr.”
On February 26, 1982, respondent and his counsel appeared before this court to present argument as to the nature of the discipline, if any, to be imposed. Able counsel for the respondent pointed out that the law on the question of restricting advertising by attorneys or other professionals is in a state of flux and urged this court to absolve the respondent of any violation of the Code of Professional Responsibility or to restrict any discipline imposed to private censure.
We fully recognize that the First Amendment rights of an attorney may be violated if a too restrictive approach is taken toward an attorney’s right to advertise. Bates v. State Bar of Arizona, 433 U.S. 350, 53 L.Ed.2d 810, 97 S.Ct. 2691 (1977). The most recent pronouncement on the question by the United States Supreme Court is found in In Re R.M.J., 455 U.S. 191,71 L.Ed.2d 64, 102 S.Ct. 929 (1982). In that case the Supreme Court held that certain restrictions on advertising and direct mailing in the rules of the Missouri Supreme Court violated the attorney’s First Amendment rights and reversed a decision of the Missouri court that the respondent should be disciplined by private reprimand. While it is true that personal solicitation by an attorney is a form of advertising, we do not believe all such solicitation is protected from reasonable regulation by the First Amendment to the United States Constitution. The United States Supreme Court has recognized a distinction between protected forms of advertising and direct solicitation. In In Re R.M.J. the court noted:
“In Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 462 (1978), the Court held that the possibility of ‘fraud, undue influence, intimidation, overreaching, and other forms of vexatious conduct was so likely in the context of in-person solicitation, that such solicitation could be prohibited.’ ” 455 U.S. at 202.
Recent cases involving direct mailings include Bishop v. Committee on Professional Ethics, 521 F. Supp. 1219 (S.D. Iowa 1981); Koffler v. Joint Bar Assn, 51 N.Y.2d 140, 432 N.Y.8.2d 872, 412 N.E.2d 927 (1980), cert. denied 450 U.S. 1026 (1981); Greene v. Grievance Committee, 54 N.Y.2d 118, 444 N.Y.S.2d 883, 429 N.E.2d 390 (1981); and The Florida Bar v. Schreiber, 407 So.2d 595 (Fla. 1981).
It is argued that direct solicitation is nothing more than other forms of advertising protected by the First Amendment. The distinction between advertising, which may not be prohibited, and direct solicitation, which may, is a fine one but we are convinced such a distinction is justified. Traditionally, the prohibition against direct solicitation has been directed to the evils inherent in “ambulance chasing” and the detriment members of the public may suffer by such solicitation.
The solicitation in the instant case, while not being of the nature of ambulance chasing and hospital room solicitation, nevertheless is directed to a segment of the public which, under present economic conditions, is extremely vulnerable to a suggestion of employment that may or may not be advantageous to the individual homeowner. We are of the opinion that the concept of the regulation and restriction of personal solicitation is one which is not only viable but works to the benefit of the general public and to the fair administration of justice. Our Code of Professional Responsibility is patterned after that of the American Bar Association and DR 2-103 is comparable to the A.B.A. Code. We believe the prohibitions and restrictions set forth in the Code of Professional Responsibility in DR 2-103 are reasonable and necessary for the protection of the public and the fair administration of justice and as applied in this case are not invalid under the provisions of the First Amendment to the United States Constitution.
We hold that direct solicitation of a stranger by an attorney for employment for a particular legal matter violates the provisions of the Code of Professional Responsibility, DR 2-103, and is subject to discipline as provided by the rules of this court. We also find that the report of the panel in this case is reasonable and should be approved and adopted.
IT IS THEREFORE BY THE COURT ORDERED AND ADJUDGED that the report of the panel of the Board for Discipline of Attorneys be accepted and approved.
IT IS FURTHER BY THE COURT ORDERED that the respondent be and he is hereby disciplined by Public Censure, the costs herein are assessed to the respondent and the Reporter of the Appellate Courts is directed to publish this order in the official Kansas Reports.
Effective this 3rd day of April, 1982. | [
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The opinion of the court was delivered by
McFarland, J.:
This is an action by a tenant against a landlord to recover damages sustained when the leased premises were destroyed by fire. The trial court held in favor of the tenant on a negligence theory. The Court of Appeals held the landlord was not negligent, as a matter of law, but remanded the case to the trial court for consideration of alternatively plead theories of liability. The matter is before this court on petition for review.
The facts are summarized as follows. The building in question, located at 5424 Johnson Drive, Mission, Kansas, was built in the late 1930’s. It has apparently been in continuous use as commercial rental property although the nature of the business conducted therein has changed from time to time. The building is of a design to be leased as one unit for use by one tenant, and has been so leased. In 1967, the building was leased to the Davenports who did extensive remodeling and converted the premises into an appliance store. On January 17, 1973, plaintiffs, Harold and E. Louise Moore, purchased the business and continued operation as “Davenport Appliances.” At the time the plaintiffs took over the property, they entered into a new lease with the landlord, defendant Philomena B. Muntzel. The occupancy of the premises by the plaintiffs was contiguous with the occupancy of the Davenports, and defendant was not in possession at any time during the changeover.
During its use as an appliance store, the building was divided into three rooms with the center room being used for display of televisions, radios and stereos plus office space. The other two rooms were used for stock and display of both heavy and light appliances. The business, both in volume and nature, was essentially unchanged throughout the operation of the business by the Davenports and the plaintiffs. The plaintiffs experienced some electrical problems, including blown fuses in the two side rooms, and had paid a local electrical contractor for repair thereof. No repair work was done in the center room. Plaintiff did not request that defendant inspect or repair any electrical wiring nor did they advise defendant of any electrical problems.
On June 4, 1976, fire broke out in the leased premises doing extensive damage to the building and its contents. At the bench trial herein, conflicting evidence as to the cause of the fire was introduced. The trial court made findings relative to the fire causation, which are supported by substantial evidence, and will not be disturbed on review. For purposes of appellate review, such findings constitute the established facts.
The fire started in the eight to ten-inch space between the roof and the suspended tile ceiling in the center room at or near a junction box. The wiring was overfused. The wiring in the building was old and not in compliance with the present National Electrical Code. It is not claimed that the applicable building code required the wiring be updated to meet the present code.
The trial court found the defendant-lessor had a duty to inspect the wiring and the failure to do so constituted negligence. Having so concluded, the trial court did not consider the alternatively plead theories of breach of warranty and breach of contract. Judgment was entered in favor of plaintiffs in the amount of $88,599.19. Defendant appealed. The Court of Appeals in an unpublished opinion filed October 9, 1981, concluded the de fendant was not negligent as a matter of law, reversed the judgment, and remanded the case back to the trial court for consideration of the alternate theories.
The first issue on appeal is whether the trial court erred in finding the defendant negligent for failing to inspect the premises and thereby permitting the dangerous electrical condition to continue.
The trial court based the landlord’s duty to inspect upon Restatement (Second) of Torts, §§ 360, 361 (1965), which provide:
“§ 360. Parts of Land Retained in Lessor’s Control Which Lessee is Entitled to Use
“A possessor of land who leases a part thereof and retains in his own control any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.”
“§ 361. Parts of Land Retained in Lessor’s Control but Necessary to Safe Use of Part Leased
“A possessor of land who leases a part thereof and retains in his own control any other part which is necessary to the safe use of the leased part, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care
“(a) could have discovered the condition and the risk involved, and
“(b) could have made the condition safe.”
The comment following Section 361 clearly shows the section is intended to apply to common areas such as hallways, elevators and stairways which, although remaining under the lessor’s control, are for the use of the various tenants. The comment following Section 361 states:
“b. The rule stated in this Section applies to the maintenance of walls, roofs, and foundations of an apartment house or office building. It applies also to any other part of the land the careful maintenance of which is essential to the safe use of the rooms or offices or portion of land leased to the various lessees, such as the central heating, lighting, or water system.”
The limitations of these sections were discussed in Borders v. Roseberry, 216 Kan. 486, 490-491, 532 P.2d 1366 (1975), wherein this court stated:
“When different parts of a building, such as an office building or an apartment house, are leased to several tenants, the approaches and common passageways normally do not pass to the tenant, but remain in the possession and control of the landlord. Hence the lessor is under an affirmative obligation to exercise reasonable care to inspect and repair those parts of the premises for the protection of the lessee, members of his family, his employees, invitees, guests, and others on the land in the right of the tenant. This exception is covered in Restatement, Second, Torts §§ 360 and 361 .. . .”
Clearly for either one of these sections to be applicable, the landlord must lease less than the entire premises and continue to control the unleased portion, a situation common in multiple occupancy office and apartment buildings.
The trial court found the defendant retained the requisite control over the ceiling space by virtue of the following lease provision:
“[T]he lessor or their agents, at reasonable times, may enter to view the premises and to make repairs which they may find necessary to protect the interest in said estate, it being understood and agreed, however, that the lessor shall not be bound to make any repairs or improvements at their own expense, except repairs to roof, outer walls, ceilings, downspouts, support for floors, window casings, window frames and structural portions of the demised premises,”
The premises herein were leased in their entirety. The trial court confused the right to view provided by the lease with the right of control and its attendant duty to inspect as discussed in these Restatement sections. Such rights are inconsistent with each other. If the owner has control of the premises, obviously a right to view the premises is wholly unnecessary. It is only when the owner is giving up control that he has reason to retain a right to view.
It is important to bear in mind that the issue of negligence of defendant must involve violation of some duty arising independently of the contract. The lease is significant to this determination only in connection with whether the defendant had control of the premises as contemplated by §§ 360 and 361 of the Restatement.
We conclude the defendant, having leased the premises in their entirety to the plaintiffs, did not have control over the portion of the premises wherein the fire started and had no duty to inspect same. Therefore, the failure of the defendant to inspect the wiring on the premises could not, as a matter of law, constitute negligence.
Before concluding this discussion of negligence, it should be noted that Borders, cited by both parties, involved a patent defect known to the landlord. The defect arose from the landlord’s incompleted repairs. Involved therein is a landlord’s liability when he has knowledge of visible faulty repairs. The duties imposed upon a landlord under such circumstances are so different from a landlord’s duty involving a latent defect, as herein, that little is to be gained from any further discussion of Borders.
Having concluded that defendant was not negligent as a matter of law, the judgment must be reversed and remanded with directions. We must determine the proper extent of the directions.
The Court of Appeals concluded that defendant was not negligent as a matter of law, reversed the judgment but remanded the case to the trial court for consideration of the alternately plead breach of warranty and breach of contract theories. Inasmuch as the matter had been fully tried with a complete record, there would be no reason to grant a new trial on the alternative theories. However, if these alternative theories are not legally viable, the directions on remand should be to enter judgment for the defendant.
The pertinent lease provisions are:
“Lessor does demise unto lessee the storeroom known and numbered as 5424 Johnson Drive, Mission, Kansas, to have and to hold the premises ....
“Lessee covenants that they-will use said premises for the retail sale and service of appliances and for no other purpose.
“Lessee covenants that as further consideration of this lease, lessee will maintain air-conditioning, light fixtures and heating on the premises. Lessee will pay all utilities on the premises.
“Lessee covenants that they . . . will at the termination of the lease . . . deliver to the lessor the said premises, together with all future additions and erections thereon, vacant and unencumbered, in good and substantial repair, order and condition in all respects.
“In the event the demised premises shall be damaged or destroyed by fire, the elements or other casualty during the continuance of this lease, to such an extent that the same cannot be restored to as good condition as the same are in prior to such damage within ninety days thereafter, either the lessee or the lessors shall have the right to cancel and terminate this lease, rents to be adjusted to the date of the damage, destruction, or casualty; and if such repairs can be made within the period of ninety days, the lessor agrees to repair the premises with due diligence and in the meantime the rent shall be reduced in such proportions as will reasonably compensate the lessee for the space not in proper condition during such repair.
“The lessee does hereby covenant with the lessor that he will pay unto the lessor the rent hereby reserved, at the times herein provided, and will also keep all and singular, the premises in such repair, order and condition as the same are in at the commencement of said term, or may be put in during the continuance thereof, except those portions of the premises which the lessor agrees to maintain and will not make or suffer any waste of the premises, and that no unlawful, improper, or offensive trade or business shall be carried on, in or upon the premises; and that the lessor or their agents, at reasonable times, may enter to view the premises and to make repairs which they may find necessary to protect the interest in said estate, it being understood and agreed, however, that the lessor shall not be bound to make any repairs or improvements at their own expense, except repairs to roof, outer walls, ceilings, downspouts, support for floors, window casings, window frames and structural portions of the demised premises, or to be liable for any damage by water or otherwise to any merchandise or property on the premises; that repairs and improvements of whatever nature inside or outside of the building, or on the demised premises, are to be made at the expense of the lessee, except as hereinbefore set forth.”
There is nothing in this lease which makes inspection or repair of electrical wiring the lessor’s responsibility. A substantial part of fire causation was placement of too large a fuse in the fuse box. Is there any provision in the lease which requires the lessor to maintain an inspection vigil on the fuse box to prevent the lessees from overfusing the electrical circuits? We think not. Is there any provision which mandates the lessor must inspect the electrical wiring in walls and ceilings ? We think not. We conclude that the lease contemplates that plaintiffs will be responsible for maintenance of the electrical wiring rather than defendant.
The plaintiff purchased the business from the Davenports who had remodeled the premises for operation as an appliance sales and repair business. Plaintiffs just continued the operation of this business without any relevant change.
Under the totality of the facts of this case there simply are no warranties flowing from defendant to plaintiffs on which liability for the fire damage could be predicated.
Having concluded that there is no legal basis on which a judgment could be entered on the negligence theory or either alternative theory, it would be inappropriate to remand the case for more than entry of judgment for the defendant. This result renders moot all issues pertaining to the amount of damages awarded herein by the trial court.
The judgment of the district court is reversed with directions to enter judgment in favor of the defendant. The judgment of the Court of Appeals is affirmed as modified. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal in a wage claim dispute originally heard administratively pursuant to procedures found in K.S.A. 44-322a. The two claimants before the administrative agency, Alfreda Micheaux and Willie Cotton, were former employees of Amalgamated Meatcutters and Butcher Workmen of North America, AFL-CIO, Local P-94 (Local P-94) who were not paid wage claims when Local P-94 was taken over by a receiver imposed by the parent labor organization pursuant to its constitution. The administrative hearing officer allowed the full amount of claimed wages. The district court, on appeal by the employer-union, reviewed the administrative decision and denied the wage claim. The Secretary of the Kansas Department of Human Resources, as real party in interest by virtue of K.S.A. 44-324(b), appeals the district court’s order.
The facts are not disputed. Alfreda Micheaux was hired as secretary to Local P-94 at an executive board meeting in 1969, an action subsequently ratified by the membership. Because there was not a union of secretaries, the union put its employees under the same monetary provisions its members received from the Cudahy Company, the union’s biggest affiliate. Ms. Micheaux paid dues as though she were a member of the union. Admittedly, some deviations from the Cudahy contract existed. Health and welfare benefits as well as pension benefits were not controlled by the Cudahy contract. In 1971, the employees of the union were put on a salaried rather than an hourly basis. Salary increases, however, were given according to the Cudahy contract. At one time, the union experienced financial difficulties and was put into receivership by the international union. As a result, the employees were forced to accept a freeze in their wages.
Willie Cotton, the other claimant, was appointed business agent for the union in April 1971, after having worked in the Cudahy plant for fifteen years. It was his understanding that, after a probationary period, he would receive the same benefits as he had under the Cudahy contract. Testimony by the former union president and members of the executive board was introduced to substantiate Micheaux’s and Cotton’s claims that they were hired under provisions of the Cudahy contract.
The Cudahy plant in Wichita closed July 22, 1976, and Charles Coyne of the International Union of Amalgamated Meatcutters and Butcher Workmen of North America, AFL-CIO, took over as receiver of Local P-94 on July 26, 1976, pursuant to constitutional authorization of the International Union. At that time, the receiver was in charge of operations and had the right to control the union’s former employees. Both Micheaux and Cotton were continued as employees of Local P-94 under supervision of the receiver, wages and benefits to continue as before. Six months’ notice of termination had not been given. The hearing examiner found that periods of employment after July 22, 1976, were periods of new employment and not relevant to the instant action. Cotton continued to work for the receiver until October 1976 and Micheaux until March 1977. Local P-94 merged with Local 340 in August 1977 with the surviving union assuming the liabilities of the merged union.
At the hearing before the examiner, the parties were concerned with establishing the fact that the receiver terminated them without notice at the time of the merger. In the light of the hearing officer’s finding that employment after July 22 was not relevant to this action, the time of the merger would not seem to be the relevant termination date. Both claimants terminated employment with the receiver prior to the merger.
Under the provisions of the Cudahy contract, the employer must give notice in writing of intention to close a plant or a department or division thereof six months prior to the actual closing. If an employee is permanently separated before the expiration of six months, he must be paid for the remainder of the six months. Also under the Cudahy contract, employees are entitled to severance pay when they are terminated because of a reduction in forces arising out of the closing of a department or unit of the business. Neither Micheaux nor Cotton was paid notice of closing pay, and Cotton was not paid severance pay.
Micheaux and Cotton filed claims for wages with the Secretary of Human Resources on March 3, 1977, and March 10, 1977, respectively. An administrative hearing officer heard testimony and received documents into evidence on February 1, 1978. The hearing officer concluded both claimants had been employed by the union pursuant to the terms of the Cudahy contracts and were owed wages. Micheaux’s claim for notice of closing pay was affirmed as was Cotton’s claim for notice of closing pay, severance pay, and vacation pay. Pursuant to K.S.A. 44-324(¿), the Secretary of Human Resources took an assignment of the claim.
The union appealed to Sedgwick County District Court, contending that the order of the hearing officer was in error and that the appeal provision, K.S.A. 44-322a(e), violates the Kansas and United States Constitutions. The Secretary of Human Resources moved for summary judgment and the union moved to dismiss the agency action for lack of subject matter jurisdiction. The clear implication of the union’s motion is that the administrative agency acted beyond its authority. The trial court sustained the motion to dismiss on two grounds: (1) Severance pay and notice of closing pay are not wages within the meaning of Article Three, Chapter 44 of the Kansas Statutes Annotated, and (2) the statutory scheme violates both federal and state constitutional provisions. The court altered its judgment, on motion by the Secretary of Human Resources, to allow payment to Cotton of his vacation pay according to the Cudahy contract. That sum has been paid and is not under consideration in the instant appeal.
The Secretary of Human Resources, as assignee of the wage claims, filed timely notice of appeal from the district court decision. The case was erroneously filed in the Court of Appeals and transferred to the Supreme Court because the district court had declared a state statute unconstitutional. K.S.A. 1981 Supp. 60-2101(b). On appeal the Secretary of Human Resources seeks to limit our review to the actions of the hearing officer, contending questions of jurisdiction and constitutionality, having not been raised before the agency, were untimely and not properly before the district court.
As correctly stated by the Secretary in his brief, the district court’s scope of review in an appeal from an administrative agency decision, absent legislative provision to the contrary, is restricted to a consideration of whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal’s action was within the scope of its authority. Boswell, Inc. d/b/a Broadacres v. Harkins, 230 Kan. 738, 740, 640 P.2d 1208 (1982); Kansas Dept. of Health & Environment v. Banks, 230 Kan. 169, 171-72, 630 P.2d 1131 (1981); Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 450, 436 P.2d 828 (1968); Coggins v. Public Employee Relations Board, 2 Kan. App. 2d 416, 419, 581 P.2d 817, rev. denied 225 Kan. 843 (1978); Swezey v. State Department of Social & Rehabilitation Services, 1 Kan. App. 2d 94, 97, 562 P.2d 117 (1977). The appellate court then makes the same review of the administrative tribunal’s action as does the district court to determine whether the district court properly limited its scope of review. See, e.g., Boswell, Inc. d/b/a Reno County Adult Care Home v. Harkins, 230 Kan. 610, 612-13, 640 P.2d 1202 (1982); Kansas Dept. of Health & Environment v. Banks, 230 Kan. at 172; Kansas State Board of Healing Arts v. Foote, 200 Kan. at 451.
On its face, the jurisdictional question comes within the scope of authority provision. If in fact the agency had no jurisdiction to determine the issue, it necessarily lacked authority to enter an order. The Secretary argues, however, that since jurisdiction was not raised until appeal to the district court the issue was not properly before the district court and is not now properly before the appellate court. We disagree. Subject matter jurisdiction is the power to decide the question and cannot be waived. In re Miller, 228 Kan. 606, Syl. ¶¶ 1, 2, 620 P.2d 800 (1980). This court has held “objections to procedural aspects of an administrative hearing, not going to jurisdiction, must be made while the agency has an opportunity to correct such deficiencies.” (Emphasis added.) Paul v. City of Manhattan, 212 Kan. 381, Syl. ¶ 3, 511 P.2d 244 (1973). The question of jurisdiction may be raised, even on the appellate court’s own motion. In re Lakeview Gardens, Inc., 227 Kan. 161, 605 P.2d 576 (1980). The district court could properly examine jurisdiction to determine whether the administrative hearing officer acted within the scope of his authority. The question is properly before this court.
The district court’s finding that the administrative agency had no jurisdiction to entertain the appeal was based on a determination that severance pay and notice of closing pay are not wages within the meaning of K.S.A. 44-313(c).
Under the provisions of K.S.A. 44-322 and -322a the Secretary of Human Resources is given authority to enforce the provisions of K.S.A. 44-313 to 44-326 inclusive to determine wages due when a dispute exists between employer and employee. The claimants in this litigation have proceeded before the hearing examiner, appointed by the Secretary of Human Resources, and in the district court on the theory that it was the Cudahy contract which controls the wage issue.
It must be noted the claimants were not employees of Cudahy when their claims were filed. It was not the closing down of business by the Cudahy plant in Wichita and the termination of Cudahy employees that gave rise to their claim for wages. The claimants are employees of a local union (Local P-94) that is affiliated with a parent labor organization, International Union of Amalgamated Meatcutters and Butcher Workmen of North America, AFL-CIO. The examiner awarded benefits to claimants figured on two sections of a collective bargaining agreement which was negotiated by Local P-94 and Cudahy to cover employees other than the two claimants in this case.
We find it unnecessary to determine whether the Cudahy contract was anything more than a guideline by which the employees of Local P-94 were to be paid. The record is replete with testimony and exhibits that the membership of Local P-94 voted upon pay raises and other business related to their employees.
The claimants’ position as to when their employment was terminated, thereby giving rise to the situation upon which they claim wages are due, is at best ambiguous. The hearing examiners found they were terminated when the parent union sent a receiver in to administer the business of Local P-94.
This determination by the examiner was made as a finding of fact. The facts concerning what happened are conceded. The evidence is fixed. Whether the action of the parent union sending a receiver to operate Local P-94 closes the business of Local P-94 is a question of law to be determined on the conceded facts. The claimants were continued in their employment by the union receiver under the same terms and conditions as they had prior to the union receiver’s operation of Local P-94.
If the claimants were not terminated as employees of Local P-94, they are in no position to claim they had benefits of the Cudahy contract for severance pay or six months’ notice of closing pay,'The history of Local P-94 discloses the international parent union had previously sent a receiver in to assist in operating the local union. At that time wages of the employees of Local P-94 were frozen for a period of time.
Unfortunately, the Secretary of Human Resources, who took an assignment of these wage claims on appeal, has not honored this court with a brief on this controlling question of law concerning the internal operations of the parent labor union and its affiliated local unions. We hold where a parent labor union pursuant to its constitution and by-laws sends a receiver to operate the business of a local affiliated labor union, there is no closing of the business of that local union; and where the employees continue to work under the supervision of the receiver for the same wages and benefits, there is no termination of their employment.
Under these circumstances the administrative agency’s finding that the claimants were terminated as employees of Local P-94 on July 26,1976, when the union receiver took over operations of the local union, is not supported by the evidence.
In corporation law the “merger” of two corporations is the absorption of one corporation by another, which retains its name and corporate identity with the added capital, franchises and powers of the merged corporation. It is the uniting of two corporations by the transfer of property to one of them which continues in existence, the other being merged therein. Cinocca v. Baxter Laboratories, Inc., 400 F. Supp. 527 (E.D. Okla. 1975).
Whether the merger of Local P-94 with the larger local union qualifies as a closing of the business of Local P-94 has not been briefed by the appellant, and is only briefly discussed in the appellee’s brief. Theoretically, the collective bargaining agreements of the two unions with other employers would continue to be serviced by the merged unit. The merger of Local P-94 with Local 340 is inconsistent with the concept that Local P-94 closed for business when the receiver was sent in on July 26, 1976.
Assertion by each claimant of six months’ notice of closing pay under terms of the Cudahy contract precludes them from claiming wages due on termination of their employment by the union receiver, after the union receivership had been in operation for some period of time. At this point in the time sequence they cannot assert a closing of the business.
In this case the administrative agency had jurisdiction to determine whether wages were due the claimants. It had subject matter jurisdiction. Its determination that wages were due claimants, however, was erroneous for the reasons stated.
The district court on appeal of the administrative decision erroneously referred to the lack of jurisdiction of the administrative agency on the ground that no wages were due the claimants within the meaning of K.S.A. 44-313(c). A second ground asserted by the district court was that the statutory scheme asserted by the claimants violates both federal and state constitutional provisions.
Failure of the parties on appeal herein to brief the constitutional issues suggested by the trial court’s second ground for its decision is construed as a waiver of the constitutional issues.
Here the district court determined the administrative agency erroneously determined wages were due the claimants, but for the wrong reason. If the district court’s decision was correct for any reason, it must be affirmed. Farmers State Bank v. Cooper, 227 Kan. 547, Syl. ¶ 10, 608 P.2d 929 (1980).
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Per Curiam:
In this case both a petition in error and a cross-petition in error have been filed. The judgment of the court below, so far as it is attacked by the cross-petition in error, must be affirmed, upon the authority of Russell v. Hudson, ante, p. 99; Fairbanks v. Williams, 24 Kas. 16; Coonradt v. Campbell, 25 Kas. 228; Estes v. Stebbins, id. 315, 321; McKeen v. Haxtun, id. 698; Arn v. Hoppin, id. 707, 708; and the judgment, so far as it is attacked by the petition in error, will be modified with respect to interest due upon the taxes paid, upon the authority, of Corbin v. Young, 24 Kas. 198, 202; and Shaw v. Kirkwood, 24 Kas. 476, 478.
Where the holder of a tax deed is defeated in an action of ejectment, he is entitled to recover the amount of the taxes paid by him, with all interest and costs, as allowed by law, and this whether he is plaintiff or defendant; and he recovers the same as prescribed by § 142 of the tax law, and the authorities above cited.
This case will be remanded to the court below, with the order that its judgment be modified as above indicated; and the defendant in error will pay the costs of this court. | [
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The opinion of the court was delivered by
PIorton, C.
J.: In this case the j ury specially found that J. W. Stover was authorized by the plaintiffs to collect the money due on the bond, coupons and mortgage sued on; that he was authorized by the plaintiffs to release the mortgage; and that at the time of executing the release he acted as their agent. On the part of the plaintiffs, it is claimed that these findings are entirely without evidence to support them. This is the material question in the case. From the record we are furnished with this testimony: Sometime in 1875, J. W. Stover was on a visit at Norfolk, Connecticut, where plaintiffs reside, and made the arrangement with them that he was to negotiate loans in Kansas, and take therefor notes and mortgages in his own name, and indorse them in blank to the plaintiffs, and divide with them the commissions for placing such loans. He was also to look after the collection of the loans. Upon his return to Kansas he commenced operations. His usual course of dealing with the plaintiffs was to take loans in his own name, have the mortgages recorded, and then indorse the paper to plaintiffs by signing his name on the back of the note and interest coupons in blank, and assigning the mortgage in the usual form. He obtained the money from plaintiffs by draft, usually drawn to the order of his bankers, Messrs. Dayton, Barber & Co., of New York city. When he had money on hand, he paid the borrower the money at the time of the execution of the notes and mortgage. If he did not have money on hand, he made arrangements with the borrower to wait until he got the money from plaintiffs. When interest on the notes became due, he collected it by the authority and request of plaintiffs, and placed the same to their credit on their general account on his books. When interest was not paid, he foreclosed the mortgages by their instructions. When the land was sold under foreclosure, he bid the land off to them by their authority, and had sheriff’s deeds issued to them and placed upon record. The lands which they held by sheriff’s deeds he would sell when he could — some of them for part cash and part on time. . For the deferred payments, he would take notes and mortgages in his own name and'indorse them to plaintiffs. The deeds for the lands sold by him would be made by them to the purchaser. With the approval of the plaintiffs, when he had money on hand from collections received for plaintiff, he would reloan the money and take therefor other notes and mortgages in his own name, and assign them likewise to plaintiffs. He was instructed by plaintiffs, when parties wanted to pay them money at any time, whether the loans were due or not, to receive the money and release. In several instances the notes and mortgages were reassigned to Stover, and the mortgages released of record. There was no difference in the release of the mortgage sued on and in cases where he released after the mortgages were reassigned to him.
On cross-examination, J. W. Stover testified among other things as follows:
“I do not know that I stated o.n Saturday that I had authority from plaintiffs to release this mortgage. I think I had the authority from them to releáse mortgages. Cowles & Eldridge both understood the manner of my doing this business. When a mortgagor wished to pay off his loan before it became due, he was sometimes in a hurry to have a release of his mortgage, and in all these cases I released the mortgage on receipt of the money, gave plaintiffs credit on their account, and asked them to reassign to me; and in most cases they did so.” Also, “ Clinch y paid the balance of the purchase-money sometime in 1879, to pay off the claim we had against the land as shown by bond for deed from Burns to Clinchy, I may have testified on Saturday that Clinchy paid off the mortgage of Burns, but if so, he did it in the payment of a claim we had against him. That was what I meant when I stated that he paid it off. I do not know that anybody was present except the register of deeds when I released the mortgage. This was some time after I sold the mortgage to the plaintiffs. I paid them for the mortgage at thetime I released it. The plaintiffs were not present to receive the money. I did not get an assignment of the mortgage back to me, but I made that payment by giving plaintiffs credit on my account. I then had a balance in my favor with them.”
The evidence of the plaintiffs flatly contradicted Stover's testimony; yet the jury were' the judges of the credibility of the witnesses; Stover was present before them, and it was for them, not for us, to say which of the witnesses testified truthfully. By the testimony of Stover, express authority on his part to collect the note and reL lease the mortgage before due, was proved. The jury, therefore, had" positive evidence to support the special findings referred to, and neither these special findings nor the others are inconsistent with the verdict. We are aware that the rule is, unless express authority is established aliunde, that the possession of the securities by the agent is.the indispensable evidence of his authority to collect the principal, and that whoever pays the agent without that evidence, does so at his own risk. Yet, here express authority was established, if the jury accredited Stover — and they must have credited him, from the special findings and verdict returned by them. So, also, we fully understand the law to be, that an agent having authority to receive payment of an obligation is not authorized to receive it before it is due. But the witness Stover expressly stated that he had, authority from the plaintiffs to receive payment whether the loans were due or not, and upon payment to release the mortgages. When money was collected on notes and mortgages, it was not the arrangement for Stover to return it at once to plaintiffs in Connecticut, but by their authority he placed the same to their credit on their account on his books, and with such funds it was his custom to make other' loans and take new notes and mortgages therefor.
As it was part of the arrangement between plaintiffs and Stover that the latter should open up and keep an account with them, and then reloan the moneys paid to him upon the notes and mortgages held by them, the note and mortgage were to all intents and purposes as fully paid to plaintiffs by Stover giving them credit upon their account, when he had a balance due him from them, as if Burns or Clinchy had actually paid the money and Stover had given plaintiffs credit on their account for it. If plaintiffs’ money has been retained or embezzled by their own agent, they must suffer the loss resulting from their misplaced confidence, and the.defendants cannot be»expected to make that loss good'.
Counsel for plaintiffs contends the court erred in permitting Stover to testify to acts done by him, tending to show that he was the agent of plaintiffs in releasing the mortgage. “Now, it is competent to prove a parol agency, and its nature and scope by the testimony of the person who claims to be the agent. It is competent to prove a parol authority of any person to act for another, and generally to prove any parol authority of any kind by the testimony of the person who claims to possess such authority.” (Howe Machine Co. v. Clark, 15 Kas. 492.) All of the testimony from Stover concerning any acts done by him for the plaintiffs, was stated by him to have been done at their request and with their authority; therefore the objection made to the introduction of the evidence cannot be sustained.
There are one or two important questions ably and elaborately argued by_ the counsel for plaintiffs upon the instructions requested by them, but refused, and also as to certain portions of the charge of the court. In view, however, of the special findings of the jury, it is unnecessary to enter upon a discussion of other matters. Under the special findings of the jury, the note executed by Burns was satisfied by the agent of plaintiffs, and the mortgage executed on the same date also released by their agent. ' Upon such findings, all of the defendants were entitled to a judgment in their favor, and the verdict of the jury was in harmony with such findings. Therefore the judgment of the district court must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Action by Barnes on a promissory note of $1,941.23, executed by the defendant to. the Valley Bank and Savings Institution, and assigned by the bank to the plaintiff.
The question for our consideration resolves itself into this: Were the matters set forth in the second and fourth defenses of the answer of the defendant sufficient in law to defeat a recovery? It is not contested that the parties had the legal capacity to make the contract set forth in the second and fourth defenses of the answer, nor is it claimed that such contract is without consideration, or illegal, or in any other respect void. It is, however, argued that the evidence tending to support the alleged contract was improbable and unreasonable, and that there could have been no motive or purpose on the part of the bank to enter into such an agreement, as the defendant was liable on the original note as a joint maker with John Gragg, and the bank could have collected the note from him without any suit against John Gragg, or the execution of any new or other note.
Whether the contract was wise or unwise, it is not for us to determine. Even if the contract was a ridiculous and foolish one for the bank to make, if the parties thereto had capacity to make it, and such contract rested upon a valid •consideration, it was valid and binding between the parties for all purposes. If the original note was largely usurious, we can readily perceive that the agreement set forth in the answer might have been beneficial for the bank, and not at all unreasonable. The answer in this view constituted a defense to the action, and if established on trial, plaintiff was not entitled to recover. The evidence of defendant and one Simpson proved substantially all the facts alleged in the answer; and as the jurors were the exclusive judges of the evidence, of its weight, and of the credibility of the witnesses, and from their findings must have accredited the witnesses for the defendant and rejected the evidence offered by the plaintiff, and as the trial court afterward rendered judgment upon the verdict of the jury, we perceive no valid reason for setting the judgment and verdict aside.
Counsel for plaintiff claim, however, that not only was the .great preponderance of the testimony against the verdict, but that such preponderance was overwhelming. The indorsement of April 28, 1876, on the face of the note executed October 1, 1875, signed by the cashier and acknowledging the receipt from the defendant of $1,949.04 in full payment, •bears very heavily against the strength of the evidence of the defendant, and we must confess that a perusal of all the •evidence makes the claim of the plaintiff the more reasonable one. But receipts are always explainable by testimony, and the jury had the right to disbelieve the oral evidence of the plaintiff, as the evidence of the defendant conflicted therewith. Therefore we cannot say that there was no testimony to sustain the verdict, and long ago it was established as a rule of this court, that the verdict of a jury will not be disturbed if there is positive testimony to sustain it. Of course if there was a total want or failure of evidence to sustain the verdict, this court would set aside the judgment. The case of the' plaintiff does not reach up to this point. The most that can be said, we think, is that the preponderance of the evidence was against the verdict.
Counsel for plaintiff further contend that there was a variance between the evidence of defendant and the contract set up in the answer. They say, in support of this, that the bank did not assign the note of'October 1, 1875, to the defendant; and again, that the defendant did not return .said note. We do not regard this variance material, as the defendant testified that the arrangement was that the suit should be brought upon the original note in his own name against Gragg; and it appears that an action was brought upon it in his own name, and a judgment recovered therein. Again, at the time of instituting such action, he filed the original note with the clerk of the court, and in his answer to this action, he offered to assign the judgment and the promissory note to the bank, or to any person that it might direct. We do not think the court erred in refusing to instruct the jury to find for the plaintiff, nor do we see any material error in the instructions given.
The plaintiff1 might have, asked instructions upon his part, setting forth specifically the entire arrangement' pleaded as a defense; but no instructions were asked by him, and the instructions as given we do not think erroneous.
The judgment of the district court will therefore be affirmed.-
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Defendant in error commenced an action in the district court of Wyandotte county, to recover the sum of $300 for professional services in examining titles, preparing abstracts, etc. He recovered a verdict and judgment for $150, and the defendant, as plaintiff in error, brings the case here for review. He has attempted to bring the proceedings here in a case-made, and the sufficiency of this case-made is challenged by defendant in error. The judgment was rendered April 20, 1881, and sixty days were given to make a case. The service of the case was acknowledged June 16, 1881, and service of suggestions of amendments June 18,1881. After the acknowledgment of service the record contains what purport to be proceedings for the appointment of a receiver, and the sale of certain lots — all transpiring between August 8, 1881, and December 21, 1881. All the proceedings in the case, including the trial and the subsequent matter of receivership and sale, were had before Hon. Hiram Stevens, the regular judge of the district, whose term of office expired in January, 1882. The record contains no order giving time for making a case as respects the proceedings subsequent to the trial. After December 21, 1881, the only thing appearing is the following certificate of Hon. Hiram Stevens, then ex-judge, and of date April 12, 1882:
“The above and foregoing contains a full and complete statement of all.the proceedings, rulings, judgments, orders and evidence in the said district court for said county of Wyandotte, Kansas; and the judge of said court is respectfully requested to sign the same, as a true case-made for the supreme court, which is accordingly done this 12th day of April, 1882. Hiram Stevens,
“Late Judge Tenth Judicial District, Kansas.”
There is no other certificate or authentication by the clerk of any portion of the record, it coming to us simply as a case-made upon the certificate of Judge Stevens. Besides this, the plaintiff in error has filed notices dated and served April 3d, and April 8th, 1882, of an intention to present the case and amendments for settlement. Now upon this we remark that none of the proceedings subsequent to the trial and judgment, are properly preserved for review. These proceedings terminated on December 21, 1881. The time for making a case was not extended. No case containing these proceedings was ever served, and the first thing that appears after December 21, is the notice on April 3 that the case would be presented for settlement. Now the code (§ 548) requires that a case-made should be served within three days unless the time therefor be extended. The order of April 20, 1881, giving sixty days to make a case, spent its force when on the 16th and 18th days of June following the case-made was served and amendments suggested. The proceedings had thereafter, and after the expiration of the sixty days granted by the original order, could not properly be incorporated into that case. Whatever took place subsequently would have to be preserved by a bill of exceptions or a new case-made. Counsel for plaintiff in error files an affidavit stating that he caused a bill of exceptions to be made and signed in December, 1881, but that such bill of exceptions has been lost or stolen. This fact, however, would not authorize the incorporation of these subsequent proceedings into the prior case, nor the making of a case after the time prescribed by statute. We may thérefore disregard entirely any questions arising upon the proceedings subsequent to the trial. It is also at least doubtful whether any case-made was properly authenticated. The judgment was in April, 1881, and sixty days were given to make a case. This time would expire in June, 1881. Hon. Hiram Stevens was then judge, and remained so until January, 1882, more than six months after the time fixed for making-the case had expired. The case-made does not appear to have been signed until April, 1882, three months after the expiration of Judge Stevens’s term of office, and is signed by him as ex-judge. The provision of the statute applicable to cases of this kind is found in § 549, and reads: “ In all causes heretofore or hereafter tried, when the term of office of the trial judge shall have expired, or may hereafter expire during the time fixed for malting or settling and signing a case, it shall be his duty to certify, sign or settle the case in all respects as if his term had not expired.”
Now, as Judge Stevens’s term of office did not expire until more than six months after the time fixed for making a case, and indeed after the case had been made and served and amendments suggested, it may well be doubted whether his authority to act in the matter did not end with the expiration of his term of office. We know that the statute in the same section provides that the case-made shall be settled and signed by the judge who tried the cause, aud it has been held that independent of any statute the judge who tried a cause has' authority after his term of office to settle and sign a case-made. (Thurber v. Ryan, 12 Kas. 453, and cases cited therein from the supreme court of Wisconsin.) But still it is questionable, at least, whether, where the statute has made special provision for the signing and settling of cases-made by the trial judge after the expiration of his term of office, he can act in any other way or under any other circumstances than those named in the statute. We shall not, however, decide this question definitely, for we do not consider any of the objections taken to the proceedings on the trial as well founded.
The only two matters of error alleged are: First, that the court improperly permitted an agency to be proved by evidence of the statements of the agent; and second, that the verdict is not sustained by the evidence. Neither of these is well founded. It appears from the evidence that Taylor lived in Kentucky, and Mason, the 'plaintiff, in Wyandotte. In October, 1879, one Trabue, a lawyer from Kentucky, called upon Mason at his office in Wyandotte and employed him to do some work for the benefit • of the defendant, and the conversations of Trabue at that time with Mason were testified to by Mason; but the fact that Trabue was an agent of defendant was proved by the depositions of both Trabue and defendant. It is true Mason’s testimony was given before the depositions were read, but the mere order of the testimony is a matter largely within the discretion of the court, (Brown v. Holmes, 13 Kas. 482,) and as the depositions were on file when Mason gave his testimony, and were afterward read in evidence, the court did not commit any error in refusing to rule out Mason’s testimony as to Trabue’s statements. Of course a different question would be presented if those depositions had not been offered in evidence. But where the fact of agency is during a .trial established by the testimony of both the principal and the agent, any question as to a prior ruling admitting in evidence statements of such agent is settled in favor of the correctness of such ruling.
We think also there was sufficient evidence to sustain the verdict of the jury. That Trabue was an agent of the defendant is clear, and also that Trabue as such agent employed Mason to do some work. The only doubt is as to the extent ■of the agency and the extent of the employment; and upon those two questions of fact we think there was sufficient testimony to go to the jury and to sustain their verdict. These being the only two matters complained of, and in them appearing no error, the judgment must be affirmed, and this irrespective of the question whether any of the proceedings ■of the trial court have been properly preserved for review.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by J. H. Wendell against James B. Whitaker, Jane C. Whitaker and Andrew Arrington, to quiet the title to certain premises situated in Shawnee county. The defendants filed their answer, setting up — first, a general denial; and second, that they are entitled to the immediate possession of the premises, and to $1,200 damages for the unlawful detention of the property— to which second defense the plaintiff filed a general denial. A trial was had in the court below', before the court without a jury. Upon the trial it appeared that the plaintiff was in the quiet and peaceable possession of the property, and had been for a long time prior to the commencement of the action, and that he claimed title under a certain tax deed, which was executed on May 11, 1871, and recorded June 6, 1871. This tax deed described the property as follows: “The south half and the northwest fractional quarter of the southwest quarter of section 1, of township 11, range 15, containing 112 acres, situated in the county of Shawnee, and state of Kansas.”
The defendant Jane C. Whitaker claimed title under a quitclaim deed executed to her by Lemuel Warford, who once owned the property. At the close of the trial, the court below made the following findings, and rendered the following judgment, to wit:
“1st. That the plaintiff is in quiet and peaceable possession of the premises described in said plaintiff’s petition, and that said plaintiff was in the quiet and peaceable possession at the commencement of this suit, and for a long time prior thereto.
“ 2d. That the tax deed under which the plaintiff claims title is void upon its face.
“3d. That the legal title to said premises is vested in said defendant Jane C. Whitaker.
“It is therefore considered, ordered and decreed that the legal title to said premises is vested in said defendant Jane C. Whitaker, and that this court refuse to grant the prayer in said petition contained, viz., to quiet the title to the premises therein described, in favor of the said plaintiff and against said defendants; but said petition must be dismissed at the cost of said plaintiff herein, taxed at $—
The plaintiff excepted to these findings and judgment, and moved for a new trial, which motion was overruled; and he now brings the case to this court, and asks that the judgment of the court below be reversed.
The first question arising in the case is, whether the tax deed under which the plaintiff claims is void upon its face. The only ground upon which it is claimed that it is void upon its face is, that it describes the northwest quarter of the southwest quarter of section 1, township 11, range 15, as being a fractional quarter, and states that the whole of the premises described in the tax deed contains only 112 acres, when in truth and in fact, as is claimed, the said northwest quarter of the southwest quarter is not a fractional quarter, and the whole of the premises described in the tax deed contains 120 acres.
We do not think that the deed is void upon its face. No one could tell from the face of the deed that the said quarter-section is not fractional, and no one could tell from the face of the deed that the whole of the premises described in the tax deed contains more than 112 acres. From anything appearing in the deed, and from anything of which courts can take judicial notice, the entire description of the property as contained in the tax deed may be entirely correct; and such description-may state the exact truth. No one can tell, except from evidence aliunde, that the property described in the tax deed is not fractional; nor can anyone tell, except from evidence aliunde, that the property contains any more or any less than 112 acres of land. Therefore, as we think, the tax deed is not void upon its face; and therefore, as it has been recorded for over ten years, and as the plaintiff has' been in quiet and peaceable possession of the property under it “for a long time,” we think he is entitled to quiet his title and possession as against any adverse claimant who does not have a better title than his, or who has no title at all. Erom the record in this case, it does not appear that Jane C. "Whitaker has any title at all. . She is is not in possession of the property, and never has been, and her quitclaim deed from Warford was executed by him a long time after all title had passed from him. As this case, however, is to be remanded to the district court for a new trial, we shall not decide the question of the defendant’s title, but simply decide that the plaintiff’s tax deed is not void upon its face; and that it is sufficiently valid upon its face to start the statute of limitations to run in its favor.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
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The opinion of the court was delivered by
"Valentine, J.:
This action was brought by Charles I. Richards against the board of county commissioners of Wyandotte county and E. S. W. Drought, treasurer of said county, to recover an amount of money alleged to be due to the plaintiff on six certain tax-sale certificates, set out in his petition, for the reason, as he alleges, that at the time of the assessment of the taxes upon the lands described in the certificates, the lands were “Indian lands,” and not subject to taxation, and ought not to have been assessed or taxed, or ■sold for such taxes. The assessment under which these certificates were issued was for the year 1869, and the sale was had in May, 1870. The plaintiff afterward paid the taxes assessed on these lands for the years 1870, 1871 and 1872, which amounts so paid he now seeks to. recover from the •county, with interest thereon at the rate of ten per cent, per annum. The action was commenced on February 28, 1880. ’The defendant Drought demurred to the plaintiff’s petition, for the reason that the same did not state facts sufficient to constitute a cause of action against him and in favor of the plaintiff, which demurrer was sustained; and the plaintiff not taking leave to amend his petition, the action was then dismissed as to Drought, and was proceeded with only as against the board of county commissioners. The board answered, setting up: (1) A general denial; (2) the two-years statute of limitations; (3) the three-years statute of limitations; (4) the five-years statute of limitations; and (5) that a certain judgment was fraudulently obtained! The plaintiff replied to this answer by filing a general denial. The case was tried before the court without a jury.
After the plaintiff closed his evidence and rested, the defendant interposed .a demurrer to the evidence, upon the ground that no cause of -action had been proved in favor of the plaintiff and against the defendant, which demurrer was sustained,, and judgment rendered accordingly in favor of the defendant and against the plaintiff; and the plaintiff duly excepted. The plaintiff then moved for a new trial, which motion was-overruled, and the plaintiff again excepted.
The court below, in deciding the case upon the demurrer to the evidence, rendered the following decision:
“The only question for decision under the demurrer raised here is, whether the plaintiff under the pleadings and evidence has established a cause of action against the defendant. Of course if he has not, and the evidence shows it, the demurrer should be sustained. The decision of that question depends altogether, I may say, upon the question as to what portion of § 18 applies to this case. If this is an action upon an agreement, contract, or promise in writing, then the five-years statute applies, and five years may intervene between the accruing of the cause of action and the commencement of the suit. If the second subdivision of the same section applies, then three years only may intervene between the accruing of the cause of action and its commencement, or the action cannot be maintained. The first inquiry is, which one of these subdivisions applies here? Subdivision 1st says: ‘Within five years: an action upon any agreement, contract or promise in writing/ Subdivision 2d says: ‘Within three years: an action upon contract not in writing, express or implied; an action upon a liability created by statute other than a forfeiture ,or penalty/ These are the two subdivisions. Now I do not think this is an action upon a written contract. I do not think the .action is based upon or brought upon this tax-sale certificate itself, because there is no promise anywhere in this certificate which would compel the county commissioners to repay this money. But I think this action is based upon a liability created by statute, and that it grows out of this written contract. It is not based upon the contract or instrument itself. It only obligates the county authorities, through the county clerk, to execute a deed to the purchaser in case there is no redemption within a certain time. I have not read it, but I presume of course it is a statutory certificate. It nowhere obligates the county to refund the money in case the taxes are illegal. So it is not an action founded upon a written contract, but it is in fact founded upon a statutory liability. Take away or repeal this law which makes-the county liable to refund the taxes, and there would be no remedy whatever. There is no common-law liability in this case. In addition to that reason is the other reason, that you cannot conceive of a civil remedy that does not grow out of either contract or tort. If you restrict the second subdivision to cases outside of those based upon contract, the liability must be one created by statute, no matter whether under contract or tort. Therefore, I think the three-years statute of limitations applies. The evidence shows the demand was made in October, 1875; and I am inclined to think, this .money paid by the purchaser is to be regarded in the character of a trust fund, and is held by the county in trust for the person who buys the land.’ In that view, the statute of limitations commences to run whenever there is some disclaimer of the trust. The county is trustee, and the person buying the land is cestui que trust, and whenever he discovers that the certificates are illegal his right of action commences at that time. I am very much inclined to think that discovery by the county officers does not commence to set the statute of limitations running; in other words, it commences whenever the person buying the land discovers as a fact that the certificates are illegal, and he has a right then to demand the refunding of the money, and his right of action then accrues for its recovery. Taking that view, it seems to me that this demurrer should be sustained. The demurrer is therefore sustained, and the judgment rendered in favor of defendant for costs of suit.”
To which judgment and ruling of the court plaintiff then and there duly excepted.
The statute of limitations pleaded by the defendant reads as follows:
“Sec. 18. Civil actions, other than for the recovery of real property, can only be brought within the' following periods, after the cause of action shall have accrued, and not afterward : First, within five years, an action upon any agreement, contractor promise in writing; second, within three years, an action upon contract, not in writing, express or implied; an action upon a liability created by statute, other than a forfeiture or penalty.” (Comp. Laws of 1879, p. 603.)
“Sec. 47. No account against the county shall be allowed unless presented within two years after the same accrued; provided, that if any person having a claim against a county be, at the time the same accrues, under any legal disability, every such person shall be entitled to present the same within one year after such disability shall be removed.” (Comp. Laws of 1879, p. 281.)
Prom 1868 up to 1876, the statutes provided among other things as follows:
“If after any [tax-sale] certificate shall have been granted upon such sale, [a sale of land for delinquent taxes,] the county clerk shall discover that for any error or irregularity such land ought not to be conveyed, he shall not convey the same; and the county treasurer shall, on the return of the tax certificate,'refund the amount paid therefor on'such sale, and all subsequent taxes and charges paid thereon by the purchaser or his assigns, put of the county treasury, with interest on the whole amount at the rate of ten per cent, per annum.” (Gen. Stat. of 1868, p. 1058, § 120.)
In 1876 this statute was amended by reenacting the same with the following words, to wit, “with the refusal of the county clerk indorsed thereon,” inserted between the words “certificate” and “refund,” so that the statute should read: “and the county treasurer shall, on the return of the tax certificate with the refusal of the county clerh indorsed thereon, refund the amount paid therefor,” etc. (Laws of 1876, p. 96, § 145.)
In 1879 this statute was so amended as to read as follows:
“If after any certificate shall have been granted upon any sale, the board of county commissioners shall discover that for any error or irregularity such land or lots ought not to be conveyed, they may order the county clerk not to convey the same; and the county treasurer shall, on the return of the tax certificate with a certified copy of such order of the board of county commissioners, refund the amount paid therefor on such sale, and such of the subsequent taxes and charges paid thereon by the purchaser or his assigns, as may be so ordered by the board of county commissioners, out of the county treasury, with interest on the amount so ordered refunded at the rate of ten per cent, per annum,” etc. (Comp. Laws of 1879, p. 968, § 145.) '
This statute last referred to also attempted to make the amendment apply to all tax-sale certificates, whether issued prior or subsequent to the passage of the statute. The amendment, however, cannot be held to affect materially any of the substantial rights of persons holding tax-sale certificates issued prior to its adoption. (Morgan v. Comm’rs of Miami Co., 27 Kas. 89.)
It is not within the scope of legislative power to disturb vested rights by an amendment, or by a repeal of any existing statute. But in the present case we do not think it is necessary to decide whether any portion of the amendment last .referred to is valid or not. For the purposes of this case, we think we may treat the entire amendment as valid or invalid without materially affecting the decision to be rendered. In either case we think the same result must be reached. As before stated, the taxes which the plaintiff paid and which he now wishes to recover, were the taxes levied upon the lands for the years 1869, 1870, 1871, and 1872. These lands during all those years were Indian lands, and not subject to taxation. The state of Kansas had no jurisdiction over them for the purposes of taxation, and hence the taxes levied upon them were absolutely void. It was 'not discovered, however, that these 'taxes were void, until 1875, when, according to the evidence and findings of the court, their invalidity was discovered and the plaintiff made a de mand for their repayment to him. As soon as the invalidity of the taxes was discovered and a demand made upon the county treasurer for their payment, then a cause of action accrued in favor of the plaintiff and against the treasurer for their payment, unless there were no funds in the county treasury from which they could be paid. If there were funds in the county treasury from which the taxes could be paid, then the cause of action accrued against the county treasurer, and against the county treasurer only, and no cause of action accrued against the board of county commissioners. This follows from' the provisions of § 120 of the tax law of 1868, as above quoted, which was in force, as we have already stated, from 1868 up to 1876. If the board of county commissioners provided funds for the refunding of all such taxes, and did not interfere by direction or otherwise with the county treasurer so as to prevent him from using such funds in the repayment of such taxes, then no cause of action did or could accrue against the board of county commissioners; for they had not been and could not be guilty of any wrong or neglect, (Comm’rs of Saline Co. v. Geis, 22 Kas. 381;) and if no cause of action accrued against the board of county commissioners, of course no statute of limitations could run or commence to run in its favor. If however in any case the board of county commissioners should interfere in any manner so as to prevent the payment, by the county treasurer, of the illegal taxes to the holder of the tax-sale certificate, then a cause of action would accrue in favor of the holder of the tax-sale certificate and against the board of county commissioners; and in that case the statute of limitations would commence to run in favor of the board of county commissioners; and probably this would be the two-years statute of limitations as embodied in § 47 of the act relating to counties and county officers, which we have quoted above. (Comp. Laws 1879, p. 281.)
The case of the Comm’rs of Saline Co. v. Young, 18 Kas. 440, can have no application to this case. In that case the plaintiff made a mistake in suing the commissioners and in not suing the treasurer. In that case, as the law then stood, (§120 of the tax law of 1868,) the commissioners had done nothing to make them liable, and were not liable at all, (22 Kas. 381;) but they did not raise that question in that case, and therefore the question was not decided. The only questions which they did raise, were: (1) Whether the question of the invalidity of the taxes was a question of law or of fact; the board in that case claiming that it was one of law, and that the plaintiff and the officers must be. deemed to have discovered such invalidity at the time of the sale, and to have discovered the same at that time within the meaning of said § 120 of the tax law of 1868, whether in fact they did discover it or not; and that therefore the cause of action necessarily accrued as soon as the tax-sale certificates were issued; and therefore that more than two years, and more than three years, and indeed more than five years, had elapsed after the discovery of such invalidity and before the plaintiff commenced his action; and therefore, (2) that the action was certainly barred by the two, three and five-years statutes of limitations. The defendants did not raise the question that the plaintiff had made a mistake in suing the board of county commissioners, instead of suing the county treasurer, but simply raised the questions above mentioned; and therefore the court in that ease simply decided the questions raised. The defendants seemed to have waived the mistake made as to the parties defendant, and seemed to desire only that the question’s as to whether the claim as a claim was barred or not by some one or more of the statutes of limitations, should be decided. The court in that case simply decided that the question whether the taxes were invalid or not, was a question of fact, and not one of law; and also decided that the plaintiff’s claim was not barred by any statute of limitations. If the court had gone on further, it would have décided that no cause of action had ever in fact accrued against the board of county commissioners, but only against the county treasurer; and therefore that no cause of action against the county commissioners had ever in fact or in law been barred. The plaintiff’s cause of action in that case had not been barred as to any party — neither as to the board of county commissioners nor the county treasurer. Certainly no statute of limitations had ever run against the plaintiff's claim as a claim.
For the purposes of the present case, and under the evidence and findings of the court below, it must be held that a cause of action accrued, not only against the county treasurer, as in the case of Saline Co. v. Young, but also accrued against the board of county commissioners, which was not the case in the Saline county case; and that the same accrued in the year 1875; and therefore as the action was not commenced until February 28, 1880, the cause of action was barred as against the board of county commissioners, probably’ by the said two-years statute of limitations, and certainly by the three-years statute of limitations, as pleaded by the defendant. The action, as we think, is “an action upon a liability created by statute, other than a forfeiture or penalty.” Possibly in one sense it isalso an action upon contract; but in no such sense, as we think, as is contemplated by the five-years statute of limitations. It is not an action to specifically enforce a contract; it is not an action to recover or enforce what the contract provides for; and it is really not an action to recover damages for the breach of any contract. The county commissioners are not parties to the contract; they are not mentioned in the contract; and it is not contemplated by the terms of the contract that they should do or perform, or refrain from doing or performing, anything under it; and they did not violate any of the, terms of the contract by failing or refusing to refund the taxes paid by the plaintiff. They are simply liable, if liable at all, because they interfered, by failure to furnish funds, or by direction, or otherwise, to prevent the county treasurer from refunding such taxes, as he is required to do by the statute. The remedy to recover the taxes is simply a statutory remedy, a remedy wholly created by the statute; and except for the statute there would be no liability on the part of the county treasurer, or on the part of the board of county commissioners, or on the part of anyone .else. It cannot be claimed that the board is liable to pay these taxes because it ever made “any agreement, contrac!, ch? promise in writing,” or even in parol, to pay the same; nor can it be claimed that the board should- pay such taxes as damages accruing on account of some failure on the part of the board to perform some “agreement, contract, or promise in writing” made by the board. The tax-sale certificate upon which the plaintiff sues, and which he must necessarily claim under the statute to be an “agreement, contract, or promise in writing” between himself and the county board in order to take the case out of the three-years statute of limitations, is simply a certificate issued by the treasurer of the county, showing that the plaintiff purchased certain. lands for taxes at a certain tax sale, and that he would be entitled to a tax deed, executed by the county cleric, after the lapse of a certain period of time after the tax sale. The county board has nothing to do with the tax-sale certificate, or with any other instrument connected with the tax sale. And in the tax proceedings, the taxes, for the payment of which the lands are sold and the tax-sale certificates issued, are not mer'ely county taxes, but they are all kinds of taxes — state taxes, county taxes, city taxes, township taxes and school-district taxes; and the county treasurer in selling the land for such taxes, and in issuing the tax-sale certificates, does not act' merely as the agent of the county, but he acts as the agent of the public generally. And the same may be said of the county clerk in executing the tax deed: he acts as the agent of the entire public, and not merely as the agent of the county; and neither the county treasurer nor the county clerk acts for the county as a corporate entity. The board of county commissioners alone acts for the county in its corporate capacity; and such board never makes any contract with the tax-sale purchaser, in writing or otherwise, but its liability springs purely and solely from the statute. Indeed the liability of the county board does not spring immediately and directly even from the statute, but only indirectly; and we are now speaking of the statutes as they existed when the present cause of action arose.' The tax-sale certificates in the present case were issued in 1870, .and in 1875 it was discovered that the taxes were illegal and void, because the property taxed had never been subject to taxation. At that time the statute provided that if the'county clerk should discover the illegality of the taxes, that the county treasurer should refund the taxes with interest to the holder of the tax-sale certificate; and there was no statute in terms making the commissioners liable for the payment of any such taxes under any circumstances. Their liability could only grow out of some wrong or neglect on their part in connection with the statute. Neither the tax-sale certificate nor the discovery of the illegality of the taxes, nor the statute then in force, nor all combined, could make the board liable. (Comm’rs of Saline Co. v. Geis, 22 Kas. 381.) It still required something more to make it liable. As before stated, it required some wrongful act on its part, or some failure to perform some duty imposed upon it by law; and any cause of action commenced against the commissioners must be founded upon such wrongful act, or upon such failure to perform some duty. And it cannot be said that an action founded exclusively upon some wrongful act, or upon some failure to perform some duty imposed by law, is an action founded upon an “agreement, contract, or promise in writing.” We think the action, if not barred by the two-years statute of limitations, is barred by the three-years statute of limitations; and hence the judgment of the court below will be affirmed.
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The opinion of the court was delivered by
Holmes, J.:
Stormont Vail Regional Medical Center (Stormont Vail), a Topeka general hospital, petitioned this court for review of an unpublished decision of the Court of Appeals in a case involving the claim of a former employee to compensation for vacation time which remained unused at the time of the termination of the employer-employee relationship (Sweet v. Stormont Vail Regional Medical Center, No. 53,035 filed March 11, 1982). We granted review.
Theresa D. Sweet, the original claimant in this action, was employed by Stormont Vail as a food service worker for the period from November 4, 1975, to March 15, 1979. At the time of her original employment Ms. Sweet was provided with a copy of Stormont Vail’s employee handbook which set forth the general terms and conditions of employment. No one seriously questions the applicability of the employee handbook to Ms. Sweet’s employment. In fact, both parties rely upon the handbook to support their positions and the provisions of the handbook may clearly be considered a part of the employment contract between Ms. Sweet and Stormont Vail. On March 15, 1979, Ms. Sweet terminated her employment with Stormont Vail without giving any prior notice that she intended to do so. Ms. Sweet was paid for her work to the date of termination but Stormont Vail, relying upon certain notice provisions in the employee handbook, refused to pay for vacation time which Ms. Sweet contends constitutes earned wages. She, therefore, filed a claim with the Secretary of Human Resources pursuant to K.S.A. 44-313 et seq. and, following an administrative hearing, the examiner found that the claimant had accrued certain vacation time and was entitled to payment therefor as wages upon the termination of her employment. The amount involved is $148.59. Stormont Vail appealed the examiner’s decision to the district court which reversed the examiner and found that due to the notice provisions required by the contract of employment on termination, Ms. Sweet had failed to earn the amount allegedly due for her accrued vacation time. At the time of filing the original claim it was assigned, pursuant to K.S.A. 44-324, to the Secretary of Human Resources. The Secretary appealed the decision of the district court and the Court of Appeals reversed the decision of the district court thereby reinstating the examiner’s award.
The resolution of the issues before us requires an examination of the applicable statutes and regulations, the employment agreement, and the prior decisions of the Kansas appellate courts.
K.S.A. 44-313(c) provides:
“ ‘Wages’ means compensation for labor or services .rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis less authorized withholding and deductions.”
K.S.A. 44-315(a) provides in pertinent part:
“Whenever an employer discharges an employee or whenever an employee quits or resigns, the employer shall pay the employee’s earned wages not later than the next regular payday upon which he or she would have been paid if still employed . . . (Emphasis added.)
In regulations adopted by the Department of Human Resources “or other basis” is defined as:
“ ‘Or other basis’, within the meaning of K.S.A. 44-313(c), shall include all agreed compensation for services including, but not limited to, profit sharing and fringe benefits for which the conditions required for entitlement, eligibility, accrual or earning have been met by the employee. Conditions subsequent to such entitlement, eligibility, accrual or earning resulting in a forfeiture or loss of such earned wage shall be ineffective and unenforceable.” K.A.R. 49-20-1F.
The Stormont Vail employees’ handbook clearly sets forth the vacation policy of the employér and the requirements for receiving such vacation. It provides that employees who have worked from one to three years are entitled to two weeks’ annual vacation which must be scheduled by the employee with his or her department to accommodate the work requirements of the department as well as the employee’s preferences. The handbook further provides:
“Employees resigning from the hospital are expected to give their supervisor 2 weeks’ written notice .... Any unused accumulated vacation that does not exceed I-V2 times an employee’s annual vacation benefit will be paid to an employee who resigns and gives the proper notice. ” (Emphasis added.)
Thus we are faced with a twofold question: (1) is accrued vacation time a fringe benefit and therefore wages as defined in K.A.R. 49-20-1F, and (2) if so, did Ms. Sweet’s accrued vacation time constitute “earned wages” as contemplated by K.S.A. 44-315(a) and the parties’ employment agreement? We think the second portion of the question must be answered in the negative.
The trial court found, based upon Benjamin v. Manpower, Inc. of Wichita, 3 Kan. App. 2d 657, 600 P.2d 148 (1979), that accrued vacation time was included in the term “compensation for labor or services rendered,” (K.S.A. 44-313[c]), but that it had not been “earned” (K.S.A. 44-315[a]) in this case. The Court of Appeals agreed that the vacation time constituted wages but disagreed that such wages had not been earned. The Court of Appeals, as had the examiner, further found that the requirement for two weeks’ notice of intention to quit was a condition subsequent resulting in a forfeiture and therefore unenforceable under K.A.R. 49-20-1F.
In Benjamin the issue before the court was whether the refusal of Manpower, Inc. to pay Benjamin for two weeks’ vacation upon his termination of employment constituted a willful violation entitling the employee to recover statutory penalties under K.S.A. 44-315(b). The trial court had held that Benjamin’s accrued vacation constituted wages and that finding was not appealed. However, in discussing the nature of vacation pay the court stated:
“The Supreme Court decided in Erickson v. General Motors Corporation, 177 Kan. 90, 276 P.2d 376 (1954), that holiday pay was ‘wages’ and, in discussing holiday pay, stated at 98-99:
‘It was a condition of his employment, and he had to work to get it, and he got it as part of his compensation. If that be not true, then the employee received something to which he was not strictly entitled, a thing ordinarily called a bonus, and if it was a bonus, it was still wages under the statutory definition of wages.’
Although the statute under consideration in Erickson specifically listed a ‘bonus’ as wages, we do not deem it of significance in this case as we are of the opinion that vacation pay due pursuant to an employment contract constitutes ‘wages’ as defined by K.S.A. 1978 Supp. 44-313(c); and if an employer willfully refuses to pay the same after demand is made therefor, that employer is subject to the statutory penalty.” p. 659,
and
“In the absence of a valid contract provision authorizing forfeiture, vacation pay cannot be forfeited once the worker has earned the same. In this case there was no valid dispute over the contract provision for a paid vacation; the contract term had passed without the employer complaining to the worker about the quantity or quality of his work. The trial court found the worker was entitled to a paid vacation as of March 12, 1977. The employer thereafter had no legal right to declare the vacation wages forfeited or to refuse to pay the same. The employee requested that he be paid, as he had a right to do under his contract of employment, and his employer refused to pay.” p. 661.
Two other recent cases in the Court of Appeals involving hospitals have considered the status of vacation pay and reached opposite results. Lindstrom v. St. Francis Hosp. & Med. Center, Inc., 6 Kan. App. 2d 948, 636 P.2d 231 (1981), rev. denied Jan. 15, 1982, and Richardson v. St. Mary Hospital, 6 Kan. App. 2d 238, 627 P.2d 1143 (1981).
In Richardson a panel of the Court of Appeals concluded that an employment contract between a hospital and an employee did not contain an illegal forfeiture of wages due at the time of termination. The employment contract lumped paid absences for sick leave, holidays and vacation all together under the term “earned time.” A full time employee accrued such “earned time” at the rate of 192 hours per year but the contract prohibited a total accumulation in excess of 480 hours. Upon retirement, the employee was entitled to payment in full for 100% of accrued earned time. However, if an employee terminated employment, payment for unused earned time was limited to a percentage dependent upon the years of service. For example, an employee that worked for less than five years was entitled to payment for only 50% of accrued time. Anita Richardson was employed as a nurse for the St. Mary Hospital in Manhattan, Kansas. In May of 1977, she made arrangements to use her earned time for maternity leave. During that authorized leave of absence, Mrs. Richardson took employment elsewhere. When she notified the St. Mary personnel department of her resignation, it immediately ended her authorized use of earned time and paid her for the appropriate percentage of unused accrued earned time based upon her years of employment. The Court of Appeals approved the hospital policy saying that the only way an employee could ever expect full compensation for accumulated earned time was by retirement rather than voluntary or involuntary termination. The court said:
“Parties have wide discretion in fixing the terms of employment contracts, and when the employment contract is not contrary to law it should be honored and enforced by the courts. As we view the employment contract here, we are of the opinion that the trial judge correctly determined that the earned time was not wages under the employment contract and that the right to pay was conditioned upon the employee’s continued employment. The trial judge determined that the condition of employment is a condition precedent, not a condition subsequent. While the language used in the employment contract borders on being a condition subsequent, we are convinced that the right to use the accumulated earned time was absolute during the employment, and the right to payment for accrued time not used during the term of employment for which the employee elects to be paid when employment is terminated is governed by the employment contract and is not in violation of existing statutes and regulations.” pp. 241-42.
The court concluded that the contract provisions limiting the payment for earned time on termination, as opposed to retirement, was valid and enforceable and did not result in an illegal forfeiture of wages due upon termination.
In Lindstrom, with one judge dissenting, the court found that “Paid Days Off” (PDO) accumulated under an employment contract were “wages” within the meaning of the statutes and regulations and that the requirement that an employee give two weeks’ notice of termination before entitlement to pay for unused PDO time was an invalid condition subsequent. Because failure to give the notice of termination resulted in forfeiture of the benefit, the court would not approve the employer’s policy.
As part of the employment agreement, St. Francis Hospital instituted the PDO plan whereby employees accumulated leave hours based on hours worked. The leave hours could be used for illness, vacation or holidays. Each employee’s paycheck stub listed how many total PDO hours that employee had accumulated. The court found that the employment contract provisions governing PDOs was written in terms of “earning” those PDO hours. Pursuant to the plan, if an employee resigned in good standing after one year of continuous service, having given two weeks’ advance notice, the employee would be paid for the unused PDO leave hours which had accrued. If an employee did not work for the required period of time or resigned without giving two weeks’ notice or was discharged for due cause, then the employee would not receive compensation for the accrued PDO leave hours. The court held, under K.A.R. 49-20-IF, the hospital could not condition payment for accumulated PDO hours on the requirement of two weeks’ notice of intent to resign.
The court in Lindstrom addressed the Richardson decision as follows:
“Since the ‘earned time off plan in Richardson is similar to the PDO plan in the present case, it is necessary to scrutinize the two plans to determine whether the general rule as stated in Benjamin applies or whether the special rule which was limited to the facts of Richardson should apply.
“The court in Richardson found that the right to pay for the accumulated earned time was conditioned upon the employee’s continued employment. 6 Kan. App. 2d at 241. By contract, the employee never had an expectation of receiving full compensation for the ‘earned time’ accrued if the employee chose not to continue working. The only way to get 100% compensation was to retire. Therefore, by the terms of the employment contract, the ‘earned time’ was not ‘wages’ and the decision in Richardson is correct.
“In the present case, however, we find that the terms of the employment contract are such that the PDO should be considered wages. Employees have an absolute right to full compensation for their accrued PDO with the exception of a forfeiture clause which is part of the employment contract.” 6 Kan. App. 2d at 952-53.
The attempt to distinguish Lindstrom from Richardson is not persuasive. In the instant case, the Court of Appeals was of the opinion that the case was controlled by its prior decision in Lindstrom, and certainly the employment contract provisions are nearly identical. The court failed to make any mention of the Richardson holding in its determination of the present case. What the Court of Appeals failed to recognize in Lindstrom was that the fringe benefit of the right to PDO time could be obtained by two separate and distinct methods. The employee could continue to be employed and utilize the appropriate leaves of absence during employment or elect to terminate employment and obtain the separate benefit of receiving payment for unused PDO by giving two weeks’ advance notice of the intent to terminate. Both Richardson and Lindstrom are distinguishable from Benjamin wherein once the leave time had accrued the employee had the option to enjoy the leave time as paid time off or in lieu thereof to receive additional payment for the earned time. No such absolute right to payment or time off existed in either Richardson or Lindstrom.
Our research has revealed nothing in Kansas law which requires an employer to convert vacation time to a lump sum payment absent agreement in the employment contract. Likewise, there appears to be nothing prohibiting the employer from conditioning any such lump sum payment on the giving of notice, or length of service or any other term which is not unconscionable. Both the hearing examiner and the Court of Appeals were of the opinion that the requirement of the employment contract calling for two weeks’ notice of an intent to terminate in order to be eligible for payment for vacation time was a condition subsequent resulting in a forfeiture. We disagree.
In Wallerius v. Hare, 194 Kan. 408, 399 P.2d 543 (1965), this court said:
“A condition precedent is something that it is agreed must happen or be performed before a right can accrue to enforce the main contract. It is one without the performance of which the contract, although in form executed and delivered by the parties, cannot be enforced. A condition precedent requires the performance of some act or the happening of some event after the terms of the contract, including the condition precedent, have been agreed on before the contract shall take effect.” p. 412.
In the instant case the right to receive payment for vacation time upon voluntary termination was subject to a condition precedent; that is, the requirement of giving two weeks’ notice. In determining the rights which accrue under an employment contract, the entitlement thereto or eligibility therefor, the contract controls so long as it is not unreasonable or illegal. There is no inherent right to a vacation or to payment for unused vacation time and the rights thereto, if any, must be found in the employment contract. See Wheeler v. Mission Elec. & Plumb., 267 Or. 209, 515 P.2d 1323 (1973); Walters v. Center Electric, Inc., 8 Wash. App. 322, 506 P.2d 883 (1973); Annot., 91 A.L.R.2d 1078. When, as in the instant case, the employee is made aware of company policy, which is a part of the terms of the employment contract, the employee will be bound by those terms. Suastez v. Plastic Dress-Up Co., 125 Cal. App. 3d 546, 178 Cal. Rptr. 11 (1981). At the hearing of this case, Ms. Sweet acknowledged having received the employee handbook which outlined the conditions of her employment contract and her rights under that contract. Since the notice requirement here is consistent with the hospital’s need to be adequately staffed for the health and safety of its patients, the requirement of notice of intent to terminate is reasonable.
In Commodore v. Armour & Co., 201 Kan. 412, 441 P.2d 815 (1968), the court was faced with a determination of whether separation pay contemplated by the employment agreement constituted wages. Although the case involved the effect in a federal bankruptcy action of the attempted assignment or pledge of separation pay, due upon termination of employment under certain conditions, the court recognized that absent anything to the contrary the terms of the employment contract control. The court stated:
“In our opinion separation pay, under the terms of the [employment] agreement before us, constitutes wages. Though correlated with his past employment, plaintiff could acquire no right thereto until his employment was terminated under conditions in conformance with the other requirements of the agreement. Plaintiff’s right to separation pay, when he signed the note and power of attorney, was at best contingent and never due and payable until termination of his employment and then only if termination be under such conditions that it became payable according to the terms of the agreement. (Talberth v. Guy Gannett Publishing Co., [1953] 149 Me. 286, 100 A.2d 726, 40 A.L.R.2d 1036.)
“Under the terms of the agreement in question, plaintiff’s continuing, in a satisfactory manner, his services in Armour’s employment was an important part of the consideration for separation pay. He was paid weekly wages for his ordinary services. Separation pay constituted additional wages for continuing in employment until termination under conditions in compliance with the requirements of the agreement. It was not collectible nor was it fully earned until plaintiff met the required conditions, which occurred after adjudication. Entitlement to separation pay required substantial services by way of continued employment and termination thereof under the required conditions on the part of plaintiff subsequent to his adjudication in bankruptcy.” p. 421.
In the case now before the court the learned trial judge, in his memorandum decision, stated:
“ ‘Vacation pay’ is not defined in the agreement, but this court, in light of the common understanding of the meaning of that term and its general usage, views ‘vacation pay’ as meaning time off with pay, unless otherwise specifically defined.
“It is apparent to this court that by the Claimant’s agreement Claimant only became entitled to vacation pay, hence ‘earned’ it, in one of two ways: scheduling time off with pay and continuing her employment, or giving Respondent two weeks prior notice of her intent to resign. The nature of Respondent’s service to the public requires a stable work force and requiring notice or continued employment for entitlement to vacation pay was Respondent’s means of maintaining that work force. The notice requirement for ‘earning’ unused accumulated vacation pay was consciously drafted for this purpose. Claimant’s failure to comply with either of the requirements of her agreement with Respondent prevented her from earning vacation pay. The wages were neither earned nor payable pursuant to K.S.A. 1979 Supp. 44-315.”
We agree with the trial court’s analysis. Assuming that K.A.R. 49-20-IF is a valid regulation, a determination we are not required to make in this opinion, and assuming that vacation time or vacation pay is a “fringe benefit” within the terms of the regulation, the claimant has failed to comply with a valid provision or condition precedent of her employment contract necessary to receive such fringe benefit. In order to be entitled to payment for accrued vacation time upon termination of employment, the claimant was required to give Stormont Vail two weeks’ notice of her intent to quit. Failure to do so negates any determination that such accrued vacation time constitutes “earned wages” as required by K.S.A. 44-315(a). To the extent that the opinion of the Court of Appeals in Richardson and our decision herein are inconsistent with the holdings in Lindstrom, that case is disapproved.
The opinion of the Court of Appeals is reversed and the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Holmes, J.:
The State of Kansas appeals, pursuant to K.S.A. 22-3602(h)(3) (Ensley), from a question reserved in a criminal case. Defendant-appellee was charged with aggravated burglary and attempted rape. He was found not guilty of both charges in a trial by jury.
At defendant’s preliminary hearing he was of the opinion that the ability of the State’s witnesses to identify him would be a crucial issue and, as a part of his trial strategy, he waived his right to be present during the preliminary hearing. His counsel, of course, was present and afforded the opportunity to cross-examine all the State’s witnesses. Donald Yaus, the arresting police officer, testified, but at the time of trial Officer Yaus failed to appear, although he had been subpoenaed and was expected to appear. The State desired to introduce the transcript of Officer Yaus’ preliminary hearing testimony and, at a hearing in chambers, the court ruled that the transcript was inadmissible as it was hearsay and the defendant had not met the witness “face to face” in the preliminary hearing. The ruling was based upon the last clause of K.S.A. 60-460(c).
At the outset appellee asserts that the issue is not one which should be properly considered as a question reserved. We do not agree. In State v. Larrikin, 229 Kan. 104, 621 P.2d 995 (1981), we stated:
“[A]ppeals on questions reserved by the prosecution in criminal actions will not be entertained merely to demonstrate whether or not errors have been committed by the trial court in its rulings adverse to the State. Such questions must be of statewide interest and answers thereto must be vital to a correct and uniform administration of the criminal law.” Syl. f 2.
The issue before the court is whether a defendant in a criminal action may voluntarily waive the statutory protection of meeting a witness face to face provided by K.S.A. 60-460(c). We deem the matter to be of sufficient statewide importance in the prosecution of criminal cases to warrant review as a question properly reserved under K.S.A. 22-3602(b)(3).
We now turn to the question before the court. As indicated, the defendant, as a part of his trial strategy, voluntarily elected to waive his right to be present at the preliminary hearing where the following dialogue took place between the court and counsel:
“THE COURT: The State of Kansas v. George L. Busse, Jr., No. 80 CR-241 I.
“MR. BASLER: If it please the Court, Stan Basler appears as counsel for the defendant, George L. Busse, Jr., and presents the Court with a written, acknowledged waiver by the defendant of his right to be present.
“THE COURT: Mr. Chubb?
“MR. CHUBB: Your Honor, defendant’s counsel seems to think identity is an issue in this case, and he doesn’t want the defendant present, I guess, so our witnesses can get a good look at him. He waived his presence. I don’t know what I can do to stop him.
“THE COURT: All right, Mr. Basler, you’ve thoroughly explained to Mr. Busse his right to confront the witnesses against him and his right to cross-examine them?
“MR. BASLER: That is correct, your Honor.
“THE COURT: And he desires not to avail himself of that privilege?
“MR. BASLER: That is correct.
“THE COURT: And in your opinion, he thoroughly understands these things and freely and voluntarily made this decision?
“MR. BASLER: I believe he did, your Honor.
“THE COURT: This decision was not the result of any threats or coercion of any kind?
“MR. BASLER: No.
“THE COURT: All right. Waiver of right to be present at the preliminary hearing may be accepted and we will proceed in his absence.”
Thus, it is apparent that the defendant freely and voluntarily waived his right to be present after being advised by counsel.
K.S.A. 60-460(c) provides in pertinent part:
“60-460. Hearsay evidence excluded, exceptions. Evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated is hearsay evidence and inadmissible except:
(c) Depositions and prior testimony. Subject to the same limitations and objections as though the declarant were testifying in person, (1) testimony in the form of a deposition taken in compliance with the law of this state for use as testimony in the trial of the action in which offered, or (2) if the judge finds that the declarant is unavailable as a witness at the hearing, testimony given as a witness in another action or in a preliminary hearing or former trial in the same action, or in a deposition taken in compliance with law for use as testimony in the trial of another action, when .... (ii) the issue is such that the adverse party on the former occasion had the right and opportunity for cross-examination with an interest and motive similar to that which the adverse party has in the action in which the testimony is offered, but the provisions of this subsection (c) shall not apply in criminal actions if it denies to the accused the right to meet the witness face to face;” (Emphasis added.)
The Sixth Amendment to the United States Constitution provides:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defense.” (Emphasis added.)
Section 10 of the Kansas Bill of Rights states:
“In all prosecutions, the accused shall be allowed to appear and defend in person, or by counsel; to demand the nature and cause of the accusation against him; to meet the witness face to face, and to have compulsorjuprocess to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed. No person shall be a witness against himself, or be twice put in jeopardy for the same offense.” (Emphasis added.)
Thus it appears that the statutory safeguard of the defendant’s right in a criminal case to meet the witnesses face to face is the same as the right given under Section 10 of the Kansas Bill of Rights.
It should be noted that the question of whether Officer Yaus was in fact unavailable to testify at the trial is not an issue in this appeal. The State had used reasonable diligence to insure his presence and his failure to appear evidently was a surprise to both parties. State v. Steward, 219 Kan. 256, 264, 547 P.2d 773 (1976).
It has long been recognized that a defendant may waive federal and state constitutional rights and that the right of confrontation under the United States Constitution and the right to meet the witnesses “face to face” under Section 10 of the Kansas Bill of Rights are satisfied when defendant has had an opportunity to cross-examine the witnesses against him. State v. Washington, 206 Kan. 336, 479 P.2d 833 (1971); State v. Terry, 202 Kan. 599, 451 P.2d 211 (1969).
Appellee argues, however, that K.S.A. 60-460(c) grants broader protection and rights to a defendant than those guaranteed by the federal and state constitutions. It is contended that before hearsay testimony by way of a transcript of prior testimony or by deposition may be admitted, the defendant must have actually been present in a face to face confrontation with the witness at the previous hearing or at the taking of the deposition. We think such a literal construction of the statute is erroneous. In Terry we held:
“Under both the federal and state constitutions a defendant charged with crime is entitled to be confronted with the witnesses against him — that is, to meet them face to face.”
“The basic reason underlying the constitutional ‘confrontation’ rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him.”
“An exception to the confrontation requirement is that where a witness is unavailable and has given testimony at a previous judicial proceeding against the same defendant which was subject to cross-examination by that defendant — the testimony of such witness may, upon a proper showing and foundation — be introduced at the subsequent proceeding. This exception has been explained as arising from practical necessity and justified on the ground that the right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement.” Syi. |¶ 1, 2, and 3.
In the instant case the defendant had the opportunity to confront Officer Yaus and meet him face to face at the preliminary hearing. It was the defendant who elected, as he had the right to do, not to be present and exercise his rights. [State v. Chuning, 201 Kan. 784, 443 P.2d 248 (1968).] Instead he left it to his counsel to confront the witness face to face on his behalf. While defendant’s strategy appears to have been successful in this case, if he had been convicted after electing to waive not only his constitutional rights but his statutory right, he would have been bound by the consequences.
We hold that the provisions of K.S.A. 60-460(c) to the effect that “the provisions of this subsection (c) shall not apply in criminal actions if it denies to the accused the right to meet the witness face to face” may be waived by a defendant in a criminal action when done so freely and voluntarily with full knowledge of the possible consequences.
The trial court was in error when it ruled that the transcript of the testimony of Officer Yaus from the preliminary hearing was inadmissible.
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The opinion of the court was delivered by
Herd, J.:
This is a consolidation of three cases. Case number 78 C 528, Augusta Bank & Trust v. Don Broomfield, was filed September 19, 1978. The bank claimed Broomfield owed $208,828.32 on a note. Broomfield counterclaimed, saying the bank induced him to take out the note to purchase heavy equipment, conspired to refuse to pay him for work done with the heavy equipment, and refused to collect on accounts he had assigned the bank as collateral. The jury awarded the bank $208,823.32 on the note and Broomfield $60,000 actual damages and $100,000 punitive damages on his counterclaim. Case number 79 C 37, Don Broomfield v. Paul Mann, Town & Country Business Trust and First National Investors Corporation, was filed January 19, 1979. Broomfield claimed he contracted with the appellees to level 640 acres of land known as “Kinsley Farms” and that he was owed $121,327.96 for work done. On March 31, 1979, he filed an amended petition claiming the defendants conspired to refuse to pay him and to persuade him to assign their accounts to Augusta Bank & Trust with no intention of paying these accounts. The jury awarded Broomfield $107,709.31 in actual damages and $400,000.00 in punitive damages. Case number 79 C 38, Don Broomfield v. Paul Mann, Philip Hamm, James Vestring, Two Crow Ranch Corporation, Town & Country Business Trust, and First National Investors Corporation, was filed January 19, 1979. Broomfield claimed he contracted with appellees to level 4,000 acres of the “Robbins Trust Land” and that appellees breached the contract after he had leveled 2,000 acres, forcing him to sell his heavy equipment. On May 31, 1979, Broomfield filed an amended petition alleging appellees conspired to refuse to pay him for work done and induced him to borrow money from the bank with the understanding he would pay back the loans using money he received for the leveling project. The jury awarded Broomfield his balance due of $100,613.28 actual damages for breach of the contract of $99,741.00 and punitive damages of $100,000. Hamm and Vestring were absolved.
In a separate verdict pertaining to all three cases the jury awarded Broomfield $90,000 for his loss from the sale of the heavy equipment, $9,000 against the Bank, $72,000 against Paul Mann and $9,000 against First National Investors Corporation.
Upon post-trial motions, the trial court set aside all of Broom-field’s punitive damages, finding no evidence of conspiracy, fraud or wanton conduct. It also set aside the award of $99,741 for loss of profits in case number 79 C 38 on the grounds the contract to level the 4,000 acres could not be performed within one year, making it unenforceable under K.S.A. 33-106, and the action for breach of contract was barred by the statute of limitations. Finally, the trial court set aside the $90,000 awarded Broomfield for damages arising from the sale of his heavy equipment. As a result, Augusta Bank & Trust was awarded $208,828.32 on the note and Broomfield was awarded $208,322,59 for work done on the Kinsley Farms and Robbins' Trust land.
With this general outline of the three cases in mind, we can proceed to discuss the facts in some detail. The appellant is Don Broomfield, farmer, rancher, dirt mover and successful businessman in his own right. There are numerous appellees. Augusta Bank & Trust loaned Broomfield money to purchase the heavy equipment. Paul Mann established Augusta Bank & Trust in 1959. He was a director and member of the loan committee until 1978. He first set up the financing which allowed Broomfield to purchase the heavy equipment. Mann was one of the original owners of both the Robbins Trust land and the Kinsley Farms and was the agent in charge of land operations for both projects. James Vestring was president of Augusta Bank & Trust and head of the loan committee. He, along with Mann, owned the Robbins Trust land which Broomfield agreed to level. Philip Hamm was also on the loan committee of Augusta Bank & Trust and was a part owner of the Robbins Trust land until he sold out in August of 1975. First National Investors Corporation (FNIC) is a holding company, controlled by Paul Mann, which owned part of the Robbins Trust land and Kinsley Farms. Town & Country Business Trust is a publicly owned business trust of which Paul Mann is one of the trustees. It was one of the original owners of the Robbins Trust land. Two Crow Ranch Corporation was owned in equal shares by James Vestring and Paul Mann. It was also one of the original owners of the Robbins Trust Land until it sold its interest in January of 1976. Mann later purchased Vestring’s interest in Two Crow.
In September of 1973 Mann, Hamm, Two Crow, Town & Country and FNIC purchased the Robbins Trust land. They planned to level this tract of 4,000 acres for irrigation purposes. After some preliminary leveling by two other contractors, Broomfield began working on a machine-hour basis in September of 1974. In November of 1974 Broomfield met at the Kinsley Airport with Mann, Hamm, Vestring and Ivan Salyer, a trustee of Town & Country. Mann had been talking about Broomfield buying additional equipment so the project could be completed more quickly. At the meeting Broomfield told the others he “certainly couldn’t work on one quarter of land, and borrow thousands and thousands of dollars to purchase this equipment . . . .” In other words, Broomfield wanted an agreement for him to level the entire 4,000 acres if he was to purchase additional equipment. After discussion about the particulars of the project Broomfield was told, “Well, we will let you know.”
Later Paul Mann called Broomfield and said, “I now have approval for you to go ahead with the land leveling, start looking and finding equipment.” Mann was the agent for the project, signing letters which enclosed checks in payment for Broom-field’s work. Philip Hamm testified, “Paul Mann, it was understood, managed the Robbins Land. That was his chore.” Augusta Bank & Trust helped finance Broomfield’s purchase of equipment for the leveling project. Mann, Hamm and Vestring sat on the loan committee along with Wilbur Smith, senior vice-president of the bank. Smith testified new or renewal notes were executed on the heavy equipment loan some twenty-three times.
Four billings for work on the Robbins Trust land were timely paid. In March of 1975, however, payments became erratic. As a result of the nonpayment of money owing to him, Broomfield fell behind in his loan payments to the bank. Mann testified the delay in making payments to Broomfield was because, “the scope of this project had got so much bigger than we anticipated, and I think we were short of money.”
Despite the financial problems of the Mann group in paying Broomfield and of Broomfield in paying the bank, appellant continued to work on the Robbins Trust land. He had completed work on the southern 2,000 acres when, in the Fall of 1975, Mann told him to select “out of the north half the five smoothest” quarter sections for the next phase of the project. This Broomfield did and began leveling work on two of these sections. Sometime between the fall of 1975 and the spring of 1976, Paul Mann told Broomfield to “hold off” on the Robbins Trust land project.
During this period of time Hamm and Vestring apparently became displeased with the progress on the Robbins Trust land project. In August of 1975 Hamm sold his interest in the land to Mann. Vestring did the same in January of 1976.
In the Spring of 1976, Broomfield agreed, at Mann’s urging, to level some land on the Kinsley Farms. Broomfield leveled four quarters of land and at the date of trial was owed $107,709.31 for this work. After completing the Kinsley Farms project in July of 1976, Broomfield moved part of his equipment back to the Robbins Trust land expecting to continue his work there pursuant to the agreement.
As Broomfield continued to lag in his payments on the heavy equipment loan, the bank became anxious and asked for more security. In March of 1976 and June of 1977, Broomfield executed general assignments to the bank covering accounts receivable from the Kinsley Farms and Robbins Trust land projects. Broomfield believed since his debtors were also the directors of the bank the accounts would be paid and his note reduced accordingly.
In early May of 1976, Paul Mann shocked Broomfield with the remark that “he was winding up his work” and that they should be getting ready to sell the machinery. Broomfield later received a letter from the bank dated May 20, 1976, advising his heavy equipment loan should be paid “on or before September 15, 1976.” He then received a follow-up letter dated May 25, 1976, which stated:
“Our loan committee was informed by Mr. Paul Mann that you would be writing us a letter giving us the necessary dates that you would be completing work with your heavy equipment and getting it ready for sale, and to assure us that you would make every attempt to pay your loan line on the heavy equipment in full by September 15, 1976.”
The equipment sale was held on September 11, 1976. John Spratt had appraised the value of Broomfield’s equipment at $375,000. Proceeds from the sale were $135,500. Broomfield later sold another piece of equipment for $50,000. He was unable to sell two bulldozers which, at the time of trial, Broomfield valued at $35,000. These figures form the basis for Broomfield’s claim of a loss of $154,500 from the forced sale of his equipment.
In December of 1976 Broomfield entered into a contract with Mann to purchase the Robbins Trust land. Broomfield’s health worsened, however, and the deal fell through.
Appellant contends the trial court erred in setting aside the actual and punitive damages awarded by the jury. In discussing this claim we will examine each verdict separately along with related issues.
Let us first note the proper standard for ruling on a motion for judgment notwithstanding the verdict. In deciding a motion for judgment notwithstanding the verdict, the trial court must determine whether there is any substantial evidence to sustain the verdict. Apperson v. Security State Bank, 215 Kan. 724, 732, 528 P.2d 1211 (1974). The trial court is required to view the evidence and inferences therefrom most favorable to the party against whom the motion is made. Hallett v. Stone, 216 Kan. 568, 577, 534 P.2d 232 (1975). Traylor v. Wachter, 227 Kan. 221, 228, 607 P.2d 1094 (1980), states:
“The court does not weigh evidence but must accept as true all the facts which the evidence tends to prove and draw against the party making the motion all reasonable inferences most favorable to the party opposing the motion and if the evidence is of such character that reasonable men in an impartial exercise of their judgment may reach different conclusions, then the case should be submitted to the jury. [Citations omitted.] The appellate court must do the same.”
In case number 79 C 38, Broomfield alleged, and the jury found, an oral contract between Broomfield and appellees whereby Broomfield was to level 4,000 acres of the Robbins Trust land. The jury also found the appellees breached the contract entitling Broomfield to $99,741 in damages; $59,845 attributable to Paul Mann, Town & Country and FNIC and $39,896 attributable to Two Crow. The trial court set aside this award ostensibly for two reasons. First, the trial judge stated the oral agreement to level the Robbins Trust land would take more than one year to complete and as such would be unenforceable under K.S.A. 33-106, the statute of frauds. Secondly, he held since breach of contract was not alleged until the amended petition was filed May 31,1979, and the jury found the contract was breached in May of 1976, this claim was barred by K.S.A. 60-512, the three-year statute of limitations applicable to oral contracts.
Although not discussed by the parties, the answer to the statute of limitations issue is clear. The original petition in case number 79 C 38 was filed January 19, 1979. It alleged a contract to level 4,000 acres of land and nonpayment for work done pursuant to that contract. The amended petition was filed May 31, 1979, and in part alleged damages flowing from the breach of the oral contract. K.S.A. 60-512 requires an action for breach of an oral contract to be brought within three years from the date of the breach. K.S.A. 60-215(c) states:
“Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.”
In James v. City of Wichita, 202 Kan. 222, 226, 447 P.2d 817 (1968), this court stated:
“The present rules of practice in Kansas are patterned after the federal rules. The federal rules seek to make pleadings and amendments less technical in keeping with the idea that pleading a precise cause of action should not be the deciding factor. The deciding factor on relating an amendment back to the petition is whether the other party was actually notified of the litigation involving a described conduct, transaction or occurrence.”
Even an amendment changing the legal theory on which an action was originally brought may relate back if the factual situation remains the same and has been brought to the defendant’s attention by the original pleading. Brooks v. Dietz, 218 Kan. 698, 703-04, 545 P.2d 1104 (1976).
Clearly, the claim in the amended petition “arose out of the conduct, transaction or occurrence” set forth in the original petition, which was filed within three years from May 1976, the date the contract was breached according to the jury. Further, the original petition notified the appellees of litigation involving the Robbins Trust land project. As such the amended petition relates back. The statute of limitations does not bar recovery.
Resolution of the statute of frauds issue is no less complicated. K.S.A. 33-106 states:
“No action shall be brought whereby to charge a party . . . upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized in writing.”
When a defendant asserts the statute of frauds as an affirmative defense, the burden of proof is on him. In this case appellees must show the contract to level the Robbins Trust land could not have been performed within one year. 73 Am. Jur. 2d, Statute of Frauds § 605, p. 245. Appellees offered statements by Broomfield to the effect that, with the same equipment, it would have taken him approximately one year to level the other 2,000 acres. Broomfield based this estimate on the fact it took him a year to complete the first 2,000 acres. Thus, appellees argue, the oral agreement could not have been performed within one year and as such is unenforceable. We do not agree.
“The statute of frauds was enacted to prevent fraud and injustice, not to foster or encourage it, and courts will, so far as possible, refuse to allow it to be used as a shield to protect fraud and as a means to enable one to take advantage of his own wrong.” Walker v. Ireton, 221 Kan. 314, 320, 559 P.2d 340 (1977).
More specifically, Restatement (Second) of Contracts § 130 (1981), comment (a), is instructive:
“The English Statute of Frauds applied to an action ‘upon any agreement that is not to be performed within the space of one year from the making thereof.’ The design was said to be not to trust to the memory of witnesses for a longer time than one year, but the statutory language was not appropriate to carry out that purpose. The result has been a tendency to construction narrowing the application of the statute. Under the prevailing interpretation, the enforceability of a contract under the one-year provision does not turn on the actual course of subsequent events, nor on the expectations of the parties as to the probabilities. Contracts of uncertain duration are simply excluded; the provision covers only those contracts whose performance cannot possibly be completed within a year.”
We have, in essence, adopted this policy. See In re Estate of Hargreaves, 201 Kan. 57, 62, 439 P.2d 378 (1968); King v. Robbins, 193 Kan. 70, 74, 392 P.2d 154 (1964); Cassity v. Cassity, 147 Kan. 411, 416, 76 P.2d 862 (1938).
Here, with more equipment and more personnel, the contract to level the Robbins Trust land could have been performed within one year. There was no evidence offered to show performance could not possibly have been completed within a year. Thus, the contract does not fall within the terms of K.S.A. 33-106.
However, even if the action for breach of contract is allowed, appellant cannot succeed without showing substantial evidence a contract was entered into, breach of that contract, and damages flowing from the breach.
In order for parties to form a binding contract, there must be a meeting of the minds as to all essential terms. Sidwell Oil & Gas Co. v. Loyd, 230 Kan. 77, 79, 630 P.2d 1107 (1981). Where the evidence pertaining to the existence of a contract is conflicting a question is presented for the trier of fact. The controlling question as to whether a binding contract was entered into depends on the intention of the parties and is a question of fact. 230 Kan. at 83. Phillips & Easton Supply Co., Inc. v. Eleanor International, Inc., 212 Kan. 730, Syl. ¶ 3, 512 P.2d 379 (1973). Although the contract here was not a particularly specific one, there was substantial competent evidence from which the jury could have found the existence of a contract. Broomfield testified he met with the owners of the Robbins Trust land to discuss the project. They told him they would let him know about their decision. Paul Mann then called Broomfield and told him to start obtaining equipment. Broomfield testified he was going to level the southern 2,000 acres first and then proceed to the northern half. Further, the conduct of the parties shows a meeting of the minds with regard to price. Appellant billed appellees and was paid with checks from the different entities involved and sent by Mann as the agent for the owners. Finally, a letter from Mann to Hamm and Vestring discussing “the job we are getting done with Don Broomfield” and how they had “lined up” Broomfield for the project was admitted into evidence.
The next question is the propriety of the $99,741 in damages awarded Broomfield for the breach of contract. This figure was testified to by Bill Kirkpatrick, a C.P.A. and Broomfield’s accountant, as representing “net income before depreciation,” or how much more in profits Broomfield would have received had he been allowed to level the entire 4,000 acres. The figure of $24,953 was offered by Hamm to show net profit after depreciation.
The rules regarding loss of profits as damages in a breach of contract case were thoroughly discussed in Vickers v. Wichita State University, 213 Kan. 614, 518 P.2d 512 (1974). There it was stated:
“This court follows the general rule that loss of profits resulting from a breach of contract may be recovered as damages when such profits are proved with reasonable certainty, and when they may reasonably be considered to have been within the contemplation of the parties. [Citation omitted.] Recovery for loss of profits caused by a breach of contract depends upon the facts and circumstances of each particular case. [Citation omitted.]
“The fact that damages cannot be calculated with absolute exactness will not render them so uncertain as to preclude an assessment.
“Unquestionably, a method of establishing a loss of profits with reasonable certainty is by showing a history of past profitability. Past profitability of a particular business is not, however, the only method of proving lost future profits. The evidence necessary in establishing lost future profits with reasonable certainty ‘must depend in a large measure upon the circumstances of the particular case. . . .’ [Citation omitted.] Absolute certainty in proving loss of future profits is not required. [Citation omitted.] What is required is that the court or jury be guided by some rational standard. [Citations omitted.] As to evidentiary matters a court should approach each case in an individual and pragmatic manner, and require the claimant furnish the best available proof as to the amount of loss that the particular situation admits. [Citation omitted.] It is the responsibility of a district court to see that speculative and problematical evidence does not reach the jury. [Citation omitted.]
“Strict application of the certainty doctrine would place a new business at a substantial disadvantage. To hold recovery is precluded as a matter of law merely because a business is newly established would encourage those contracting with such a business to breach their contracts. The law is not so deficient. [Citation omitted.]” 213 Kan. at 618-20.
Broomfield bought heavy equipment in reliance on the contract to level the entire 4,000 acres. He was unable to use the equipment on other projects because he subsequently had to sell it. Conflicting evidence regarding damages was offered. The jury weighed that evidence and agreed with Broomfield. We hold there was substantial evidence to sustain the jury verdict.
Broomfield claimed a loss of $154,000 on the sale of his equipment. The jury awarded him $90,000. Without stating a specific reason, the trial judge set aside this award. We reverse and hold there was substantial evidence to support the jury’s decision. The bank’s letters and the actions of Paul Mann indicate the sale was not voluntary on the part of Broomfield. He was forced to sell the equipment because appellees breached the contract to level the Robbins Trust land. The evidence showed proceeds from the sale were less than the appraised value of the equipment, thereby causing damages.
In case number 78 C 528 Broomfield alleged in his counterclaim the bank officers conspired to refuse to pay for the leveling work, forced him to assign accounts receivable to the bank and then “wrongfully and fraudulently refused to collect said accounts receivables.” The jury awarded Broomfield $60,000 in actual damages and $100,000 in punitive damages against the bank. The actual damages were allowed because Augusta Bank & Trust, by and through its officers, had “acted wrongfully, wantonly or fraudulently in its dealings with Don Broomfield, Jr.” Broomfield’s amended petition in 79 C 37, the Kinsley Farms case, alleged appellees conspired “to refuse to pay plaintiffs bills” and to “persuade the plaintiff to assign his unpaid accounts receivable” to the bank with no intention of paying those accounts and also that the conduct of appellees in not paying those accounts and also that the conduct of appellees in not paying the bills owing appellant was “willful, malicious, false and fraudulent.” The jury awarded Broomfield $400,000 in punitive damages against Paul Mann and FNIC. The allegations in 79 C 38 are the same as those in 79 C 37 with the addition of the breach of contract claim. There the jury awarded Broomfield $100,000 in punitive damages, $60,000 against Paul Mann and $40,000 against Two Crow. The trial court set aside the $60,000 in actual damages and the $600,000 in punitive damages because it found there was no evidence to support them.
Let us examine the trial court’s action. First, it is argued the claim of fraud runs afoul of K.S.A. 60-513, which states any action for fraud not brought within two years of the discovery of the fraud is barred. The allegations of fraud were made in the amended pleading of May 31,1979. For reasons already set forth, these allegations would relate back to the original petition filed in January of 1979. The trial court held any fraud should have been discovered after the sale of equipment in September of 1976. We decline to take such a restrictive view.
“Discovery of the fraud” has been defined by this court to mean the time of actual discovery or when, with reasonable diligence, the fraud could have been discovered. See Wolf v. Brungardt, 215 Kan. 272, 281, 524 P.2d 726 (1974). It does, however, imply actual knowledge, not mere suspicion of wrong. Further, even though his suspicions might have been aroused a party may be lulled into confidence by certain representations and forego any further investigation. See Mingenback v. Mingenback, 176 Kan. 471, 478, 271 P.2d 782 (1954). Here the evidence indicates Broomfield was lulled into confidence by the representations of Paul Mann that he would eventually be paid. Indeed, as late as June 1977 Broomfield made assignments of accounts receivable to the bank, fully expecting those accounts to be paid because the directors of the bank were also debtors on the accounts. We hold the fraud was not discovered until after June of 1977. Consequently, Broomfield’s action was timely filed.
As to punitive damages, we stated in Newton v. Hornblower, Inc., 224 Kan. 506, 525, 582 P.2d 1136 (1978):
“ ‘[Punitive damages] are permitted whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy. [Citations omitted.] Such damages are allowed not because of any special merit in the injured party’s case, but are imposed by way of punishing the wrongdoer for malicious, vindictive or a willful and wanton invasion of the injured party’s rights, the purpose being to restrain and deter others from the commission of like wrongs. [Citations omitted.]’ ”
And in Nordstrom v. Miller, 227 Kan. 59, 70, 605 P.2d 545 (1980):
“Punitive damages are not an automatic, mandatory result even when recklessness is shown, but are awarded in the discretion of the trial court.”
See also Sanders v. Park Towne, Ltd., 2 Kan. App. 2d 313, 318-19, 578 P.2d 1131, rev. denied 225 Kan. 845 (1978); Modern Air Conditioning, Inc. v. Cinderella Homes, Inc., 226 Kan. 70, 596 P.2d 816 (1979); Henderson v. Hassur, 225 Kan. 678, 594 P.2d 650 (1979).
In Temmen v. Kent-Brown Chev. Co., 227 Kan. 45, 51,602 P.2d 95 (1980), we discussed punitive damages in a breach of contract action:
“We have long adhered to the rule that damages for breach of contract are limited to pecuniary losses sustained, and exemplary or punitive damages are not recoverable in the absence of an independent tort. [Citation omitted.] Proper allegations of fraud, malice, gross negligence, oppression or wanton disregard of plaintiff’s rights are needed in order to recover punitive damages.”
To sustain his prayer for punitive damages appellant relies on proof of fraud. The jury determined appellees were guilty of fraud. In Citizens State Bank v. Gilmore, 226 Kan. 662, 667, 603 P.2d 605 (1979), we considered this subject, quoting 37 C.J.S., Fraud § 1, p. 204:
“ ‘While the broad outlines of fraud have been indicated by regarding it as including any cunning, deception, or artifice used, in violation of a legal or equitable duty, to circumvent, cheat, or deceive another, the forms it may assume and the means by which it may be practiced are as multifarious as human ingenuity can devise, and the courts consider it unwise or impossible to formulate an exact, definite, and all inclusive definition thereof. It is synonymous with, or closely allied to, othér terms indicating positive and intentional wrongdoing, but is distinguishable from mistake and negligence.’ ”
In the same vein is 37 Am. Jur. 2d, Fraud and Deceit § 1, p. 19:
“Fraud therefore, in its general sense, is deemed to comprise anything calculated to deceive, including all acts, omissions, and concealments involving a breach of legal or equitable duty, trust, or confidence justly reposed, resulting in damage to another . . . .”
We commented on proof of fraud in Nordstrom v. Miller, 227 Kan. at 65:
“We have held fraud is never presumed and must be proven by clear and convincing evidence. [Citations omitted.] The term ‘clear and convincing evidence’ means:
“ ‘[T]he witnesses to a fact must be found to be credible; the facts to which the witnesses testify must be distinctly remembered, the details in connection with the transaction must be narrated exactly and in order; the testimony must be clear, direct and weighty; and the witnesses must be lacking in confusion as to the facts at issue.’ [Citations omitted.]
“ ‘The existence of fraud is ordinarily a question of fact.’ ”
Viewing all the evidence and inferences therefrom in the light most favorable to Broomfield, we cannot escape the conclusion there is substantial evidence to support the jury’s awards. The landowners led Broomfield down the “primrose path.” By their promise of 4,000 acres of leveling work, their assurances he would never lose money on the project, and their lending him the purchase price, they actually caused Broomfield to purchase a half million dollars worth of equipment to be used for their benefit, knowing all the time he was dependent on their payments to pay for his equipment. In spite of these representations and Broomfield’s reliance thereon, they refused to pay him the money he had earned and ultimately stopped the work before completion. Broomfield was then led to the Kinsley Farms project as a sort of “stopgap” measure between phases of the Robbins Trust land project. He dutifully performed this work but was again denied any remuneration. The final consequence of Rroomfield’s business deal with appellees was a distress sale where Rroomfield was forced to sell his equipment at great loss. Obviously, appellees’ actions rise above the level of mere negligence or mistake. We hold there was substantial evidence to support the jury determinations. The judgment of the trial court is reversed and remanded with directions to reinstate the jury verdicts. | [
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The opinion of the court was delivered by
Prager, J.:
This is an appeal by the State in a criminal action seeking the determination of a question reserved as authorized by K.S.A. 22-3602(b)(3). The State seeks an interpretation of certain language in the section of the Kansas Criminal Code which covers the crime of eavesdropping.
The defendants were charged with eavesdropping (K.S.A. 21-4001 [ 1][c]) and also breach of privacy (K.S.A. 21-4002). Those statutes provide in part as follows:
“21-4001. Eavesdropping. (1) Eavesdropping is knowingly and without lawful authority:
“(a) Entering into a private place with intent to listen surreptitiously to private conversations or to observe the personal conduct of any other person or persons therein; or
“(b) Installing or using outside a private place any device for hearing, recording, amplifying, or broadcasting sounds originating in such place, which sounds would not ordinarily be audible or comprehensible outside, without the consent of the person or persons entitled to privacy therein; or “(c) Installing or using any device or equipment for the interception of any telephone, telegraph or other wire communication without the consent of the person in possession or control of the facilities for such wire communication.
“(2) A ‘private place’ within the meaning of this section is a place where one may reasonably expect to be safe from uninvited intrusion or surveillance, but does not include a place to which the public has lawful access.”
“21-4002. Breach of privacy. (1) Breach of privacy is knowingly and without lawful authority:
“(a) Intercepting, without the consent of the sender or receiver, a message by telephone, telegraph, letter or other means of private communication; or
“(b) Divulging, without the consent of the sender or receiver, the existence or contents of such message if such person knows that the message was illegally intercepted, or if he illegally learned of the message in the course of employment with an agency in transmitting it.
“(2) Subsection (1) (a) of this section shall not apply to messages overheard through a regularly installed instrument on a telephone party line or on an extension.” (Emphasis supplied.)
The defendants and the State waived trial by jury and the case was tried to the court. The evidence in the case disclosed the following undisputed facts: In January of 1981, the Farm Credit Bank of Wichita entered into a contract with Bowman National Security Company, Inc., to provide security at the bank. The security company was provided a small booth on the first floor in the main lobby of the bank. This “security booth” was equipped with video monitors, radio dispatch equipment, and other equipment. It also contained a telephone with an internal bank communication line and a direct outside line and a log on which bank employees were to sign in and out. The telephone in the security booth had a sign on it which indicated it was to be used only for business purposes, and the bank employees understood that no personal calls were to be made over that telephone. The security booth was to be mannecLat all times by an employee of Bowman National Security Agency.
Three of the employees of Bowman National Security Company were the defendants, Dan J. Loveland, James E. McAdams, and Garry Tally. At the direction of the company’s managing officers, these defendants participated in the installation of a recording device on the telephone located in the security booth. The evidence disclosed that every time the telephone receiver was picked up, the tape recorder automatically started. This prosecution arose when one of the employees of the security company, Randy Gray, had one of his telephone conversations recorded and as a result thereof, was demoted. Gray had a conversation with an employee of the bank in a call which appeared to be personal in nature. Other controversies arose between Gray and his supervisors, and Gray was demoted. He complained about the recording device to the KBI, which obtained a search warrant. It investigated the situation at the security booth and recovered the tape recorder. This information was turned over to the district attorney, who charged Bowman National Security Agency and its employees, Dan J. Loveland, James E. McAdams, and Garry Tally, with eavesdropping as defined in K.S.A. 21-4001(l)(c).
Following the presentation of the State’s evidence, the defendants jointly moved for their acquittal on both counts. The trial court discharged all defendants on Count 1 for the stated reason that the security company and its employees were “in control of the telephone facility” within the meaning of K.S.A. 21-4001(l)(c) and had consented to the installation and use of the recording device which, as noted above, was a defense under the statute. The trial court discharged all of the defendants on Count 2, the breach of privacy charge, on the basis that, under the factual circumstances present in the case, users of the telephone had no reasonable expectation of privacy, since signs in the vicinity of the telephone clearly indicated that the telephone was not to be used for personal communications. The propriety of the trial court’s ruling on Count 2 is not before the court on this appeal.
Following the discharge of the defendants, the State filed this appeal under K.S.A. 22-3602(h)(3). The question reserved by the prosecution is stated in its brief as follows: Whether the phrase in K.S.A. 21-4001(l)(c), “without the consent of the person in possession or control of the facilities for such wire communication,” refers to the consent of the individual using the facility or the person who has legal access and control of the facility. Stated in another way, we understand the issue to be as follows: Is it a violation of K.S.A. 21-4001(l)(c) for the owner of a telephone communication facility or a security agency employed by the owner to install or use a recording device on the telephone where the owner or installer had control of the communication facility at the time the installation or use was made?
It is the position of the State that the person in possession or control of the facility means the individual actually using the facility whose private communication is intercepted by the recording device. Simply stated, it is the position of the defendants that the words mean exactly what they appear to say and that, under the statute, the person in possession or control of the facility is the owner of the telephone facility or a person who is in possession and control of the facility with the authority of the owner. We turn now to a resolution of the controversy.
At the outset, it should be stated that the statutes of the various states pertaining to wiretapping or eavesdropping or breach of privacy are not consistent in their language and vary with the specific statutory language adopted by each state legislature. The specific language in the Kansas statute involved in this case was mentioned in the opinion State v. Wigley, 210 Kan. 472, 502 P.2d 819 (1972). On page 477 of the opinion, Justice Fontron points out that:
“The final clause of the statute ‘without the consent of the person in possession or control of the facilities for such wire communication’ does not appear in either the Model Penal Code, the federal statute or the American Bar Standards, and no help is forthcoming from these sources as to the meaning or construction of the phrase.”
He noted that, in construing the statute, we are left to our own bare-bone resources.
There is a general discussion in an annotation covering the subject of state regulation of wiretapping in 74 A.L.R.2d 855. In that annotation, cases from a number of states are cited which illustrate the wide variation in the statutory language. We note that some states make it a crime to install wiretapping equipment without prior court approval. Other states require that a notice be given to the telephone company or the attorney general or the district attorney or the public at large before installation or use of a telephone recording device. See, for example, People v. McCauley, 192 Colo. 545, 561 P.2d 335 (1977), which involved a Colorado statute permitting the installation and use of wiretapping devices for security purposes, only if reasonable notice of the use of such device is given to the public. See also United States v. Christman, 375 F. Supp. 1354 (N.D. Cal. 1974), which exempted private telephone installations from the application of the federal wiretapping statute (18 U.S.C. § 2511[2]).
In the Wigley opinion, it is stated that the Kansas statute, K.S.A. 21-4001(l)(c), is unique in the use of the words “without the consent of the person in possession or control of the facilities for such wire communication.” In construing criminal statutes, under our decisions we are required to place a strict construction on the language used therein. State v. Mauldin, 215 Kan. 956, 959, 529 P.2d 124 (1974). Fikewise, in construing statutes it is the usual practice for courts to take into consideration other statutory enactments on the same subject which might shed light on the legislative intent. Claflin v. Walsh, 212 Kan. 1, 8, 509 P.2d 1130 (1973).
We believe the answer to the question presented may be found in the language used in K.S.A. 21-4001 and K.S.A. 21-4002 which are quoted in full above. It should be noted that under K.S.A. 21-4001(1)(¿) it is a crime to install a recording device in a private place “without the consent of the person or persons entitled to privacy therein.” In K.S.A. 21-4002(l)(a) and (b) it is a criminal breach of privacy to intercept or divulge a telephone message “without the consent of the sender or receiver.” Compare this statutory language with that used in K.S.A. 21-4001(l)(c) which, in substance, makes it a criminal offense to install or use a recording device or equipment “without the consent of the person in possession or control of the facilities for such wire communication.” It is obvious to us that the legislature, by using the language it did in K.S.A. 21-4001(l)(c), “without the consent of the person in possession or control of the facilities,” was referring to the owner of the telephone or some person authorized by the owner to possess and control the telephone facility. If the legislature had intended that language to include only the sender or receiver of a telephone message, it could have specifically so provided as it did in K.S.A. 21-4001(1)(¿) and K.S.A. 21-4002(l)(a) and (b).
We have, therefore, concluded and we hold that the phrase “without the consent of the person in possession or control of the facilities for such wire communication” means without the consent of either the owner of the telephone facility or a person who has been given the possession or control of the facility by the owner. K.S.A. 21-4001(l)(c) does not refer to the consent of the sender or receiver of a particular telephone communication. We want to make it clear that K.S.A. 21-4002, which provides for the crime of breach of privacy, is not involved in this case and our decision is restricted exclusively to the question of the meaning of the language in K.S.A. 21-4001(l)(c).
For the reasons set forth above, the appeal of the State from the decision of the district court construing the statute is denied. | [
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The opinion of the court was delivered by
Herd, J.:
This is an appeal from a district court order upholding the termination of the employment contracts of two tenured teachers in the nursing department at the Kansas City, Kansas Community College (KCKCC).
The nursing department of the KCKCC was created in 1970, offering an associate degree in nursing. Evelyn Cochran was hired as an instructor that year. Veronica Kelly joined the teaching staff in 1971. The early years of the nursing program were uneventful. It started well with complete cooperation between faculty and administration. Eventually the job of director of the nursing department was offered to Evelyn Cochran when the former director resigned. Ms. Cochran declined the position because the travel requirements of the job would have taken too much of her time away from her family. Donna Hawley, an instructor, was subsequently promoted to director of the nursing department in 1973. Initially Ms. Hawley got along well with Cochran and Kelly. Her evaluations of them during this period were favorable.
The relationship between Hawley and the two teachers began to deteriorate in the spring of 1976. The difference in their professional responsibility was underscored and Cochran and Kelly became critical of Hawley’s administration.
The problems between the nursing director and the two instructors affected the morale of the whole department. Testimony by other staff members indicated there was less cooperation and a decline in morale among the faculty beginning the latter part of 1976. Alton Davies, president of KCKCC, testified he thought the problems in the nursing department centered around the responsibility for the direction of the nursing program.
Whatever the cause of the problems, they were manifested in various ways. Donna Hawley testified there was “constant sniping” in nursing staff meetings. Faculty meetings were “tense” and “uneasy.” Evelyn and Veronica were the more “vocal” staff members at these meetings and made others feel “uncomfortable.” They were accused of being “uncooperative” with other instructors and refusing to provide information and test materials to other members of the nursing department. For instance, on one occasion Veronica Kelly and another instructor had scheduled the same room for a test December 12, 1976. Veronica refused to change rooms because she said she had cleared the room through the administration. The other instructor notified Donna Hawley. Donna found another room and told Veronica to move. She did. Evelyn Cochran allegedly cancelled her classes one day without approval from her superiors. She also “objected” to a statement written by Donna Hawley and presented at a departmental meeting. In August of 1977, Ms. Cochran and Ms. Kelly put so much pressure on Lorene Massa, another instructor, to ally herself with them, that they had her in tears, “crying hysterically.” In October of 1977, a nursing instructor reported Ms. Kelly was “disrupting” patients at Rethany Hospital. Later, a student requested permis sion to take exams early. Veronica Kelly refused but Donna Hawley overruled her. The student, however, decided not to take the exams because it would create problems between Ms. Kelly and Ms. Hawley.
By the end of 1977 the nursing faculty was engaged in a tug-of-war. The staff members were split with Ms. Cochran and Ms. Kelly and several others on one side and Donna Hawley and a majority of the instructors on the other.
Near the end of the 1977-78 school year Donna Hawley recommended to Mr. Ramsey, the Dean of Instruction at KCKCC, that the contracts of Evelyn Cochran and Veronica Kelly be terminated. He rejected this recommendation. At the end of the 1977-78 school year Hawley resigned in an attempt to solve the problems.
Lorene Meagher was hired to replace Donna Hawley. Ms. Meagher’s presence, however, did little to ease the situation. She testified complaints of not being able to work with Cochran and Kelly increased after she took over. She testified she thought Kelly was a capable instructor but intolerant of others. Air. Ramsey testified the two continued to be uncooperative, with Cochran refusing to supply Ms. Meagher with teaching materials and making derogatory comments about other staff members in meetings. Kathy Fletcher testified that during the 1978-79 school year, her first as an instructor at KCKCC, she gave a test which Veronica Kelly helped to critique. She stated Ms. Kelly and another instructor were “picking everything apart.” Another time Ms. Kelly repeatedly criticized Ms. Fletcher for not reviewing her first test with other members of her teaching team before giving it. Fletcher ended up in tears.
The incident which appears to have directly precipitated this lawsuit occurred in the spring of 1979 when representatives of the State Board of Nursing visited the school. The Board is the agency which accredits the nursing programs throughout the state. While at the school the Board representatives met with faculty members to obtain their comments regarding the good and bad aspects of the nursing program. During this meeting Evelyn Cochran advised the Board representatives that the administration did not support her. Veronica Kelly also advised the board representatives of some of the personality conflicts present at the school. Ms. Meagher testified that after the meeting Sister Mary Carol Conroy, one of the Board representatives, told her, “You must get this faculty problem solved or plan on closing your doors.” The Board representatives identified the problems of faculty dissension and recommended a group process might be initiated to help the faculty work together productively. After the board representatives left, Ms. Meagher met with Dean Ramsey and President Davies to decide what to do about the problems. She recommended nonrenewal of Cochran’s and Kelly’s contracts. Ramsey and Davies agreed. The KCKCC Board of Trustees approved this recommendation on April 3, 1979. Letters were sent to the two instructors on April 12, 1979, indicating the decision to terminate their contracts because of “1. Conduct detrimental to the nursing program; and 2. Inability to cooperate with and maintain harmony among the staff.”
Both instructors requested a due process hearing pursuant to the provisions of K.S.A. 72-5436 et seq. A hearing committee was formed and the hearing was held on the 6th, 7th, 8th, 10th and 13th days of August, 1979.
On August 21, 1979, the hearing committee made its report, finding the Board had not sustained its burden of proof. It recommended by a two-to-one vote the two teachers be renewed for the 1979-80 school year. A minority report was filed.
After considering the reports and hearing oral argument of the parties the KCKCC Board-of Trustees rejected the hearing panel’s recommendation and voted to terminate the teachers’ contracts. The Board decision was appealed to the district court where it was affirmed and the minority report of the hearing panel adopted. This appeal followed.
At the outset it should be noted that in reviewing a district court’s decision the Supreme Court will, for the purpose of determining whether the district court observed the requirements and restrictions placed upon it, make the same review of the administrative tribunal’s action as does the district court. U.S.D. No. 461 v. Dice, 228 Kan. 40, 49, 612 P.2d 1203 (1980); Stice v. Gribben-Allen Motors, Inc., 216 Kan. 744, 534 P.2d 1267 (1975); Morra v. State Board of Examiners of Psychologists, 212 Kan. 103, 106, 510 P.2d 614 (1973). That said, it should also be noted the district court’s scope of review on appeal is very limited. The applicable rule was first stated in Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 450, 436 P.2d 828 (1968):
“A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, the tribunal acted fraudulently, arbitrarily or capriciously, whether the administrative order is substantially supported by evidence, and whether the tribunal’s action was within the scope of its authority.”
This three-pronged standard has been repeated frequently. See, e.g., Kansas Dept. of Health & Environment v. Banks, 230 Kan. 169, 172, 630 P.2d 1131 (1980); U.S.D. No. 461 v. Dice, 228 Kan. at 50; Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, 553, 539 P.2d 1 (1975); Hukle v. City of Kansas City, 212 Kan. 627, 635, 512 P.2d 457 (1973).
Appellants first contend the trial court erred in sustaining the Board of Trustee’s action because the Board made no distinction between the two teachers in reaching its decision. Appellants also argue there is no substantial evidence to support the Board’s decision. These two issues are closely related and will therefore be discussed together. Both teachers are charged with the same complaint. They designated the same hearing committee. Because of the identity of the committee, witnesses and reasons for nonrenewal, the teachers agreed to consolidate their due process hearings. From that beginning the committee made a consolidated finding that the Board did not sustain its burden of proof and recommended renewal of their contracts. The Board then made a consolidated order nonrenewing both teachers. Appellants maintain the use of the consolidated order lacked the essentials of due process because by its nature it was based on cumulative evidence against both teachers rather than on individualized evidence.
We think resolution of this issue is dependent on the evidence. If there is substantial evidence to support the actions of the Board against each teacher, its action is not objectionable even though the order was not individualized, particularly since the teachers agreed to the consolidated hearing. Let us examine the evidence to determine if it substantially supports the Board’s order. We have previously defined substantial evidence as that which possesses relevance and substance and which furnishes a substantial basis of fact from which the issue can reasonably be resolved. U.S.D. No. 461 v. Dice, 228 Kan. at 50; Brinson v. School District, 223 Kan. 465, 473, 576 P.2d 602 (1978). The evidence in support of the Board’s decision is that Veronica Kelly and Evelyn Cochran were both difficult for the administration and other teachers to work with. It disclosed that one director of nursing resigned because of them, but the problem persisted under the new director. The cumulative evidence indicated Kelly and Cochran aspired to administer the nursing school without benefit of portfolio. Their efforts consistently undermined the director of nursing. This caused a serious morale problem within the faculty. There was evidence that both teachers refused to cooperate with the administration or other teachers. Admittedly the evidence was controverted but there was substantial evidence to support the complaints of “conduct detrimental to the nursing program” and “inability to cooperate with and maintain harmony among the staff” on the part of each teacher. There is no merit to this issue.
Appellants next argue the Board’s decision to nonrenew their contracts was arbitrary, capricious and outside the scope of its authority because the Board failed to independently review the transcript of the hearing committee’s record before rejecting its recommendation. Appellants took the depositions of the members of the Board of Trustees and discovered that of the six board members only five voted on the final decision to nonrenew appellants’ contracts. One member read the transcript in its entirety. One member spent forty-five minutes perusing it and looked at none of the exhibits. One spent two to five hours reading parts of the transcript but did not examine the exhibits, while the other two neither read the transcript nor examined the exhibits.
Since there is a presumption the deciding officials have considered the record and all other available evidence as well as arguments of counsel, let us first consider the question of whether an aggrieved party can probe the mental processes of a decision-maker. This issue was thoroughly considered in the four Morgan cases. U.S. v. Morgan, 313 U.S. 409, 85 L.Ed. 1429, 61 S.Ct. 999 (1941); U.S. v. Morgan, 307 U.S. 183, 83 L.Ed. 1211, 59 S.Ct. 795 (1939); Morgan v. U.S., 304 U.S. 1, 82 L.Ed. 1129, 58 S.Ct. 773 (1938); Morgan v. U.S., 298 U.S. 468, 80 L.Ed. 1288, 56 S.Ct. 906 (1936).
The Morgan litigation commenced with an action to restrain enforcement of an order of the Secretary of Agriculture fixing the maximum rates for buying and selling livestock at the Kansas City Stockyards under the Stockyards and Packers Act. The secretary was required to make an administrative order “after full hearing.” A lengthy hearing was had before an examiner with oral argument before the assistant secretary of agriculture. The secretary then made the decision. Morgan complained the secretary had neither read any of the evidence nor heard the oral argument. After numerous hearings and trials where the secretary was questioned regarding his mental processes in making the order, the court resolved the issue in U.S. v. Morgan, 313 U.S. 409, 422, stating:
“But the short of the business is that the Secretary should never have been subjected to this examination. The proceeding before the Secretary ‘has a quality resembling that of a judicial proceeding.’ [Citation omitted.] Such an examination of a judge would be destructive of judicial responsibility. We have explicitly held in this very litigation that ‘it was not the function of the court to probe the mental processes of the Secretary.’ [Citation omitted.] Just as a judge cannot be subjected to such a scrutiny, [citation omitted], so the integrity of the administrative process must be equally respected.”
This Morgan case has not been reversed. However, in Singer Sewing Machine Company v. N. L. R. B., 329 F.2d 200, 208 (4th Cir. 1964), the court ratified and explained the rule:
“[W]e conclude, where a prima facie case of misconduct is shown, justice requires that the mental process rule be held inapplicable.”
As stated in K.F.C. National Management Corp. v. N.L.R.B., 497 F.2d 298, 304 (2nd Cir. 1974):
“Thus what emerges from the Morgan quartet is the principle that those legally responsible for a decision must in fact make it, but that their method of doing so ... is largely beyond judicial scrutiny.”
We conclude that absent statutory authority an administrative body performing a quasi-judicial function is not subject to inquiry concerning its mental processes in reaching a decision. See Mobil Pipeline Co. v. Rohmiller, 214 Kan. 905, 923-24, 522 P.2d 923 (1974); Sebits v. Jones, 202 Kan. 435, 438, 449 P.2d 551 (1969).
The evidence of the Board’s mental processes was thus impermissibly obtained and should normally have been excluded. In this case, however, the parties stipulated the depositions into the record. As such we shall consider this evidence in our discussion.
Appellants claim is that the failure of the Board to independently review the transcript of the hearing before rejecting the hearing committee’s recommendation amounted to a denial of due process. First, we must decide what process is due under K.S.A. 72-5436 et seq., the Teacher Tenure Law. K.S.A. 72-5443 governs the procedure after the hearing panel has made its recommendation:
“Unless otherwise agreed to by both the board and the teacher, the hearing committee shall render a written recommendation not later than thirty (30) days after the close of the hearing, setting forth its findings of fact and recommendation as to the determination of the issues. The recommendation of the hearing committee shall be submitted to the teacher and to the board which shall, after considering the hearing committee’s recommendation and after hearing oral argument or receiving written briefs from the teacher and a representative of the board, decide whether the teacher’s contract shall be renewed or terminated, which decision shall be final, subject to appeal to the district court as provided by K.S.A. 60-2101. The decision of the board shall be submitted to the teacher not later than thirty (30) days after the close of oral argument or submission of written briefs.”
It should be noted this statute contains no requirement the board-members actually attend the hearing or accept the hearing panel’s recommendation. U.S.D. No. 461 v. Dice, 228 Kan. at 48-49.
Appellants rely heavily on Coggins v. Public Employee Relations Board, 2 Kan. App. 2d 416, 581 P.2d 817, rev. denied 225 Kan. 843 (1978). There the Kansas Public Employee Relations Board (KPERB) had rejected the recommendation of its hearing officer. In remanding the case for further consideration by the full board the court stated:
“In apprising itself of the evidence, the deciding authority is not precluded from obtaining the aid of competent assistants who may sift and analyze the evidence. [Citation omitted.] Such a task is performed by the hearing officer under the board’s procedures. [Citations omitted.]
“Because an administrative decision must be based on evidence and not conjecture, on those occasions when the deciding authority chooses not to adopt the findings and recommendations of its hearing officer, it must examine the record independently. [Citation omitted.] In the absence of evidence to the contrary, it will be presumed that the deciding officials have so considered the record. [Citation omitted.] Here, however, it appears that the three board members who considered the matter were not conversant with the record to the extent required of an informed decision. All three indicated in answers to interrogatories that they had read only ‘portions’ of the transcripts, and only one had read ‘some’ of the exhibits. The duty of the deciding officer to consider and appraise the evidence may on occasion be an onerous one, but its performance in a substantial manner is inseparable from the exercise of the authority conferred.” p. 422.
See also Clairborne v. Coffeyville Memorial Hospital, 212 Kan. 315, 510 P.2d 1200 (1973).
Because administrative agencies are creatures of statute and their power is dependent on statutes, they must find within the statute warrant for the exercise of any authority which they claim. 1 Am. Jur. 2d, Administrative Law § 70, p. 866. Thus, the particular statute involved in a given case is important.
Coggins construed K.S.A. 75-4323, which pertains to the Kansas Public Employee Relations Board. The KPERB was created for the purpose of preventing improper public employee practices and resolving impasses and disputes concerning employee organization and prohibited practices. It is required to make a record of its proceedings and
“Findings of the board as to the facts shall be conclusive unless it is made to appear to the court’s satisfaction that the findings of fact are not supported by substantial evidence and the record considered as a whole. ” (Emphasis added.) K.S.A. 75-4334(6).
The Public Employee Relations Board sits in review of public employer-employee matters as an administrative tribunal.
On the other hand, this case is governed by K.S.A. 72-5436, the Teacher Tenure Law. The making of a record is optional. Unlike cases involving the KPERB, there is no statutory requirement the record be considered before the final decision is made. K.S.A. 72-5443 requires only that the Board consider the hearing committee’s recommendation. We construe this to mean the Board shall consider all of the information available from the hearing. If a record is made it shall be considered. However, consideration of the record does not mean all Board members are required to read the entire record. If the content of the record is available to the Board through staff, Board members or counsel, and is considered, due process is satisfied. The decision of whether to renew or terminate follows oral argument of counsel or submission of written briefs. We construed this statute in Gillett v. U.S.D. No. 276, 227 Kan. 71, 78, 605 P.2d 105 (1980), stating:
“The purpose of the due process hearing granted a teacher by statute is to develop the grounds that have induced the board to give the teacher notice of its desire to discontinue her services, and to afford the teacher an opportunity to test the good faith and sufficiency of the notice. The hearing must be fair and just, conducted in good faith, and dominated throughout by a sincere effort to ascertain whether good cause exists for the notice given.”
See also U.S.D. No. 461 v. Dice, 228 Kan. 40.
A Board of Trustees of a junior college or school board has a dual role under our Teacher Tenure Law. The Board is the employer who has served notice of nonrenewal on an employee. It has participated in the process of evaluation of the employee over a long period of time and has become convinced the employee should be terminated. The Board is an adverse party to the teacher at the due process hearing and is charged with the burden of proof of good cause to nonrenew. It has participated in carefully accumulating and preparing evidence for presentation to the hearing committee. It is acquainted with the facts prior to the hearing. It must then review its own action after the hearing. The legislature was aware of the Board’s dual role when it enacted K.S.A. 72-5436 et seq. It provided the Board must consider the hearing panel’s report and listen to argument or read the briefs and review its previous action in light thereof. According to the statute if the Board persists in its intention to nonrenew a teacher’s contract, that decision is final if supported by substantial evidence. This procedure is clearly not controlled by Coggins. Here the Board was made acquainted with the record through Board discussion, staff briefing and argument of counsel and though all members had not read the entire record, there is sufficient evidence to show good faith. The Board’s action was for good cause and supported by substantial evidence and therefore meets the requirements of statutory due process.
Appellants argue even if the Board’s action meets the requirements of the Teacher T-enure Law it cannot withstand due process analysis under the constitution.
Application of constitutional due process protections requires the familiar two-step analysis. First, are the asserted individual interests encompassed within the protected interests of the 14th Amendment? If so, we must decide what procedures constitute “due process of law.” Ingraham v. Wright, 430 U.S. 651, 672, 51 L.Ed.2d 711, 97 S.Ct. 1401 (1977).
First, it is clear a tenured teacher has an expectation of continued employment which qualifies for constitutional protection as a species of property. “The very purpose of tenure and continuing contract laws is to give recognition to a constitutionally protectible interest.” Endicott v. Van Petten, 330 F. Supp. 878, 882 (D. Kan. 1971). See also Board of Regents v. Roth, 408 U.S. 564, 33 L.Ed.2d 548, 92 S.Ct. 2701 (1972); Bogart v. Unified Sch. Dist. No. 298 of Lincoln Cty., 432 F. Supp. 895, 903 (D. Kan. 1977).
The next question logically follows: “What process is due a tenured teacher?” In Bogart Judge Theis stated “procedural due process requires at least notice, a hearing, and a method of decision which does not offend the concept of fundamental fairness.” 432 F. Supp. at 905.
“ ‘[D]ue process,’ unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. . . . Representing a profound attitude of fairness . . . ‘due process’ is compounded of history, reason, the past course of decisions . . . Ingraham v. Wright, 430 U.S. at 675.
“ ‘The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.’ ” Goss v. Lopez, 419 U.S. 565, 578,42 L.Ed.2d 725, 95 S.Ct. 729 (1975).
“Determining what process is due in a given setting requires the Court to take into account the individual’s stake in the decision at issue as well as the State’s interest in a particular procedure for making it.” Hortonville Dist. v. Hortonville Ed. Assn., 426 U.S. 482, 494, 49 L.Ed.2d 1, 96 S.Ct. 2308 (1976). The test is specifically set out in Mathews v. Eldridge, 424 U.S. 319, 335, 47 L.Ed.2d 18, 96 S.Ct. 893 (1976):
“[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.”
The private interests affected here are tenured teachers’ interests in continued employment. As previously noted, tenured teachers possess a property right protected by the 14th Amendment. Arguably the risk of erroneous deprivation of such interest increases when members of the decision-making board neither attend the hearing nor read the entire record there compiled. Here, however, that risk was lessened by part of the Board reading the record and participating in the discussion; by a detailed majority and minority report; and by oral argument of counsel to the Board prior to the making of a decision. Not only is the Board’s decision required to be for good cause and supported by substantial evidence, but it must be made after the reconsideration of its intention to nonrenew the teachers’ contracts in light of the hearing committee’s recommendation, minority report and argument of counsel. Finally, the government’s interest is in providing a good educational system staffed by competent teachers. A good school is dependent upon the Board being able to terminate teachers who do not meet the standards set by the Board. The governmental interest is an important one. Under these circumstances we cannot say that the failure of all the decision-makers to read the entire record constitutes a deprivation of property without due process of law under the 14th Amendment.
Here, Veronica Kelly and Evelyn Cochran were afforded notice of a full and complete hearing where they cross-examined the Board witnesses and put on rebuttal evidence of their own before a hearing committee. Thereafter, Kelly and Cochran were given an opportunity to brief and argue their cause before the Board of Trustees. From this they received an adverse decision. We conclude the requirements of constitutional due process were met.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Beier, J.:
Plaintiff John D. Krider appeals the district court’s summary judgment in favor of the defendant Board of Trustees of Coffeyville Community College (Board), contending the Board’s violation of the Kansas Open Meetings Act, K.S.A. 75-4317 et seq., voided a notice of nonrenewal of his teaching contract.
The legally relevant facts are undisputed.
Krider was a tenured welding instructor at the Southeast Kansas Area Vocational Technical School when the school merged with Coffeyville Community College in July 2001. After the merger, Krider’s status changed to a first-year, nontenured employee of the college.
During an April 15, 2002, executive session of the college’s Board of Trustees, the Board president recommended that Krider’s contract not be renewed for the 2002-2003 academic year. As a result, Krider received a nonrenewal letter signed and delivered by the vice president for the college’s technical division on May 1, 2002. In addition to telling Krider that his contract would not be renewed, the letter said: “This correspondence is your official notification of this fact and is given in accordance with K.S.A. 72-5437 and amendments thereto.” The Board did not vote in open session not to renew Krider’s contract until June 17, 2002.
On July 8, 2002, Krider filed this declaratory judgment action, asking the district court to rule that the Board failed to take the timely public action legally required to nonrenew his teaching contract. Krider continues to pursue this argument on appeal. In addition, he argues that a letter signed and delivered by the vice president of the technical division does not constitute service by the Board, as required by K.S.A. 72-5437(a).
K.S.A. 72-5437(a) states in pertinent part:
“All contracts of employment of teachers . . . shall be deemed to continue for the next succeeding school year unless written notice of termination or nonrenewal is served as provided in this subsection. Written notice to terminate a contract may be served by a board upon any teacher prior to the time the contract has been completed, and written notice of intention to nonrenew a contract shall be served by a board upon any teacher on or before May 1.”
The relevant portions of the Kansas Open Meetings Act provide:
“(a) . . . [A]ll meetings for the conduct of the affairs of, and the transaction of business by, all legislative and administrative bodies and agencies of the state and political and taxing subdivisions thereof, including boards . . . receiving or expending and supported in whole or in part by public funds shall be open to the public and no binding action by such bodies shall be by secret ballot.” K.S.A. 2002 Supp. 75-4318.
“(a) Upon formal motion made, seconded and carried, all bodies and agencies subject to the open meetings act may recess, but not adjourn, open meetings for closed or executive meetings,... Discussion during the closed or executive meeting shall be limited to those subjects stated in the motion.
“(b) No subjects shall be discussed at any closed or executive meeting, except the following:
(1) Personnel matters of nonelected personnel;
“(c) No binding action shall be taken during closed or executive recesses, and such recesses shah not be used as a subterfuge to defeat the purposes of this act.” K.S.A. 2002 Supp. 75-4319.
“(a) Any member of a body or agency subject to this act who knowingly violates any of the provisions of this act . . . shall be liable for the payment of a civil penalty in an action brought by the attorney general or county or district attorney . ... In addition, any binding action which is taken at a meeting not in substantial compliance with the provisions of this act shall be voidable in any action brought by the attorney general or county or district attorney in the district court of the county in which the meeting was held within ten (10) days of the meeting, and the court shall have jurisdiction to issue injunctions or writs of mandamus to enforce the provisions of this act.” (Emphasis added.) K.S.A. 75-4320.
“(a) The district court of any county in which a meeting is held shall have jurisdiction to enforce the purposes of K.S.A. 75-4318 and 75-4319, and amendments thereto, with respect to such meeting, by injunction, mandamus or other appropriate order, on application of any person.” K.S.A. 75-4320a.
This appeal requires us to interpret these statutory provisions. Statutory interpretation raises issues of law, and our review is therefore unlimited. See Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).
“The fundamental rule of statutory construction to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what tire law should or should not be.” Williamson, 275 Kan. at 305.
“The purpose of the [teachers’] continuing contract law,” of which K.S.A. 72-5437(a) is a part, “is to eliminate uncertainty and possible controversy regarding the future status of a teacher and a school with respect to the teacher’s continued employment.” In re Due Process Hearing of McReynolds, 273 Kan. 514, Syl. ¶ 1, 44 P.3d 391 (2002). The statutory “scheme promotes stability in the state’s schools and affords a time when teachers and schools may match needs.” McReynolds, 273 Kan. at 520. It enables schools to search for new teachers while teachers are seeking employment from schools. 273 Kan. at 520.
This policy is satisfied when a teacher receives unambiguous notification of nonrenewal by the May 1 deadline. Any language in a timely written notice that fairly and reasonably may be understood to mean that a school’s governing body is nonrenewing a teacher’s contract is sufficient. See Krahl v. Unified School District, 212 Kan. 146, Syl. ¶ 3, 509 P.2d 1146 (1973) (interpreting companion statute, K.S.A. 72-5411).
There is no dispute in this case that Krider received a clear and unconditional notice before the statutory deadline passed. Further, we are not persuaded that a letter signed and delivered by a college vice president at the direction of a Board of Trustees does not qualify as service of notice by the Board itself. The letter delivered to Krider specifically stated that it was meant to be understood as the notice from the Board that is required by K.S.A. 72-5437, and we have previously held that a letter from a school superintendent was legally sufficient. See Krahl, 212 Kan. 146, Syl. ¶ 4. The chairman or president or another member of the Board need not sign or personally deliver the written notice required by the statute.
Krider’s Open Meetings Act argument also will not get him the reinstatement and back pay that he seeks. Although the undisputed facts support his characterization of the Board’s action as a violation of the Act, he seeks unavailable remedies.
We stated our interpretation of the statutory contours of a private party’s standing to sue and the limited remedies he or she may seek for violation of the Open Meetings Act in Stoldt v. City of Toronto, 234 Kan. 957, 678 P.2d 153 (1984).
In Stoldt, the City Council of Toronto fired the plaintiff from his night watchman position, even though his job status had not been listed on a public agenda and the Council’s vote appeared to have been prearranged in a private setting. We held:
“Private parties, as well as the attorney general, district attorneys and county attorneys, have standing under the Kansas Open Meetings Act, K.S.A. 75-4317 et seq., to seek injunctive and mandamus relief. Only the attorney general, district attorneys and county attorneys, however, may seek voidance of governmental action based on violations of the act.” 234 Kan. 957, Syl. ¶ 1.
We further explained:
“[The Act], while authorizing suits brought by the attorney general, county and district attorneys for violations, does not preclude private party actions. The policy of tire act as stated in K.S.A. 75-4317 also supports members of the general public having standing to sue thereunder.
“[The Act] provides for civil penalties up to $500 and voidance of binding actions taken during a meeting in violation of the act. However, these remedies are available only to the attorney general and county and district attorneys. [The Act] also provides for injunctive and mandamus relief by the court to enforce tire act. See K.S.A. 75-4320(a). Standing to seek these remedies is not limited. We therefore, conclude injunctive and mandamus relief is available to private parties as well as to public prosecutors.
“In this case Officer Stoldt seeks voidance of the city council’s action, reinstatement, and monetary damages. He does not seek an injunction or a writ of mandamus. While appellant has standing to raise the issue of violation of [the Act], none of the remedies he seeks is available to a private individual. . . . [Earlier cases involving private parties raising other issues did not reach the remedies point and are not] precedent for a private party having standing to void governmental action for a . . . violation [of the Act],
“Rather, we construe [the Act] to authorize no one other than the attorney general, district attorneys or county attorneys to seek voidance of governmental action based on violations of the act. It is with good reason the legislature would so restrict the act. Voidance of governmental action, be it administrative or legislative, is a drastic remedy. The threat of it would be very unsettling. The restriction on the remedy provides governmental stability. A private person who feels aggrieved must first convince a prosecutor of the merits of his cause within ten days of the . . . violation and get the prosecutor to seek voidance to undo the governmental acts. See K.S.A. 75-4320(a). It would be most difficult for government to function if every person was vested with the remedy of voiding governmental action for a violation .... Such actions, even though possibly ultimately unsuccessful, would unreasonably tie up government. We hold an individual who seeks to enforce [the Act] through private litigation has only the remedies of mandamus and injunction, both of which have prospective application.” 234 Kan. at 962-63.
We echoed Stoldt’s analysis in 1998 in City of Topeka v. Watertower Place Dev. Group, 265 Kan. 148, 959 P.2d 894 (1998). In that case, we first observed that Watertower Place Development Group (Watertower) correctly asserted that the City had violated the Open Meetings Act by terminating the parties’ contract during an executive session of the City Council. The issue thus became whether the City’s employment of an unlawful procedure authorized the court to void the action in a lawsuit by Watertower. 265 Kan. at 156-57.
Noting that the attorney general had rebuffed Watertower’s request for the attorney general to sue because the request came later than the 10-day deadline, we held Watertower was thereafter “precluded from seeking the voidance” of the Council’s action. Notwithstanding the violation of the Open Meetings. Act, Water-tower was powerless to reverse the substance of the City Council’s decision. 265 Kan. at 157 (citing Stoldt, 234 Kan. 957, Syl. ¶ 1).
Like Stoldt and Watertower, Krider seeks to reverse the substance of the Board’s decision in his case, i.e., to void its service of notice of nonrenewal of his contract. Under the Open Meetings Act and our prior decisions, this is not possible. When the Board violated the Open Meetings Act, its action was voidable for 10 days. See Annot., 38 A.L.R.3d 1070, § 7[b] (recognizing Stoldfs holding). Krider could have persuaded the attorney general or the district or county attorney for Coffeyville to file an action to void the notice. He had no power to seek that remedy himself. He. had standing to sue only for an injunction or writ of mandamus. He did not. Now it is too late.
We are mindful of the Open Meetings Act’s explicit underlying policy to ensure that meetings “for the conduct of governmental affairs and the transaction of governmental business” are open to the public and of its explicit disapproval of the adjournment of such meetings “to another time or place in order to subvert” this policy. K.S.A. 2002 Supp. 75-4317. However, the Act also explicitly sets limits on the remedies available for a violation and the persons who may seek them. The rationale for such limitations is as valid today as it was when Stoldt was written in 1984.
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