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Per Owriam:
All of the law questions in this case are dis-
posed of by the opinion handed down in the case of St. L. & S. F. Rly. Co. v. Curtis, ante, p. 179, with two exceptions. It is urged in this case that the court committed error in refusing the instructions of the railway company concerning contributory negligence upon the part of the plaintiff below. The instructions refused were substantially given in the general charge to the jury, and therefore the refusal was not prejudicial. Again, it is urged that the trial court committed error in instructing the jury that, “if the negligence of the plaintiff below was slight, and the negligence of the railway company was gross,” the plaintiff might recover. (Railway Co. v. Peavey, 29 Kas. 169.) Upon a motion filed in this ■case to correct the case-made, the statement therein “that it contained all the evidence introduced upon the trial” was stricken out. We cannot, therefore, see from the record, as presented, whether there was any evidence of gross negligence or not; and hence we cannot examine the point presented. It is not necessary, to consider and review instructions, that all of the evidence should be contained in the transcript or case, but sufficient should be stated to properly present the point relied upon for reversal. If the record had contained all of the evidence, or if it had merely stated that evidence was presented supporting the action of the plaintiff and the defense thereto, and that there was no evidence offered tend.ing to show any gross negligence, Railway Co. v. Peavey, supra, would control.
The plaintiff asked for ’$15 only as attorney fees. The court allowed $50. This was erroneous, and the judgment will be modified by striking from the attorney fees allowed $35. This amount was not prayed for, and the petition was not amended. (St. L. & S. F. Rly. Co. v. Curtis, supra.) | [
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The opinion of the court was delivered by
Horton, C. J.:
The facts in this case are substantially as follows: Chester D. Long went to the small station of Anness, on the defendant’s line of railroad, to purchase a ticket to take passage on its road. In doing so, he came in contact with, one Clayton, the agent who was selling tickets at that station, and he charges that Clayton at the time was afflicted with the contagious disease of small-pox, a fact which Clayton either knew or might have known at the time, and that, by reason of coming into close proximity with Clayton, the plaintiff contracted the disease and suffered from the same. Subsequently Long, by his next friend, Major C. Long, brought his action to recover $20,000 damages, alleged to have been suffered by him. The railroad company filed a demurrer to the petition, which the court below sustained. Complaint is made of this ruling.
It is the rule that, where the owner of a house, office or other tenement, knowing that it is so infected by the small-pox or any other contagious disease as to be unfit for occupation, and to endanger the health and lives of the occupants, and concealing this knowledge from the person invited, induces him to hire, occupy or visit it, and the person so hiring or invited takes a disease by reason of the infection, the owner is guilty of actionable negligence. In such a case, however, it must be shown that the owner knew that the house, office or tenement was so infected as to endanger the health or life of any person who might visit or occupy it. Knowledge is an element in the intent essential to liability. (Bishop, Non-Contr. Law, § 502; Meeker v. Van Renssalaer, 15 Wend. 397; Minor v. Sharon, 112 Mass. 477; Cesar v. Karutz, 60 N. Y. 229; Smith v. Baker, 20 Fed. Rep. 709; Gilbert v. Hoffman, 66 Iowa, 206.) In this case, it is not charged that the railroad company or any of its superior officers knew that its agent at Anness was afflicted with any disease, contagious or otherwise. We do not think that a master or a railroad company is liable in damage to a third person because such person has contracted a contagious or infectious disease from an agent, when the master or company has no knowledge that the agent is afflicted. Proof of scienter is necessary.
An insane person is civilly liable to make compensation in damages to persons injured by his acts. An innkeeper who was insane was held liable for not keeping the goods of his guest safely. (Cross v. Andrews, 2 Cro. Eliz. 622. See also, Cooley, Torts, §99, p. 115; 11 Am. & Eng. Encyc. of Law 144.} Insanity is a disease, but a master or railroad company will not be liable for such infirmity in an agent, having no knowledge thereof. (Story, Ag., § 8; and see Pope, Lun. 340; Russell,. Merc. Ag. 5; 8 Jarm. & B., Conv. 10; Busw., Insan. 313.) But if one knowingly employs an insane person as his servant' or agent, he will be liable for damages to innocent third persons resulting from acts done by the insane person in the scope' of his employment. (Busw., Insan., § 257. The scienter, however, must be shown. The employment knowingly of an improper person to come in contact with the public as an agent would be gross misconduct; but if the master or railroad company is faultless in regard to employing an agent and in continuing his employment, the master or railroad company ought, to be excused civilly from the consequences of any secret disease or like infirmity of the agent, in the absence of all knowledge thereof. Even a dog which has manifested no vicious-propensities may be kept by its owner without being tied, or otherwise secured; but if the animal is vicious and the owner bas been notified of the fact, a duty is then imposed upon him to keep the animal secure, and he is responsible for any mischief if he fails to observe this duty. The soienter must be-established.
Chester D. Long was lawfully in the station at Anness, and was without fault on his part in purchasing his ticket of Clayton, the agent; and in selling his ticket, Clayton was acting clearly within the scope of-his employment; but his disease was not known to the railroad company, or any of its superior officers, and although it was contemporaneous with his employment, the railroad company cannot be charged with the consequences thereof. The negligent or accidental act, if any, of the agent in imparting a contagious disease to Long, the purchaser of the railroad ticket, was not within the scope of his authority, so as to charge the company, his master. The sickness of an agent with a contagious disease cannot be presumed to be authorized or directed by the master, and is not an incident in any way to the employment of selling tickets,, or acting as agent at a station.
We are not referred to any decisions, and we cannot find in the books where a master or railroad company has been held liable in a case like this.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Strang, C.:
On the 23d day of December, 1878, William Clement became a member of the Natioual Temperance Relief Union, a mutual insurance company, organized under the laws of Missouri. In his certificate of membership therein, his wife, Joanna Clement, was named as beneficiary. On the 29th day of September, 1884, Joanna Clement made a will, by which she gave the use of all her property to her husband, William Clement, during his lifetime, after which her daughter, Frances August Clement, was to have the use of the same during her life, when it was to be divided between the other children of said Joanna Clement according to further provisions of her said will. On the date of said will, William Clement consented, in writing, to the provisions thereof; and on April 24, 1885, the said William Clement also made a will, in which he provided that if he should survive his wife the proceeds of said benefit certificate should go to his daughter, Frances August Clement. Joanna Clement died December 9, 1885, and William Clement died May 18, 1886. August 28, 1886, Frances August Clement was adjudged to be a feeble-minded person and not competent to transact business, and John Schilling was appointed and qualified as her guardian. August 30, 1886, after proper notice to all the heirs, the said wills of Joanna and William Clement were duly probated, and the executors named therein having refused to serve, and all the persons next of kin to said testators having renounced their right of administration, John Schilling was appointed administrator with the wills annexed. March 26, 1889, suit was begun in the name of John Schilling, guardian of Frances August Clement, and the other heirs of William and Joanna Clement, against the National Temperance Union, on the said benefit certificate, to recover the amount thereof, which suit was afterward compromised and the company paid the sum named in the certificate to the attorneys for the plaintiffs therein, who turned the amount, less their fees, over to John Schilling. The plaintiffs brought this suit to recover their moieties of the proceeds of said benefit certificate, as joint heirs with said Frances August Clement. •
The question in this case is, who is entitled to the proceeds of the benefit certificate issued by the National Temperance Union on the life of William Clement? Is Frances August tllement, or her guardian, John Schilling, for her, entitled to the whole of the proceeds of said certificate, or are the other heirs of William and Joanna Clement, named as plaintiffs in this case, entitled to equal shares therein with said Frances August Clement? The solution of this question depends upon the effect to be given to the wills of Joanna and William Clement. The benefit certificate named Joanna Clement as beneficiary therein; that is, by the terms of said certificate, the amount of insurance therein covenanted to be paid upon the death of William Clement was to be paid to his wife, ■Joanna Clement. But Joanna Clement did not survive her husband, and the insurance upon his life could not therefore be paid to her. During the lifetime of said Joanna Clement she made a will and devised the use of all her property to her husband during his lifetime, and to her daughter, Frances August Clement, after him during her lifetime, with a provision for final distribution of what remained upon her ■decease among her other children. William Clement survived his wife but a few months. Before his decease, however, he made a will, by which he gave to his daughter, Frances August Clement, the proceeds of the benefit certifi■cate upon his life.
There is no question of the enforcement of a contract between the insurance company and anyone here. The insurance company is not a party to this suit. There is no question in the case as to the right of the assured, or the beneficiary named in the certificate, to change the beneficiary named in the certificate, or control the disposition of the proceeds of ■said certificate, as against the insurance company, or in contravention of any of its rights under the certificate or its ■by-laws. The insurance upon the life of William Clement •guaranteed by the company under its certificate was paid by the company, and thereafter became a part of the estate of either Joanna Clement or William Clement. The certificate was payable to Joanna Clement, not to her and her heirs. If she had survived her husband, the proceeds thereof would have been her property, to be disposed of by her as she should ■wish. Though she did not survive her husband, she did,* ■during her lifetime, by will, point out and direct the disposition to be made of her property after her decease. Said will we think is broad enough to cover and include any interest she may have had in said benefit certificate at the time of her ■death; and, by the terms thereof, all her property went to her husband, William Clement, during his lifetime, and afterward to Frances August Clement. If, however, as probably was the case, upon the decease of his wife before him, the proceeds of the policy on his life became, at his death, a part of his estate, then "William Clement had a right during his lifetime to direct, by will, the disposition thereof after his decease; and as, by his will, he also gave the proceeds of said policy to his daughter, Frances August Clement, and as the wills of both Joanna Clement and William Clement were properly probated, and no appeal therefrom was ever taken, we think her title thereto is complete. We recommend that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Green, C.:
This was an action brought by C. W. York in the district court of Cloud county, upon a policy of insurance against fire issued by the German Insurance Company, for $1,000; $800 being upon a dwelling-house and $200 upon the contents. The policy was made to Clinton L. Mosher, dated the 31st day of May, 1886, and assigned to the defendant in error on the 7th day of May, 1887, he having purchased the premises upon which the house was situated on that date. A mortgage was executed by York and wife to Mosher to secure $1,000 of the purchase-price. It appears from the pleadings and findings of fact that the assignment of the policy was assented to by the insurance company on the 1st day of June, 1887, and the proper indorsement was made on the policy. The insurance company claimed that it had no notice of the mortgage at the time of this indorsement. The court found, however, that the local agent of the insurance company had notice of the terms and conditions of the sale. The policy contained a condition that, if the property should thereafter be mortgaged or incumbered without the consent of the company being indorsed thereon, the policy should become null and void. The policy contained the further provision, that no agent or employé of the company, or other person, should have power or authority to alter or change the terms of the policy, or make any indorsement thereon. On the 24th day of September, 1887, C. ~W. York executed a deed to Kohler, Marvin and Saddler for the premises covered by the policy, but his wife did not sign the deed with him, although it was their homestead at the time. On the 8th day of December of the same.year the plaintiff below made a chattel mortgage to the same parties upon all of the personal property described in the insurance policy, to secure the payment of $1,500. The property was destroyed by fire on the 9th day of March, 1888. Proof of loss was sent to the company on the 1st day of May, 1888; and on the 14th day of May the adjusting agent of the company acknowledged the receipt of the proof of loss, but demanded more specific and fuller details of the loss. On the 19th of the same month, in answer to a letter from the attorneys of the plaintiff, who desired to know if the company proposed to pay the loss, the adjusting agent wrote that the question was premature, for the reason that the insured had not as yet made proof in accordance with the policy. The plaintiff afterward prepared another proof of loss, which was transmitted to the company; and on the 2d day of June the adjusting agent wrote the plaintiff that the proof was not such as had been requested, and demanded a strict compliance with all of the conditions of the policy. At the April term, 1889, the case was tried by the court and special findings of fact made, and judgment was rendered against the company for the amount of the policy and interest. A motion for a new trial was made and overruled. The company brings the case here for the review of assigned errors.
The first contention of plaintiff in error is, that the policy of insurance is void by reason of the mortgage executed by York to Mosher, without the consent of the company. This mortgage was given as part of the purchase-price of the premises upon which the insured property was situated. The company assented to the sale and transfer of the policy to York. We fail to see how the risk was in any ^ < J way increased. York paid $5,000 in cash for the farm, and gave a mortgage for $1,000 for the balance of the purchase-price to Mosher. It was all one transaction. The company had notice of the sale; and this, we think, included all that took place concerning the transfer of the title from Mosher to York. In the case of Insurance Co. v. Ashton, 31 Ohio St. 477, it was held that the consent given by the company to a sale and transfer of title was an assent to the terms upon which the same were made, and hence, that the execution of the mortgage did not avoid the policy. In addition to this, the court found that the local agent was informed by York of the terms of the purchase of the insured property, and that York had given Mosher a mortgage for $1,000 on the land. We think the consent to the transfer of the policy, coupled with the fact that the local agent was advised of the sale and the execution of the mortgage, were sufficient to operate as an assent upon the part of the company to the giving of the mortgage.
' ieftea notl*>>> It is next claimed that the deed given by York to Kohler, Marvin and Saddler violated the policy. A sufficient answer to this contention is, that the deed purported to convey the homestead, and it was signed by the husband alone, and was therefore void. When we say an instrument is void, we mean that it has no force and effect. A void deed cou^ no^ therefore, affect the policy of insurance. No title passed by the void instrument; so the land still remained the property of York.
The further claim is made that a-policy of insurance must be considered as an entirety, and that the mortgaging of any part of the property, either personal or real, avoids the entire policy. The trial court found that York executed a chattel mortgage to Kohler, Marvin and Saddler on all of the personal property described in the insurance policy, after the assignment of the policy to him. If plaintiff in error be correct in its contention, this would avoid the policy, because there is nothing to show that the company consented to the giving of this mortgage. While the policy sued upon in this case shows that the premium was a gross sum, the insured estate consisted of real and personal property, and there was a given amount of insurance upon each kind of property. Now, if there had been a total loss of one kind of property and the other had been saved, it is clear that the company would only be called upon to make good the loss of the property destroyed, and the liability of the company would be limited to that alone. To this extent we think it fair to say that the contract is divisible. Two kinds of property constituted the subject-matter of the contract, and the insurance company placed a fixed valuation upon each, for which it agreed to become responsible in case of loss. In a well-considered case decided by the court of appeals of New York, Mr. Justice Folger said:
“ It is plain from the fact of a separate valuation having been put by the parties upon the different subjects of the insurance, that they looked upon them as distinct matters of contract. The effect of the separate valuation was to make them so. No matter how much value there might have been in anyone of those subjects, even to the whole amount of the policy, had it been totally destroyed the defendants could not have been made liable to an amount greater than that named in the policy as the valuation of it. Thus it was, at the inception of the contract, distinguished from the other subjects of insurance, and the contract so made as to be capable of applicationjto it alone. So, too, if but one of the subjects -of insurance had been burned, the defendants (ceteris paribus) could not have avoided liability to pay for that, up to the value put upon it; and if not wholly destroyed, but so far damaged as to reach in deterioration the value put upon it in the policy, the defendants would have to pay that damage; and that subject would no longer form a part of the general matter insured, and hence not a part of the continuing contract. Thus, there would of necessity be a severance of the contract, worked out by the operation of its own terms.
“Again, the principle in the case of a contract about several things, but with a single consideration in gross, is this: that we are not able to say that the party would have agreed for one, or for more than one, yet less than all of them, without he could at the same time acquire a right to have them all. But our daily experience and observation show, that an insurance company is as ready to insure buildings without insuring the contents, and the contents without insuring the buildings, as to insure them together; so that that principle does not press so hard in considering such a contract as that before us. Besides, it is a rule that an agreement embracing several particulars, though made at one time and about one affair, may yet have the nature and operation of several different contracts; as, when they admit of being separately ex ecuted and closed, as we have instanced just above, when the contract may be taken distributively, each subject being considered as forming the matter of a separate agreement after it is so closed. (Per Washington, J., Perkins v. Hart, 11 Wheat. 237, 251; Rodemer v. Hazlehurst, 9 Gill, 294.)
“In our judgment, this rule applies fitly to the contract in hand. It admits of being separately executed and closed as to each of the separate subjects of insurance. When one species of the property insured is burned, the contract to insure as to that may be performed as to that alone. The insured has paid the premium. A fire doing damage to that subject, that damage may be paid for by the insurer, and that subject be thus put out of the contract, while it remains in fieri as to all the other subjects named in it. When there are several subjects of insurance, (as there are 14 here,) separately valid, on which a gross sum is insured not exceeding the aggregate of that valuation, for the insurance of which a premium in gross is paid, it is easy to see what is the rate of premium pn the whole valuation, and what is the amount of premium on each subject insured. This being so, it seems fanciful to say, that if the facts thus easily reached were stated in detail in the contract it would be severable, while not being specifically spread out it is entire.” (Merrill v. Insurance Co., 73 N. Y. 452.)
See, also, as sustaining the doctrine that an insurance contract is divisible, and that a breach of the condition only affects the class of property which is the immediate subject of the act of incumbrance: Schuster v. Insurance Co., 102 N. Y. 261; Clark v. Insurance Co., 6 Cush. 342; Insurance Co. v. Spankneble, 52 Ill. 53; Knight v. Insurance Co., 26 Ohio St. 664; Koontz v. Insurance Co., 42 Mo. 126; Loehner v. Insurance Co., 17 id. 248; Insurance Co. v. Schreck, 27 Neb. 527; Insurance Co. v. Crimes (Neb.), 50 N. W. Rep. 168.
We are aware of the fact that a number of states have held that a contract of insurance is not divisible; but we think, where a separate valuation is fixed upon the different kinds of property insured, the better rule is to hold that the contract is severable, and not entire and indivisible. It follows from this view of the law in this case that the policy of insurance upon the dwelling-house for $800 should be held good. As to the personal property covered by the policy, we think the giving of the chattel mortgage avoided the policy upon the household furniture.
We deem it unnecessary to notice the other assignments of error, as they do not affect the substantial rights of the plaintiff in error.
It is recommended that the judgment of the district court be modified by striking out the $200 and interest computed thereon, for the amount of the policy upon the personal property, and that the costs of this court be divided equally between the parties.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Green, C.:
The Kansas Loan & Investment Company brought an action against the defendants in error to recover damages for the removal of a house from the land, upon which it claimed to have a mortgage. The defendants answered by a general denial, and also set up a counterclaim, in which they alleged that they had been damaged by the bringing of the suit; that they had been prevented from obtaining a loan of $800 upon the premises upon which the house in question had been placed; that the mortgage company through which they had negotiated a loan refused to make the same when it was ascertained that an action had been commenced, by reason of which the defendants had been damaged in the sum of $500. No reply was filed to the answer of the defendants. The case was assigned for trial at the April sitting, 1889, of the district court of Kingman county, on the fourth day of the term. The de fendants announced themselves ready for trial. The plaintiff did not appear. The defendants waived a jury, and a judgment was entered upon the counterclaim of the defendants for the sum of $500. A motion for a new trial was made within three days and overruled. The plaintiff in error brings the case here, upon the ground that the judgment of the district court is not sustained by the pleadings.
It is argued that the answer did not state facts sufficient to constitute a counterclaim or a cause of action for affirmative relief. It is urged that the liability alleged in the counterclaim shows upon the face of the answer that it did not exist at the time the action was brought, but, if there were any liability, it arose subsequently, and as a consequence of the action; that the defendants’ claim for damages did not arise out of the transaction set forth in the petition, and had no connection with it, as required by § 95 of the code. A counterclaim is substantially a cross-action by the defendant against the plaintiff, growing out of or connected with the subject-matter of the action. It must in some way be connected with the subject of the action stated in the petition. (4 Am. & Eng. Encyc. of Law, 331.) The plaintiff placed its right to recover damages from the defendants upon the ground, as alleged in its petition, that they removed a certain house from the premises upon which it held a mortgage. The allegations of the plaintiff’s petition constituted one state of facts. The defendants alleged that because they had been sued by the plaintiff they were unable to obtain a loan, and had therefore been damaged in consequence of such suit. The facts stated in. the answer had no connection with the “foundation” or subject-matter of the suit of the plaintiff, and hence cannot be regarded as a counterclaim. They did not arise out of the original transaction, and had no connection with it. The defendants’ claim did not exist until the plaintiff commenced its action. It is true that a defense may be set up which may not have accrued until after the commencement of the action; but as we understand the nature of a counterclaim, being a cross-demand against the plaintiff and in favor of the defend ant, it must have an existence at the time suit was commenced. It is the assertion of a separate claim or demand against the plaintiff, and does not necessarily answer or destroy the original cause of action stated in the. petition.
We think that the court erred in rendering judgment upon the defendants’ counterclaim. It is recommended that the judgment of the district court be modified by striking out the sum of $500, and that the costs of this court be equally divided between the parties.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Strang, C.:
October 18, 1889, C. S. Jobes was appointed receiver of the Attica Sugar Company, of which the Kansas State Sugar Company was the lessee. February 9, 1891, said Jobes was removed as receiver of said company, and W. H. Broekway was appointed. When Jobes was appointed receiver of said company, the company was largely indebted for work anddabor done and performed for said company, and for cane furnished the company by the farmers of the community. Jobes operated the sugar mill a part of the season of 1889, and all of the season of 1890. Under the law relating to the payment of bounty upon cane sugar manufactured in the state, said sugar company had earned $1,632.54, as bounty on the crop of 1890, for which an appropriation was made by the legislature of the state, March 4, 1891. (Laws of 1891, ch. 60.)
December 31, 1890, instead of making and filing with the auditor of state a voucher, for the bounty money due from the state to said sugar mill or its lessee, the said Jobes, as receiver, made an order payable to himself on the auditor of state for the amount of said bounty earned, which order the said Jobes, as receiver, delivered to the Attica State Bank, in alleged payment of a debt due from him as receiver of said company, to said bank. The bank of Attica, on the 3d day of January, 1891, transferred the said order to the plaintiff, the Kansas National Bank of Wichita. Though this assignment is alleged to have been made by the Attica State Bank to the plaintiff, it appears to have been made by C. S. Jobes, receiver. The order was then indorsed by the president of the Kansas National Bank of Wichita, Kansas, to the auditor of state for the account of the plaintiff, and was by him audited March 12, 1891.
The evidence shows that at the time said order was delivered to the Attica State Bank by the receiver he owed said bank a sum of money, consisting in part of an overdraft, and the balance of a loan represented by receiver’s certificates, greater than the amount of said order. The question in the case is, did C. S. Jobes, as receiver of the company he represented, possess authority to dispose of the bounty money due from the state to his company, at the time, in the manner and for the purpose for which he in fact disposed of the same? The receiver’s authority was limited to such authority as was conferred upon him by the district court of Harper county. This authority must be gathered from the following orders of said court:
First, the order appointing Jobes receiver, which, among other things, contains the following, relating to his authority:
“To make temporary loans for the immediate payment of all unpaid labor, and for cane delivered, and for labor to be performed or cane to be delivered and used; and he is further ordered to sell the product of such factory in such market, at such times, and in such ways, as seems to him most advantageous and profitable; and that out of the proceeds of such sales, or from any other moneys on hand, he should reimburse and pay off such temporary loan, with the interest thereon.”
Second, the order of December 30, 1889, which contains the following in relation to the authority of the receiver to make loans and liquidate and pay them off:
“It is therefore ordered, that the said C. S.'Jobes, as receiver, in the action above entitled, make a temporary loan for the sum of $5,565.55, upon the best and most advantageous terms possible, and for such time as may be necessary, and that the said C. S. Jobes, as such receiver, issue his certificate for such amount, and to such person or persons as he may make such loan from; that the said certificate for said sum of $5,565.55 be and is hereby made a first lien upon the product of the sugar plant or factory of the said defendant, the Kansas State Sugar Company, and upon all moneys received from the sales of sugar and syrup manufactured by such plant or factory.
“And it is further ordered, that if from the sales of the product of such plant there shall be a deficiency, then such certificate shall be a first lien upon the receiver’s charges upon the plant of the defendant, the Kansas State Sugar Company, located at Attica, Harper county, Kansas, and that the said sum of $5,565.55 be and the same is hereby passed and allowed as receiver’s charges and expenses in said action.
“And it is further ordered, that the certificate of indebtedness issued by said receiver to the persons from whom such temporary loan shall be made, for said amount of money, shall show upon its face that it is the receiver’s certificate for his charges and expenses in and about the operation of the said sugar plant of the defendant, the Kansas Sugar Company, and that it is a first lien upon all the products of such plant, and upon all money arising from the sale of said products; and that if there shall be a deficiency, after deducting the money received from the sales of the products from the amount realized on the certificate of $5,565.55, then that for such deficiency the said certificate shall be and is hereby made a first lieu for said receiver’s charges and expenses upon the sugar plant and factory of the said the Kansas State Sugar Company, located at Attica, Kansas.”
And lastly, in the order of June 5, 1890, which is as follows:
“Now, therefore, it is considered, ordered, and adjudged, that the said C. S. Jobes, receiver herein, employ such labor and purchase such machinery and material of all character as may be necessary to make the necessary repairs and improvements in said sugar plant requisite for the successful operation of said sugar plant in the manufacture of sugar in the year 1890, and for the protection of said plant.
“And it is further ordered, that C. S. Jobes, as receiver, upon the most advantageous terms possible, procure a loan of money for such time as may be necessary and most advantageous, and at a rate of interest not exceeding 10 per cent., and not exceeding $10,000. And said receiver is hereby directed and authorized to issue his receiver’s certificates in such amounts as may be most advantageous and convenient for the securing of such loan as he may make under this order; and said C. S. Jobes, as receiver, is hereby authorized and directed to issue his said certificate to each person, association or corporation from which he may obtain a loan for the purposes herein stated. And it is further considered, ordered, and decreed, that the said certificates so issued by the said C. S. Jobes, receiver herein, be and the same are hereby made a first lien, each of equal rank, upon all the products of the sugar plant that have or may come into the possession and hands of the said C. S. Jobes, as receiver, and upon all the net profits arising from the operation of said sugar plant, and upon all the machinery purchased with the proceeds of said loan or loans, in the improvement and repair of the said sugar plant, and upon all of the property of every character now in the hands of said receiver, belonging to said defendant corporation, the Attica Sugar Company.
“And it is further ordered, that each certificate so issued shall show upon its face that it is the receiver’s certificate for his charges and expenses in the repairing and operation of the said sugar plant, and that it is a first lien pro rata, if more than one certificate is issued, upon each and all of the property and proceeds last above mentioned.”
The court has examined the record in this ease, and has reached the conclusion that the whole controversy is a matter that should be settled by the district court of Harper county. Mandamus is an extraordinary remedy, and can be resorted to only when the party invoking it is clearly entitled to the order he seeks. In this case, there is nothing to show that C. S. Jobes, as receiver, has ever had any settlements of his accounts with the district court of Harper county. It is ad.mitted that all the receiver’s certificates issued by him are still outstanding. It is true he says he has paid them, except a balance of $750 due the Attica State Bank on certificate issued under the second order for the loan of $5,565.55, and a balance due the same bank of $400, on certificate issued under the third order, permitting the loan of $10,000, and also a balance of $400 due on a certificate for loan under some of the orders, to an investment company in Kansas City. It does not appear clearly under what order the certificate held in Kansas City was issued, but we think it must have been issued under the order of June 5, 1890, because that order provided for a loan of $10,000, and was the only order providing for a specific loan as large as $5,750, the amount of the Kansas City loan. If the certificate held in Kansas City was issued under the order of June 5, 1890, and we are right in our conclusions that the certificate held by the Attica State Bank, on which Jobes says there was $400 still due, was issued under the same order, then the balance on the latter certificate and the balance due on the certificate held in Kansas City must be paid pro rata. It follows, then, that the only debt to the Attica State Bank that could be paid in full by the bounty money is the balance of $750 back on cer tificate issued to that bank under the order of December, 1889, permitting the loan of $5,565.55. And as we do not think Jobes, as receiver, was, under any order unless possibly the first, authorized to incur any indebtedness by overdraft, and as it is not clear that the debt due the Attica State Bank on overdrafts of Jobes, as receiver, at the time he turned the order for the bounty money over to said bank, or any part of it, was incurred under the first order, we cannot say that said debt should be paid by the order for bounty money. The only sum of money due the Attica State Bank that could clearly be paid by said bounty money, at the time the bounty order was turned over to the bank, was the $750 due on the first certificate issued to that bank. But as the bounty order called for at least double the amount due on that certificate, it could not have been turned over to pay that balance alone. The right, therefore, of the plaintiff, who by its own contention received the bounty order from the Attica. State Bank, to have this court order the bounty order turned over to it is not clear.
It appears to us that this bounty money is a part of the product of the sugar mill the same as the money derived from the sale of sugar. It was money earned by the mill in the manufacture of sugar. As a part of the products of the mill, we think from all that appears in this case that it should be applied to the payment, first, of the $750 and interest thereon, being the balance on the certificate held by the Attica State Bank issued under the order of December —, 1889, and then to the payment pro rata of the balance due on the certificates held by the Attica State Bank and the Kansas City Investment Company issued under the order of June 5, 1890. Of course none of said bounty can be used to pay receiver’s expenses and charges incurred by the present receiver, the defendant W. H. Brockway.
It is recommended that the peremptory writ be denied, and the controversy be relegated to the district court of Harper county, for settlement in accordance with the suggestions herein contained.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Strang, C.:
This was an action on a policy of insurance. The petition reads as follows:
“ The said Lexcina C. Thorp, plaintiff, complains of the said Western Home Insurance Company, defendant, for that the said defendant, in consideration of a certain premium by and between the said plaintiff and defendant agreed upon, and by the said plaintiff then paid, to wit, the sum of $18, on the 14th day of January, 1886, at Paola, Miami county, Kansas, did, by a certain policy of insurance of that date, duly executed, insure the said plaintiff against loss and damage by fire to the amount of $300, which policy of insurance with schedule thereto attached is hereto attached, marked ‘Exhibit A/ and made a part of this petition. And the said plaintiff further says, that at the time of the date of said policy of insurance the said plaintiff was the owner of the said two-story, frame, shingle-roofed building, occupied as a retail grocery store, situated on lot 7, block 32, Paola, Miami county, Kansas, known as the ‘Thorp ladder factory,’ and so continued from thence up and until the time of the said loss hereinafter mentioned. And the said plaintiff further says, that she has duly kept, observed and performed all the requirements and conditions contained in said policy, and in the schedule thereto attached, by her the said plaintiff to be kept, observed and performed in that behalf. And the plaintiff further avers, that afterward, on the 1st day of April, 1886, the said two-story, frame, shingle-roof building became and was consumed and wholly destroyed by fire, of all which the said defendant afterward, to wit, on the 1st day of April, 1886, had due and legal notice. And the said plaintiff further says, that she has been damaged by the burning of the two-story, frame, shingle-roofed building to the amount of the said sum of $300 and over. Yet the said defendant, although the said plaintiff has duly done and performed all and singular the requirements and conditions by said policy and schedule thereto attached required to be done and performed by the said plaintiff, to entitle her to the payment of said amount of loss so sustained by said plaintiff, and to render the said defendant liable to pay the same, yet not regarding its said duty in the premises, did not or would not pay the said sum of $300, uor any part thereof, to the said plaintiff, but hitherto and still refuses so to do, to the damage of said plaintiff $300.
“Wherefore the said plaintiff prays judgment against the said defendant for said sum of $300, her damages so as aforesaid sustained, and her costs of suit.”
To said petition the defendant below filed the following answer:
“And now comes the said defendant, and, for answer to the petition of the plaintiff, states the following grounds of defense.
“1. The defendant denies each and all of the allegations of the petition of the plaintiff'.
“ 2. And the defendant alleges that after the said policy had been executed and delivered to the plaintiff, and before the time of the destruction of the said building by fire, the retail grocery store mentioned in said policy was removed from said building, (and at the time of the said fire no part of said building was occupied as a retail grocery store,) without permission therefor in writing on said policy, and contrary to and.in violation of one of the conditions of said policy, and the plaintiff is, therefore, not entitled to recover upon said policy.
“Wherefore defendant prays judgment for costs, with such additional relief as defendant ought to have.”
The reply was as follows:
“And now comes the said plaintiff, and, for reply to defendant’s amended answer filed herein, denies each and every allegation, averment and statement of new matter contained and set forth in said answer. Wherefore plaintiff asks judgment as prayed for in the petition.”
The insurance policy sued on was attached to the petition, and contains, among other things, the following provisions:
“1. In case of loss or damage by fire, the assured shall, within 60 days, render an account of the loss, signed and sworn to, stating how the fire originated, giving copies of the written portions of all policies thereon, also the actual cash value and ownership of the property, and the occupation of the premises.
“2. The amount of loss or damage to be paid in 60 days after the proof of the same, as required herein, shall have been made by the assured, and received by the company.”
The case was tried by a jury, which fdund for the plaintiff in the sum of $357.75, and also made the following special finding:
“Did the -plaintiff, before the commencement of this suit, render to the defendant an account of the loss, signed and sworn to? Ans. The jury finds no proof in the testimony submitted that the plaintiff made any signed and sworn statement to the defendant.”
This is the only finding in the record that in any way relates to the subject of proof of loss. The defendant below requested the court to submit the following instruction to the j^y:
“ That, unless the plaintiff made proofs of loss in substantial compliance with the terms of the policy before the commencement of the suit, she cannot recover.”
This1 request was refused, and the defendant took its exception thereto. The- instructions given by the court are as follows:
“This is an action brought by the plaintiff, Lexcina C. Thorp, against the defendant, the Western Home Insurance Company, of Sioux City, Iowa, to recover the sum of $300, and interest. The execution of the policy is not a question in this action. It is admitted that the defendant executed this policy of $300 on the property described in the policy, to wit, upon a two-story, frame, shingle-roof building, occupied as a retail grocery store, situated in lot 47, block 32, Paola, Kansas, known as ‘Thorp’s ladder factory.’ The burden rests on the plaintiff to establish her right to recover judgment by a preponderance of the evidence, and to show the amount of loss she has sustained. If the building was insured for the sum of $300, and was a total loss, and the building was of a greater value than the $300, of course the plaintiff, if she was entitled to recover under the terms of the policy, would be entitled to recover the full amount of the policy. And if she is entitled to recover in this action, she will also be entitled to recover 7 per cent, interest from the time that the attempt at settlement was made between her and the adjuster of the company, and the refusal on the part of the company to pay the loss.”
These were all the instructions given, except the usual instructions as to weight of evidence. The defendant moved for judgment on the findings, which motion was overruled} and exception saved. The defendant also moved for a new trial, and gave as its reasons therefor, among others, the' following :
“1. Error of law occurring at the trial and excepted to by the defendant.
“ 2. The court erred in refusing the first special instruction asked by the defendant” — said instruction being the one heretofore copied.
The record does not contain the evidence in the case. Under the provisions of the policy sued on, the plaintiff must establish one of two things in order to recover: (1) She must show that she made proof of loss in substantial compliance with the terms of the policy before i . A the commencement of the suit; or (2) she must show a waiver of such proof of loss by the company. (Insurance Co. v. Hathaway, 43 Kas. 399; Insurance Co. v. Deford, 38 Md. 382; Insurance Co. v. Carpenter, 4 Wis. 20; Railroad Co. v. Insurance Co., 105 Mass. 570; Insurance Co. v. Schell, 29 Pa. St. 31.) The plaintiff does not in terms plead the making of proof of loss; but she makes the general allegation in her petition that she had done and performed all the conditions required of her by the terms of the policy and the schedule thereto attached. This general allegation is equivalent to an allegation, among others in the petition, of proof of loss made in compliance with terms of the policy. (Tripp v. Insurance Co., 55 Vt. 100; Cassacia v. Insurance Co., 28 Cal. 629; Insurance Co. v. Sweetser, 116 Ind. 370.) This was denied in the answer, and the jury find that no signed and sworn statement of loss was made. • The language of the jury’s answer to the question relating to proof of loss is narrow, but we think that it is equivalent to saying that the plaintiff made written proof of loss. A written statement of loss must be signed, to be identified, and before such statement becomes proof of loss, it must be sworn to, The proof of loss, to even substantially comply with the terms of the policy, must be in writing and verified by an oath. The plaintiff, having failed to make proof of loss, could not recover in the case unless she was in a position to prove a waiver of such proof by the company. Was she in such a position? We think not. There is nothing in the pleadings upon the subject of waiver. The plaintiff could not prove a waiver without first having plead it. (Dwelling-House Insurance Co. v. Johnson et al., 47 Kas. 1, and cases there cited. Also see the following cases: Vogel v. Insurance Co., 9 Gray, 23; Insurance Co. v. Capehart, 108 Ind. 270; Insurance Co. v. Dyches, 56 Tex. 565; McCormack v. Insurance Co., 78 Cal. 468; Weed v. Insurance Co., 7 Lans. 452.) Evidence cannot be given of matters not within the issues as formed by the pleadings. In Graham v. Trimmer, 6 Kas. 230, the court says:
“Proof must be confined to the issues made by the pleadings, and it is the duty of the court to insist upon a compliance with such rule.”
In Brookover v. Easterly, 12 Kas. 152, the court again says:
“The first- rule governing in the production of evidence is, that the evidence offered must correspond with the allegations, and be confined to the point in issue.”
It is suggested that as the evidence is not here we may not determine that proof of a waiver was not in fact made. We cannot presume that the rules of evidence were violated in the trial of the case below, but must presume that the evidence was confined to the issues, and that, as no waiver was alleged, none was proved, since it was the duty of the court to confine the evidence to the issues.
Eeference is made in the brief of defendant in error to the record of this case as brought here before, and now on file in this court. That case, however, is no part of this record, and we are confined to the record in this case. If counsel had desired to incorporate the former case-made, or any part thereof, into this record, he should have suggested its incorporation as an amendment to the case-made as presented by the counsel for the plaintiff in error, or in some other way made it a part of the record in this case. We cannot go outside of the record in this case to examine the evidence or any other portion of any other record in this court, unless authorized so to do by the record in this case. There is no reference to the former case-made in this record. Calling attention to it in the brief confers no authority on this court to examine it.
The question growing out of the change of occupancy of the building, after effecting the insurance and before the fire, was settled when the case was here before (40 Kas. 257).
The court should have given to the jury the instruction asked. Its refusal was error. The instruction asked was material, and correctly stated the law of the case Up0n tpe question to which it related. And the court failed to give any instruction at all upon the question involved in the instruction refused.
It is recommended that the judgment of the court below be reversed, and the case sent back for further proceedings.
By the Court: It is so ordered.
Horton, C. J., and Valentine, J., concurring. | [
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Opinion by
Simpson, C.:
The appellant, D. A. Johnson, was convicted in the district court of Cowley county of a violation of the provisions of an ordinance of the city of Win-, field. The complaint charges that the appellant, as agent of the Winfield Water Company, said company being engaged in supplying water to the inhabitants of said city for domestic, sanitary and other purposes, under a franchise from said city, as provided by certain ordinances of said city, did, upon tender being made him in actual money by the complainant for such purpose, unlawfully refuse to supply water to the complainant for hydrant supply, as provided by ordinance, for two lots, 50 feet front each, in said city, said company then having hydrant connection with such lots, such lots being owned by the complainant, contrary to and in violation of section No. — of ordinances Nos. 455 and 457 of said city of Winfield. In the police court, a motion was made to quash the complaint, upon the ground, among others, that it was indefinite, uncertain, did not describe the property, did not charge a particular violation of any one section of any one ordinance, did not allege the violation of an ordinance, or make any substantial statement of the provisions of the ordinance alleged to be violated. This motion was overruled, and a trial.had, at which the appellant was convicted. He appealed to the district court, and in that court renewed his motion to quash the complaint, for the reasons above set forth. This motion was overruled in the district court, and he was tried and convicted, and appeals to this court. .
While some latitude must be allowed in the construction of complaints filed in the police court charging persons with a violation of city ordinances, all the common safeguards and ordinary requirements of criminal pleading ought not to be entirely disregarded. As we view it, the complaint should have stated that a sufficient tender was made. Words ought, to have been used that would have conveyed the idea that all money required was tendered, or the amount of the charges-of the water company should have been stated, and followed by an allegation that the amount so specified was tendered. Any word or expression that means that a sufficient sum was tendered would be all that the most strict rules of pleading would require.
Again, the obligation of the water company to do the act. and perform the very thing that its agent is accused of unlawfully refusing to do must be positively alleged in the complaint; because, if it is not in the nature of a public obligation to the city, or to the public thereof, or to some of the inhab itants, created by law or contract, and to the refusal to perform- or non-perform is attached a penalty, it would not state any public offense. This complaint, instead of averring positively an obligation on the part of the water company to do the particular act refused to be done, simply states that the company was engaged in supplying water to the inhabitants of said city for domestic, sanitary and other purposes, and omits all mention of its obligations imposed by ordinance or otherwise.
These motions to quash were each made at the proper time, and ought to have been sustained. We have less than usual hesitation in declaring that the motion to quash was erroneously overruled, in view of other errors occurring at the trial that would have compelled a reversal of the judgment if the complaint could have been sustained. We recommend that the judgment be reversed, and the cause remanded to the district court, with instructions to quash the complaint and to discharge the appellant.
By the Court: It is so ordered.
All the Justices concurring. | [
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Per Curiam:
We have reexamined the questions presented, on the motion for a rehearing, and find no occasion to change the conclusion reached on the original hearing. There was sufficient testimony to warrant the court in submitting to the jury whether an oral contract was made between the parties, under which the shipment was made, or whether the written paper, signed after the stock was shipped, embodied all the negotiations and understandings of the parties and is alone controlling. The testimony of the defendant in error tends to show that there was no agreement limiting the liability of the company when the stock was accepted by the company for shipment, and that the bill of lading or contract was not signed until the stock had passed from the control of the shipper. If the oral agreement was complete and the stock had been accepted by the company unconditionally, it is difficult to find a consideration for any subsequent agreement. As a general rule, the conditions of a bill of lading limiting the liability of the carrier must be agreed to by the shipper when the stock or goods are accepted by the carrier. If, however, there was no oral agreement concluded between the parties, and it was understood that the terms and conditions were to be settled when the parties returned to the station, after the stock had been accepted, the agreement then made would be binding upon both parties. Then, again, if there was an habitual course of dealing between the parties, to sign a receipt or contract embodying the agreement between them- ’ selves after the shipment was made, and that course was pursued in this instance, the condition of such a contract would govern. (Hutch. Carr., §246.)
In view of some testimony in the case, this rule might well have been given to the jury, but if in the new trial of the case there is testimony of like effect, an instruction of this character may be given at that time.
The rehearing will be denied. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin, brought in the district court of Ness county on March 7, 1888, by S. F. Gray against J. W. Clouston, sheriff of said county, to recover certain personal property previously levied on by Clouston under an execution issued in an action wherein Leander Rokes was the judgment creditor and James Gray was the judgment debtor. The property was levied on as the property of James Gray. The defendant answered on March 9, 1888, by filing a general denial. In May, 1888, the case came up regularly for trial, but was continued to the next term of the court by the consent of both parties. The history of the case from that time on till February 4,1889, is not given. On February 4, 1889, the defendant, by his attorney, J. G. Ibach, filed a motion supported by affidavit, which will hereafter be given, asking for a continuance of the case until the next term, which motion was overruled by the court, and on the next day, February 5, 1889, the case was tried before the court and a jury, and the jury rendered a verdict in favor of the plaintiff and against the defendant, which verdict reads as follows:
“We, the jury impaneled and sworn in the above entitled case, do upon our oath find that the plaintiff was entitled to the possession of the property in question at the commencement of this action, and that the value thereof is $208, and that his damages are $395.”
Within proper time the defendant filed a motion for a new trial, which was overruled by the court, and he afterward, as plaintiff in error, brought the case to this court for review.
The plaintiff in error, defendant below, urges in’ his brief five grounds for reversal, which will be considered in their order. But, before proceeding to consider the same, it will perhaps be proper to state the principal facts of the case. On and prior to December 22,1887, James Gray owned the property in controversy, and on that day he mortgaged the same to the aforesaid Leander Rokes to secure a promissory note for $110, due in 60 days. About February 15, 1888, James Gray sold the property in controversy to S. F. Gray, the defendant in error, plaintiff below, subject to the aforesaid chattel mortgage, which S. F. Gray agreed to pay, and S. F. Gray took the possession of the property. Rokes, the mortgagee, never had the possession of the property. On March 3, 1888, S. F. Gray paid the amount of the aforesaid note and mortgage to Rokes. Afterward, but on the same day, Clouston, as sheriff of the county, levied the aforesaid execution upon the property in controversy; and, on the same day, but afterward, Rokes released and discharged the mortgage upon the records in the office of the register of deeds.
I. The plaintiff in error (defendant below) claims that the court below erred in giving the following, among other instructions, to the jury:
“ When a man buys a piece of property that has a mortgage on it, or buys the man’s equity in it, he buys it subject to that mortgage; and when he goes and pays the mortgage off then it is his, and that lets the other man out of it.”
We think this instruction states the law correctly. The aforesaid mortgaged property was purchased before the mortgage became due; but, even if it had not been purchased until after the mortgage became due, still this instruction would be correct.
II. It is claimed that the verdict is insufficient, for the reason that it does not show that the property was wrongfully detained by the defendant below. There is no express statement in the verdict to that effect; but taking the issues as presented by the pleadings, and the evidence as introduced on the trial, and construing the verdict in the light of the issues- and the evidence, and it shows beyond all question that the defendant below did wrongfully detain the property. The whole question of the wrongful detention of the property by the defendant depended upon the further question: Which of the parties was entitled to the possession of the property?' And the jury expressly found in favor of the plaintiff below upon this question, and that the plaintiff below had suffered damages to the amount of $395.
III. It is further claimed by the plaintiff in error, defendant below, that the judgment of the court below was erroneous, for the reason that it was not rendered in the alternative for a return of the property in controversy, or for its value in case a return could not be had, but was rendered only for its value, and for damages and costs. The judgment-perhaps ought to have been rendered as the plaintiff in error, defendant below, claims, but still, under the facts of the case, no material or substantial error was, committed, and no reversal can be had in any case unless it is affirmatively shown that such an error was committed by the lower court. (Marix v. Franke, 9 Kas. 132; K. P. Rly. Co. v. Little, 19 id. 267;. Hamilton v. Miller, 46 id. 486.) In this case, no order of delivery was ever issued; hence the provisional or interlocutory portion of the action of replevin provided for by the civil code was not resorted to or invoked, but only the permanent and final portion of such remedy was sought; and it has already been held by this court that the action of replevin may be maintained although no order of delivery has been issued in the ease prior to the judgment. (Batchelor v. Walburn, 23 Kas. 733.) As no order of delivery was issued in this case, the-defendant below was permitted to retain the possession of the-property, and shortly after the commencement of this action he sold a portion thereof, three horses, and placed the custody thereof beyond his control, and deprived himself of the power to return it to the plaintiff below, even if a judgment for its-return had been rendered against him. With respect to the-remainder of the property levied on by the defendant and not sold by him, to wit, two mules and a buggy and a set of double harness, he returned the same to the plaintiff after the commencement of this action and before the trial thereof. The jury evidently in their verdict found the value of only that portion of the property which was sold by the defendant, and not that portion of the same which was returned by him to the plaintiff; and the damages which the jury found were-evidently such as resulted from the wrongful detention of all the property while the defendant detained it. The i&alue of the whole of the property was more than $600. The judgment of the court below was rendered in accordance with the-verdict. We think it is therefore not for the plaintiff in error, defendant below,-to complain of the judgment as it was-in fact rendered. If it was thought necessary, we could order the judgment to be corrected so as to give the defendant an opportunity to return the property, but it is not thought necessary.
IV. The next alleged error is, that the court below erred in-refusing to grant the defendant below a continuance. The affidavit for the continuance reads as follows: . •
“ Comes now J. G. Ibaeh, who, being first duly sworn, on oath says, that he is the attorney for defendant herein, and that he cannot safely go into the trial of this cause at this time on account of the absence of one .James Gray, a material witness for defendant herein; that he expects to prove by the said witness that the property in controversy herein, and which is sought to be recovered by this plaintiff, was the property of the said absent witness, James Gray, and that this plaintiff never did have any right, title or interest in the same; which facts are true; that the said witness left some time ago, telling affiant that he was going to Oregon on a visit, and would return to Ness county, and would be present when this trial would be heard; and affiant, relying on this promise and believing that he would return, did not have a subpoena issued, for the further reason that he did not know the exact whereabouts of the said witness, and that no notice to take the deposition of the said witness was given for the same reason, although affiant has endeavored to find the exact whereabouts of the said witness; that he was at one time informed that he could be found in Portland, Oregon; that he at once wrote to attorneys living in said city, but they were unable to find him, in order that his deposition could be taken; that he has used all the diligence to find said witness, by inquiring of his whereabouts at home, and by writing to different localities in Oregon where affiant was informed he could be found, but up to this time has been unable to find him; but that if a reasonable amount of time is given his whereabouts can be found, which affiant believes to be in Oregon or Washington Territory, and his evidence procured; and that he cannot prove the said facts by any other witness whose evidence can be procured; that this affidavit is not made for delay, but that justice may be done.”
Did the court below commit reversible error by refusing to grant the continuance?
“The granting or refusing a continuance is largely within the discretion of the trial court, and unless it is shown that the trial court has abused its discretion in such a case, the appellate court will not reverse its rulings.” (Payne v. National Bank, 16 Kas. 148; Hottenstein v. Conrad, 9 id. 436; Davis v. Wilson, 11 id. 74; Swenson v. Aultman, 14 id. 273; Bliss v. Carlson, 17 id. 325; Tucker v. Garner, 25 id. 454; Board of Regents v. Linscott, 30 id. 259.)
The affidavit for the continuance should generally be made by the party asking the continuance. (Baker v. Knickerbocker, 25 Kas. 288.) But where the affidavit is made by some other person, the reason therefor should generally in some manner be shown; as, that the applicant was absent, or that the person making the affidavit was better acquainted with the facts stated therein than the defendant. In the present case the defendant, Clouston, was a mere nominal party. Rokes was the real party in interest on the defendant’s side. But the affidavit was not made by either the defendant of Rokes, but was made by the attorney of the defendant. As to the most of the matters and things set forth in the affidavit, it appears that the attorney was better acquainted with such matters and things than either the defendant or Rokes, and to that extent the affidavit was perfectly right. The most material portion of the affidavit, however, is that portion which purports to set forth the testimony of the alleged absent witness, James Gray; and with reference to this testimony the affidavit shows as follows:
“ That he [the affiant] expects to prove by the said witness that the property in controversy herein, and which is sought to be recovered by this plaintiff, was the property of the said absent witness, James Gray, and that this plaintiff never did have any right, title or interest in the same; which facts are true.”
Now, while the affiant probably had some knowledge of what the testimony of the absent witness might be, and may possibly have had a better knowledge of the same than either the defendant or Rokes, yet there is nothing in the affidavit or elsewhere that shows it. Also, the party applying for a continuance should state the facts in his affidavit which he believes the absent witness would prove, in the same manner as such facts are usually stated in a deposition. (Payne v. National Bank, 16 Kas. 147; Board of Regents v. Linscott, 30 id. 260.) This should be done, so that the adverse party might admit the alleged evidence of the absent witness and proceed with the trial. (Civil Code, § 317.), The facts as stated in a deposition are not the final or ultimate facts which are to be found and determined by the jury, but are the evidential facts, the probative facts, the facts to be used merely as evidence of the final or ultimate facts to be found by the jury. Witnesses in giving their testimony, whether such testimony is to be placed in a deposition or not, are seldom if ever permitted to state the final or ultimate facts, but are permitted to state only such facts as constitute proper evidence of the final or ultimate facts. The facts stated in an affidavit for a continuance as the evidence of an absent witness should be stated in the same manner. The party asking for a continuance must also show by his evidence that he has used due diligence to procure the testimony of the absent witness. Mere promises from the.absent witness that he will be present at the trial and testify in the case are not sufficient. (Educational Assoc’n v. Hitchcock, 4 Kas. 36; Campbell v. Blake, 13 id. 62; Swenson v. Aultman, 14 id. 273; Wilkins v. Moore, 20 id. 538; Tucker v. Garner, 25 id. 454.) Where it becomes necessary to make inquiries with regard to procuring the testimony of the absent witness, the affidavit should show of whom the inquiries were made, and when, and where, and how made. (Kilmer v. St. L. Ft. S. & W. Rld. Co., 31 Kas. 84.)
In the present case, the affiant inquired by writing a letter to attorneys in Portland, Oregon, and also by writing to different localities in Oregon; and the affiant also made inquires “of his whereabouts at home;” but of whom he made the inquiries, and when, and where, except “at home,” and where this “home” was situated, is not shown. We suppose that the “home” meant was that of the witness, and probably in Ness county; but of whom the inquiries were made at this “home” we cannot guess. The affiant also says that the “ witness left some time ago, telling affiant that he was going to Oregon on a visit, and would return to Ness county, and would be present when this trial would be heard.” Now just when or how long ago this “some time ago” wks, is not shown; but why did not the affiant or the defendant or Rokes take the witness’s deposition before he left? .By what right did the affiant or the defendant or Rokes rely upon this witness’s promises? This court has held that parties must not rely upon the promises of a witness, but must take the legal steps necessary to procure his testimony. (See authorities above cited.) It must also be remembered that in this case the defendant answered and the issues were all made up on March 9, 1888, and the case was continued from time to time until February 4, 1889, nearly a year, when this application for a continuance was made. (St. L. W. & W, Rld. Co. v. Ransom, 29 Kas. 303.) Also, it would seem that if in fact James Gray owned the property in controversy, and if the plaintiff did not own it, many witnesses could have been found to testify with regard to the facts. (Board of Regents v. Linscott, 30 Kas. 260.)
It would seem that the facts as to who held the possession of the property, who assumed acts of ownership over it, who claimed to own it, etc., could have been shown by other witnesses. It is claimed in the brief of the plaintiff in error, defendant below, that “the defense to this replevin suit was that the property in reality belonged to James Gray, but that, if it had been transferred to S. F. Gray, it was in pursuance of a fraudulent conspiracy to prevent the creditors of James Gray from collecting their debts!” It is certainly true that the defendant below had no possible defense and no possible means of defeating the plaintiff’s action unless he could show that the sale and transfer of the property from James Gray, the absent witness, to S. F. Gray, the plaintiff in the action, was a sham and a fraud, made with the intent to defeat the creditors of James Gray in the collection of their debts; and if this is what the defendant below or his attorney, who was the affiant in the affidavit made to procure the continuance, or Rokes, wanted to show by the absent witness, then why were not the facts tending to show that the sale was a sham and a fraud set forth in the affidavit? The affiant could have set forth in his affidavit all the facts connected with or concerning the sale or tending to show that it was a sham. He could have set forth in the affidavit that James Gray would have testified, if present at the trial, that he was largely indebted (giving details); that he pretended to sell the property to S. F. Gray for.the purpose of defrauding his creditors; that S. F. Gray had knowledge of such intention; that S. F. Gray did not pay him anything for the property; that James Gray continued in the possession of the property; that S. F. Gray never had possession thereof; that James Gray continued to claim the ownership thereof; that S. F. Gray never claimed to be the owner, but, on the contrary, admitted that he was not the owner and that James Gray was; and that both James Gray and S. F. Gray had full knowledge of all these matters and things; and the affiant should have set forth in his affidavit all these matters and things in greater detail than we have stated them. None of these things were set forth in the affidavit.
It is not to be supposed, however, that James Gray would have testified to any such things, and probably, from the evidence in the case, none of them casting any suspicion upon the bonafides of the sale and transfer from James Gray to S. F. Gray were true. If they had been true, some of the neighbors would probably have known something about it; but, so far as any testimony of the neighbors is concerned, their testimony tended to show good faith. If the affiant or the defendant or Rokes intended to rely upon any of the facts above set forth, the affiant should have stated them in his affidavit for a continuance, and should not have set forth, as he did, merely the ultimate fact of ownership, which was really the only disputed ultimate fact in the case, and the only one for the jury to determine. It is not the province of a witness to invade the province of the jury. If the property belonged to the plaintiff he had a right to recover in the action; but if it belonged to James Gray, then the defendant had the right to recover; and that is about all there was for determination in the case. That was the substantial and ultimate fact in issue; and instead of setting it forth in the affidavit as the evidence of the absent witness, the affiant should have set forth the facts or evidence tending to prove this ultimate fact. The affiant might just as well have set forth in his affidavit that he expected to prove by the absent witness his side of the issues in the case, as to set forth what he did. Such is not the way to prove owner ship or to prove ultimate facts. (See Simpson v. Smith, 27 Kas. 565, 569, 573.)
We think the affidavit for the continuance is defective in several respects, and yet we think it is sufficiently good to have authorized the court below in its discretion to grant a continuance; but taking into consideration the defects in the affidavit, and the fact that the granting or the refusal of a continuance rests largely in the discretion of the district court, we cannot say that such court committed any reversible error by overruling the application for the continuance.
V. It is finally claimed that the court below erred in overruling the defendant’s motion for a new trial, but nothing new is presented upon this ground for reversal.
The judgment of the court below will be affirmed.
Horton C. J. concurring. | [
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Opinion by
Stjrang, C.:
Action in ejectment, for the recovery of the possession of a tract of land 80 feet by 225 feet, part of a larger tract fully described in the petition in the case. The case was tried by the circuit court of Shawnee county, resulting in a judgment for the plaintiff below. Motion for a new trial was heard and overruled. The court below: made the following findings of fact:
“ 1. The plaintiff became the owner of part of the land in controversy on June 8, 1868, and the remainder on May 5, 1871.
“2. Taxes have been assessed on the entire tract of land belonging to the plaintiff by its description, as a tract 224 feet by 225 feet, every year since then, and these taxes have all been paid by the plaintiff, and which included the tract in controversy.
“3. The land in controversy has never at any time been platted or laid off into "blocks, lots, streets or alleys by the owner or proprietor thereof, nor has any owner or proprietor at any time ever consented to such plat or laying-off of such land.
“4. The land in controversy is level-lying land, as is also that adjacent to it. Prior to the bringing of this action, said land was never cultivated or inclosed, nor was it at any time occupied or improved by the plaintiff in any manner.
“ 5. There has been a traveled way or road over the land in controversy ever since 1869, which was started as random road, over which, sin'ce then, there has been travel, increasing in amount with the increase in population. At the time such road was started, it was the habit and custom of the people in the vicinity of the land in controversy to make roads over such lands, situated as this land is, for and at their convenience, across lots, diagonally over lots and blocks, changing the course of roads as the country became fenced, and it was in this manner that the road was started over the land in question. The width of such traveled road over the land in question was not more than 20 feet.
“6. The city of Topeka is a city and municipal corporation of the first class, and has been such ever since the year 1881, prior to which time it was a city of the second class, and situated in the county of Shawnee.
“7. In July, 1869, one Zenas King made and filed a plat of what he called ‘King’s Addition to the City of Topeka,’ which included all the laud of plaintiff described in the petition, and the land in controversy, and in and by which plat the said land of plaintiff was laid off into blocks, lots, streets, and alleys, and that particular portion being the land in controversy was platted by King as Twelfth street. King, in the explanation to said plat, declares that the same was not to be construed against the rights of any person or persons claiming the whole or any part of such portion of said addi- ■ tions as are contained within the bounds of the red dotted lines exhibited thereon, or as against the right-of-way of any public highway; that within such dotted lines was the entire land of plaintiff as described in his petition.
“8. Thereafter, on February 28,1871, April 15,1875, and February 25, 1882, the city of Topeka passed and published three certain ordinances, annexing and taking into the city of Topeka the said King’s addition; and under these ordinances it was claimed and asserted by the city that the land of plain tiff was annexed, taken into and made a part of the city of Topeka; that, other than these three ordinances, no other ordinances were had, taken or made to take into the said city and annex as a part thereof any of the lands of plaintiff described in petition.
“9. In 1879 the city of Topeka graded the land in controversy as a street, putting ditches along the sides, and in the same year constructed a stone cross-walk along the west side of Western avenue, crossing Twelfth street, and one on the north line of Twelfth street, crossing Western avenue, and ever since that time said city has maintained said cross-walks.
“10. March 6, 1882, the petition of 31 persons was presented to the city council of the city of Topeka, asking for the opening of Western avenue between Tenth avenue and Twelfth street. This petition was referred to the committee on streets and walks, and on March 13, 1882, the committee reported that the owners of all the property affected by the street named being closed purchased with a knowledge that James Brewer’s house stood in the middle of the street as laid out, and paid price accordingly; and, in the opinion of said committee, it is not doing justice to the tax-payers of the city to levy a general tax for the benefit of the few, and we would recommend that the city pay the sum of $500, provided the interested parties raise the balance, which report, on March ' 13, 1882, was adopted.”
“12. In the year 1882 the city of Topeka duly passed an ordinance vacating five feet on the north side of Twelfth street, from Western avenue to West street, which West street lies several streets west of Fillmore street.
“13. On January 8, 1883, Sarah Caldwell and others presented the following petition to the mayor and council men of defendant: ‘The undersigned would respectfully represent to your honorable body that they are freeholders of said city, owning lots on the east side of Fillmore street, between Eleventh and Twelfth streets, in said city of Topeka, Kas.; that they were induced, amongst other reasons, to buy said lots and make their homes thereon by the fact that King’s addition to the city of Topeka, on file in the office of the register of deeds of Shawnee county, Kansas, shows an alley in the rear of said lots; that said alley has never been opened, but, on the contrary, is now fenced up by one John Armstrong, who claims to own the ground thus shown and marked on said plat as an alley; that these petitioners, by tbe fencing up of said alley, are greatly annoyed and hindered in the enjoyment and use of their property, said city lots on the east side of Fillmore street, between Eleventh and Twelfth streets, in said city of Topeka, Kas, by them purchased according to the plat above mentioned. Wherefore, your petitioners humbly request and petition your honorable body to take at the earliest possible moment the necessary steps to have the alley in the rear of said lots above mentioned opened up’ — which petition was referred to a committee of three council men; that on February 9, 1883, the committee submitted their report, recommending that a committee of three property-owners, not connected with the council, be appointed to confer with the parties to whom the property belongs, and ascertain the cost to the city of opening said streets without consideration on the part of the city, and report at an early date; that such committee of property owners was duly appointed; that on August 13, 1883, the special committee of property-owners above mentioned submitted their report in writing to the council, which report was read and ordered filed, and is as follows:
“ ‘ To the Honorable Mayor and Councilmen of the City of Topeha:
“‘The undersigned appraisers, duly appointed by your honorable body on June 4, 1883, for the purpose of assessing the value and damages of land to be appropriated for the use of the city of Topeka for streets and avenues, and more fully described in ordinance No. 484, approved May 22, 1883, a copy of which is hereto attached, marked ‘Exhibit A,’ respectfully submit their report:
“‘On the 12th day of June, 1883, the undersigned appraisers took and subscribed respectively the oath of office, which oath is hereto attached and marked ‘Exhibit B.’ On the 13th day of June, 1883, we served written notice as required by law to James Brewer, John Armstrong, E. W. Giles, and J. Q. Gowee, owners of the several parcels of land to be appropriated by said city as aforesaid. Said board of appraisers met on June 25, 1883, at the hour of 2 o’clock p. m., on the premises described in the ordinance hereinbefore mentioned, and assessed the value of damages of the several pieces of ground, and after careful investigation of the title in and to the several premises set aside said first appraisement. Thereupon, on the 18th of August, 1883, said board of appraisers caused a new notioe to be issued and served upon James Brewer, E. W. Giles, John Armstrong, and J. Q. Cowee, the three former persons residing in the city of Topeka, and J. Q. Cowee residing at Grand Haven, Osage county, Kansas. On the 23d day of August, 1883, at 2 o’clock p. m., the undersigned appraisers met at the place described in the ordinance hereinbefore mentioned, and upon actual view assessed the value and damages of the several parcels of land to be appropriated for the use of the city of Topeka for streets and avenues, as follows : To James Brewer, damages for opening King street and Western avenue, $2,400; to E. W. Giles, damages for opening Western avenue, $56; to John Armstrong, damages for opening Western avenue, $150; to J. Q. Cowee, damages for, opening Western avenue, $350. The location and also number of feet to be appropri ated off of the several pieces of grounds are shown upon the plat marked 1C ’ and made a part of this report.
“‘We submit also to your consideration the following: Mr. J. Q. Cowee will deed to the city of Topeka so much of his land as is necessary for the opening of Western avenue and Twelfth street for the sum of $650, and we would recommend to your honorable body the purchase at that price, it being in our judgment necessary that Twelfth street be opened to the public, and we deem the price reasonable. All of which is respectfully submitted. J. N. Stbiokleb,
T. L. Stbingham,
S. Guntheb,
Board of Appraisers.’
“The persons comprising the above board of appraisers were the committee of three property-owners before mentioned, and which report was approved by the mayor and counoilmen of defendant.
“14. The first formal steps taken by the mayor and councilmen of defendant to open Twelfth street, to the east and to the west of the land in controversy, was in 1883.
“15. In the year 1884 the city of Topeka built a sidewalk on the western line of Western avenue, over that part of the land of plaintiff as described in-the petition, and extending from the north line of plaintiff’s property to the north side of Twelfth street, which was charged on the tax-roll of Shawnee county against the entire tract described in the petition of the plaintiff, and which plaintiff paid.
“16. In the year 1889, and after the commencement of this suit, the city of Topeka built a sidewalk on the north line of the land in controversy, and which was charged on the tax-rolls of Shawnee county against the entire tract of plaintiff described in his petition.
“17. In April, 1889, the city of Topeka, by ordinance, authorized the Topeka Rapid Transit Railway Company to lay down its track in, and operate its line of street railway along and over Twelfth street, and that year, immediately thereafter, said railway company laid down its tracks in Twelfth street and over the land in controversy, and ever since then has operated its line of railway along and over the same.
“18. The plaintiff is a farmer, living upon his farm, in Osage county, Kansas, 27 miles from the city of Topeka; he purchased the entire tract described in the petition with the inlention and design of some day building a residence thereon and coming to Topeka to live; he has lived in Osage county for 35 years, and during all of that time has been in the habit of coming to Topeka, sometimes at very frequent intervals, and at other times not so often; in the last 10 years he has only visited or seen the land described in the petition of the plaintiff but twice; he never had any actual notice from the city or anyone else concerning the building of the sidewalks which were laid on his property hereinbefore stated, and his first actual knowledge of any such sidewalks was when he discovered the tax therefor when he came to pay his taxes, and which charges he paid; in the year 1883, after the cross-walks were built and ditches dug, and in the spring of 1889, he went upon the premises, and for the first time, on his last visit, had any actual knowledge that the cross-walks hereinbefore found had been laid across his property; he never knew or had actual knowledge of any ditch having been dug or made by the city over the land in question until so informed on this trial; he had no knowledge of the platting of his lots by King in the plat heretofore found, except as he has ascertained on this trial; he has never authorized or consented to the same, and the plaintiff did not know that the railroad was built, or going to be built, until he saw it, in the spring of 1889.
“19. The land in controversy is correctly described in the ■ petition, and lies in and is that part of what may be termed Twelfth street, commencing at the east line of Western avenue and extending westward 225 feet, and being 80 feet wide.”
“21. Ever since the filing of the plat of King’s addition to the city of Topeka, in 1869, Twelfth street, both east and west of the land in controversy, has been an open public street 80 feet wide.
“22. During the last 10 years the plaintiff has been in the city of Topeka at least 50 times, and several times in each year.”
“ 25. The land in controversy lies two blocks south and five blocks west of the southwest corner of the square on which the Kansas state capítol is built.
“26. In 1883 the city of Topeka instituted proceedings for the condemnation of certain property, and among others condemned lands claimed by plaintiff,'for the purpose of opening Western avenue, and the same was described in such proceedings as ‘a tract 119 feet wide off of the east side of his tract of land, and running south in Western avenue to the north line of Twelfth street,’ and awarded plaintiff therefor the sum of $350, which sum the plaintiff at the time accepted and still holds, and being that portion on the plat within red dotted lines.”
Upon said findings of fact, the court found the issues in favor of the plaintiff below and entered judgment accordingly. Both parties are satisfied with the facts as found by the court, but the city challenges the conclusions of law arrived at by the trial court. It contends that the facts as found by the court show that the land in controversy belongs to the city, as a part of Twelfth street. Its first claim is that the land became established as a part of Twelfth street by prescription; and, second, that it became and is a part of such street by dedication.
Under the findings of fact, has the city obtained title to the land in controversy, as a part of Twelfth street, by prescription? We think not. Prescription is a mode of acquiring title by long-continued enjoyment. By some authors it is held to be based upon a prior, forgotten grant; by others, as applied to streets and highways, a grant is not considered the foundation of the claim, but it is based upon a presumed prior record, made according to law. Chief Justice Shaw says the right by prescription, as applied to a street, is founded upon the presumption that the way was, “at some anterior period, laid out and established by competent authority.” The period during which it takes the user or enjoyment to ripen into a right by prescription varies with the decisions of the different states. But it seems to be pretty well settled that the user must be for a period of time equal to that fixed by statutes as the periods of limitations in respect to real actions. (3 Kent Com. 442; 12 Wend. 330; 19 id. 365; 27 Yt. 265; 4 Md. Ch. 386; 13 N. H. 360; 10 Serg. & R. 63; 9 Pick. 251; 14 Barb. 511; 3 Me. 120.)
The user, then, to create a title by prescription to a public street, must be under a claim of right by the pub-7 , ° J L , he, adverse to the right of the owner, and contmued without substantial interruption or change for a period equal to the statutory limitation in respect to actions for the recovery of real estate. (Elliott, Roads & St. 137.) In Shell-house v. The State, 110 Ind. 509, the court says:
“Before a highway can be established by prescription, it must appear that the general public, under a claim of right, and not by mere permission of the owner, used some defined way, without interruption or substantial change, for a period of 20 years or more.”
In Wallace v. Fletcher, 30 N. H. 434, it was held that the enjoyment or user necessary to create title by prescription must be under claim of right, with the knowledge and acquiescence of the owner, and uninterrupted. In The State v. Tucker, 36 Iowa, 485, it was said that—
“To establish a highway by prescription, there must have been a general, uninterrupted use of the same, as such, by the public, under claim of right, for a period equal to that for the limitations of real actions.”
The court, in Graham v. Hartnett, 10 Neb. 518, says:
“ The existence of a legal public road over the premises of a private person may be shown by the user alone, but in such casé the user must have been with the knowledge of the owner, and continued the length of time necessary to bar an action to recover title to the land.”
In The State v. Mitchell, 58 Iowa, 567, the court says:
“A highway cannot be established by user alone, although the owner of the land had knowledge of such use, unless the owner also had express notice that a highway was claimed, independent of the mere use.”
(41 Iowa, 693; 77 Pa. St. 432; 41 Wis. 490; 63 Me. 434; 30 Ind. 389; 103 id. 349; 55 Am. Rep. 618; 105 Mass. 317; 35 Wis. 376; and 108 Ill. 467.)
The findings in the case show that there has been more or less travel on the part of the public across and over the land in controversy since 1869, but there is nothing in the findings to show that the defendant had any knowledge of the user of his land by the public for such period, nor for any period equal to the period of' the statute of limitations for real actions in this state. There is nothing in the findings to show that the occupancy by the public of the land, such as it was, was adverse to any right or use of such land by the plaintiff until 1879, when the city graded the land as a street and put ditches along the sides thereof, and constructed cross-walks thereon. And the findings show that the owner had no knowledge of this having been done until the spring of 1889. The twenty-first finding is pointed out by the city as evidence that the land in controversy is a public street. Said finding reads as follows:
“Ever since the filing of the plat of King’s addition to the city of Topeka, in 1869, Twelfth street, both east and west of the land in controversy, has been an open public street 80 feet wide.”
This is somewhat modified by the fourteenth finding, which is as follows:
“That the first formal steps taken by the mayor and councilmen of the defendant city to open Twelfth street, to the east and to the west of the land in controversy, was in 1883.”
If this finding is true, the city took no steps to open Twelfth street east and west of this land until 1883, and of course could not have opened Twelfth street across the land in controversy until 1883. From all of these facts as found by the court, it cannot be said that any of the conditions upon which the right to a street by prescription depends had any existence, except the mere user by the pubHc without any knowledge of the owner. Such user under the law cannot ripen into a prescriptive right.
Under the facts found by the court, is the city entitled to the land in question by reason of its having -been dedicated to said city? Again we must answer in the negative. Dedication is a setting apart of land for the public use. Dedication is either statutory or common-law dedication. There was no statutory dedication in this case. The plat filed by Zenas King was not filed with either the knowledge or consent of Mr. Cowee, the owner of the land, and he had no knowledge of its having been filed until after the commencement of this suit and not until the trial of the same. The plat itself notified the public that it was not intended to affect the land in dispute. Mr. Cowee was a non-resident of Topeka, living in Osage county, and saw this land but twice during the 10 years last before suit brought. Common-law dedications are either express or implied. There is nothing in the findings of the trial court that points toward an express dedication of the land by Co wee. On the other hand, the facts found negative the existence of an express dedication. If, then, there has been any dedication of the land to the public for a street, such dedication is an implied one, or dedication in pais. Such dedication rests, if at all, upon acts of the owner which forbid his denial of the existence of the street over the land in controversy. As said by the supreme court of the United States, “the law considers it in the nature of an estoppel in pais.”
“He who claims against the owner of the fee an easement in lands must show either a grant, a continued user for 20 years, or facts from which an intent to dedicate the land can be fairly inferred.” (Elliott, Roads & St. 96.)
“He who induces the public to believe his land a gift, or knowingly permits them to use or treat it as their own, until they have so accustomed themselves and adjusted their property and accommodated their business to it, that they cannot without detriment be dispossessed, confers that which he can no more resume without a wrong than he can rightfully seize what was acquired otherwise than by his gift.” “In such cases the party is estopped on grounds of public policy and good faith from repudiating his own representations.” (Elliott, Roads & St. 98.)
What acts of the owner of the land in controversy in this case evidence an intention to dedicate the land in question to the city for a street? We are unable to discover any in the findings of the court. These findings show that he purchased the land of which this land is a part for a residence lot, upon which some day, when ready, he proposes to build a home for himself. That he has maintained that purpose all these years since he obtained the land is further evidenced by the fact that he has never sold any portion of it. The whole tract is only 224 feet by 225 feet. What facts among 'libóse found by the court are pointed out by the plaintiff in error as constituting matter of estoppel on the part of defendant, Cowee? It cannot be said that he permitted and encouraged the public to use the land as and for a street, because under the findings he knew nothing of such user until shortly before the commencement of his suit to recover the possession of the same. It is claimed, however, that he is estopped by the fact that the city appointed viewers to condemn a portion of his land to open up Western avenue, and that the notice described the land to be condemned as a strip off of the east side of Co wee’s land and down to Twelfth street; and that said viewers reported damages to Cowee in the sum of $350, which he accepted from the city. The statement in the notice that the land to be condemned ran down to Twelfth street was the declaration of the city, and not of Cowee. Could Cowee be estopped by the declaration of the city that said condemnation proceedings would extend from some point to Twelfth street? We think not. He must be estopped by his own acts or declarations, or by the declarations of others in his presence, and under such circumstances as that his silence may be construed as an assent thereto.
Again, it is said that he built a livery stable on his1 land, fronting on Twelfth street. This barn was not erected until after this suit, was begun, and after the defendant had thereby emphatically declared that he claimed the land in dispute. The findings of the court show that the city has assessed the land in controversy for taxation each year since Cowee purchased it, and that he has at all times paid the taxes thereon. This constitutes a strong indication that the city has not claimed the land as a part of her streets.
There are some other facts found by the court, in the shape of petitions to the city council for the establishment of streets and lanes in the neighborhood of this land, that strongly indicate that the people living about the land did not consider Twelfth street open across this land. But as the law requires the city to establish a dedication of this land to the public for a street by the owner thereof before it can maintain its claim thereto, and as we do not think there is anything gn¿jDgS that concludes the owner, we will ■not go more into the detail of such findings. We find no reason in the record why the judgment of the circuit court should be reversed, and therefore recommend that it be affirmed. (45 Md. 512; 110 Ind. 509; 108 Ill. 467; 96 U. S. 716; 103 Ind. 349; and 36 Iowa, 485.)
By the Court:' It is so ordered.
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The opinion of the court was delivered by
Davis, J.:
Brandon C. Boone appeals his jury trial convictions of one count each of first-degree murder, aggravated robbery, aggravated burglary, and aggravated arson. He does not contest the aggravated robbery and aggravated burglary convictions but contends the evidence was insufficient to support the aggravated arson and first-degree murder convictions. He also claims that the district court should have given lesser included jury instructions for second-degree murder and involuntary manslaughter. We affirm.
Facts
On June 28, 2001, Mark Eads, the victim, attended a barbecue at the home of Bonnie Laurel. Zachary Steward approached Laurel and told her he was looking for Eads. Steward found Eads and they talked for a few minutes. They then left together in the direction of Eads’ home. About an hour later, Eads returned to the barbecue and told Laurel that he and Steward had gone to Eads’ house, that they smoked crack, and he had sucked Steward off. Eads told her that Steward had gone to a friend’s house on Bitting Street, and when he did not return, Eads decided to return to the barbecue. About an hour later, Steward returned to the barbecue and spoke with Eads. Steward and Eads again left the party around 10:30 or 11:00 p.m. for Eads’ home, taking with them three cans of Milwaukee’s Best beer.
About' 4 p.m. the same day, Rachel Mroczkowsld. went to see her friend Chelsie Christner and Chelsie’s boyfriend, the defendant Brandon Boone, at Christner’s home on 1216 Bitting Street. Mroczkowski testified that tire defendant left the house for about an hour and returned around 8 p.m. with a guy named Jose. Steward arrived at Christner s home and Jose gave Steward and the defendant tattoos before leaving.
Steward left the house for about 30 minutes, returned, and asked if anyone wanted to buy cocaine, and then left again for about 30 more minutes. Upon his return, Steward said he was at a guy’s house who was trying to sell him cocaine, and the guy grabbed him in the crotch and offered him a blow job in exchange for cocaine. Steward said he took beer and cigarettes and left; however, he repeatedly said that he “wanted to lack the fag’s ass and take his shit” in front of the defendant.
Nick Farinas also lived on Bitting Street close to Christner’s and was a friend of Chelsie and her brother Cory Christner. He arrived at Christner’s home around 12:30 a.m. on June 29, 2001. He verified that Steward told everyone present, Chelsie Christner, Mroczkowski, himself, and the defendant, that he had been touched at a party, that he wanted to find this guy and beat his ass, and that he wanted to steal items from the guy. Steward asked Farinas if he wanted to go “lack his ass,” but Farinas declined the invitation. Farinas went to the grocery store to buy cigarettes and upon his return, Steward and die defendant left Christner’s home.
Mroczkowski testified that the defendant and Steward left the house, were gone for about 30 minutes, and returned with a CD player. Later that evening, Mroczkowsi and the defendant were upstairs and Steward called for him saying that he had just thought of something really important and they needed to talk. The defendant told Mroczkowski that he had to leave for a litde bit to go “back to die fag’s house” to wipe up the fingerprints they had left. Steward and the defendant left again for about 45 minutes, returning around 3 a.m.
At approximately 3 a.m. on June 29, 2001, a house fire was reported in the 1200 block of North Jackson. The fire was located at 1218 North Jackson, and arson investigator Stuart Bevis testified that Eads rented this residence. Firefighters discovered Eads, who was deceased, slumped over a coffee table in a semi-kneeling position. Eads had multiple bums, smoke, and soot on his face and body, and he had blood around his face.
The arson investigator testified that the front and back door to the residence were unlocked and no signs of forced entry were discovered. He opined that the fire was intentionally set in a bookshelf in the dining room. He also testified that Eads’ bums were not consistent with' the position he was in during the time of the fire.
At the scene, police officers found a candlestick with blood and hair and a wooden staff with blood and biological matter. A computer printer was found on the dining room floor but no computer monitor or tower processing unit was discovered in the home. The serial number on the computer boxes in the house matched the serial number of the monitor subsequently discovered in the tmnk of the car the defendant had been driving. Cans of Milwaukee’s Best beer were found in the kitchen and on the front lawn. Steward’s fingerprint was found on the beer can on the front lawn.
The coroner who performed the autopsy observed bums on 50% of Eads’ body, blunt force injuries to his head and arms, bruising to his brain, and a stab wound on his head. He opined that the cause of death was smoke inhalation and thermal bums but the blunt force injuries and stab wound to the head contributed to his death. Eads had cocaine and marijuana metabolites in his system and a blood alcohol level of .18.
The following morning at approximately 10:50 a.m., the defendant, Steward, and Josh Huffman were observed on a surveillance tape trying to pawn a GPX stereo. Steward and Huffman then went to Farinas’ house and asked him to come to the Christner house because they had items to sell. Farinas went to the Christner house around 12:30 p.m. and saw a computer monitor, a CD receiver, two speakers, and PC unit in the tmnk of Cory Christner’s car. The defendant was at Christner’s house at this time.
Police executed a search warrant for the Christner residence Friday evening. They found the defendant hiding in the attic and arrested him. Later tests of the jeans the defendant was wearing revealed bloodstains, which upon examination revealed DNA consistent with the defendant’s DNA, with minor contributions from Eads. Blood on one of Steward’s shoes was also examined, reveal ing DNA consistent with Eads’ DNA and with minor contributions from Steward.
Cory Christner’s car was parked behind the Christner residence. Chelsie Christner testified that the defendant borrowed Cory’s car on Thursday and he returned the keys to her on Friday afternoon. Farinas witnessed the defendant returning the keys to Chelsie.
Police officers searched the car and discovered a stone with blood on it, two speakers, a GPX stereo, and Gateway computer equipment consisting of a monitor, a keyboard, a mouse, and a modem. Steward’s fingerprints were found on the car; the defendant’s fingerprints were found on the computer modem. Blood on the stone was examined, revealing blood consistent with Eads’ blood.
The defendant was charged with premeditated first-degree murder, felony murder with aggravated robbery or aggravated arson as the underlying felony, aggravated burglaiy, aggravated robbery, and aggravated arson. The defense did not request, nor did the district court instruct the jury on, any lesser included offense. The jury was given an aiding and abetting instruction.
The defendant was convicted of first-degree murder on the combined theories of premeditated and felony murder and was found guilty on all the remaining charges. He was sentenced to life imprisonment with the possibility of parole in 20 years and a consecutive term of 72 months’ imprisonment.
1. Sufficiency of evidence regarding aggravated arson and first-degree felony murder
The defendant advances the following two arguments:
(1) The defendant contends that there was insufficient evidence to establish that the property damaged was one in which another person had any interest, an essential element of aggravated arson. He acknowledges that “any interest” may include a leasehold interest but argues the arson investigator’s testimony that Eads was a “renter” was insufficient to show a leasehold interest as a matter of law. See State v. Rodriguez, 269 Kan. 633, 635, 8 P.3d 712 (2000) (“The words ‘any interest’ cover more than just a ‘fee simple in terest’ and include, for example, a leaseholder’s interest in real property.”).
(2) The State failed to prove he aided or abetted in the aggravated arson in that there was insufficient evidence that he intentionally promoted or assisted in the commission of aggravated arson or that tire aggravated arson was reasonably foreseeable from the crime of aggravated burglary or aggravated robbery. He argues the State did not prove that he was ever in Eads’ home, that he knowingly participated in or was aware of the arson, that he knew what happened to Eads, or that it was reasonably foreseeable that Steward would burn down the house.
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 (2003).
(A) Aggravated arson element of damaging a building in which
another person has any interest
The defendant was charged with aggravated arson, defined as knowingly, by means of fire or explosive, damaging any building or property which is a dwelling in which another person has any interest without the consent of such other person, and committed upon a building or property in which there is a human being. (Emphasis added.) K.S.A. 21-3719(a). In amending the arson statute from “property of another person” to the present statute using the words “any interest,” our legislature intended to expand the types of property interest protected by the arson statute. State v. Johnson, 12 Kan. App. 2d 239, 242, 738 P.2d 872, rev. denied 242 Kan. 905 (1987). Johnson concluded that “any interest” includes a leasehold interest in real property. 12 Kan. App. 2d at 243.
Black’s Law Dictionary 890 (6th ed. 1990) defines leasehold as “[a]n estate in real property held by lessee/tenant under a lease. The four principal types of leasehold estates are the estate for years, periodic tenancy, tenancy at will, and tenancy at sufferance. The asset representing the right of the lessee to use leased property.” Sufferance is defined as “[t]oleration; negative permission by not forbidding; passive consent; license implied from the omission or neglect to enforce an adverse right.” Black’s Law Dictionary 1432.
The defendant argues that an oral contract to lease realty for more than a year is void under the statute of frauds, citing K.S.A. 33-105, which provides that “[n]o leases . . . exceeding one year in duration, shall at any time hereafter be assigned or granted, unless it be by deed or note, in writing, signed by the party so assigning or granting the same.” See Daniel v. Leben, 188 Kan. 344, 348-49, 362 P.2d 634 (1961). In order to prove that Eads had a leasehold interest in the damaged building, the defendant contends the State would either have to provide nonhearsay evidence that the lease was for a year or less or provide a written lease agreement reflecting a lease for more than 1 year.
It is not incumbent upon the State to establish exactly what type of leasehold interest the “renter” or “tenant” has to satisfy the “any interest” used in our arson statute. This is true in this case where the issue of that interest is not contested by the defendant. All that is required is for the State to establish that the property damaged is a dwelling in which another person has any interest, and was damaged without the consent of the other person. The four principal types of leasehold estates are the estate for years, periodic tenancy, tenancy at will, and tenancy at sufferance. Key to understanding the arson statute is that there is no need to establish the exact nature of the interest of the other person if it is established that the other person had a leasehold interest in the dwelling. If such an interest is contested at trial, it may be incumbent upon the State to establish the nature of the leasehold interest. However, if the interest is not contested, and there is evidence that the other person is renting the property and occupied the dwelling, such an interest is sufficient under our arson statute.
In this case, the undisputed evidence was that Eads rented 1218 N. Jackson and that he resided at that home. See State v. Kimball, No. 60,434, unpublished opinion filed January 15, 1988 (“The evidence, disclosing that Courtney rented the property and was a tenant at the time of the fire, was sufficient to establish that interest in the property required by the arson statute. . . . The evidence was undisputed that Courtney rented the property, and thus had a leasehold interest.”); State v. Johnson, 12 Kan. App. 2d 239, 240-43, 738 P.2d 872, rev. denied 242 Kan. 905 (1987) (evidence establishing only that the Patton and Davis law firm leased the building from the owners was sufficient to satisfy the “any interest” element in the arson statute). Thus, we conclude that the undisputed trial evidence was sufficient to satisfy the “any interest” element of aggravated arson.
(B) To establish that defendant aided and abetted aggravated arson, it must be established that defendant intentionally participated in, intentionally assisted, promoted, or reasonably foresaw the aggravated arson.
The defendant argues that there was insufficient evidence presented to establish his guilt of the underlying felony of aggravated arson and, therefore, his felony murder conviction predicated in part on that felony must be reversed.
The jury was given the following instructions on aiding and abetting:
“A person who, either before or during its commission, intentionally aids, abets, advises, hires, counsels or procures another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant’s participation, if any, in the actual commission of the crime.”
“A person who intentionally aids, abets, advises, hires, counsels or procures another to commit a crime is also responsible for any other crime committed in carrying out or attempting to carry out the intended crime, if the other crime was reasonably foreseeable.”
The defendant cites a civil case decided by the Ninth Circuit regarding proof by circumstantial evidence. Fegles Const. Co. v. McLaughlin Const. Co., 205 F.2d 637, 639 (9th Cir. 1953), holds that such evidence is
“subject to tire rule that if the conclusion reached from the facts in the chain of circumstances is equally consonant with the issues to be proven and with some other theory or theories inconsistent therewith, it becomes a mere conjecture, and the rule of the burden of proof is not satisfied.”
The defendant contends it is equally likely from the evidence in this case that the defendant drove with Steward to the house, assisted him with the stolen items after Steward removed'them from the home, and then drove Steward back to wipe off fingerprints.
Fegles is not binding on this court. Moreover, it is a civil case and the defendant’s reliance on it is misplaced. Even Fegles notes that the above rule does not
“alter the general rule that in civil cases a preponderance of the evidénce is sufficient to establish the fact in issue. While the plaintiff must show that the inferences favorable to him are more reasonable or probable than those against him, the circumstantial evidence in civil cases need not rise to that degree of certainty which will exclude every other reasonable conclusion. . . . When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court’.” Fegles, 205 F.2d at 639.
This court has addressed a similar argument to that raised by the defendant in State v. Crosby, 182 Kan. 677, 685, 324 P.2d 197 (1958). Crosby was convicted of arson and argued on appeal that circumstantial evidence was insufficient to establish his guilt because such evidence might also be deemed compatible with innocence. This court rejected that argument, reasoning that “the question before this court is not whether the evidence is incompatible with any reasonable hypothesis except guilt. That question was for the jury and trial court, and the function of this court is limited to ascertaining whether there was a basis in the evidence for a reasonable inference of guilt.” 182 Kan. at 685.
A reasonable inference of guilt may be established by circumstantial evidence as Kansas case law is clear that a conviction for even the gravest offense may be sustained on circumstantial evidence. “Circumstantial evidence tends to prove a fact in issue by proving other events or circumstances which afford a basis for reasonable inference by the jury of the occurrence of the fact in issue.” State v. Evans, 275 Kan. 95, 105, 62 P.3d 220 (2003). The element of intent necessary to show aiding and abetting may be inferred from circumstantial evidence. State v. Dunn, 243 Kan. 414, 431, 758 P.2d 718 (1988).
In this case, evidence that the defendant, either directly or as an aider and abetter, knowingly damaged Eads’ home by means of fire was overwhelming. The defendant left with Steward, who proclaimed that he wanted to “lack the fag’s ass and take his shit.” The defendant returned a short time later with property taken from Eads’ residence. After a few hours, Steward had a discussion with tire defendant, and the defendant told his girlfriend that they were going “back to the fag’s house” to wipe up fingerprints. Around the same time that Steward and the defendant returned to the Christner residence, a fire was reported at Eads’ home. Eads was found dead with blunt trauma and cutting wounds, his blood was found on the defendant’s jeans, and the defendant’s fingerprints were found on property taken from Eads’ residence in the trunk of the car that the defendant had borrowed.
From this evidence, the jury could form a reasonable inference that the defendant accompanied Steward to Eads’ residence, assisted him in harming Eads and taking his property, and returned to the residence with the specific intent to remove evidence that they had left at the residence. Even if this evidence supported another theory of events, this court’s function is to determine whether a basis of evidence exists to support the jury’s determination of guilt. We conclude that sufficient evidence supported the defendant’s convictions of aggravated arson and felony murder.
Moreover, even if we were to conclude that insufficient evidence supported the defendant’s aggravated arson conviction, the felony-murder conviction depended not only on the aggravated arson but also depended upon the aggravated robbery. The jury was instructed that the felony-murder charge could be based on either aggravated arson or aggravated robbery. The defendant does not challenge his aggravated robbery conviction on appeal. In State v. Davis, 247 Kan. 566, 573, 802 P.2d 541 (1990), this court concluded that
“[a] defendant’s conviction for felony murder need not be vacated because of a rule requiring that a general guilty verdict be set aside if the jury was instructed that it could find the defendant guilty of felony murder on any two or more independent felonies, and one of the felonies is insufficient, if the jury expressly found a legally sufficient felony to support the murder conviction.”
2. Lesser Included Offense Instructions
The defendant did not request any lesser included instructions at trial but argues on appeal that the trial court should have instructed the jury on the lesser included offenses of second-degree murder and involuntary manslaughter under the premeditated murder charge. The jury convicted the defendant of first-degree murder under the combined theories of premeditation and felony murder without reaching an agreement as to which theory applied.
Where there is substantial evidence to support a conviction for a lesser offense, the trial judge is required to instruct on the lesser offense. However:
“ “When murder is committed during the commission of a felony, the rule requiring instructions on lesser included offenses does not apply. The felonious conduct is held tantamount to the elements of deliberation and premeditation which are otherwise required for first-degree murder. It is only when the evidence of the underlying felony is weak, inconclusive, or conflicting that instructions on lesser included offenses may be required. [Citations omitted. ]’ ” State v. Branning, 271 Kan. 877, 887, 26 P.3d 673 (2001).
The underlying felonies in this case were aggravated arson or aggravated robbery. As discussed in the previous issue, the evidence of the underlying felony of aggravated arson was not weak, inconclusive, or conflicting. The evidence of aggravated robbery in this case was likewise strong. The trial court was not therefore obligated to give lesser included instructions for the felony murder.
The question remains whether the defendant was entitled to instructions under the charge of first-degree premeditated murder. In State v. Hoge, 276 Kan. 801, 80 P.3d 52 (2003), the defendant, as in this case, was convicted under the combined theories of premeditated and felony murder without reaching an agreement as to which theory applied. Hoge appealed the trial court’s refusal to give lesser included instructions under the premeditated murder theory because the evidence of the underlying felony was not weak or inconclusive. We concluded that because the jury was divided regarding the theory for Hoge’s first-degree murder conviction, this court should review each theory separately to determine whether the jury should have been instructed on lesser included crimes. 276 Kan. at 805; see State v. Douglas, 274 Kan. 96, 103- 105, 49 P.3d 446 (2002), cert. denied 537 U.S. 1198 (2003); State v. Gilbert, 272 Kan. 209, 213-15, 32 P.3d 713 (2001); Branning, 271 Kan. at 886-87; State v. Rayton, 268 Kan. 711, 723, 1 P.3d 854 (2000); State v. Jones, 257 Kan. 856, 872, 896 P.2d 1077 (1995); State v. Walker, 252 Kan. 279, 297, 845 P.2d 1 (1993).
The defendant did not object to the instructions given, nor did he request any lesser included offense instructions for the charge of premeditated first-degree murder. K.S.A. 2002 Supp. 22-3414(3) provides:
“No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.”
The failure to give an instruction “ 1 “is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the jury would have returned a different verdict.” ’ ” State v. Sims, 262 Kan. 165, 172, 936 P.2d 779 (1997) (quoting State v. Valentine, 260 Kan. 431, 433, 921 P.2d 770 [1996]).
Second-degree murder is: “The killing of a human being committed: (a) Intentionally; or (b) unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” K.S.A. 2002 Supp. 21-3402.
Involuntary manslaughter is “the unintentional killing of a human being committed: (a) Recklessly; (b) in the commission of, or attempt to commit, or flight from any felony, other than an inherently dangerous felony as defined in K.S.A. 21-3436 . . .; or (c) during the commission of a lawful act in an unlawful manner.” K.S.A. 2002 Supp. 21-3404.
The district court has an affirmative duty to instruct the jury regarding all lesser included crimes that are established by the evidence regardless of whether the evidence is weak or inconclusive. State v. Davis, 268 Kan. 661, 681, 998 P.2d 1127, cert. denied 531 U.S. 855 (2000). An instruction on a lesser included crime, however, is not required if the jury could not reasonably convict the defendant of the lesser crime based on the evidence presented. Douglas, 274 Kan. at 103; Davis, 268 Kan. at 681.
The defendant contends that Steward’s statement that he wanted to “kick the fag’s ass” provides evidence that would support these lesser included instructions, reasoning as follows:
“If a person goes to a residence with intent to commit aggravated battery, but ends up causing such severe injuries that the victim dies, because the killing is not premeditated, a reasonable juror can find second-degree murder, and because the killing is not intentional, a reasonable juror can find involuntary manslaughter.”
While the evidence in this case supports the jury verdict on premeditated murder, it provides no basis for a jury verdict on second-degree murder or voluntary manslaughter. “Premeditation does not have to be present before a fight, quarrel, or struggle begins. Premeditation is the time of reflection or deliberation. Premeditation does not necessarily mean that an act is planned, contrived, or schemed beforehand.” State v. Scott, 271 Kan. 103, 108, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001). Premeditation may be inferred by the jury from various circumstances, including (1) the nature of the weapon used, (2) the lack of provocation, (3) the defendant’s conduct before and after the killing, (4) threats and declarations of the defendant before and during the occurrence, or (5) the dealing of lethal blows after the deceased was felled and rendered helpless. State v. Decker, 275 Kan. 502, Syl. ¶ 5, 66 P.3d 915 (2003).
The defendant left with Steward, whose stated intention was to “lack the fag’s ass and take his shit.” They returned with Eads’ CD player and left again after the defendant told his girlfriend they were going to wipe off fingerprints. A fire which was later determined to have been intentionally set was reported at Eads’ dwelling the same time the defendant returned to the Christner residence. Eads was discovered some time later with several blunt force injuries and a stab wound to his head. Eads’ injuries were severe enough to expose the bone and injure his brain. The coroner opined that Eads was still alive at the time of the intentionally set fire and that he sustained bums over 50% of his body. This evidence supports the conclusion that the defendant had the time and the opportunity to think about intentionally killing Eads. The defendant’s fingerprint was found on the computer equipment from Eads’ residence in the trunk of a car the defendant had borrowed, and the defendant attempted to pawn this stolen equipment the next morning. A stone with Eads’ blood on it was found in the trunk and Eads’ blood was On the defendant’s jeans.
The above circumstances echo and support the five circumstances from which this court has said an inference of premeditation may arise. See 275 Kan. 502, Syl. ¶ 5.
(1) The nature of the weapons used in this case consisted of a candlestick holder with blood and human hair on it found at the scene, a wooden staff with blood and biological matter on it, a stone with Eads’ blood on it, and a knife that the autopsy indicated was used to make a stab wound to Eads’ head. Finally, a fire was intentionally set resulting in smoke inhalation and thermal burns which contributed to Eads’ death. Eads’ injuries were severe enough to expose the bone and injure his brain.
(2) Other than the victim’s attempt to sell cocaine to Steward in exchange for a blow job, there is no evidence to suggest any provocation for the killing. The evidence establishes just the opposite and supports the inference that the victim’s sexual orientation provoked Steward and the defendant.
(3) Conduct before and after the killing indicates that a threat was made by Steward and shared with the defendant. At a time when the victim was still alive, Steward and the defendant returned to his home and intentionally set it on fire, which together with head trauma caused the death of the victim. After the killing, the defendant attempted to sell the victim’s property taken from his home the night of the killing.
(4) Threats and declarations of the defendant before and during the occurrence consist of Steward making threats before the killing, which threats were joined in by the defendant, that they wanted to beat the victim and steal items from him. Steward and the defendant returned to the victim’s house declaring that they intended to destroy evidence of their presence in the house. Upon their return, a fire was intentionally set, resulting in the final cause of the victim’s death.
(5) The dealing of lethal blows after die deceased was felled and rendered helpless is supported in this case by the intentionally set fire. Strong circumstantial evidence suggests that the victim’s house was intentionally set on fire, which was a lethal blow to the deceased after he was rendered helpless by the trauma to his head.
Under the circumstances of this case, we conclude that there was no reasonable possibility a jury would have found the defendant guilty of intentional second-degree murder or voluntary manslaughter. The trial court had no duty to instruct the jury on these charges and its failure to do so was not erroneous.
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The opinion of the court was delivered by
Gernon, J.:
Michael Shirley appeals his conviction of one count of conspiracy to manufacture methamphetamine. He raises two issues on appeal: (1) Was the complaint jurisdictionally defective, and (2) did the trial court erroneously instruct the jury on an uncharged version of the crime?
Shirley and Lonnie Smith drove Christina Johnson to her mother’s home in Hartford, Kansas, after Johnson was released from jail in Emporia. Before leaving Emporia, the trio stopped at Wal-Mart and purchased some plastic jugs and lithium batteries. They also stopped at a Casey’s convenience store, where Smith purchased gas and Shirley went inside, returning with two boxes of Sudafed. During the ride to Hartford, Shirley and Smith discussed manufacturing methamphetamine and told Johnson that they had all the ingredients except anhydrous ammonia. Johnson later testified that Shirley and Smith asked her to get the anhydrous ammonia.
The three arrived at Johnson’s mother’s house, and Johnson went inside to call her parents. Shirley and Smith waited in the truck outside the house, refusing to leave. Eventually, Johnson called the sheriff and reported that Shirley and Smith would not leave the premises.
When sheriffs deputies arrived and questioned Shirley and Smith, one of the deputies noticed a case in the bed of the truck. Smith indicated that the case contained rifles. Since both Shirley and Smith had criminal records, the deputy arrested them for possessing a firearm. The deputy then received consent to search the truck and found what he believed to be items accumulated for the manufacture of methamphetamine.
Shirley was charged with attempt to manufacture methamphetamine, conspiracy to manufacture methamphetamine, unlawful possession of pseudoephedrine, possession of methamphetamine, felony possession of drug paraphernalia, misdemeanor possession of drug paraphernalia, and possession of a firearm. The trial court granted Shirley s motion for acquittal for the charges of possession of methamphetamine and misdemeanor possession of drug paraphernalia but denied his motion on the other charges. The jury found Shirley guilty of conspiracy to manufacture methamphetamine but acquitted him on all remaining counts.
Shirley appealed his conviction to the Court of Appeals, which affirmed his conviction in State v. Shirley, No. 88,130, unpublished opinion filed February 28, 2003. This court granted review.
Sufficiency of Charging Document
Shirley first argues that-the. complaint charging him with conspiracy to manufacture methamphetamine is jurisdictionally defective and, therefore, his conviction must be reversed. His specific contention is that the complaint fails to allege specific facts that amount to an overt act in furtherance of the conspiracy, as required by K.S.A. 21-3302.
The sufficiency of a charging document to confer jurisdiction is a question of law over which an appellate court has unlimited review. State v. Hooker, 271 Kan. 52, 60, 21 P.3d 964 (2001). However, the test used for evaluating the sufficiency of the charging document depends on when the issue is first raised. State v. Hall, 246 Kan. 728, 764-65, 793 P.2d 737 (1990).
In Hall, this court distinguished between challenges to the charging document that were raised for the first time on appeal and those that were first raised before the district court. 246 Kan. at 760-61, 764. Justice Six, writing for this court, stated:
“A motion for arrest of judgment is the proper procedure for a defendant who wishes to challenge the sufficiency of the information after trial because of either a claim that it did not charge a crime or that the court was without jurisdiction of the crime charged. When such a motion is timely filed, the trial court, in reviewing the motion, shall test its merit by utilizing the rationale of our pre-Hall cases.” 246 Kan. at 764.
Under the pre-Hall standard, the court must focus on technical considerations. See Hooker, 271 Kan. at 61; Hall, 246 Kan. at 764. If the charging document does not set out the essential elements of the crime, it is fatally defective and the conviction must be reversed for lack of jurisdiction. See Hooker, 271 Kan. at 61. Applying this standard, the Hall court reversed Hall’s conviction for theft because the complaint failed to allege that Hall intended to permanently deprive the owner of his possession. Hall, 246 Kan. at 746-47.
Nevertheless, the Hall court expressed concern about the number of appeals alleging that the charging document was ineffective. In response to this concern, the Hall court established a new standard of review when die charging document is challenged for the first time on appeal. 246 Kan. at 765. To succeed, the defendant must show that the claimed defect (1) prejudiced the defendant’s preparation of a defense, (2) impaired the defendant’s ability to plead the conviction in any subsequent prosecution, or (3) limited the defendant’s substantial rights to a fair trial under the Sixth Amendment to the United States Constitution or Section 10 of the Kansas Constitution Bill of Rights. 246 Kan. at 765.
Justice Six summarized the difference between the pre-Hall and post-Hall standard of review when he stated that “[t]he longer it takes for the defendant to challenge the sufficiency of the information, the greater the presumption of regularity. 2 Orfield’s Criminal Procedure under the Federal Rules § 12:97 (2d ed. 1985).” 246 Kan. at 761.
To begin our analysis of Shirley’s contention that the complaint against him was defective, we must first note that Shirley initially challenged the complaint at the district court level by filing a motion for an arrest of judgment. Because Shirley followed the “proper procedure” pursuant to Hall, we review this issue using the pre-Hall standard, focusing on the technical compliance with the essential elements of the crime. See Hooker, 271 Kan. at 61.
“ ‘In Kansas, all crimes are statutory, and the elements necessary to constitute a crime must be gathered wholly from tire statute. An information which omits ■ one or more of the essential elements of the crimes it attempts to charge is jurisdictionally and fatally defective, and a conviction based on such an information must be reversed.’ ” State v. Crockett, 26 Kan. App. 2d 202, 205, 987 P.2d 1101 (1999) (quoting State v. Sanford, 250 Kan. 592, 601, 830 P.2d 14 [1992]).
K.S.A. 21-3302(a) provides:
“A conspiracy is an agreement with another person to commit a crime or to assist in committing a crime. No person may be convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by such person or by a co-conspirator.” (Emphasis added.)
In Crockett, the Court of Appeals held that a complaint was jurisdictionally defective because it failed to allege an overt act in furtherance of the conspiracy. 26 Kan. App. 2d at 205. The complaint in Crockett charged the defendant and his coconspirator with
“ ‘unlawfully, feloniously, knowingly and willfully [entering] into an agreement with one another to commit a crime, to-wit: First Degree Murder, as defined by K.S.A. § 21-3401, and in furtherance of such agreement committed the following overt acts, to-wit: planning on the time, location and manner of killing Terrance Canada, in violation of K.S.A. § 21-3302.’ ” 26 Kan. App. 2d at 203.
The question in Crockett became whether planning was an overt act and whether the failure to allege other overt acts made the complaint jurisdictionally defective under the pre-Hall standard. The Crockett court concluded that conversations among alleged coconspirators to plan a conspiracy did not qualify as overt acts in the furtherance of the conspiracy.
Likewise, in State v. Sweat, 30 Kan. App. 2d 756, 761, 48 P.3d 8 (2002), the Court of Appeals relied upon Crockett for its conclusion that the complaint charging conspiracy to commit murder was fatally defective for failing to allege an overt act in furtherance of the conspiracy. The Sweat complaint charged the defendant as follows:
“ ‘MICHELLE L. SWEAT then and there being, did then and there, unlawfully, FELONIOUSLY, and willfully: agree with another person, to-wit: Armando Fierro, to commit the crime or to assist in committing the crime of Murder in the First Degree, to-wit: intentionally and with premeditation kill Lloyd Eddens, in an overt act, and further such conspiracy was committed by such person or said co-conspirator.’ ’’ 30 Kan. App. 2d at 759.
The Sweat court concluded that the flaw in Sweat’s complaint was “even more obvious than the flaw in Crockett’s information” because it failed to allege any specific overt act whatsoever. 30 Kan. App. 2d at 761.
Shirley cites State v. Bliss, No. 87,350, unpublished opinion filed October 25, 2002, which, though it is an unpublished opinion of the Court of Appeals, nevertheless has some persuasive value since the Bliss case involved the same county and an identical complaint except for the names of the defendants contained in the cases. The Court of Appeals, in Bliss, concluded that after applying the language of Sweat and Crockett, the complaint clearly lacked an essential element of the crime and, therefore, reversed Bliss’ conviction of conspiracy.
Here, the Court of Appeals had the benefit of two published cases, Crockett and Sweat, as well as the Bliss case, when it made its ruling. The Court of Appeals determined that the complaint in this case set forth the elements of conspiracy in the language of the statute. The Court of Appeals sought to graft onto the complaint the affidavit of the deputy, which the court stated provided specific information of an overt act.
The Court of Appeals distinguished its ruling from Sweat by inferring that Sweat’s complaint charged her with agreeing to commit tire crime as the overt act, much like the complaint in Crockett. We disagree with the Court of Appeals’ interpretation of Sweat.
The Sweat court stated:
“The flaw in the complaint in this case is even more obvious than the flaw in Crockett’s information. Sweat’s complaint does not even attempt to allege any specific overt act committed in furtherance of the conspiracy. It is not sufficient to say merely that the defendant willfully agreed with another person to commit the crime or to assist in committing the crime.” 30 Kan. App. 2d at 761.
The Court of Appeals, in its opinion here, relied on K.S.A. 2003 Supp. 22-3201(b), which provides in pertinent part:
“The complaint, information or indictment shall be a plain and concise written statement of the essential facts constituting the crime charged, which complaint information or indictment, drawn in the language of the statute, shall be deemed sufficient.”
The Court of Appeals determined that Shirley’s complaint set forth all of the elements of conspiracy in the language of the statute. However, the Court of Appeals decision does not seek to harmonize K.S.A. 2003 Supp. 22-3201(b) with K.S.A. 21-3302(a). Ap pellate courts must reconcile different statutory provisions to make them consistent, harmonious, and sensible. State v. Brown, 272 Kan. 843, 847, 35 P.3d 910 (2001).
K.S.A. 2003 Supp. 22-3201(b) requires the State to set out the essential facts of the crime. The purpose for requiring a recitation of the essential facts' is to ensure that the accused is informed of the charges against him or her so that he or she may prepare a defense. Hall, 246 Kan. at 754. “The test for sufficiency ought to be whether it is fair to require the defendant to defend on the basis of the charge as stated in the particular indictment or information.” Hall, 246 Kan. at 754.
K.S.A. 21-3302(a) requires the specific allegation of an overt act in furtherance of the conspiracy. It is the only criminal statute that requires such a specific allegation in the elements of a crime. As previously noted, all crimes are statutoiy, and the elements of the crime must be determined wholly from the statute. See Sweat, 30 Kan. App. 2d at 760.
Sweat, Crockett, and Bliss all stand for the proposition that when the State simply alleges an “overt act in furtherance of the conspiracy,” such language fails to adequately inform the accused of the charges against him or her and limits his or her ability to prepare a defense.
The complaint here merely stated that Shirley had committed “an overt act in furtherance of the conspiracy.” We conclude that the complaint here is fatally defective under the pre-Hall standard. The court here had no jurisdiction and, therefore, Shirley s conviction must be reversed.
Jury Instructions
Shirley next argues that the trial court erroneously instructed the jury in such a way that the jury was allowed to find him guilty of a different version of the conspiracy than was charged in the complaint. Specifically, Shirley argues that the instructions allowed the jury to find him guilty if it determined that Smith committed an overt act in furtherance of the conspiracy.
Because Shirley’s conviction is based on a fatally defective complaint, we are not required to address this issue. However, we have chosen to address the issue because it highlights some of the problems that can occur when tire complaint fails to allege specific facts of the overt act in furtherance of a conspiracy. We may consider a particular issue, although moot, if it is of public importance and capable of repetition. Parson v. Bruce, 270 Kan. 839, 842, 19 P.3d 127 (2001). We believe this issue is of public importance and capable of repetition.
Shirley failed to object to the instructions, so this court’s review is limited to determining whether tire instructions were clearly erroneous. See K.S.A. 2003 Supp. 22-3414(3). “Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred.” State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003).
The instructions in pertinent part state:
“Instruction No. 8
“The defendant is charged in Count II with the crime of Conspiracy to Manufacture Methamphetamine. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. That the defendant agreed with another person to commit tire crime of manufacture of methamphetamine;
2. That the defendant did so agree with the intent that the crime of manufacture of methamphetamine be committed;
3. That the defendant or any party to the agreement acted in furtherance of the agreement by an overt act; and
4. That this act occurred on or about the 10th day of May, 2001 in Lyon County, Kansas.” (Emphasis added.)
“Instruction No. 14
“A person may be convicted of a conspiracy only if some act in furtherance of the agreement is proved to have been committed. An act in furtherance of the agreement is any act knowingly committed by a member of the conspiracy in an effort to effect or accomplish an object or purpose of the conspiracy. The act itself need not be criminal in nature. It must, however, be an act [which] follows and tends towards the accomplishment of the object of the conspiracy. The act may be committed by a conspirator alone and it is not necessary that the other conspirator be present at the time that the act is committed. Proof of only one act is sufficient.”
The Court of Appeals, having approved the charging document, also approved the instructions.
The Court of Appeals cited State v. Turbeville, 235 Kan. 993, 686 P.2d 138 (1984), which seems to excuse instructions broader or narrower than the information “in cases where the substantial rights of the defendant have not been prejudiced.” 235 Kan. at 997.
We would submit that this issue may best be resolved by interpreting the language of K.S.A. 21-3302(a).
K.S.A. 21-3302(a) requires that an overt act in furtherance of the conspiracy be alleged and proved. Because the statutory language joins allegation and proof with the conjunction “and,” both the factual allegation in the charging document and the proof of the same factual allegation are required for a conviction. Thus, to find a defendant guilty, the jury must find that the defendant or a coconspirator committed the overt act that was alleged in the charging document. The charging document must specify both the act and the actor.
Here, however, the State alleged that the “overt act in furtherance of the conspiracy” was committed by Shirley, not Smith. Pursuant to K.S.A. 21-3302(a), the State had to prove that Shirley committed an overt act in accordance with the allegation in the complaint. The jury acquitted Shirley of all of the other charges, including attempt to manufacture methamphetamine, unlawful possession of pseudoephedrine, and possession of drug paraphernalia, indicating its finding that Shirley had not committed an overt act in furtherance of the conspiracy. Had the jury been properly instructed, it is likely that the jury may have acquitted Shirley of the charge of conspiracy to manufacture methamphetamine.
The record before us, including the charging document, requires us to reverse Shirley s conviction for conspiracy to manufacture methamphetamine.
The opinion of the Court of Appeals is reversed. The judgment of the district court is reversed.
Beier, J., not participating.
Wahl, S.J., assigned. | [
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The opinion of the court was delivered by
Gernon, J.:
Charles R. Deffebaugh, Jr., appeals his conviction for one count of selling cocaine. Deffebaugh’s conviction resulted from a controlled purchase of two rocks of cocaine by a police informant who was cooperating with the Coffeyville police to avoid prosecution for a driving under the influence.
Before sending the informant to purchase the cocaine, the Coffeyville police searched the informant to verify that she had no drugs on her person or in her car. An officer attached a listening device under the informant’s clothing so officers could monitor the controlled purchase. After recording the serial number for each bill, an officer gave the informant $30 for purchasing cocaine.
The informant drove to a house that Coffeyville police had been observing for drug activity and parked her car along the curb. Officers followed the informant to the location of the purchase and observed the transaction from a distance to avoid being detected. Four black males approached the informant’s' car. The officers were too far away to visually identify the men, but Detective Robson recognized two voices over the audio transmitter, one being that of Calvin Shobe.
The informant, who was not familiar with any of the men at her car, provided the officers with a description of the man named “Jimmie” who had taken her money and given her two rocks of cocaine. Based on the informant’s description, Detective Robson prepared two photo lineups and showed them to the informant within 24 hours of the controlled purchase. The informant did not select any of the pictures in the first photo array but selected Deffebaugh’s photo from the second photo array without hesitation.
Within 24 hours of the controlled purchase, Detective Robson obtained a search warrant for the house associated with the controlled purchase. When the warrant was executed, the police found Deffebaugh and 10 other black males in the house, along with cash, cocaine, and guns. Deffebaugh claimed ownership of some of the money found on the floor, including one of the marked bills from the controlled purchase.
At trial, Deffebaugh called Shobe to testify that Shobe was present at the controlled purchase but Deffebaugh was not there. The State objected to Shobe’s testimony, claiming that Deffebaugh failed to give notice of an alibi defense. The trial court prohibited Shobe from testifying that Shobe was present at the controlled purchase but that Deffebaugh was not there.
A juiy convicted Deffebaugh of one count of selling cocaine. Concluding that the trial court erroneously excluded Shobe’s testimony, the Court of Appeals reversed Deffebaugh’s conviction and ordered a new trial. State v. Deffebaugh, 31 Kan. App. 2d 1030, 77 P.3d 1277 (2003). We granted the State’s petition for review.
The State argues that the trial court correctly prohibited Shobe from testifying regarding Deffebaugh’s presence at the drug sale. The State contends that Shobe’s testimony falls squarely under K.S.A. 22-3218, which requires a defendant to provide notice before offering evidence of an alibi. To resolve this issue, we must interpret K.S.A. 22-3218. The interpretation of a statute is a question of law over which this court has unlimited review. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
As a fundamental rule of statutory interpretation, the court must look for the legislature’s intent. The court presumes that the legislature expressed its intent through the language of the statutory scheme. If the language is plain and unambiguous, the court must give effect to the language as written without determining what the law should or should not be. State v. Gordon, 275 Kan. 393, 397, 66 P.3d 903 (2003).
Courts should construe statutes to avoid unreasonable results, presuming that the legislature does not intend to enact useless or meaningless legislation. Courts must give effect, if possible, to the entire act. In that regard, the court has a duty, as far as practicable, to reconcile the different provisions, making them consistent, harmonious, and sensible even though words, phrases, or clauses at some place in the statute must be omitted or inserted. State v. Brown, 272 Kan. 843, 847, 35 P.3d 910 (2001).
K.S.A. 22-3218 provides in pertinent part:
“(1) In the trial of any criminal action where the complaint, indictment or information charges specifically the time and place of the crime alleged to have been committed, and the nature of the crime is such as necessitated the personal presence of the one who committed the crime; and the defendant proposes to offer evidence to the effect that he was at some other place at the time of the crime charged, he shall give notice in writing of that fact to the prosecuting attorney except that no such notice shall be required to allow testimony as to alibi, by the defendant himself, in his own defense. The notice shall state where defendant contends he was at the time of the crime, and shall have endorsed thereon the names of witnesses he proposes to use in support of such contention.
“(2) On due application, and for good cause shown, the court may permit defendant to endorse additional names of witnesses on such notice, using the discretion with respect thereto applicable to allowing the prosecuting attorney to endorse names of additional witnesses' on an information. The notice shall be served on the prosecuting attorney at least seven days before tire commencement of the trial, and a copy thereof, with proof of such service, filed with the clerk of the court. For good cause shown the court may permit notice at a later date.
“(4) Unless the defendant gives the notice as above provided he shall not be permitted to offer evidence to the effect that he was at some other place at the time of the crime charged." (Emphasis added.)
Although the defense does not generally have to disclose the names of defense witnesses prior to trial, the disclosure of alibi witnesses is an exception to that rule. State v. Coleman, 253 Kan. 335, 347, 856 P.2d 121 (1993); State v. Bright, 229 Kan. 185, 192, 623 P.2d 917 (1981). The purpose of K.S.A. 22-3218 is to protect the State from last minute, easily fabricated defenses. State v. Claiborne, 262 Kan. 416, 423, 940 P.2d 27 (1997). The notice requirement allows the State to investigate and call rebuttal witnesses if necessary.
Kansas case law has not addressed the question of what is an alibi subject to the notice provisions of K.S.A. 22-3218. Dicta in prior Kansas cases has established two definitions for “alibi” without relying on or interpreting the language of K.S.A. 22-3218. In State v. Pham, 234 Kan. 649, 656, 675 P.2d 848 (1984), this court distinguished an alibi defense from a general denial by noting that “[a]n alibi places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for the accused to be the guilty party.” This definition for “alibi” relied on Black’s Law Dictionary. 234 Kan. at 656 (see Black’s Law Dictionary 66 [5th ed. 1979]).
Dicta in other Kansas cases provides a broader definition for alibi taken from PIK Crim. 52.19, which noted that an instruction is not necessary for the alibi defense because it “is not an affir mative defense, as is entrapment or insanity; it consists only of evidence showing drat the defendant was not present at the time or place of the crime.” State v. Peters, 232 Kan. 519, 520, 656 P.2d 768 (1983) (concluding that courts need not instruct on alibi as an affirmative defense); see also State v. McIver, 257 Kan. 420, 431, 902 P.2d 982 (1995) (considering whether to give an instruction on an affirmative defense); State v. Holloman, 17 Kan. App. 2d 279, 290, 837 P.2d 826, rev. denied 251 Kan. 940 (1992) (analyzing whether court erred in not giving an instruction on an alibi defense).
K.S.A. 22-3218 is ambiguous. In the first sentence, the statute defines alibi as “evidence to the effect that [the accused] was at some other place at the time of the crime charged.” By using the phrase “to the effect that,” the legislature does not limit alibi evidence to direct testimony but includes evidence that raises an inference that the accused was at some other place. The State is relying on this inference as the basis for its argument that Shobe’s proposed testimony is alibi evidence. Even though there is no direct evidence of where Deffebaugh was at the time of the drug sale, Shobe’s testimony that Deffebaugh was not there infers that Deffebaugh was at some other place.
The State’s argument, however, overlooks the language in the second sentence of tire statute, which provides that “[t]he notice shall state where defendant contends he was at the time of the crime, and shall have endorsed thereon the names of witnesses he proposes to use in support of such contention.” K.S.A. 22-3218. This sentence appears to limit alibi evidence to direct evidence that the defendant was at another specific place. Otherwise, the defendant cannot state where he contends he was in the notice.
The Court of Appeals resolved the ambiguity in K.S.A. 22-3218 by placing more emphasis on the second, more specific sentence in 22-3218(1). State v. Deffebaugh, 31 Kan. App. 2d at 1036. It concluded that Shobe was not an alibi witness under K.S.A. 22-3218 because Shobe could not testify regarding Deffebaugh’s specific whereabouts at the time of the drug sale. Instead of treating Shobe as an alibi witness, the Court of Appeals concluded that Shobe was an eyewitness and so his identity and testimony did not have to be disclosed prior to trial. Based on that analysis, the Court of Appeals reversed Deffebaugh’s conviction, holding that the trial court erroneously prohibited Shobe from testifying as an eyewitness. We agree with the Court of Appeals.
The Court of Appeals decision is supported by a historical analysis of the word “alibi.” When interpreting statutes, courts must give ordinary words their ordinaiy meanings. State v. Lopez, 271 Kan. 119, 139, 22 P.3d 1040 (2001). In Latin, the meaning of alibi is literally “somewhere else.” The word “alibi” was first used in the English language in the legal context as an adverb meaning “elsewhere.” By the end of the 18th century, the word “alibi” was used as a noun meaning a “plea of being elsewhere at the time of a crime.” Ayto, Dictionary of Word Origins, 17 (1st Paperback ed. 1993).
Other states limit the alibi defense to evidence that the defendant was at another specific place at the time of the crime. See, e.g., People v. Fritz, 84 Ill. 2d 72, 76-78, 417 N.E.2d 612 (1981) (concluding that “there is a difference between attempting to prove that a defendant was in some definite place other than where the crime occurred, and attempting to prove that the defendant was not at the scene of the offense at the time it allegedly occurred”); State v. Anderson, 18 S.W.3d 11, 16 (Mo. App. 2000) (distinguishing the defenses of alibi and denial by noting that testimony showing the defendant was not present at the scene of the crime, without specification of the defendant’s precise location, is not an alibi, but a mere denial); State v. Green, 268 N.C. 690, 692, 151 S.E.2d 606 (1966) (stating that “a defendant’s mere denial that he was at the place when the crime was committed is insufficient to justify the giving of an instruction on alibi”); Commonwealth v. Johnson, 538 Pa. 148, 151, 646 A.2d 1170 (1994) (defining alibi as “a defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party”); Commonwealth v. McQueen, 178 Pa. Super. 38, 41, 112 A.2d 820 (1955) (stating: “What is known in law as an alibi is an attempt by the defendant to prove that he could not have been at the scene of the crime because he was at some other definite place.”); State v. Ovitt, 126 Vt. 320, 327-28, 229 A.2d 237 (1967) (concluding that evidence which merely rebuts the State’s evidence is not alibi evidence unless it attempts to prove that the defendant was at “a place so distant from the scene of the offense that his participation in the crime was impossible”).
Two states have addressed facts similar to those in this case. In Fritz, the Illinois Supreme Court reversed the defendant’s conviction for indecent liberties with a child. The trial court had ruled that the defendant was attempting to introduce alibi testimony without proper notice. The alleged offense occurred in the home that the defendant shared with his wife, and the wife testified that the defendant was not home when the offense allegedly occurred. The Fritz court distinguished between attempting to prove that the defendant was at some other definite place and attempting to prove that the defendant was not at the scene of the crime. 84 Ill.2d at 78. In determining that the wife’s testimony was not an alibi, the Fritz court stated:
“[A] defendant may introduce the testimony of an occurrence witness that the witness did not see the defendant at the time and place in question. Such testimony is elicited to rebut the State’s case. It is not designed to establish that a defendant was at any other definite place.” 84 Ill. 2d at 78.
In State v. Volpone, 150 N.J. Super. 524, 376 A.2d 199 (1977), the defendant was charged with assault and battery following a fight involving baseball bats. At his trial, the defendant attempted to introduce testimony from one of the fight participants that the defendant was not there when the fight occurred. The trial court excluded the testimony because the defendant had not provided the statutoiy notice of an alibi defense to the prosecution. The appellate court concluded that the exclusion was improper and ordered a new trial. 150 N.J. Super. at 529, 531.
The Volpone court relied on the purpose of the notice statute — eliminating the surprise from alibi testimony during trial. According to the Volpone court, the State knows that it must prove that the defendant was present at the scene of the crime. Consequently, the State’s investigation encompasses the premise that the defendant was present, and the State is not surprised by evidence that the defendant was not present at the scene of the crime. However, the State cannot investigate evidence that the defendant was in another definite place unless the defendant provides notice of where he claims to have been in advance of trial. Because the State was not surprised by the participant’s testimony that the defendant was not there during the fight, the testimony was not for the purpose of an alibi, but was merely a rebuttal of the State’s evidence placing the defendant at the scene. 150 N.J. Super. at 528.
When considering the Fritz and Volpone decisions, we note that K.S.A. 22-3218 is significandy different than the alibi notice statutes in either Illinois or New Jersey, which use the word “alibi” in the statute without providing a definition. See Ill. S. Ct. R. 413(d); N.J. Rules of Court § 3:12-2 (West 2004); however, neither the Fritz court nor the Volpone court relied on the statutory language for its analysis. See Fritz, 84 Ill. 2d at 76-79; Volpone, 150 N.J. Super, at 528-29. Both the Fritz court and the Volpone court relied on the common usage of the word “alibi” as meaning “elsewhere.” See Fritz, 84 Ill. 2d at 76; Volpone, 150 N.J. Super, at 528. Moreover, both courts characterized the eyewitness testimony as a rebuttal to the State’s claim that the defendant was present at the scene of the crime rather than an affirmative claim requiring additional investigation.
Although the statutory language is different, we agree with the analysis of the Fritz and Volpone courts. In this case, the State knew it had the burden of proving that Deffebaugh was present when the drug sale occurred. To meet its burden, the State introduced eyewitness testimony from the informant who performed the controlled buy identifying Deffebaugh as the person who sold her cocaine. Detective Robson observed the drug transaction and knew that there were four black males present at the informant’s car. Detective Robson also recognized Shobe’s voice on the audiotape made during the transaction. Shobe was one of the 11 men arrested when the search warrant was issued and Deffebaugh was arrested. The State knew that Shobe was present at the drug transaction. The State had an opportunity to interview Shobe when he was arrested with Deffebaugh. The record, however, does not establish whether the State interviewed Shobe regarding the drug transaction before Deffebaugh’s trial. These facts do not support the conclusion that Shobe’s testimony as an eyewitness was a surprise to the State or that the State needed time to investigate Shobe’s statement. Consequently, there is no reason to exclude Shobe’s eyewitness testimony simply because he would have testified that Deffebaugh was not there.
When the statutory language of K.S.A. 22-3218 is considered as a whole and interpreted so as to be consistent, harmonious, and sensible, the statute requires a defendant to provide notice when he or she intends to introduce evidence that he or she was at some other specific place during the time of the crime. K.S.A. 22-3218 does not require a defendant to provide notice when he or she intends to introduce eyewitness testimony regarding his or her presence at the scene of the crime. This interpretation is consistent with the ordinary usage of the word “alibi” and the purpose of the statute. The broader interpretation asserted by the State does not harmonize the language of the statute, consider the ordinary usage of the word “alibi,” or incorporate the legislative purpose behind the statute’s enactment. Accordingly, we affirm the Court of Appeals decision reversing the district court’s interpretation of K.S.A. 22-3218 and remand the matter for a new trial.
In the alternative, the State claims that the erroneous exclusion of Shobe’s testimony is harmless error. When reviewing the erroneous exclusion of evidence, the error is harmless if it does not affect any of the defendant’s substantial rights. State v. Albright, 271 Kan. 546, 556, 24 P.3d 103 (2001). An appellate court must scrutinize each case in light of the whole record to determine whether the error is harmless. State v. Navarro, 272 Kan. 573, 584, 35 P.3d 802 (2001).
In this case, the exclusion of Shobe’s testimony directly impinged on Deffebaugh’s right to call witnesses in his defense, thereby affecting Deffebaugh’s constitutional right to a fair trial under the Sixth Amendment to the United States Constitution. When an error is of a constitutional magnitude, the error may not be held harmless unless the appellate court is willing to declare beyond a reasonable doubt that the error had little, if any, likelihood of changing the result of the trial. State v. Thompkins, 271 Kan. 324, 335, 21 P.3d 997 (2001).
The evidence'against Deffebaugh consisted of the informant’s identification and the marked money that was found near Deffebaugh and claimed by him. Although the informant identified Deffebaugh in a photographic lineup, she was not independently familiar with Deffebaugh or any of the other men that approached her car during the drug transaction. The police observing the transaction saw four men near the informant’s car but were unable to identify the seller. Deffebaugh claimed that he had been misidentified. Deffebaugh also contradicted the State’s claim that the marked money tied him to the drug sale by introducing evidence that Deffebaugh was involved in a dice game when the warrant was executed and that money was changing hands.
The evidence against Deffebaugh was not of such a direct and overwhelming nature that the court can conclude beyond a reasonable doubt that Shobe’s testimony would not have changed the result of the trial. Consequently, the exclusion of Shobe’s testimony is not harmless error. We remand the matter to the district court for a new trial.
The judgment of the Court of Appeals is affirmed. The judgment of the district court is reversed, and the matter is remanded for a new trial. | [
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The opinion of the court was delivered by
Allegrucci, J.-.
This is a quo warranto and declaratory judgment action filed in district court by the State (on relation of the Attorney General) against the Unified Board of Commissioners of the Unified Government of Wyandotte County/Kansas City, Kansas, and the Mayor and Council of the City of Edwardsville, Kansas (Cities). The State sought an order declaring that charter ordinances passed by the Cities to exempt the Cities from the Sunday liquor sales prohibition of K.S.A. 41-712 were invalid and void. On cross-motions for judgment on the pleadings, the district court concluded that, because provisions of the Kansas Liquor Control Act, K.S.A. 41-101 et seq., are not uniformly applicable, the Cities had authority under the Home Rule Amendment to the Kansas Constitution, art. 12, § 5 to exempt the Cities from the Sunday liquor sales prohibition. The State appealed. On the State’s motion, this court transferred the case from the Court of Appeals under K.S.A. 20-3017.
Four amici curiae briefs have been filed. Two amici urge this court to affirm the district court: The City Attorneys Association of Kansas (City Attorneys) and the League of Kansas Municipalities (League of Municipalities). One advocates reversing the district court’s decision: The Kansas Association of Beverage Retailers (Beverage Retailers), a non-profit trade association made up of retail liquor stores located throughout Kansas. The fourth requests this court to find the phrase, “on Sunday” in K.S.A. 41-712 unconstitutional and to strike it from the statute: The Kansas Beer Wholesalers Association, a Kansas trade organization whose members are beer wholesalers licensed pursuant to the Kansas Liquor Control Act.
The sole issue raised in this appeal is whether the charter ordinances exempting the Cities from the Sunday retail liquor sales prohibition of K.S.A. 41-712 is a valid exercise of the home rule authority granted to cities by Article 12, § 5 of the Kansas Constitution.
The following facts are taken from the pleadings:
On November 5, 2002, an election was held for the purpose of voting on Charter Ordinance No. CO-1-02, which was entitled:
“A charter ordinance exempting the Unified Government of Wyandotte County, Kansas City, Kansas, in that portion of Wyandotte County defined as Kansas City, Kansas, from the provisions of K.S.A. 41-712 prohibiting alcoholic liquor sale on Sunday, and providing substitute and additional provisions on the same subject allowing alcoholic liquor sales on Sunday.”
A majority of voters favored the charter ordinance to exempt Kansas City, Kansas, from.the Sunday sales prohibition of K.S.A. 41-712. The charter ordinance became effective November 8, 2002. Several liquor retail establishments opened for business and made liquor sales on Sunday, November 10, 2002.
On August 26, 2002, the Mayor and Council of the City of Edwardsville, Kansas, passed Charter Ordinance No. 2002-1 to exempt Edwardsville from the Sunday sales prohibition of K.S.A. 41-712. No protest petition was filed to bring the charter ordinance to an election. It took effect November 12, 2002.
On November 21, 2002, the State filed a petition for quo warranto and declaratory judgment alleging that K.S.A. 41-712 is not subject to the charter ordinance provisions of the Home Rule Amendment to the Kansas Constitution, art. 12, § 5. The State sought an order of the district court declaring the Cities’ charter ordinances invalid and void.
The parties filed cross-motions for judgment on the pleadings. In ruling on the parties’ cross-motions for judgment on the pleadings, the district court resolved the case in the Cities’ favor as a matter of law on the facts alleged and admitted. See K.S.A. 60-212(c). The State appealed.
This court’s review of a question of law is unlimited. See Duarte v. DeBruce Grain, Inc., 276 Kan. 598, 602, 78 P.3d 428 (2003). At issue is K.S.A. 41-712, which provides: “No person shall sell at retail any alcoholic liquor . . . (1) On Sunday.” The section as a whole provides:
“No person shall sell at retail any alcoholic liquor; (1) On Sunday; (2) on Memorial Day, Independence Day, Labor Day, Thanksgiving Day or Christmas Day; or (3) before 9 a.m. or after 11 p.m. on any day when the sale is permitted, except that the governing body of any city by ordinance may require closing prior to 11 p.m., but such ordinance shall not require closing prior to 8 p.m.”
K.S.A. 41-712 is part of the Liquor Control Act, K.S.A. 41-101 et seq.
Subsections (a), (b), (c)(1), and (d) of the Home Rule Amendment to the Kansas Constitution, art. 12, § 5 provide:
“(a) The legislature shall provide by general law, applicable to all cities, for the incorporation of cities and the methods by which city boundaries may be altered, cities may be merged or consolidated and cities may be dissolved: Provided, That existing laws on such subjects not applicable to all cities on the effective date of this amendment shall remain in effect until superseded by general law and such existing laws shall not be subject to charter ordinance.
“(b) Cities are hereby empowered to determine their local affairs and government including the levying of taxes, excises, fees, charges and other exactions except when and as the levying of any tax, excise, fee, charge or other exaction is limited or prohibited by enactment of the legislature applicable uniformly to all cities of the same class: Provided, That the legislature may establish not to exceed four classes of cities for the purpose of imposing all such limitations or prohibitions. Cities shall exercise such determination by ordinance passed by the governing body with referendums only in such cases as prescribed by the legislature, subject only to enactments of the legislature of statewide concern applicable uniformly to all cities, to other enactments of the legislature applicable uniformly to all cities, to enactments of the legislature applicable uniformly to all cities of the same class limiting or prohibiting the levying of any tax, excise, fee,- charge or other exaction and to enactments of the legislature prescribing limits of indebtedness. All enactments relating to cities now in effect or hereafter enacted and as later amended and until repealed shall govern cities except as cities shall exempt themselves by charter ordinances as herein provided for in subsection (c).
“(c) (1) Any city may by charter ordinance elect in the manner prescribed in this section that the whole or any part of any enactment of the legislature applying to such city, other than enactments of statewide concern applicable uniformly to all cities, other enactments applicable uniformly to all cities, and enactments prescribing limits of indebtedness, shall not apply to such city.
“(d) Powers and authority granted cities pursuant to this section shall be liberally construed for the purpose of giving to cities the largest measure of self-government.”
Subsections (c)(2), (3), and (4) of the Home Rule Amendment set out procedures governing charter ordinances.
As to the above, this court observed in Kansas City Renaissance Festival Corp. v. City of Bonner Springs, 269 Kan. 670, 673, 8 P.3d 701 (2000):
“In 1961, tire home rule amendment to the Kansas Constitution took effect and empowered cities to determine their local affairs. Kan. Const. art. 12, § 5(b). The legislature retains power over statewide matters. Hence, home rule power does not authorize cities to act where the state legislature has precluded municipal action by clearly preempting tire field with a uniformly applicable enactment. Generally speaking, where the legislature has not preempted the field with a uniformly applicable enactment, cities may exercise their home rule power by one of two means. Where there is a nonuniform legislative enactment that is in conflict with the action a city wants to take, a charter ordinance may be used to exempt the city from the legislative enactment. Kan. Const. art. 12, § 5(c). Where there is no legislative enactment in conflict with the local action, an ordinary ordinance will suffice.”
The district court concluded that at least three sections of the Liquor Control Act do not apply uniformly to all cities:
“K.S.A. 41-301 differentiates between cities of the first and second class on the one hand and cities of the third class on the other as to who will be counted in an election to approve package sales of alcohol. K.S.A. 41-302 makes the same distinction when it comes to determining the number of signatures required on a petition to place the issue of retail sales of package liquor on the ballot. Also, K.S.A. 41-719(c)(3) differentiates among cities on tire basis of population when it comes to allowing alcohol consumption in a drinking establishment on property owned by an airport authority.
“It matters not that the individual provision the defendants opted out of applies uniformly. If any of the provisions of the enactment (in this case, the Act) are not uniform in their application, the home rule amendment allows the opt out. City of Junction City v. Griffin, [227 Kan. 332, 607 P.2d 459 (1980)].
“In the face of such non-uniformity, the court must conclude that the defendants had the authority under the home rule amendment of the Kansas Constitution to charter out from under the statutory ban on Sunday sales of alcohol and allow such sales in their respective jurisdictions. Such a conclusion is in accord with the home rule amendment’s mandate that it ‘. . . be liberally construed for the purpose of giving to cities the largest measure of self-government.’ ”
During oral argument on the motions for judgment on the pleadings in the district court, counsel for the State “essentially conceded that at least one portion of the Act did not apply uniformly.” Having conceded that the usual test for the exercise of home rule favored the Cities, the State relied on the argument that K.S.A. 41-712 is not subject to home rule exemption because it is not applicable to cities. The district court rejected the State’s argument that the threshold inquiry must be whether K.S.A. 41-712 is “applicable” to cities. The district court stated:
“Is it necessary that K.S.A. 41-712 be ‘applicable’ to a city before it can charter out from under its effect? The case of Brewster v. City of Overland Park, 233 Kan. 390, 661 P.2d 1240 (1983), cited by the State appears to answer in the affirmative. It seems to stand for the proposition that in determining the validity of a city’s charter ordinance that opts out of a state enactment by virtue of the home rule amendment, the threshold inquiry for the court is whether the state enactment is ‘applicable’ to the cities. There, the court held that the City of Overland Park could not charter out from under a statute that granted a sales tax exemption to attorneys that pay a law library fee because that statute did not apply to cities. As a result, the court found it unnecessary to consider whether the exemption applied uniformly.
“Beyond that basic premise, however, the case offers little assistance to the courts in rendering a decision on a different set of facts. It mentions no criteria for a court to consider here as to whether the prohibition of Sunday sales of liquor is ‘applicable’ to cities or not. Accordingly, the decision must be limited to its facts.”
On appeal, the State devotes most of its brief to its contention that the Cities cannot charter out of the prohibition on Sunday liquor sales because K.S.A. 41-712 is applicable to private conduct rather than to cities. The State does not contend that the Liquor Control Act is uniformly applicable to all cities. In support of its position that 41-712 does not apply to cities, the State notes that K.S.A. 41-712(1) prohibits a person from selling alcoholic liquor at retail on Sunday and that K.S.A. 41-102(t) defines person as “any natural person, corporation, partnership, trust or association.” Although a municipal corporation may be included in that statutory definition of person, according to the State, a municipal corporation is not a person within the meaning of K.S.A. 41-712 because corporations cannot hold retail liquor licenses and only licensees can sell liquor at retail. See K.S.A. 2003 Supp. 41-311(b)(6); K.S.A. 41-104; K.S.A. 41-308(a).
The State relies on Brewster v. City of Overland Park, 233 Kan. 390, 661 P.2d 1240 (1983). At issue in Brewster was K.S.A. 19-1310 (Ensley 1981) (now K.S.A. 20-3127[e]), which provided: “All attorneys registered under this act shall not be hable to pay any occupation tax or city license fees levied under the laws of this state by any municipality.” The court described the context of the statute:
“County law libraries are authorized to be created upon a vote of the majority of the attorneys practicing or residing in the particular county. If a county law library is so created, all practicing attorneys in the county must register and pay an annual registration fee. . . .
“The county law library statutes are located in Article 13 of Chapter 19 which concerns the functions of the clerk of the district court. The clerk has charge of the election, registration, and fees paid by attorneys as well as deducting the appropriate docket fees for the library’s maintenance. Management of the library is vested in the district judges and representatives of the bar. The county law library is only peripherally a governmental function, although the county commission is required to provide space therefor or pay a sum in lieu thereof. See K.S.A. 19-1321 for this exception.” 233 Kan. at 392.
The court decided the matter on a ground not raised by the parties:
“K.S.A. 19-1310 grants an exemption from any occupation tax or city license fee to attorneys registered for county law library purposes. K.S.A. 19-1310 does not forbid a county or city from imposing such a tax or fee, but merely grants an exemption therefrom to a class of individuals. Under such circumstances we conclude K.S.A. 19-1310 does not meet the threshold requirement of the Home Rule Amendment that an enactment from which a city wishes to exempt itself from be applicable to cities. Accordingly, the question of whether K.S.A. 19-1310 is uniformly applicable to cities is not reached.” 233 Kan. at 392-93.
Brewster, unlike all other home rule cases, treats a legislative enactment as if it affects only private conduct or only governmental action. Examination of the statute at issue in Brewster shows that in fact it affected both. The statute could have been stated as a prohibition against cities collecting city-levied occupation taxes or license fees from the certain individuals, but it was stated the other way around. Barring the exercise of cities’ home rule because the statute at issue happened to have been stated in terms of the exemption rather than the prohibition does not appear to be in keeping with the mandate of Article 12, § 5(d) of the Kansas Constitution that powers granted to cities by the Home Rule Amendment shall be liberally construed in order to give cities the largest measure of self-government. We agree with the trial court that Brewster is in a class of its own. Since it was decided in 1983, Brewster has never been cited in a published opinion. For that reason, the decision effectively has been limited to its unique facts and parties. We conclude Brewster should be so limited.
The State concedes that the Liquor Control Act refers to and affects cities but insists that the Act is not an enactment that applies to cities within the meaning of the Home Rule Amendment. The language that the State cites is in subsection (c)(1):
“Any city may by charter ordinance elect in the manner prescribed in this section that the whole or any part of any enactment of the legislature applying to such city, other than enactments of statewide concern applicable uniformly to all cities, other enactments applicable uniformly to all cities, and enactments prescribing limits of indebtedness, shall not apply to such city.” Kan. Const. art. 12, § 5(c)(1).
The State quite literally construes the phrase, applying to such city, as any enactment that directly prohibits or allows some city action. Quite another interpretation is suggested by one author’s remarks on subsection (c)(1):
“Note that a city can not by charter ordinance exempt itself from a statute which does not apply to it. If there is a statute which does not apply to a city because of population or other requirements or because it applies to a different class of cities, a charter ordinance may not be used to make it apply to the city.” (Emphasis added.) Martin, Home Rule for Kansas Cities, 10 Kan. L. Rev. 501, 511 (1962).
The State’s construction of the phrase, applying to such city, does not take into account either the background of special legislation for classes of cities against which the Home Rule Amendment was adopted or preservation in the amendment of classes of cities for certain purposes. Martin’s construction of the phrase does take these things into account and, as a result, is more convincing. Placed in context, the phrase, applying to such city, seems certain to have been crafted to fit the legislature’s practice of enacting special legislation for classes of cities. The Cities’ view of the phrase, applying to such city, essentially is the same as Martin’s but is stated in strictly practical terms as meaning that an enactment is effective within that city. An enactment that is effective within a city is one that applies to the class of cities to which it belongs.
The State contends that the history of the Home Rule Amendment shows that the amendment was intended to address statutes that apply to cities and their governments rather than statutes that apply to private persons. Before the Home Rule Amendment, cities could only exercise authority conferred by statute. Hence, the legislative agenda was heavily local in nature and much of the legislation was special legislation aimed at cities. The dual purpose of the Home Rule Amendment was to unburden the legislature of local matters and to empower cities. This sound statement of the purpose of the Home Rule Amendment, however, does not prove the State’s point that the amendment does not permit cities to exempt themeselves from legislation that addresses private conduct. In order to malee the sound statement serve its argument, the State in its statement of the principle narrowed the empowerment of cities. According to the State, “[t]he Home Rule Amendment was designed to free the Legislature from having to address matters that could best be handled locally and to empower cities to opt out of special legislation applying to cities.”
In making this argument the State ignores the plain language of the Home Rule Amendment. Cities’ empowerment under the Home Rule Amendment is much broader than cities simply exempting themselves from certain legislation. Under the amendment, the legislature retained for itself only the power to govern incorporation of cities and the methods by which city boundaries may be altered, cities may be merged or consolidated, and cities may be dissolved. Kan. Const. art. 12, § 5(a). The legislature did not retain for itself the power to govern private conduct. Cities were empowered to determine local affairs, with only the specific exceptions identified in subsection 5(a), and local government including the levying of taxes, excises, fees, charges and other exactions, by means of ordinary and charter ordinances, except where the legislature has preempted a field by enacting legislation uniformly applicable to all cities. Kan. Const. art. 12, § 5(b).
The State argues that allowing cities to use charter ordinances to opt out of the prohibition on Sunday liquor sales will open the floodgates. If a few references to cities in the Liquor Control Act subject it to home rule exemption, the State warns, cities will be able to opt out of all provisions of the Act. Other legislative enactments, the warning continues, such as the Uniform Act Regulating Traffic, K.S.A. 8-1401 et seq., and the Campaign Finance Act, K.S.A. 25-4142 et seq., will be vulnerable to “such mischief.” The proposition on which the State’s argument is built, that legislative references to cities rather than uniform applicability control whether legislation is subject to home rule exemption, is not supported by the language of the amendment or case law construing it with the single exception of Brewster, which is confined to its facts and parties, as discussed earlier. The State’s argument is not sound, but even if it were sound, the floodgates may be closed simply by the legislature’s replacing special legislation with enactments that are uniformly applicable to all cities.
A licensee’s violation of the Liquor Control Act “with respect to the . . . sale of alcoholic liquor or cereal malt beverage . . . shall be punishable: ... (1) For a first offense, by a fine of not more than $500; and (2) for a second or subsequent offense, by a fine of not more than $1,000 or by imprisonment for not more than six months, or both.” K.S.A. 41-901(a) and (b). The State asserts that this home rule case is unique because it involves the Cities decriminalizing an activity prohibited by the State. Thus, according to the State, there is no authority for the district court’s conclusion that cities may charter out of criminal statutes in order to allow an activity which the statutes prohibit. In other words, the State seems to make the odd argument that the ruling in this case of first impression should be reversed because it is not based on precedent. Assuming for purposes of this discussion that the State correctly asserts that this is the first home rule case involving a statutory prohibition punishable by fine or imprisonment, the question would be whether the Home Rule Amendment distinguishes between legislative enactments with criminal penalties and those without criminal penalties. Examination of the Home Rule Amendment reveals nothing in its language that would support differential treatment of such enactments. Apart from the matters over which the legislature retained control in subsection (a) — incorporation of cities and the methods by which city boundaries may be altered, cities may be merged or consolidated, and cities may be dissolved — no type of legislation is exempted from cities’ exercise of home rule. Legislation involving the levying of taxes, excises, fees, charges, and other exactions is singled out in subsection (b) of the amendment, but only for the purpose of expressly permitting the legislature to establish classes of cities for the purpose of imposing limitations or prohibitions on the levying of taxes, excises, fees, charges, and other exactions and expressly permitting cities to exempt themselves from such enactments not uniformly applicable to all cities of the same class. If the legislature intends to preempt a field and exempt it from home rule, including matters enforced with penalty provisions, it has only to make such an enactment uniformly applicable.
The State argues that there is a division between matters of statewide concern and matters of local concern and that cities may not exercise home rule over matters of statewide concern. The State’s premise is not generally accepted. One prominent author has stated: “No ordinance deals with an exclusively local matter and no statute regulates a matter oí exclusively state-wide concern. Instead, the interests of the municipality and the state are nearly always concurrent.” Clark, State Control of Local Government in Kansas: Special Legislation and Home Rule, 20 Kan. L. Rev. 631, 662, (1972). In City of Junction City v. Lee, 216 Kan. 495, 498-99, 532 P.2d 1292 (1975), this court rejected a similar argument in relation to weapons control, see K.S.A. 21-4201 et seq., stating:
‘Weapons control is an area of cities’ concern. That it is of concurrent state concern is no impediment to the exercise of authority by a city through ordinance so long as there is no conflict in terms with state legislation and the state legislature has not preempted the field. Answers to these latter questions determine whether an ordinance is ‘subject to’ state legislation within the meaning of the home rule amendment.”
In Lee, this court also discussed whether criminal statutes are subject to home rule, stating:
“The further argument that by the enactment of our present criminal code the legislature has preempted for the state the entire field of criminal law was implicitly rejected in City of Lyons v. Suttle, 209 Kan. 735, 498 P.2d 9 (see dissenting opinion 209 Kan. 742-743, 498 P.2d 15). The statute relied upon for the theory of preemption is K.S.A. 21-3102, which states:
“ ‘(1) No conduct constitutes a crime against the state of Kansas unless it is made criminal in this code or in another statute of this state. . . .’
“The foregoing is simply codification of prior case law holding there are no common law crimes in Kansas — all crimes are statutory (see State v. Koontz, 124 Kan. 216, 218, 257 Pac. 944). Further negativing the notion our present criminal code was intended to preempt cities from that field are the several references to municipal courts in it and in our code of criminal procedure. For example, K.S.A. 21-3108(3), our former jeopardy statute, bars state prosecution under certain conditions if the defendant was prosecuted ‘in the municipal or police court of any city of this state for a crime which is within the concurrent jurisdiction of this state. . . .’ See also in our recently enacted municipal practice act provision for prosecution of non-traffic offenses (K.S.A. 1974 Supp. 12-4205).” 216 Kan. at 503.
Justice Schroeder dissented, and like the State in the present case, intimated that the sky was going to fall, stating: “In a far-reaching precedent the court by its decision is extending the Home Rule power of a city to legislate in the field of criminal law.” 216 Kan. at 504. Lee was decided in 1975, and the sky has not fallen.
Liquor control, according to the State, is a matter of statewide concern. The State contends that Article 15, § 10 of the Kansas Constitution vests exclusive control of liquor in the State. That constitutional section provides: “The legislature may provide for the prohibition of intoxicating liquors in certain areas”; “may regulate, license and tax the manufacture and sale of intoxicating liquors, and may regulate the possession and transportation of intoxicating liquors”; and “may permit, regulate, license and tax the sale of intoxicating liquor by the drink in public places in a county where the qualified electors of the county approve. . . Kan. Const. art. 15, § 10. It provides for county-by-county determination and permits the legislature to regulate the liquor trade; it does not vest exclusive control of liquor in the State. The State warns that allowing home rule over liquor sales “would eviscerate Article 15, Section 10 and set the 124-year histoiy of liquor control in this State on its head.” However, home rule of liquor sales by cities is preventable by the simple means of a uniformly applicable legislative enactment.
Continuing its attempt to draw an indelible line between local affairs and matters of statewide concern, the State cites State ex rel. Schneider v. City of Kansas City, 228 Kan. 25, 612 P.2d 578 (1980). The question in Schneider was “whether the home rule amendment, art. 12, § 5, authorizes Kansas City to enforce its building permit and code ordinances upon the Board of Regents who derive their authority through legislative action mandated by art. 6, § 2(b).” 228 Kan. at 31. The court distinguished Schneider from more typical home rule cases:
“Most of our decisions under the home rule amendment have involved the resolution of conflicts between local ordinances and state statutes as they affect third parties, usually individual members of the public caught up in the apparent conflict. How then do we resolve a conflict between Kansas City and the Board of Regents when the local ordinance conflicts with affirmative duties and requirements placed upon the Board of Regents by state statutes?” 228 Kan. at 31-32.
The court resolved the conflict by departing from accepted home rule analysis and narrowly limiting its decision. After quoting with approval Clark’s disavowal of a strict division between matters of local and statewide concern which we have previously cited, the court stated: “We also recognize that the same author does not recommend the approach and conclusion we reach today. Our decision, however, is limited to the parties and factual situation before us.” 228 Kan. at 33. Hence, Schneider is not precedent for the decision the State urges this court to make in the present case.
The State’s final argument is that the history of liquor control in this state generally and K.S.A. 41-208 in particular demonstrate that liquor sales are not subject to home rule. K.S.A. 41-208 provides:
“The power to regulate all phases of the control of the manufacture, distribution, sale, possession, transportation and traffic in alcoholic liquor and the manufacture of beer regardless of its alcoholic content, except as specifically delegated in this act, is hereby vested exclusively in the state and shall be exercised as provided in this act. No city shall enact any ordinance in conflict ivith or contrary to the provisions of this act and any ordinance of any city in effect at the time this act takes effect or thereafter enacted which is in conflict ivith or contrary to the provisions of this act shall be null and void. Nothing contained in this section shall be construed as preventing any city from enacting ordinances declaring acts prohibited or made unlawful by this act as unlawful or prohibited in sucb city and prescribing penalties for violation thereof, but the minimum penalty in any such ordinance shall not exceed the minimum penalty prescribed by this act for the same violation, nor shall the maximum penalty in any such ordinance exceed the maximum penalty prescribed by this act for the same violation.” (Emphasis added.)
K.S.A. 41-208 became effective in 1949, long before the Home Rule Amendment became effective in 1961. See L. 1949, ch. 242, sec. 13; effective March 9. K.S.A. 41-208 has never been amended. The question is whether the State has preempted the field by the above italicized language and thus whether the Cities can charter out from the Liquor Control Act.
The term “preemption or pre-emption” is cited many times in 19th-and early 20th-century Kansas opinions with regard to the federal exemption acts that extinguished Indian rights to land and made the land available for settlement, schools, municipalities, and railroads. See, e.g., Hoyne v. Schneider, 138 Kan. 545, 27 P.2d 558 (1933).
After passage of the federal labor laws, the term began to be used to mean federal preemption of state laws. For example, in Krouse v. Lowden, 153 Kan. 181, 109 P.2d 138 (1941), the Federal Employer's Liability Act governed a railroad worker’s personal injury action. Federal preemption is based on the Supremacy Clause of Article VI of the United States Constitution. Black’s Law Dictionary 1197 (7th ed. 1999), defines preemption as “[t]he principle (derived from the Supremacy Clause) that a federal law can supersede or supplant any inconsistent state law or regulation.”
Unlike federal preemption, there is no supremacy clause as the basis for state preemption. Under our form of state government, the State is sovereign and cities have no inherent power except as granted by the State. The source for state preemption, prior to home rule, is Article 2, § 1 of the Kansas Constitution: “The legislative power of this state shall be vested in a house of representatives and senate,” together with Article 2, § 21: “The legislature may confer powers of local legislation and administration upon political subdivisions.” This court has repeatedly recognized the State’s authority to preempt a field. In Missouri Pacific Railroad v. Board of Greeley County Comm’rs, 231 Kan. 225, 228, 643 P.2d 188 (1982), we said:
“The rule denying power to a local body when the state has pre-empted the field is a rule of necessity based upon the need to prevent dual regulation which would result in uncertainty and confusion; and whether the state has pre-empted the field to the exclusion of local legislation depends not only on the language of the statutes, but upon the purpose and scope of the legislative scheme. [Citations omitted.]”
Before the adoption of the Home Rule Amendment, cities had only that authority granted to the cities by the legislature. “Cities existed by and through statutes and had only such powers as were expressly conferred by statute without resort to implication.” Claflin v. Walsh, 212 Kan. 1, 6, 509 P.2d 1130 (1973). This rule was first recognized in City of Leavenworth v. Rankin, 2 Kan. 357, Syl. (1864): “Municipal corporations are creations of law and can express only powers conferred by law and take none by implication.” We recognized this rule as a rule of general application to curb the exercise of power not conferred upon State boards and governmental agencies. See State, ex rel., v. City of Coffeyville, 127 Kan. 663, 666, 274 Pac. 258 (1929). For that reason, prior to home rule, State “preemption” was a means for withdrawing authority that the State had granted to the cities. In Ash v. Gibson, 145 Kan. 825, 67 P.2d 1101 (1937), the City of Ottawa passed an ordinance forbidding the transportation of gasoline in excess of 600 gallons through the city. The plaintiffs argued that the City had no authority to pass the ordinance because no such authority had been granted to the City by the legislature. This court held tbe City had such authority, stating:
“Before this court would hold that the adoption of the highway amendment, and the enactment of the statutes pursuant thereto, had taken away from the cities of the state the right to regulate a business as dangerous as the transportation of gasoline through these cities, it would have to appear clearly from the statutes by plain provisions that such was the intent of the legislature. We have looked for such provisions and fail to find them. We are compelled to reach the conclusion that the problem of regulating this traffic on the highways outside the cities is one thing and the regulation of it within the limits of a city is another and that the latter is within the province of the governing bodies of the cities.” 145 Kan. at 834. (Emphasis added.)
However on rehearing, Ash v. Gibson, 146 Kan. 756, 761, 74 P.2d 136 (1937), this court noted that “while the motion for a rehearing in this case was pending Chapter 283 of the Laws of 1937 was enacted.” This court reviewed that statutory enactment concluding that the enactment
“covered the matter dealt with in the ordinance. Therefore, the power of the city to enact the ordinance in question as held by this court in Ash v. Gibson, 145 Kan. 825, was withdrawn by the enactment of chapter 283 of the Laws of 1937. It follows that the ordinance must be held to have been abrogated and superceded by the statute.” 146 Kan. at 767. (Emphasis added.)
The Ash court never used the term “preempted.”
In City of Beloit v. Lamborn, 182 Kan. 288, 321 P.2d 177 (1958), the City’s authority to pass an ordinance providing for regulation and licensing of the production and distribution of milk in the city was at issue. We held:
‘Where the legislature intends to specifically or exclusively reserve to the state the power to regulate, such intent is clearly manifested in the statute. (Kansas Power & Light Co. v. City of Great Bend, 172 Kan. 126, 238 P.2d 544.) In the instant case, we can find no such intent in the state dairy law (Ch. 65, Art. 7) or in the regulations promulgated by the dairy commissioner. The regulation of the production and sale of milk is within the province of the city, and defendant’s first contention must fail.” 182 Kan. at 292.
In so holding, we used the term “pre-emption” in describing the holding in Ash:
“Considering the express intent of the legislature and the provisions of the statute which regulated certain aspects of city traffic and granted other powers to cities, this court declared that the state had pre-empted the field and die statute withdrew from the city power to enact the ordinance in question.” City of Beloit, 182 Kan. at 292.
As we noted in Claflin, 212 Kan. at 6, this concept of city governance was changed by the adoption of the Home Rule Amendment: “No longer are cities dependent upon the state legislature for their authority to determine their local affairs and government. Since home rule, cities have power granted directly from the people through the constitution without statutoiy authorization.” For that reason, the State’s right to preempt a city’s action also changed. The State cannot withdraw authority it can no longer grant.
In Blue Star Supper Club, Inc. v. City of Wichita, 208 Kan. 731, 495 P.2d 524 (1972), the issue was the adoption of a ordinary ordinance requiring that any club licensed under the Private Club Act, K.S.A. 41-2601 et seq., be closed between the hours of 3 a.m. and 9 a.m. on any day other than Sunday and from 3 a.m. to 12 noon on Sunday. This court held the ordinance did not conflict with the statute. “There is no disharmony between the two enactments; they may coexist with amity.” 208 Kan. at 732. The plaintiffs also argued that the ordinance was void because of the preemptive provision of K.S.A. 41-208. Although acknowledging that the preemptive clause gave the State exclusive power to control and regulate traffic in alcoholic liquor and the manufacture of beer, it did not include the Private Club Act which dealt with consumption of alcoholic liquor:
“In concluding that the regulation and control of the consumption of alcoholic liquor is not an area exclusively reserved by the state we believe it is significant that when the legislature adopted K.S.A. 1971 Supp. 41-2631 as a component part of the Private Club Act, and forbade therein the enactment of any ordinance conflicting with the act, it did not include a pre-emptive provision. We cannot view the omission as unintentional. The legislature was perfectly aware of the method by which it could have vested exclusive control and regulation of liquor consumption in the state had it so intended, as is evidenced by its inclusion of the pre-emptive provision contained in K.S.A. 41-208.” 208 Kan. at 735.
In Claflin, we said:
“Even before the passage of the home rule amendment we held that legislative intent to reserve exclusive jurisdiction to the state to regulate must be manifested clearly by statute before it can be held that the state has withdrawn from the cities power to regulate in the premises. (City of Beloit v. Lamborn, 182 Kan. 288, 321 P.2d 177.)
“In some cases the legislative intention has been made clear and unequivocal. By specific language the legislative intent is shown to be that the statute is to be applied uniformly to all cities. Such a statute was involved in Ash v. Gibson, 146 Kan. 756, 74 P.2d 136, which concerned the application of the uniform act regulating traffic on highways. There it was pointed out that in K.S.A. 8-507 the legislature stated clearly that the provisions of that act should be applicable and uniform throughout the state and in all political subdivisions and municipalities therein. In K.S.A. 41-208, a part of the Kansas Liquor Control Act, the legislature stated clearly that no city shall enact any ordinance in conflict with or contrary to the provisions of the act. An interpretation of that statute was before the court in Blue Star Supper Club, Inc. v. City of Wichita, 208 Kan. 731, 495 P.2d 524.” 212 Kan. at 7-8.
However, in Blue Star there is no discussion or determination that the Liquor Control Act is uniform throughout the state. There is no mention of Article 12, § 5 (home rule), nor its impact on the State’s right of preemption. The Blue Star court based its decision solely on the preemptive language in K.S.A. 41-208. Finding no preemption, the issue was whether the ordinary ordinance conflicted with the Private Club Act. The court failed to acknowledge the impact home rule has on the State’s right to preempt the field. Such failure resulted in an incorrect interpretation of K.S.A. 41-208 and created confusion as to the State’s right to preempt city action. In Claflin, we continued the confusion by acquiescing in Blue Stars interpretation of K.S.A. 41-208. The court did so by rationalizing that the preemptive language in the statute made clear the legislative intent that the statute is to be applied uniformly to all cities. Claflin, 212 Kan. at 8. However, since the adoption of the Home Rule Amendment, it is not the manifestation of the intent to apply a statute uniformly to all cities that controls but rather whether the constitutional requirement of uniformity is, in fact, met. As this court said in City of Junction City:
“Legislative intent to preempt a field is only the first of two requirements for preemption when it concerns the right of cities.
“[Sjtatutoiy expression of intent to make a law uniform cannot supplant the constitutional requirement of uniformity. . . . The second requirement is uniform application of the state law to all cities.” 227 Kan. at 336.
This confusion of State preemption by inserting preemptive language in the statute or by enacting a statute uniformly applicable to all cities was repeated in Bigs v. City of Wichita, 271 Kan. 455, 464, 23 P.3d 855 (2001), where we said:
“The legislature has always been able to preclude city action by preemption. The intent to reserve exclusive jurisdiction for the State to regulate in an area cannot be implied but must be clearly manifested by state law. City of Junction City v. Griffin, 227 Kan. 332, 607 P.2d 459 (1980). In Griffin, this court noted the impact home rule had on State preemption:
“ ‘The grant of home rule power to cities under Article 12, § 5 of the Kansas Constitution has therefore added a new dimension to be considered in determining whether the legislature has occupied a field. Legislative intent to preempt a field is alone insufficient. It is now necessary to examine the provisions of the State enactment to determine whether the constitutional standard of uniform application to cities has been met. If not uniform, legislative intent as expressed within the enactment will not overcome the constitutional requirement for uniform application. Clark v. City of Overland Park, 226 Kan. 609, 602 P.2d 1292 (1979). The legislature may preempt the constitutional powers of cities only in the manner prescribed in the constitution. “As between the will of the people expressed in the constitution, and that expressed in the statute, the former always prevails.” State, ex rel. Goodin v. Thoman, 10 Kan. 191, 197 (1872).’ 227 Kan. at 336.
Following the adoption of home rule, the legislature can preempt die field either by enacting a uniformly applicable statute or by stating in the statute that the power to regulate is vested exclusively in the state, and any ordinance in conflict with or contrary to the statute shall be null and void. Here, we are concerned with the former and not the latter.” (Emphasis added.)
In Bigs we continued the erroneous conclusion made in Blue Star that the legislature could preempt a field by clearly manifesting its intent to do so in the statute. We quoted but did not learn the lesson of Griffin. That lesson is that the Cities’ authority is granted directly from the people through the Home Rule Amendment to the Kansas Constitution. It is a constitutional grant of authority without statutory authorization. The State may preempt the constitutional authority of cities only in the manner prescribed in Article 12, § 5 of the Kansas Constitution. As between the will of the people expressed in Article 12, § 5 and that expressed in K.S.A. 41-208, the former prevails. As provided by the Home Rule Amendment, the Cities are subject to the power of the legislature to act exclusively in some fields, optionally in others. The State’s optional power to act becomes exclusive only by legislation which is uniformly applicable to cities as provided by the Home Rule Amendment.
Thus, the provision in K.S.A. 42-208 prohibiting cities from passing ordinances in conflict with the Liquor Control Act does not prevent cities from exercising home rule with regard to liquor control. Since the adoption of Article 12, § 5 of the Kansas Constitution the State can preempt a city’s authority only by making the provisions of the Liquor Control Act uniformly applicable to all cities. We disapprove of the language in Blue Star and Bigs to the contrary. Since the Liquor Control Act is not uniform, cities may charter out from under the Act. The decision to preempt liquor control still rests with the legislature; it could decide to do so by making the Liquor Control Act uniformly applicable to all cities.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
McFarland, C.J.:
Keith Hanson appeals his bench trial convictions of three counts of permitting a dangerous animal to be at large (K.S.A. 21-3418). The case was transferred to this court pursuant to K.S.A. 20-3018(c).
In his appeal defendant challenges: (1) the admission of certain testimony; (2) the sufficiency of tire evidence supporting the convictions; and (3) the amount of restitution ordered.
The underlying facts are essentially undisputed. Defendant lives in a rural area and is the owner/custodian of three Staffordshire bull terrier mix dogs which are in the pit bull canine grouping. On November 1,2002, defendant turned the three dogs loose and they disappeared, as they had done on previous occasions. The dogs went to the Pat Martin residence nearby. A Martin employee observed them attacking the Martin family dog, a Labrador retriever named Max, which they had cornered under the deck. The employee approached the dogs, but became concerned for his own safety by virtue of the violence of the attack. He retreated, but returned with another employee after they had armed themselves with a shovel and a golf club, respectively. As the attacking dogs were approached the second time, they left. The employee testified he could hear the attack 15 to 20 minutes before he went to check out the noise. Max received massive injuries to his rear and abdominal area and was rushed to a veterinarian. Extensive treatment was given over a lengthy period of time, but the injuries proved to be too severe. Max had to be euthanized on January 19, 2003.
K.S.A. 21-3418 provides:
“Permitting a dangerous animal to be at large is the act or omission of the owner or custodian of an animal of dangerous or vicious propensities who, knowing of such propensities, permits or suffers such animal to go at large or keeps such animal without taking ordinary care to restrain it.”
For a conviction under the statute, the State must prove: (1) the defendant was the owner or custodian of an animal of dangerous or vicious propensities; (2) the defendant knew of such propensities; (3) the defendant permitted the animal to go at large or kept such animal without taking ordinary care to restrain it; and (4) the act occurred on or about a specific day in a specific Kansas county.
For his first issue, defendant contends the district court erred in admitting testimony of the director of the local animal shelter as to the aggression toward other dogs exhibited by the defendant’s dogs while they were impounded at the shelter after the attack herein. Defendant argues such evidence was not relevant. We disagree. The State had the burden of establishing the three dogs had dangerous or vicious propensities. The evidence was admissible, with the weight to be afforded thereto to be determined by the trier of fact.
Next, defendant challenges the sufficiency of the evidence supporting his convictions. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 (2003). Moreover, “[a] guilty verdict in a criminal case will not be disturbed on appeal if there is substantial evidence even though the evidence is.entirely circumstantial.” State v. Scott, 271 Kan. 103, 107, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001). It is undisputed that defendant: (1) was the owner/custodian of the three dogs and (2) allowed the dogs to run free, knowing they had previously disappeared for days at a time. The date and place of occurrence (Saline County) are likewise undisputed.
It is further undisputed that the three dogs went to the Martin property and commenced a lengthy and savage attack on the Martin family dog. An employee attempting to save the Martin dog feared for his own safety and retreated until he had assistance and weapons. The facts herein are sufficient for a rational factfinder to conclude that the dogs had dangerous or vicious propensities.
The problem in this case lies in the sufficiency of the evidence relative to the element of defendant’s prior knowledge of his dogs’ dangerous or vicious propensities. The only evidence presented by the State as to this element involved an incident on the Martin property a few days before the attack on Max. On that day, Selinda Martin observed the three dogs chasing her horse in the nearby field. The chase had apparently been going on for some time as the horse was breathing veiy hard. As Ms. Martin approached the dogs, they stopped the chase. There was no evidence or testimony admitted that the horse suffered any injury from the incident. Ms. Martin immediately went to defendant’s property where defendant acknowledged the dogs were his. Is this evidence legally sufficient to support the factfinder’s determination that defendant knew his dogs had dangerous or vicious propensities prior to the attack on the dog Max? We conclude it is not. The convictions must, therefore, be reversed.
The final issue raised is a claim the amount of restitution ordered was excessive. In view of our determination of the previous issue, this' issue is moot.
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The opinion was delivered by
Luckert, J.:
Plaintiffs Audie Dragon and John Howard are Georgia residents who filed suit on behalf of themselves and a nationwide class of property owners whose property contains polybutylene pipe manufactured from Mitsui resin. Plaintiffs allege this defective product, known as M pipe, was designed, manufactured, advertised, or sold by defendants.
The district court granted plaintiffs’ motion for nationwide class certification and defined the class as: “All persons and entities that own real property or structures and/or improvements to real property in the United States in which there was installed between Januaiy 1,1990, and the present Vanguard polybutylene plumbing containing resin manufactured by Mitsui Plastics, Inc.” After denying a motion for reconsideration, the trial court amended its prior order to include the findings required before a request for interlocutory appeal may be made. See K.S.A. 60-2102(b). The Court of Appeals granted the defendants’ application for permission to take an interlocutory appeal. This court denied plaintiffs’ petition for review of that decision and transferred the appeal to this court on the court’s own motion pursuant to K.S.A. 20-3018(c).
The defendants allege that the district court abused its discretion in finding that the prerequisites established by K.S.A. 2003 Supp. 60-223 were satisfied. More specifically, defendants allege that the trial court erred in not fully considering disputes regarding facts relevant to the statutory prerequisites and choice-of-law problems. The defendants also allege that the district court erred in relying on non-Kansas cases where other courts had certified class actions in which plaintiffs sought damages from manufacturers of defective polybutylene pipe made with a resin other than the Mitsui resin which is alleged to be a component of the defective product at issue in this case.
We find that the trial court failed to fully determine factual issues relating to the prerequisites for class certification and to rigorously analyze the requirements of commonality, typicality, predominance, and superiority. We reverse and remand for further proceedings on the issue of whether the requested class should be certified.
K.S.A. 2003 Supp. 60-223 governs class actions. This provision is patterned after Fed. R. Civ. Proc. 23, although it is not identical, and this court has traditionally followed the federal courts’ interpretation of the federal rule. Steele v. Security Benefit Life Ins. Co., 226 Kan. 631, 636, 602 P.2d 1305 (1979).
The federal rule was amended in 2003, and its Kansas counterpart in 2004, while this case was on appeal. The amendments to K.S.A. 2003 Supp. 60-223 are not yet effective (2004 House Bill No. 2764); therefore, the pre-amendment version of tire statute governs this analysis.
K.S.A, 2003 Supp. 60-223(a), like its federal counterpart, imposes four requirements applicable to all class actions:
“(a) Prerequisites to a class action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” K.S.A. 2003 Supp. 60-223(a).
In abbreviated form, these threshold elements require: (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation.
In addition to satisfying these four prerequisites, parties seeking class certification must show that the action is maintainable under K.S.A. 2003 Supp. 60-223(b)(l), (2), or (3). Plaintiffs in this case seek certification under K.S.A. 2003 Supp. 60-223(b)(3). This provision adds two additional prerequisites: common questions of law or fact must “predominate over any questions affecting only individual members” and class resolution must be “superior to other available methods for tire fair and efficient adjudication of the controversy.” K.S.A. 2003 Supp. 60-223(b)(3) includes a list of factors pertinent to a court’s examination of the predominance and superiority requirements:
“(A) The interest of members of tire class in prosecuting or defending separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against members of the class; (C) the appropriate place for maintaining, and the procedural measures which may be needed in conducting, a class action.” K.S.A. 2003 Supp. 60-223(b)(3).
The trial court made specific findings that each of the prerequisites of K.S.A. 2003 Supp. 60-223(a) and (b)(3) had been met. Regarding the four prerequisites of K.S.A. 2003 Supp. 60-223(a), defendants focus upon the trial court’s findings that commonality and typicality were met. Defendants also challenge tire trial court’s findings that the prerequisites of K.S.A. 2003 Supp. 60-223(b)(3), predominance and superiority, were met. Many of the prerequisites overlap, as do defendants’ arguments. Intertwined with all of the defendants’ arguments is the contention that the trial court erred in failing to fully consider and resolve factual questions regarding class issues before the court certified the class.
Standard of Review
“Trial judges are afforded substantial discretion in determining whether a class should be certified.” Bigs v. City of Wichita, 271 Kan. 455, 477, 23 P.3d 855 (2001). As we noted in Saucedo v. Winger, 252 Kan. 718, 730-32, 850 P.2d 908 (1993), “ The amount and degree of judicial discretion will vary depending on the character of the question presented for determination.’ ” 252 Kan. at 731 (quoting Wallach, Judicial Discretion: How Much, in Judicial Discretion 12 [Smithbum 1991]). In general, when a discretionary decision is made “within the legal standards and takes the proper factors into account in the proper way, the [trial court’s] decision is protected even if not wise.” Davis, Standards of Review: Judicial Review of Discretionary Decisionmaking, 2 J. App. Prac. & Process 47, 59 (2000). However, “[a]buse is found when the trial court has gone outside the framework of legal standards or statutory limitations, or when it fails to properly consider the factors on that issue given by the higher courts to guide the discretionaiy determination.” 2 J. App. Prac. & Process at 59. See Friendly, Indiscretion about Discretion, 31 Emory L.J. 747, 763 (1982); Rosenberg, Judicial Discretion of the Trial Court, Viewed from Above, 22 Syracuse L. Rev. 635 (1971); Schroeder, Appellate Justice Today: Fairness or Formulas, Wis. L. Rev. 9, 24 (1994).
Applying these principles in the context of the discretionary decision to certify a class, the United States Supreme Court has explained “this discretion is not unlimited, and indeed is bounded by the relevant provisions of the . . . Rules.” Gulf Oil Co. v. Bernard, 452 U.S. 89, 100, 68 L. Ed. 2d 693, 101 S. Ct. 2193 (1981). In another case, the Court explained its reversal of the discretionary decision:'“We do not, of course, judge the propriety of a class certification by hindsight. The District Court’s error in this case ... is the failure to evaluate carefully the legitimacy of the named plaintiffs plea . . . .” A class should be certified only “after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” (Emphasis added.) General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160-61, 72 L. Ed. 2d 740, 102 S. Ct. 2364 (1982).
While the trial court has substantial discretion in determining whether a class should be certified, the provisions of K.S.A. 2003 Supp. 60-223 must be applied and rigorously analyzed.
Did the Trial Court Abuse its Discretion by Not Weighing Evidence?
The defendants argue that the trial court abused its discretion by not resolving factual issues which defendants placed in dispute by filing affidavits and portions of the plaintiffs’ depositions. This evidence related to the number of states where the product was sold, difficulties in identifying the product, and variances in the factors contributing to product failure.
The plaintiffs contend the trial court should make the certification decision solely on the basis of the allegations contained in the pleadings. In support of this argument plaintiffs cite Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 40 L. Ed. 2d 732, 94 S. Ct. 2140 (1974), in which the United States Supreme Court stated: ‘We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.” 417 U.S. at 177. Plaintiffs urge us to apply this conclusion broadly and conclude that the trial court must ac cept the class allegations as true and not inquire into the merits of the class facts.
This argument has been rejected by federal courts. In Falcon, the United States Supreme Court explained that in order to rigorously analyze the Rule 23 prerequisites “it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.” Falcon, 457 U.S. at 160. While acknowledging that the factual probe must be something short of a determination of the merits of plaintiffs’ claim, the federal courts generally recognize that evidence may be used to establish the facts necessary to show whether the prerequisites to class certification are met and the evidence may be submitted at an evidentiary hearing, by affidavits, or through the discovery record. Manual for Complex Litigation (Fourth) § 21.21 (2004) (hereinafter Manual) (“An evidentiary hearing may be necessary in a challenge to the factual basis for a class action.”). See, e.g, Castano v. American Tobacco Co., 84 F.3d 734, 744 (5th Cir. 1996); In re American Medical Systems, Inc., 75 F.3d 1069 (6th Cir. 1996); In re Ford Motor Co. Bronco II Product Liab. Lit., 177 F.R.D. 360, 365 (E.D. La. 1997); Arch v. American Tobacco Co., Inc., 175 F.R.D. 469, 487 (E.D. Pa. 1997); In re Ford Motor Co. Ignition Switch Products, 174 F.R.D. 332, 339 (D. N.J. 1997). See also Fed. R. Civ. Proc. 23, Advisory Committee Comment, 2003 Amendments (“prevailing practice” before amendment is to have active judicial supervision and controlled discovery “limited to those aspects relevant to malting the certification decision on an informed basis”); Conte & Newberg, 3 Newberg on Class Actions §§ 7:6, 7:26 (4th ed. 2002) (if facts are undisputed, determination may be based upon pleadings and arguments; evidence may be submitted to directly dispute class facts or to introduce additional facts which tend to diminish the weight of plaintiffs facts); 59 Am. Jur. 2d, Parties § 100 (trial court must go behind pleadings as it must understand claims, defenses, relevant facts, and applicable substantive law in order to make meaningful certification determination).
Plaintiffs argue against the federal view and suggest that Kansas law does not allow the consideration of evidence on a preliminary, procedural motion.
First, plaintiffs note that K.S.A. 2003 Supp. 60-223(c)(l) requires the trial court to consider class certification “[a]s soon as practicable after the commencement and before the decision on the merits.” The same language was used in Fed. R. Civ. Proc. 23 before the rule was amended in 2003 and has been interpreted not to “mandate precipitous action. The court should defer decision on certification pending discovery if the existing record is inadequate for resolving the relevant issues.” Chateau de Ville Productions, Inc. v. Tams-Witmark Music Library, Inc., 586 F.2d 962, 966 (2d Cir. 1978) (“the district judge acted precipitously in deciding the class certification motion without fuller development of the facts on the issues concerning fairness and adequacy of representation”). Accord Shelton v. Pargo, Inc., 582 F.2d 1298, 1313 (4th Cir. 1978) (“discovery is to be encouraged” on the class issue); Weathers v. Peters Realty Corp., 499 F.2d 1197, 1200 (6th Cir. 1974) (“[t]he parties should be afforded an opportunity to present evidence on the maintainability of class action”). The federal courts generally recognize the trial court’s power to issue a case-management order and “guide the parties in presenting the judge with the information necessary to make the certification decision and permit the orderly and efficient development of the case.” Manual for Complex Litigation, § 21.11, p. 245.
We find no reason to apply a different analysis to the Kansas statute. The trial court should make the certification decision as soon as practicable after the parties have had an opportunity to develop and present the facts relevant to class certification.
Next, plaintiffs urge us to treat a motion for class certification in a manner akin to a motion under K.S.A. 60-212, restricting the determination to allegations in the pleadings, as compared to K.S.A. 2003 Supp. 60-256, which allows evidence to be considered. The Seventh Circuit Court of Appeals rejected this same argument, noting:
“The reason why judges accept a complaint’s factual allegations when ruling on motions to dismiss under Rule 12(b)(6) is that a motion to dismiss tests the legal sufficiency of a pleading. Its factual sufficiency will be tested later — by a motion for summary judgment under Rule 56, and if necessary by trial. By contrast, an order certifying a class usually is the district judge’s last word on the subject; there is no later test of the decision’s factual premise (and, if the case is settled, there could not be such an examination even if the district judge viewed the certification as provisional). Before deciding whether to allow a case to proceed as a class action, therefore, a judge should make whatever factual and legal inquiries are necessary under Rule 23.” Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675-76, cert. denied 534 U.S. 951 (7th Cir. 2001).
The Szabo court gave an example of one party alleging that the class had 10,000 members, making it too numerous to allow joinder, while the other party insisted that the class contained only 10 members. The court’s conclusion, with which we agree, was that “[a] judge would not and could not accept the plaintiff s assertion as conclusive; instead the judge would receive evidence (if only by affidavit) and resolve the disputes before deciding whether to certify the class.” 249 F.3d at 676.
In addition, plaintiffs’ argument ignores K.S.A. 2003 Supp. 60-243(d), which provides: “When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.” Federal courts have recognized that the comparable federal rule, Fed. R. Civ. Proc. 43(e), serves as the basis for considering evidence on a motion to certify a class in federal court. 3 Newberg § 7:26, p. 82 n.6; 9 Wright and Miller, Federal Practice and Procedure: Civil 2d § 2416 (1995).
Therefore, we reject plaintiffs’ arguments and find that a trial court must give careful consideration to and conduct a rigorous analysis of the prerequisites imposed by K.S.A. 2003 Supp. 60-223 and, in doing so, should consider evidence when submitted by the parties and make those factual determinations necessary to a determination of whether the prerequisites for a class action are met.
Did the Trial Court Err in Not Considering Choice-of-Law Issues?
As an alternative argument, plaintiffs suggest that the trial court considered the evidence submitted by the defendants. The plaintiffs point out that, although the trial court did not specifically reference the affidavits or discovery record, the trial court indicated it had considered “Plaintiff s motion and brief for class cer tífícatíon, Defendants’ response brief, Plaintiffs’ reply brief, . . . the file and . . . oral argument.”
However, as defendants note, the trial court did not resolve those facts which were relevant to class certification and which were disputed. Many of defendants’ arguments focus upon one disputed and unresolved fact, the number of states in which class members may reside. In briefs, plaintiffs indicate that members of the class reside in less than a dozen states. In response, the defendants submitted an affidavit which stated that the pipe was “potentially shipped to customers in most of the states of the United States.”
The trial court did not resolve this factual issue and did not consider the related legal issues, finding it was premature to determine whether Kansas law would govern the entire class or whether other states’ laws might be applicable. Defendants argue that without consideration of the choice-of-law factor there is no basis for the trial court to determine commonality, typicality, predominance, or superiority. For example, defendants question how, without having examined the choice-of-law problem, the trial court could conclude: “There are numerous questions of law that are common to the class, as the jury instructions would be essentially the same for every class member on the issue of liability if this case were tried repeatedly and would be the same on damages.”
The defendants’ arguments are premised on their view that the court must apply the laws of the various states in which plaintiffs reside, which defendants contend could involve most states. The defendants note that for claims regarding contract issues, in the absence of a contractual provision stating a choice-of-law agreement K.S.A. 2003 Supp. 84-1-105(1), Kansas courts have traditionally applied the rule of lex loci contractus. In most instances, this means courts apply the substantive law of the state where the contract was made, although in some instances the courts look to the place of performance. See Wilkinson v. Shoney’s, Inc., 269 Kan. 194, 209-13, 4 P.3d 1149 (2000); Aselco Inc. v. Hartford Ins. Group, 28 Kan. App. 2d 839, 21 P.3d 1011, rev. denied 272 Kan. 1417 (2001). Application of this rule could mean that the laws of the various states in which plaintiffs reside would be applied.
Additionally, the defendants argue that Kansas courts have traditionally applied the rule of lex loci delicti to tort claims. Under that rule, courts apply the substantive law of the state where the wrong occurs, meaning the place where the injury was sustained. See Ling v. Jan's Liquors, 237 Kan. 629, 634, 703 P.2d 731 (1985) (rejecting “analytical approach” which would allow forum to apply law of jurisdiction most intimately concerned with outcome of litigation).
Defendants argue that class prerequisites cannot be satisfied in nationwide product liability cases where the rule of lex loci delicti governs choice-of-law determinations. One example of a mass tort class action filed in a lex loci delicti state is In re Bridgestone/Firestone, Inc., 288 F.3d 1012 (7th Cir. 2002), cert. denied 537 U.S. 1105 (2003). Plaintiffs, who were buyers and lessees of sport utility vehicles (SUV) equipped with tires which had an abnormally high failure rate, sued a tire manufacturer and SUV manufacturer. The federal district court certified two classes, one of Ford Explorer owners and lessees, and one of owners or lessees of particular brands of tires. The district court found that under Indiana’s choice-of-law rules, the law of the state where the defendants were headquartered and the products were designed would apply. Thus, the law of Michigan would apply to the first class and the law of Tennessee would apply to the second.
The Seventh Circuit Court of Appeals disagreed, holding that because Indiana is a lex loci delicti state, it would apply the law of the place where the harm occurred. The plaintiffs suffered financial losses in the places where they purchased or leased their vehicles or tires; therefore, the laws of the states where the SUV buyers and lessees resided would apply to the breach of warranty and consumer fraud claims that were asserted. 288 F.3d at 1016. Because the plaintiffs’ claims would have to be adjudicated under the laws of so many jurisdictions, the court found a single nationwide class action was unmanageable. 288 F.3d at 1018.
Defendants contend that because Kansas, like Indiana, is a lex loci delicti state, our choice-of-law rules dictate that the law of the state where each plaintiff resides, that is, where each plaintiff suffered the financial injury of owning a home containing defective polybutylene pipe, would apply to that plaintiffs claim, and application of this rule would make a class action inappropriate.
As previously noted, the trial court determined it was pi-emature to consider these issues and did not consider whether the law of the states of plaintiffs’ residences would apply and, if so, what variances would exist in the laws.
This approach is contrary to this court’s prior direction to trial courts considering class certification. In Shutts Executor v. Phillips Petroleum Co., 222 Kan. 527, 567 P.2d 1292 (1977), cert. denied 434 U.S. 1068 (1978) (Shutts I), a class action filed on behalf of royalty owners under oil and gas leases in a three-state area, we recognized that applying the law of various jurisdictions did not preclude class certification, but cautioned:
“We hasten to add, this opinion should not be read as an invitation to file nationwide class action suits in Kansas and overburden our court system. Concepts of manageability in terms of our Kansas class action statute, the nature of the controversy and the relief sought, die interest of Kansas in having the matter determined, and the class size and complexity will have to be applied. [Citation omitted.] A court should also give careful consideration, as roe have attempted to do, to any possible conflict of law problems. When liability is to be determined according to varying and inconsistent state laws, the common question of law or fact prerequisite of KS.A. 60-223(a)(2) will not be fulfilled.” (Emphasis added.) 222 Kan. at 557.
While in Shutts I, we addressed the issue of commonality, choice-of-law considerations are important to the predominance and superiority factors as well. As noted by the Fifth Circuit Court of Appeals in reversing the class certification of a national class of smokers who alleged eight state law causes of action, “[I]n a multistate class action, variations in state law may swamp any common issues and defeat predominance. . . . Accordingly, a district court must consider how variations in state law affect predominance and superiority.” Costano, 84 F.3d at 741. Other cases are in accord. See, e.g., Spence v. Glock, 227 F.3d 308 (5th Cir. 2000) (threshold question whether district court conducted proper choice-of-law analysis); In re American Medical Systems, Inc., 75 F.3d 1069, 1086 (6th Cir. 1996) (granting mandamus in a multistate products liability action, in part because “[t]he district judge . . . failed to consider how the law of negligence differs from jurisdiction to jurisdiction”); Walsh v. Ford Motor Co., 807 F.2d 1000 (D.C. Cir. 1986), cert. denied 482 U.S. 915 (1987) (district court must consider how variations in state law affect predominance and superiority); see Ryan, Uncertifiable?: The Current Status of Nationwide State-Law Class Actions, 54 Baylor L. Rev. 467, 470 (2002); Bough & Bough, Conflict of Laws and Multi-State Class Actions: How Variations in State Law Affect the Predominance Requirement of Rule 23 (b)(3), 68 UMKC L. Rev. 1 (1999).
Plaintiffs present several arguments as to why the trial court could certify a class in this case without analyzing the impact of the choice-of-law issue. First, plaintiffs note that the class certification is subject to modification. While this is true, the provisional nature of class certification does not lessen the movant’s burden of establishing that the prerequisites for certification are met. See Falcon, 457 U.S. at 160 (“This flexibility enhances the usefulness of the class-action device; actual, not presumed, conformance with Rule 23(a) remains, however, indispensable.”). Furthermore, we note that even in those cases cited by plaintiffs for the argument that it is premature to resolve choice-of-law issues at the stage of class certification, the courts have given consideration to the impact of choice-of-law on the class determination. See, e.g, Lobo Exploration Co. v. Amoco Production Co., 991 P.2d 1048, 1054 (Okla. App. 1999).
Additionally, plaintiffs cite to the trial court’s reliance on Kansas’ long history of certifying class actions. The trial court cited Shutts I, 222 Kan. 527 (involving dispute over oil and gas leases in three states); Shutts v. Phillips Petroleum Co., 235 Kan. 195, 679 P.2d 1159 (1984) (Shutts II), aff'd in part, revd in part and remanded, 472 U.S. 797, 86 L. Ed. 2d 628, 105 S. Ct. 2965 (1985) (oil and gas leases in three states); Shutts v. Phillips Petroleum Co., 240 Kan. 764, 768, 732 P.2d 1286 (1987), cert. denied 487 U.S. 1223 (1988) (Shutts III) (oil and gas leases in three states); Sternberger v. Marathon Oil Co., 257 Kan. 315, 894 P.2d 788 (1995) (oil and gas leases in Kansas, Texas, and Oklahoma raising issues where Oklahoma and Texas law were in accord with Kansas); Gray v. Amoco Production Company, 1 Kan. App. 2d 338, 345, 564 P.2d 579 (1977), aff'd in part, rev'd in part 223 Kan. 441, 573 P.2d 1080 (1978) (required application of law of Kansas, Texas, and Oklahoma on issue on which Texas and Kansas law agreed but Oklahoma law was not decided). We note that in a case not cited by the trial court, Wortman v. Sun Oil Co., 236 Kan. 266, 268, 690 P.2d 385 (1984), vacated and remanded on other grounds 474 U.S. 806 (1985), this court determined that a class requiring application of the laws of six states could proceed.
Nothing in these decisions deviates from the statement in Shutts I cautioning a trial court to consider “any possible conflict of law problems” because class prerequisites could be defeated when liability is to be determined according to varying and inconsistent state laws. 222 Kan. at 557.
Furthermore, the Kansas cases cited by the trial court and the plaintiff are factually distinguishable from the case at bar. Each of those cases involved oil and gas leases where the dispute raised relatively few legal issues as compared to the numerous issues raised in this products liability case where plaintiffs’ theories of liability include: breach of express .and implied contract (plaintiffs as third-party beneficiaries); negligent misrepresentation; strict liability under K.S.A. 60-3301 etseq.; strict advertising liability under § 402B of the Restatement (Second) of Torts (1964); deceptive and unconscionable acts under the Kansas Consumer Protection Act; breach of the implied warranty of merchantability and fitness for a particular purpose under the Uniform Commercial Code; res ipsa loquitur and negligence; and equitable theories of quantum meruit and unjust enrichment.
Despite the number of these theories, plaintiffs contend the fundamental theories of law which will be presented to the jury in this case are essentially the same in all states. Plaintiffs claim that the Uniform Commercial Code is followed by virtually every state as is the product liability law established in the Restatement (Second) of Torts § 402A (1964). Plaintiffs also contend consumer protection laws are essentially the same from state to state, citing as an example Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998), where the Ninth Circuit Court of Appeals affirmed certification in a class action against a minivan manufacturer. Plaintiffs also cite In re Telectronics Pacing Systems, Inc., 172 F.R.D. 271, 291 (S.D. Ohio 1997) (“all states use the same elements to define a cause of action for negligence”).
Plaintiffs’ argument regarding the Restatement is belied by the Reporter’s Notes to § 402A which show that not every state has adopted the rule contained in that section. Regarding the claims of breach of warranties made under the Uniform Commercial Code, while the nationwide adoption of the uniform code provides this cause of action in virtually all states, it is not applied in the same fashion everywhere, especially concerning whether vertical privity is a prerequisite to recovery. Osborne v. Subaru of America, Inc., 198 Cal. App. 3d 646, 656, 243 Cal. Rptr. 815 (3d Dist. 1988). Regarding the law of negligence, the Seventh Circuit observed:
“The law of negligence, including subsidiary concepts such as duty of care, foreseeability, and proximate cause, may . . . differ among the states only in nuance, though we think not .... But nuance can be important, and its significance is suggested by a comparison of differing state pattern instructions on negligence and differing judicial formulations of the meaning of negligence and the subordinate concepts.” Matter of Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1300 (7th Cir. 1995).
Furthermore, there is wide variance in the laws of various states regarding other aspects of products liability theories and various affirmative defenses thereto. Castano, 85 F.3d at 743. There is also wide variance in the law regarding damages; especially of note in this case is the division among the states on the question of whether economic losses are recoverable in a products liability action. Osborne, 198 Cal. App. 3d at 658.
Our prior cases regarding class actions are also distinguishable because of the potential number of states whose laws may impact this case. None of the Kansas cases cited by the plaintiffs or relied upon by the trial court involved application of the laws of more than six states. In this case the record does not disclose the number of states involved. However, the affidavit presented by defendants indicates that the laws of most of the 50 states might be implicated.
Plaintiffs argue that the number of states potentially involved is not relevant because many states have applied the law of the forum in nationwide products liability cases. Citing the Restatement (Sec ond) of Conflicts of Laws (1971) “most significant relationship test” and the numerous class action cases to apply that test, plaintiffs argue that, at most, the laws of Kansas and South Carolina should be applied since these are the only states where the product was manufactured. However, defendants note that this court has yet to decide choice-of-law principles in certain kinds of mass tort cases, including class actions. See Bezek, Conflict of Laws in Kansas: A Guide to Navigating the Dismal Swamp, 71 J.K.B.A. 21, 24 (Sept. 2002) (“[C]lass action tort cases pose substantial problems when the class members are from different states. The likely course the Kansas appellate courts would take in such a case is not established.”) Bezek’s article also points out that in some cases, Kansas courts have opted to apply Kansas law absent a clear showing that another state’s law should apply. See Systems Design v. Kansas City P.O. Employees Cred. Union, 14 Kan. App. 2d 266, 269, 788 P.2d 878 (1990) (quoting Shutts II, 235 Kan. at 221). She characterizes this approach as a lex fori, or law of the forum, leaning. Bezek, 71 J.K.B.A. 22.
However, the record before us does not allow determination of these issues. Various factors are relevant to a choice-of-law determination, including the procedural or substantive nature of the question involved, the residence of the parties involved, and the interest of the state in having its law applied. Sun Oil Co. v. Wortman, 486 U.S. 717, 100 L. Ed. 2d 743, 108 S. Ct. 2117 (1988). A thorough analysis of these issues was not presented to the lower court. Even under a lex fori approach, full faith and credit and due process issues prevent Kansas from constitutionally applying its own substantive law to every claim unless it had “ ‘a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.’ ” Phillips Petroleum Co. v. Shutts, 472 U.S. at 818 (1985) (quoting Allstate Ins. Co. v. Hague, 449 U.S. 302, 312-13, 66 L. Ed. 2d 521, 101 S. Ct. 633 [1981]). These contacts must be significantly greater in number and quality than the contacts necessary to provide a court with jurisdiction over the class members’ claims. 472 U.S. at 821-22.
Because these issues were not developed in the record before us and were not analyzed by the trial court, we cannot determine the validity of plaintiffs’ argument or determine which state’s or states’ laws apply in this case.
Plaintiffs suggest that it would be inappropriate for us to remand the case for consideration of the choice-of-law issue because the defendants had the burden to establish that the law of other states would apply, they failed to do so, and have forfeited their right to complain. In support of this argument, plaintiffs cite Layne Christensen Co. v. Zurich Canada, 30 Kan. App. 2d 128, 143-44, 38 P.3d 757 (2002), which held: “Generally the party seeking to apply the law of a jurisdiction other than the forum has the burden to present sufficient facts to show that other law should apply. Failure to present facts sufficient to determine where the contract is made may justify a default to forum law.” Layne was not a class action and, therefore, did not consider the burden of proof issues inherent in the filing and prosecution of a motion to certify a class. However, the Layne court cited Loho, 991 P.2d at 1051-52 , which is a class action case in which the Oklahoma Court of Appeals held that the burden fell upon the party who argued that conflicting laws defeated class certification.
Within the context of a motion for class certification, many other courts disagree and have determined that the person seeking the class must meet the burden of establishing that conflicts in applicable laws do not defeat the requirements of commonality, typicality, predominance, and superiority. As one commentator stated: “[I]t is incumbent upon class counsel to prove to the court that the multistate class should proceed. Class counsel must either show that there are no significant differences in the various state laws, or, if there are variations, that they can be managed by the trial court.” 4 Newberg on Class Actions § 13:36, p. 436-37. See, e.g., Walsh v. Ford Motor Co., 807 F.2d 1000, 1017 (D.C. Cir. 1986), cert. denied 482 U.S. 915 (1987) (quoting In re School Asbestos Litigation, 789 F.2d 996, 1010 [3d Cir. 1986]) (“To establish commonality of the applicable law, nationwide class action movants must creditably demonstrate, through an ‘extensive analysis’ of state law variances, ‘that class certification does not prevent insuperable obstacles.’ ”).
We find this latter analysis to be more persuasive and conclude that when the determination is whether the prerequisites of K.S.A. 2003 Supp. 60-223 are met, the movant has the burden to show that there are no significant differences in the various states’ law or, if there are variations, that they can be managed by the trial court.
Plaintiffs also argue that remand is unnecessary because the trial court recognized that subclasses may need to be created based upon the variations in state law. Plaintiffs assert that any conflict problem can be managed through these subclasses. In one of the first cases to recognize the use of subclasses as a mechanism for dealing with conflict-of-law issues, the Illinois Supreme Court noted that subclasses do not necessarily cure the problems raised when different laws must be applied. The court stated that the predominance of common questions of law or fact depended “upon plaintiff s ability to establish that the differing laws of the States are subject to grouping in a manageable number of subclasses.” (Emphasis added.) Miner v. Gillette, 87 Ill.2d 7, 17-18, 428 N.E.2d 478 (1981). Consistent with this, other courts require that the movant establish that the disparate issues can be grouped into subclasses and that the resulting number is manageable. E.g., Osborne, 198 Cal. App. 3d at 658-59 (defective design product case in which plaintiff did not meet burden of showing that an acceptable number of subclasses could be established given myriad diverse state laws; noting there are limits outside which subclassification system is not sufficiently useful). In this case, plaintiffs have made no showing that subclasses would be feasible or that there would be a manageable number of subclasses.
We conclude, therefore, that the matter should be remanded for consideration of the choice-of-law issue and the impact upon the prerequisites imposed by K.S.A. 2003 Supp. 60-223.
Other Issues
Defendants argue that the trial court erred in disregarding the factual variances in causation, damages, and other aspects of each individual claim. Defendants note that even between the two plaintiffs there is variance in the type of plumbing failures experienced; one involved leaks inside the house and the other involved leaks outside the house. Defendants also provided an affidavit from Vanguard Plastics’ Director of Quality Assurance stating that the causes of polybutylene plumbing system failures can be multiple and may include improper installation practices, improper maintenance and design of the system, and exposure to excessive chlorination. An affidavit from another Vanguard employee described the difficulty of identifying homes with Mitsui pipe.
It is unclear how the trial court treated these aspects of the affidavits regarding individual questions which might be at issue. We note that the presence of individual questions, while tending to diminish the weight of class facts, does not necessarily defeat a prima facie showing that the class prerequisites are satisfied, 3 Newberg § 7:26, or mean that there has been an abuse of discretion in certifying the class, Helmly v. Ashland Oil, Inc., 1 Kan. App. 2d 532, 536-37, 571 P.2d 345, rev. denied 222 Kan. 749 (1977). Therefore, for the trial court to have certified a class in light of these individualized questions is not necessarily error. We also note that if the court did consider the evidence, the defendants’ arguments fall within that purview of the trial court’s wide discretion in determining if a class should be certified.
However, the weight to be given these facts is also somewhat dependent on the various choice-of-law issues. Therefore, on remand these facts will again need to be analyzed, especially in relation to the superiority and predominance factors.
Finally, for purposes of providing guidance on remand, we consider the defendants’ objection to the trial court’s consideration of two class actions involving polybutylene pipe which have reached an approved settlement: Cox v. Shell Oil, 1995 WL 775363 (Tenn. Ch. 1995), and Spencer v. Dupont, Case No., 94-074, Greene County Circuit Court (Ala. 1995). The trial court relied, at least in part, on the fact that Cox involved a “virtually identical class” in deciding to certify the class in this case. The court found the only differences between this case and Cox were that class members were expected to be from far fewer states than in Cox and that the pipe resin was made by Mitsui rather tiran Shell. The court found those differences to be insignificant.
Defendants argue that the trial court erred in relying on Cox because of several key differences. First, the initial class certification in Cox was not contested and ultimately became part of a settlement class. The Cox defendants reserved the right to oppose class certification for trial purposes if the settlement was not approved. Defendants note that when a class is certified for settlement purposes only, there will be no discovery and no trial; therefore, many of the legal difficulties of a multistate class action are eliminated, including most choice-of-law questions. Second, the Cox plaintiff class was limited to persons who owned polybutylene pipe used in certain applications and with leakage. In this case, the class is not limited to specific applications and does not exclude persons who have not experienced leakage. Plaintiffs dispute these arguments and submit that Cox and Spencer provide a master plan for the handling of this case, which is considerably smaller and less complex.
On the record before us, we cannot resolve the parties’ dispute as to whether the classes in Cox and Spencer were certified for settlement purposes only. If the classes were certified for settlement only, different conflict of law and manageability issues were presented and the cases may be of little guidance. See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 138 L. Ed. 2d 689, 117 S. Ct. 2231 (1997) (class certification for settlement only does not raise issues of whether trial will present intractable management problems, but all other specifications of Fed. R. Civ. Proc. 23 are of vital importance because court will not have opportunity to adjust class as proceedings unfold).
However, it is not an abuse of discretion to consider tiróse cases where similar issues were presented as long as that consideration is not a substitute for, but merely a part of, the trial court’s careful and rigorous analysis of whether all the prerequisites of K.S.A. 2003 Supp. 60-223 are satisfied.
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The opinion of the court was delivered by
Davis, J.:
The Workers Compensation Board (Board) affirmed the decision of the administrative law judge (ALJ) awarding workers compensation benefits to employee Columbus Neal. Employer Hy-Vee, Inc., and its insurer Hawkeye Security Insurance Com pany appealed from that part of the decision not suspending the employee’s right to payment of compensation under K.S.A. 44-518. The employee was serving time on felony convictions and was unable to attend the employer’s scheduled medical exam in the office of the employer’s chosen physician. The employer also claims that the Board did not have the authority to remand the case to the ALJ for a determination of the employee’s average weekly wage. We affirm.
FACTS:
On November 2, 1996, the employee sustained a compensable back injury while working for the employer in Johnson County. During the course of his medical treatment for this injury, the employee was arrested on a murder charge and another felony charge and held in the Jackson County, Missouri, jail in June 1997. At the request of the employee’s counsel, Dr. David Zimmerman examined the employee in the jail on June 12, 1998. Dr. Zimmerman opined that the employee had an 8% impairment to the whole person as a result of his compensable injury.
The employee was convicted of murder and armed criminal action and sentenced to serve two life sentences. He continued to receive medical treatment through the Jackson County jail and Truman Medical Center until he was transferred to the Crossroads Correctional Center in Cameron, Missouri, in September 1998. Cameron is 52 miles from the metropolitan Kansas City area. The employee’s incarceration prevented him from attending the scheduled medical examination in the office of the employer’s physician, Dr. Michael Poppa, in Kansas City, Missouri, on December 29, 1998.
On December 30, 1998, the employer moved to suspend the proceedings under K.S.A. 44-518 until the employee was able to make himself available for an examination under K.S.A. 44-515. The ALJ suggested that the employer arrange for the examination to take place at the Crossroads facility, either by Dr. Poppa or a local physician serving the facility. The employer informed the ALJ that Dr. Poppa’s schedule did not permit him to perform an ex- animation of the employee in the prison and that it was unfamiliar with the qualifications or reputations of the local physicians.
At the regular hearing, the ALJ indicated that no agreement had been reached regarding the employee’s average weekly wage, although it was alleged that his wages were $11.30 per hour plus overtime, or $440. Additionally, evidence was introduced indicating that the employee had received 3 months’ temporary total disability (TTD) in the amount of $983.12. In the October 27, 1999, award, the ALJ found that the employee suffered a compensable injury which resulted in a permanent partial functional impairment of 8% and was entitled to future medical treatment. The ALJ also found the employer’s admission that the employee was paid 3 weeks of TTD totaling $983.12, suggesting an average weekly benefit paid of $327.71, slightly exceeding the $326 maximum at the time, and indicating an average weekly wage of $451.57, matched the employee’s assertion at the prehearing settlement conference. See K.S.A. 44-510c(b)(l). The employee was awarded 3 weeks of TTD at the rate of $326 per week totaling $978 followed by 33.20 weeks at $326 for an 8% permanent partial general body disability, making a total award of $11,801.20 due and owing to the employee on December 29, 1998. The award was payable until December 29,1998, after which it was suspended until an examination scheduled by the employer at a Missouri location was attended by the employee.
The employer appealed, raising two issues before the Board. First, the employer argued that the employee’s benefits should have been suspended because he was incarcerated at a prison facility in Cameron and failed to attend a medical appointment scheduled by the employer. Second, the employer argues that the employee’s benefits should have been denied because the employee did not present any evidence regarding his average weekly wage, an essential element of his claim.
In the April 19, 2000, order, the Board found the employee’s failure to appear at the scheduled appointment for examination by the employer’s doctor did not operate to suspend his right to benefits under K.S.A. 44-515 and K.S.A. 44-518. The Board concluded that under the circumstances, the employee did not refuse to sub mit to an examination as that term is used in K.S.A. 44-518. The Board reasoned that the term “refusal” carries with it an element of willfulness or intent, that the employee could not go to the examination, and that it was unwilling to have the prior criminal act substitute as the act of refusing to attend the examination. The Board also concluded that a reasonable time and place for such an examination would have been the correctional facility in Cameron.
The Board also found that the employee offered no evidence of his average weekly wage but the employer did not comply with K.A.R. 51-3-8(c) by providing payroll records. “[I]n the interest of justice,” the Board remanded the case to allow the employee to introduce evidence of his average weekly wage. The employer attempted an appeal to the Kansas Court of Appeals. However, the employer’s appeal was dismissed because the Board’s April 19, 2000, order was interlocutory.
Consistent with the Board’s order, the case was remanded to the ALJ. While continuing to contend that the Board had no authority to allow the employee a new opportunity to establish his average weekly wage after he had failed to establish the same in the first regular hearing before the ALJ, the employer stipulated that the employee’s average weekly wage was $462.18.
In his May 15, 2001, award, the ALJ took into account the deposition of Kip Kubin, who discussed the difficulty in obtaining a qualified medical examination of the employee while he was imprisoned in Cameron and the estimates that the costs of well-known evaluators would be $3,000 to $5,000 for an examination. However, the ALJ pointed out that the employee was examined by Dr. Zimmerman while in the Jackson County jail and the employer had several years to likewise arrange an examination in Kansas City. The ALJ awarded the employee 3 weeks of TTD at the rate of $308.14 per week, followed by 33.20 weeks at $308.14 per week, for an 8% permanent partial general body disability. The ALJ reasoned that the benefits should be suspended as of December 29, 1998, the date the employee failed to appear for the examination.
The employer appealed to the Board, arguing that the employee’s benefits should have been suspended because his incarceration prevented an examination by its chosen physician and the Board did not have the authority to remand the case for more specific evidence of the average weekly wage.
The Board affirmed the ALJ in its July 29, 2002, order. Regarding the suspension issue, the Board noted testimony that the usual and customary fee for an independent medical examination is between $350 and $800. The Board recognized that Delaware and Nevada courts have held the failure of an incarcerated employee to appear for medical examination should not be treated as a refusal but a Pennsylvania court had held that an employee had no right to force the employer to make special arrangements to accommodate incarceration. The Board concluded:
“The Board concludes that under the circumstances of this case, claimant did not refuse to submit to an examination. In addition, in this case a reasonable time and place would have been the correctional facility in Cameron, Missouri. The terms ‘refusal’ and ‘unnecessarily obstructs’ carry with them an element of willfulness or intent. Claimant did not decide not to go to the examination, he could not go. The Board is unwilling to treat incarceration for the prior criminal act as a substitute for the act of refusing to attend the examination.
“Under the circumstances, the prison facility in Cameron, Missouri, would have been the reasonable place for the examination. The record indicates respondent initially asked one physician to go to the facility. When he refused, respondent made no further effort to arrange for an examination. Upon remand of the matter, the respondent contacted two physicians and one refused to go to the facility and tire other was not able to schedule such an all day appointment for two months. The fee for such examination would be $3,000.
“The Board concludes the respondent has not established it is unreasonable to arrange for an examination of claimant at the prison facility. The respondent did not attempt to locate qualified physicians closer to the prison facility in Missouri to conduct an examination of the claimant. Such local physicians would certainly not require the entire day that the two physicians respondent contacted required. In addition, competent medical testimony can be established by a physician without examining the claimant. A physician can review the claimant’s medical records and under the Fourth Edition of the AMA Guides offer an opinion on claimant’s functional impairment, if any.”
Regarding the wage issue, the Board found that K.S.A. 2002 Supp. 44-551(b)(l) grants the Board the authority to remand any matter to the ALJ for further proceedings and remand in this case was contemplated by statute. The Board concluded that the employee’s allegations regarding his average weekly wage were unclear because $11.30 per hour plus overtime did not add up to $440 and the statements by counsel regarding TTD benefits which had been paid were not stipulations as to the average weekly wage. Remand was required in the interests of justice and because of the employer’s failure to comply with K.A.R. 51-3-8(c) by failing to provide a wage statement and payroll information or state its position on an average weekly wage.
Two Board members dissented from the majority opinion. The dissent found that under K.S.A. 44-518, the employer’s statutory right to obtain and present rebuttal medical evidence from a physician of the employer’s choice on the extent of the employee’s impairment was unnecessarily obstructed. It found that the K.S.A. 44-515 requirement that the employee submit to a medical examination at a reasonable time and place does not include making special arrangements and paying increased fees to facilitate an examination if an employee is incarcerated and cannot submit to an examination at the doctor’s facility.
The dissent found the employee’s failure to attend the scheduled examination was without reasonable cause or excuse, that he was unable to comply with the examination because he was incarcerated, that the employee exercised his will to commit a crime and subject himself to a potential loss of his personal freedom, and that these were not circumstances beyond the employee’s control. It concluded that the burden was on the employee to request a transfer to the location of the examination and until he could comply with K.S.A. 44-518 his case should be suspended.
The dissent also found that the employee’s failure to subpoena or obtain an order for payroll records from the employer and to testify about his average weekly wage should have resulted in a denial of compensation for failure to meet the burden of proof on an essential element of the case. It opined that the majority erred by remanding the case for additional evidence on the disputed average weekly wage because remand should not be used to allow a party a second chance to present evidence on a disputed issue because it eliminates any semblance of an adversarial proceeding and removes the Board from making an impartial determination based on the facts before the ALJ.
The employer appeals the Board’s July 29, 2002, order.
The employer advances on appeal the same two issues raised before the Board. First, the employer argues that the consequences of the employee’s criminal convictions which precluded his compliance with K.S.A. 44-515(a) constitute a refusal to submit to a medical examination under K.S.A. 44-518, with the result that the employee’s right to payment of compensation is suspended. Alternatively, the employer contends that the employee’s intentional and willful acts have created his incarceration which, in turn, “unnecessarily obstructs” and “prevents” the examination. The employer argues the Board improperly expanded its jurisdiction by finding the term “unnecessarily obstructs” carries with it an element of willfulness of intent. Second, the employer argues that the Board erred by granting the employee another opportunity to establish through remand an essential element of his claim- — -his average weekly wage.
(1) The Effect of the Employee’s Failure to Appear For the Employer’s Scheduled Medical Examination by Reason of the Employee’s Incarceration on Unrelated Felony Conviction Under K.S.A. 44-515 and K.S.A. 44-518
The employer argues that the Board improperly expanded its jurisdiction by finding the terms “refusal” and “unnecessarily obstructs or prevents” carries with it an element of willfulness or intent on the part of the employee. The' employer contends that the Board erred in its conclusion that the employee’s failure to appear at the appointment scheduled with Dr. Poppa did not operate to suspend the employee’s right to benefits.
The employee counters that the employer’s argument ignores the reasonableness requirements of the examination under K.S.A. 44-515 and K.S.A. 44-518. He argues that the employer has failed to demonstrate that it made a reasonable attempt to get the employee examined, that it was unreasonable to expect the employee to be examined in Kansas City while he was incarcerated in Cameron, and that the Board properly interpreted the terms refusal and unnecessarily obstructs to carry with them an element of willfulness or intent.
K.S.A. 44-515(a) provides in relevant part:
“After an employee sustains an injury, the employee shall, upon request of the employer, submit to an examination at any reasonable time and place by any one or more reputable health care providers, selected by the employer, and shall so submit to an examination thereafter at intervals during the pendency of such employee’s claim for compensation, upon the request of the employer, but the employee shall not be required to submit to an examination oftener than twice in any one month, unless required to do so in accordance with such orders as may be made by the director.”
K.S.A. 44-518 provides:
“If the employee refuses to submit to an examination upon request of the employer as provided for in K.S.A. 44-515 and amendments thereto or if the employee or the employee’s health care provider unnecessarily obstructs or prevents such examination by the health care provider of the employer, the employee’s right to payment of compensation shall be suspended until the employee submits to an examination and until such examination is completed. No compensation shall be payable under the workers compensation act during the period of suspension. If the employee refuses to submit to an examination while any proceedings are pending for the purpose of determining the amount of compensation due, such proceedings shall be dismissed upon showing being made of the refusal of the employee to submit to an examination.”
Although the Kansas courts have never considered the reasonableness of scheduling an examination for an incarcerated employee, or whether incarceration itself constitutes a refusal to submit to the examination, the interpretation of K.S.A. 44-515 and 44-518 in another situation is helpful to this analysis.
In Zimmerman v. O’Neill Tank Co., 188 Kan. 306, 362 P.2d 10 (1961), the Supreme Court found that an employer s request that the employee submit himself for further examination 18 days after the date on which the commissioner was required to file the award was unreasonable and improper and the employee’s refusal to appear did not suspend his right to compensation. The court reasoned:
“[W]e have no difficulty in concluding that before the provisions of 44-515, supra, and for that matter its supplementing section (44-518, supra), become operative, the request of an employer for further examination of a workman must fix a reasonable time at which the workman shall appear for the examination. Moreover, we are convinced that the date fixed for the holding of an examination must be at a time when the examination itself would serve some useful purpose in effectuating the purposes of the proceeding then pending under the Act, other wise the time fixed for the holding of such examination is not to be construed as having been at a ‘reasonable time,’ within the meaning of those words as used in 44-515, supra. Indeed, such a conclusion is warranted under the clear and unequivocal language of 44-515, supra, providing for examination at any reasonable time, and the equally plain provisions of 44-518, supra, indicating that unless the employee refuses to submit himself for an examination provided for in section 15 (44-515), the penalties prescribed by 44-518 have no application.” 188 Kan. at 310.
The Board concluded that the reasonable time and place for the examination was the correctional facility in Cameron rather than the doctor’s office in Kansas City. This conclusion under K.S.A. 44-515 would result in a determination not to suspend the employee’s benefits under K.S.A. 44-518 because the scheduled examination in Kansas City, according to the Board, was not a reasonable place for the examination. Such a determination by the Board could have ended the matter. However, the Board further concluded that the employee did not willfully or intentionally refuse or unnecessarily obstruct his attendance at the examination in Kansas City under K.S.A. 44-518.
There are two questions presented in regard to the issue we now consider. The first is a question of law regarding the interpretation of K.S.A. 44-518 and whether the provisions of the statute operate as a matter of law to suspend the employee’s right to payment of compensation. In other words, does the employee’s incarceration for felony convictions amount to a refusal, obstruction, or prevention of the scheduled examination as a matter of law? The second question addresses the reasonable time and place requirement under K.S.A. 44-515. This question is one of fact dependent upon the circumstances of the case being considered.
K.S.A. 44-518 — Question of Law
Does the employee’s incarceration for felony convictions unrelated to the workers compensation proceedings constitute a refusal or unnecessary obstruction or prevention of such examination under K.S.A. 44-518 as a matter of law? The question posed is one of first impression in Kansas. The Board answered no to this question by concluding that the terms “refusal” and “unnecessarily obstructs” in K.S.A. 44-518 carry with them an element of willfulness or intent. According to the Board, the employee did not decide not to go to the examination; rather, he could not go. The Board was unwilling to treat incarceration for his felony convictions as a substitute for the act of refusing to attend the examination.
Our standard of review is statutorily defined by the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 etseq. Under K.S.A. 77-621(c), this court may grant relief if it finds the agency has erroneously interpreted or applied the law. The interpretation of K.S.A. 44-515 and K.S.A. 44-518 is a question of law subject to unlimited review. Although deference must be given to the Board’s interpretation of the law, this court may take corrective action if such interpretation is erroneous. Burton v. Rockwell International, 266 Kan. 1, 5, 967 P.2d 290 (1998).
The Board examined cases from Delaware, Nevada, and Pennsylvania regarding the issue we now consider. The Pennsylvania Commonwealth Court in Raymond v. W.C.A.B. (Donolo Masonry Const.), 659 A.2d 657 (Pa. Commw. 1995), dealt with an incarcerated employee’s appeal from the Board’s suspension of his benefits when he failed to attend a scheduled independent medical examination (IME) scheduled by the employer at the doctor’s office. Pennsylvania law requires an employee to submit himself for examination at some reasonable time and place and to a physician selected by the employer who must pay the fees and travel expenses incurred by the employee. As in this case, the employee argued that he was willing to attend the examination but was unable due to his incarceration.
In affirming the suspension of benefits of that employee, the Pennsylvania Commonwealth Court found the responsibilities of an employer do not include making special arrangements to facilitate an IME if an employee is incarcerated and cannot submit himself to an examination. It found that a reasonable time and place would be at a physician’s office or a medical facility, not a prison, especially when an employee is unable to submit himself or herself due to his or her own intentional actions. Additionally, the court pointed out that the employee did not timely respond to the notice of the IME although the notice indicated a willingness to consider an alternative date. 659 A.2d at 660.
The Nevada Supreme Court addressed the same issue in SIIS v. Campbell, 108 Nev. 1100, 844 P.2d 795 (1992). That court subsequently granted a rehearing in the case and ordered the above opinion to be withdrawn in 109 Nev. 405, 848 P.2d 1068 (1993). On rehearing, the court considered whether TTD benefits may be suspended during the time in which a claimant is incarcerated. 109 Nev. 997, 862 P.2d 1184 (1993).
Under Nevada law, TTD benefits may be suspended where an employee voluntarily refuses to receive or obstructs the completion of a required examination. In affirming the appeal officer s finding that the incarcerated employee neither obstructed nor refused to submit to an examination, the court inteipreted “obstruct” as meaning a volitional act with intent to hinder a required examination. It reasoned this interpretation was in harmony with its policy of construing workers compensation statutes liberally for the protection of the employee. 109 Nev. at 1000.
The Delaware Superior Court in Foraker v. NVF Company, 358 A.2d 730, 731-32 (Del. Super. 1976), reversing a determination that benefits be suspended, held that an employee’s incarceration pending disposition of criminal charges did not constitute a refusal or obstruction of the examination. Delaware law provides that an employee’s refusal to submit to the employer’s examination or obstruction of such examination deprives him of the right to compensation. The court reasoned that suspension of benefits based upon an employee’s incarceration prior to a determination of guilt ignores the presumption that an accused person is innocent until proven guilty. 358 A.2d at 733.
As the parties point out, all of these cases are distinguishable from this case in some fashion. Raymond involved the additional circumstance that the incarcerated employee failed to respond to the IME notice which provided the possibility for an alternative date. Campbell’s interpretation of “obstruct” to include an intent element was based on Nevada’s policy of construing workers compensation statutes liberally for the protection of the employee, while the Kansas policy is to apply the statutes impartially to both employers and employees. K.S.A. 44-501(g). Foraker involved a suspension of benefits prior to the employee’s adjudication of guilt and the effect it would have on the presumption of innocence. In this case, the employee’s convictions were final at the time of the scheduled examination.
Distinguishing factors aside, this court still must determine whether the provisions of K.S.A. 44-518 require suspension of the employee’s benefits as a matter of law. The employer argues that this court’s discussion of public policy in In re Marriage of Thurmond, 265 Kan. 715, 962 P.2d 1064 (1998), is consistent with the Raymond court’s approach to suspending benefits. In Thurmond, this court concluded that incarceration, standing alone, was not legal justification for the suspension or modification of that parent’s child support obligation. Looking at case law from other jurisdictions, the court identified three available methods to make this determination: (1) No justification, (2) complete justification, or (3) one factor to consider. 265 Kan. at 720. In discussing the no justification rule, this court stated:
“The specific language utilized in some of the cases supporting this rule to the effect that incarceration is similar to quitting a job to avoid paying child support and that in both situations, the inability to pay is Voluntary’ stretches reality a bit. Most inmates would have difficulty accepting the concept that their incarceration is to be considered ‘voluntary.’ It is more accurate to say that a reduction of income from a cause beyond the obligor’s control (such as illness, injury, lay-off, etc.) should be considered differently from those which arise from causes within his or her control. Criminal activity foreseeably can lead to incarceration and such activity is obviously within an individual’s control. Public policy considerations heavily favor the no-justification rule.” 265 Kan. 729.
Justice Allegrucci was joined by Justice Six in dissenting from the majority opinion, finding that he would adopt the “complete justification rule” because it would allow the district court to modify the support obligation based upon the reality of the parent’s financial situation. 265 Kan. at 730.
The employer argues the Board erroneously applied a complete justification rule in this case by finding that the employee’s incarceration was legal justification for him to avoid his legal obligation to appear for a medical examination. The employee distinguishes the child support public policy considerations in Thurmond from this case in which the employer was seeking to be relieved of its workers compensation statutory obligations based upon an employee’s unrelated incarceration. The employee points out that child support public policy considerations would be frustrated if the employer prevailed because child support obligations may be attached and paid from workers compensation benefits. See K.S.A. 44-514.
The employee is correct that the public policy considerations underlying child support in Thurmond bear little similarity to the policy underlying workers compensation benefits at issue in this case. Thurmond dealt with the effect of incarceration on the prisoner’s legal obligation to pay child support rather than a prisoner’s right to receive workers compensation benefits for an injury unrelated to his incarceration.
“It is the intent of the legislature that the workers compensation act shall be liberally construed for the purpose of bringing employers and employees within the provisions of the act to provide the protections of the workers compensation act to bodr. The provisions of the workers compensation act shall be applied impartially to both employers and employees in cases arising thereunder.” K.S.A. 44-501(g)
K.S.A. 44-518 is designed to preserve the employer’s right to discovery through examination by a doctor of the employer’s choice. The examination provided for in 44-515 is the discovery tool for the benefit of the employer. It provides the employer an opportunity to seek independent medical opinions of an employee’s condition during the pendency of the employee’s claim for benefits. The statute does not provide that the employer has an absolute right to an examination at the time and place of its choosing; rather, the examination must be at a reasonable time and place. In protecting the employer’s right to this discovery, K.S.A. 44-518 provides that if the employee refuses, obstructs, and prevents the employer from exercising its option for examination under 44-515, the employee’s right to payment of compensation shall be suspended until the employee submits to an examination and such examination is completed.
The very nature of the language used in 44-518 suggests that before suspension of benefits, there must be an affirmative act on the part of the employee to frustrate the employer’s discovery or examination. In our interpretation of 44-518, we follow a familiar maxim of statutory construction which provides: “Ordinary words are to be given their ordinary meaning, and a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it. [Citation omitted.]” GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001).
Black’s Law Dictionary defines “refusal” as “[t]he act of one who has, by law, a right and power of having or doing something of advantage, and decline it.” Black’s also indicates that the declination of a request or demand, or the omission to comply with some requirement of law, be “as the result of a positive intention to disobey.” (Emphasis added.) Refusal is often coupled with “neglect,” but Black’s notes that neglect signifies a mere omission of a duty “while ‘refusal’ implies the positive denial of an application or command, or at least a mental determination not to comply.” (Emphasis added.) Black’s Law Dictionary 1282 (6th ed. 1990).
“Obstruct” is defined as “[t]o hinder or prevent from progress, check, stop, also to retard the progress of, make accomplishment of a difficult and slow. ... To impede.” Black’s Law Dictionary 1077 (6th ed. 1990).
The ordinary meaning of the words used in K.S.A. 44-518 contemplate a positive intention to disobey and to hinder. We believe K.S.A. 44-518 contemplates circumstances where an employee makes a deliberate decision not to attend the examination or to obstruct or prevent the employer from gathering its own independent evaluation of his medical condition. Thus, the Board’s interpretation that there must be an element of willfulness or intent is consistent with the ordinary meaning of the words of K.S.A. 44-518.
The employee’s actions in this case were passive. He was willing to submit to the examination in Kansas City, but his circumstances prevented him from doing so. To conclude, as other courts have, that the employee voluntarily committed his or her crime resulting in incarceration and such a past intentional choice thereby prevented him or her from attending a subsequent examination, ignores statutory language indicating an affirmative act is required on the part of the employee. We, like the Board, are unwilling to treat incarceration for the prior criminal acts as a substitute for the act of refusing to attend the examination.
Based upon the cases cited above and the clear import of K.S.A. 44-518 we, like the Board, conclude that the terms “refusal” and “unnecessarily obstructs” carry with them an element of willfulness or intent. The employee exerted no affirmative act to frustrate discovery; he simply could not go to the examination. Thus, we conclude that a prior criminal act and the resulting incarceration dp not, as a matter of law, constitute a refusal or unnecessary obstruction or prevention of a scheduled examination under K.S.A. 44-518 warranting a suspension of benefits. This interpretation of 44-518 is also consistent with the underlying policy of the Workers Compensation Act (Act) to bring both parties under the protections of the Act and to act impartially thereunder.
K.S.A. 44-515 — Question of Fact
Our scope of review in regard to this question is statutorily defined by the KJRA, K.S.A. 77-601 et seq. The provisions of K.S.A. 77-621(a)(7) provide that this court shall grant relief only if
“(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act.”
The determination of whether an employer has requested the employee to submit to an examination at a reasonable time and place is a question of fact. Zimmerman v. O’Neill Tank Co., 188 Kan. 306, 310, 362 P.2d 10 (1961). The determination of whether the Board’s findings of fact are supported by substantial competent evidence is a question of law. Mudd v. Neosho Memorial Regional Medical Center, 275 Kan. 187, 191-92, 62 P.3d 236 (2003).
Substantial evidence is evidence possessing something of substance and relevant consequence and carrying with it fitness to induce conviction that the award is proper, or furnishing a sub stantiating basis of fact from which the issue tendered can be reasonably resolved. This court views the evidence in the light most ■favorable to the prevailing party; it does not reweigh the evidence or determine the credibility of the witnesses. 275 Kan. at 191-92.
While the employer seeks to blame the employee entirely for the added difficulty and cost in obtaining the examination, the employer fails to acknowledge its own culpability in the situation. The employer had ample time to pursue a medical examination while the employee was incarcerated in Kansas City but chose to wait until the employee was transferred to Cameron. After its physician of choice refused to go to Cameron and another physician could only go several months later at an exorbitant cost, the employer made no effort to obtain a physician in the Cameron locality. We have no difficulty affirming the Board’s conclusion that under the circumstances of this case, “a reasonable time and place [for examination of claimant] would have been the correctional facility in Cameron, Missouri.” The findings of fact set forth in this opinion and in the Board’s decision are supported in the record. Moreover, the Board’s findings of fact are supported by substantial competent evidence. We, therefore, affirm the decision of the Board.
(2) Authority of the Board to Remand on the Question of the Employee’s Average Weekly Wage
The employer questions the authority of the Board to remand this case to the ALJ on the question of the employee’s average weekly wage. The employer argues that the employee must, in the first instance, establish as an essential element of his claim — his average weekly wage. Absent such evidence, his workers compensation claim fails. Thus, the employer argues that remanding to allow the employee another opportunity to establish his average weekly wage is beyond the authority of the Board, notwithstanding the following provisions of K.S.A. 2002 Supp. 44-551(b)(l):
“On any such review, the board shall have authority to grant or refuse compensation, or to increase or diminish any award of compensation or to remand any matter to the administrative law judge for further proceedings." (Emphasis added).
The employer also questions the authority of the Board to remand to the ALJ for the purpose of opening the record for presentation of additional evidence. The employer contends that any review is limited to the evidence in the record.
For the reasons set forth below, we conclude that there was sufficient evidence to support the initial award of the ALJ; that on appeal to the Board of this award, the Board had the authority to remand to the ALJ for presentation of new evidence and an accurate determination of the employee’s average weekly wage; and that the Board on appeal correctly affirmed the modified award based upon additional findings of the ALJ reflecting the accurate average weekly wage of the employee.
Jurisdiction:
The employee challenges our jurisdiction to consider the issue of the Board’s authority to remand because there were no exceptional circumstances to warrant an appeal of the Board’s remand for a factual finding of the average weekly wage under Williams v. General Electric Co., 27 Kan. App. 2d 792, 9 P.3d 1267 (2000).
In Williams, an employee obtained an award from the ALJ and the Board determined that she had not made a good faith effort to find suitable work and remanded her case for a determination of her imputed post-injury wage. The Court of Appeals dismissed the employee’s appeal of this remand, finding the Board’s remand was not a final order but rather an intermediate step towards resolution of all actual issues. The court reasoned that under the KJRA, the court’s jurisdiction was limited to final agency actions, and remand orders are not appealable in the absence of exceptional circumstances. 27 Kan. App. 2d at 793.
This case is distinguishable from Williams because the employer is not appealing directly from the Board’s order remanding the case. The employer reserved the issue for appeal on remand to the ALJ and exhausted its administrative remedies by securing a final order on the issue from the Board in its second appeal. See K.S.A. 2002 Supp. 44-556(a). As such, while the question reserved involves the Board’s authority to remand, the second appeal of the employee is from a Board order and decision. Thus, this court has jurisdiction to consider the appeal.
Initial ALJ Award
Upon proper application for a hearing being filed pursuant to K.S.A. 44-534, a regular hearing was held in this case on January 12, 1999, before the Honorable Robert H. Foerschler, Administrative Law Judge (ALJ) for the Division of Workers Compensation of the State of Kansas in Overland Park. The employee appeared by telephone and by counsel. The employer and its insurance carrier appeared by counsel. The ALJ indicated in the regular hearing that the employer’s motion to suspend the employee’s benefits due to lack of a medical examination on behalf of the employer was to be handled at some future time.
Initially, the ALJ set forth information concerning the nature of the employee’s employment, together with other jurisdictional information. In reference to the average weekly wage, the ALJ stated:
“There was no agreement, however, about average weekly wage although it was alleged that Mr. Neal’s wages were $11.30 an hour plus overtime and a suggestion of $440 for the wage was made, but not agreed to. He was, however, paid about three weeks of temporary total disability totaling $983.12 and was not claiming any adjustable or any additional weekly benefits, but did request that the rating [award] be determined from the decision about the average weekly wage. . . . So the only issues remaining to be determined in this matter are really what Mr. Neal’s average weekly wage was for this accident or injury and whether or not— once that’s determined then probably an adjustment of the weeldy temporary benefit rate will be made, and then a decision .... Does that cover about all the issues that anyone can suggest for this thing now?
“Mr. Kolich: I believe so, Judge. One clarification on the issue regarding nature and extent. It’s my understanding that the claimant is not claiming compensation for a work disability, but rather the claim is simply for a functional impairment.”
After further discussion on the record, the following was stated:
“[ALJ]: Okay. What needs to be done next? Do we need to set some terminal dates for conclusion of the matter? We better make it somewhat liberal since we’ve got some—
“Mr. Treaster: Judge, we have a deposition of Mr. Neal, that hopefully you have the original of, that was taken November 13, 1998 by telephone and Mr. Kolich participated in that. And we wanted to submit that as the testimony of Mr. Neal. And, you know, if Mr. Kolich wants to take any additional testimony he would obviously have the right to do that and we could provide for that. We do need to take Dr. Zimmerman’s testimony and we have not set a date for that, but that’s really the only thing that we would propose doing on behalf of the claimant.
“[ALJ]: . . . What more do we need to do today? We need to get some terminal dates. Give me some suggestions on what you’re going to need to finish it up.” (Emphasis added.)
The employee’s counsel responded that he needed to take the deposition of Dr. Zimmerman, and the ALJ gave him until March 30, 1999. The issue of the motion to suspend proceedings was discussed, the ALJ asked counsel if they had anything further, and they replied no. The ALJ asked the employee if he had any questions, and he responded, “I haven’t heard anything. I haven’t. More or less I just haven’t heard anything.”
Counsel for the employee was informed that the employee’s telephone connection had been faulty and that the employee had not heard the discussion. Counsel then summarized for his client what had been presented at the regular hearing including information that the average weekly wage had been discussed and that matter still remained an issue. At that point, both parties were aware that all the information that was to be presented on the average weekly wage was in the record. The parties appeared by counsel, and the employee appeared by telephone albeit through a faulty connection. The employee’s deposition was added to the record. Dr. Zimmerman’s deposition was subsequently entered. Neither party added to the record during the regular hearing.
The matter of the employee’s failure to appear for the examination at Dr. Poppa’s office in Kansas City by reason of his incarceration on unrelated felony convictions was taken up at a preliminary hearing by the ALJ on June 17, 1999. The parties appeared by and through counsel and argued their respective positions, and this issue as well as the entire case was complete and ready for a decision by the ALJ.
On October 27,1999, the ALJ’s decision and award was entered by written decision on all issues; With regard to average weekly wage, the ALJ based upon the record concluded:
“The admission that claimant was paid three weeks of temporary total disability totaling $983.12 suggest that the average weekly benefit paid was $327.71, slightly exceeding the $326.00 maximum at the time, and indicates an average weekly wage of $451.57 which matches claimant’s assertion at the prehearing setdement conference.”
The ALJ further concluded:
“The claimant is entitíed to 3 weeks temporary total disability at the rate of $326.00 per week or $978.00 followed by 33.20 weeks at $326.00 a week or $10,823.20 for a 8% permanent partial general body disability making a total award of $11,801.20. As of 12/29/98, there would be due and owing to the claimant the entire sum awarded.”
We note that there was some evidence in the record concerning the employee’s average weekly wage. The employer, throughout the time leading to the regular hearing, was concerned with obtaining the suspension of the employee’s claim by reason of his failure to appear for an examination scheduled in Kansas City. Yet, in the regular hearing, evidence was presented, albeit hearsay evidence, concerning the employee’s average weekly wage. The employer did not offer any evidence at the regular hearing concerning the average weekly wage except to agree that the matter was still in issue. The employer did not cross-examine the employee upon any of the figures presented by counsel and the employee concerning the average weekly wage.
K.A.R. 51-3-8(c) provides:
“(c) The respondent shall be prepared to admit any and all facts that the respondent cannot justifiably deny and to have payrolls available in proper form to answer any questions that might arise as to the average weekly wage. Evidence shall be confined to the matters actually ascertained to be in dispute. The administrative law judge shall not be bound by rules of civil procedure or evidence. Hearsay evidence may be admissible unless irrelevant or redundant.”
In its first appeal to the Board, the employer complained that the employee failed in the regular hearing to establish an essential element of his claim — his average weekly wage. It is difficult to credit the employer’s argument given its failure to question the employee’s contention and hearsay evidence concerning this issue. Given the presence of the employee at the regular hearing, the employer’s awareness that hearsay evidence of the employee’s av erage weekly wage had been presented, the employer s failure to question the accuracy of the hearsay evidence or cross-examine the employee on his claims regarding his average weekly wage, and, most importantly, the employer s lack of regard for the provisions of K.A.R. 51-3-8(c), we conclude that the employer was willing to have the matter of the employee’s average weekly wage resolved by the ALJ on the only evidence in the record concerning the employee’s average weekly wage.
The ALJ determined the employee’s average weekly wage based upon the evidence submitted in the record. While that evidence may have been hearsay and may have in fact been faulty as disclosed in further appellate proceedings in this case, it was sufficient under all the circumstances to support the initial award of the ALJ in this case.
The Employer’s Appeal From the ALJ’s Initial Award
The employer appealed to the Board, claiming that the employee failed to establish his average weekly wage and was foreclosed from having another chance to introduce evidence concerning his average weekly wage. The issue regarding the employee’s average weekly wage was appropriately before the Board, In its findings of fact, the Board concluded that “[claimant did not introduce evidence of claimant’s average weekly wage.” This finding is not supported in the record as we have indicated above. In its conclusions of law, the Board states: “Claimant offered no evidence of his average weekly wage.” This conclusion is not supported in the record. The Board recounts its understanding of what the record demonstrated concerning the employee’s average weeldy wage, indicating that no agreement was reached between the parties. The Board further notes that “[claimant did not testify to the amount of his wage and did not otherwise offer evidence of the wage.” The Board’s conclusion is not entirely accurate. The employee was made aware that information concerning his average weekly wage was presented at the regular hearing by his counsel. While he had not heard the assertions of his counsel because of a faulty telephone connection, his pretrial assertions were advanced by counsel concerning specific information on his hourly wage and overtime pay. In addition, information concerning 3 weeks of TTD totaling $983.12 was discussed. In his award, the ALJ noted that information in the record “indicates an average weekly wage of $451.57 which matches claimant’s assertion at the prehearing settlement conference.”
The employer is in no position to challenge the ALJ determination based on the only evidence concerning average weekly wage in the record. Granted, the information, evidence, and determination of the ALJ may not have reflected the actual average weekly wage of the employee. Nevertheless, his claim under all the circumstances of this case was sufficiently established in the record to support the initial award of the ALJ. However, the Board possessed the authority to remand this issue to the ALJ in order that the employee’s true average weekly wage be established.
The Board recognized that the employee’s average weekly wage, as reflected in the record and by the ALJ, most probably did not reflect the employee’s true average weekly wage. Recognizing the employer’s complete failure to “comply with K.A.R. 51-3-8(c) because it did not provide payroll records” and some of the confusion regarding the employee’s average weekly wage, the Board “in the interest of justice” determined that “this case should be remanded for further proceedings.”
The employer argues that the Board had no authority to remand because it gave the employee another opportunity to establish his claim. Given our conclusion that sufficient evidence supported the initial award of the ALJ, the Board was well within its authority to remand to the ALJ for further consideration of the employee’s average weekly wage. Upon remand to the ALJ, the parties stipulated to the employee’s average weekly wage and the Board then affirmed the ALJ’s award based upon the stipulated average weekly wage. While the Board remanded based upon its determination that no evidence was presented concerning the employee’s average weekly wage, we conclude this determination was inaccurate. However, remand by the Board was authorized and did establish the true and actual average weekly wage of the employee. Thus, the final determination of the Board based upon evidence developed upon remand is supported by the evidence and is, therefore, affirmed.
The employer further argues that no authority exists for the receipt of additional evidence before the ALJ upon remand by the Board. The employer acknowledges that K.S.A. 2002 Supp. 44-551 permits the Board to remand any matter to the ALJ for further proceedings, but it argues that the statute does not specify whether the remand may be for additional evidence or is restricted to directing the ALJ to make additional findings of fact and conclusions of law based upon the existing trial record. The employer’s argument fails to take into account the evolution of the type of authority granted to the Board on appeal.
Prior to July 1,1993, any action taken by the ALJ or the director was subject to review by the district court under the KJRA, K.S.A. 77-601 et seq. K.S.A. 1992 Supp. 44-556(a). The district court’s scope of review was de novo but limited to the record available to the director. Rios v. Board of Public Utilities of Kansas City, 256 Kan. 184, 185, 883 P.2d 1177 (1994). K.S.A. 1992 Supp. 44-556(b) provided: “On any such review the district court shall have jurisdiction to grant or refuse compensation, or to increase or diminish any award of the director as justice may require.”
K.S.A. 1992 Supp. 44-556(b) was interpreted to mean that the district court did not have the authority to remand proceedings to the director for the hearing of further evidence or for taking additional action. Houston v. Kansas Highway Patrol, 238 Kan. 192, 196, 708 P.2d 533 (1985); Kuhn v. Grant County, 201 Kan. 163, 167, 439 P.2d 155 (1968); see also KBA Kansas Workers Compensation Handbook, § 13.06, 13.7 (1998) (“In a workers compensation case there is no second chance to present additional evidence. Neither the district court, the court of appeals, nor the supreme court has authority to take additional evidence nor to remand the case back to the administrative law judge for additional evidence.”)
However, since 1993, all final orders, awards, modifications of awards, or preliminary awards made by the ALJ are subject to review by the Board. Nance v. Harvey County, 263 Kan. 542, 550, 952 P.2d 411 (1997). “The review by the board shall be upon questions of law and fact as presented and shown by a transcript of the evidence and the proceedings as presented, had and introduced before the [ALJ].” K.S.A. 44-555c(a). “On any such review, the board shall have authority to grant or refuse compensation, or to increase or diminish any award of compensation or to remand any matter to the administrative law judge for further proceedings.” (Emphasis added.) K.S.A. 2002 Supp. 44-551(b)(l).
Both the plain language of the statute and the legislature’s decision to include this additional type of review support' the Board’s conclusion that it had the authority to remand tíre case for additional wage evidence. Without qualification, the plain language of the statute states that the Board has the authority to remand “any” matter to the ALJ for further proceedings. The legislature’s decision to add this catch-all phrase to the predecessor statute demonstrates an intent to grant the Board power beyond what had been previously granted to the district court in its review.
Finally, the employer argues that the Board shifted the burden of proof on the average weekly wage from the employee to the employer in applying K.A.R. 51-3-8. This regulation, however, does not shift the burden of proof to the employer; rather, it attempts to limit the amount of litigation by identifying what issues will be in dispute. To achieve this purpose, the employer' must have the payroll information available to answer any questions about the employee’s wage. Contrary to the employer’s assertion, this is different from having the burden to prove the average weekly wage. Once it is determined that wage is a disputed issue, the employee still has the burden to prove the average weekly wage.
In conclusion, the ALJ’s initial award was supported by sufficient evidence in the circumstances of this case. However, once appealed, the Board had authority to remand this case to the ALJ for the purpose of determining the accurate average weekly wage of the employee. On further appeal, the Board had authority to consider and affirm the ALJ’s modified award based upon additional findings concerning the employee’s average weekly wage.
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The opinion of the court was delivered by
Gernon, J.:
This appeal requires us to determine whether the trial court ruled properly when it partially distributed funds from a spendthrift trust at the request of each of the beneficiaries. The beneficiaries acted in concert, and none were or are under any incapacity.
FACTS
Eula M. Somers died in 1956. She left a testamentary trust (Trust) for her grandchildren, Susan Somers (now Smiley), then age 7, and Kent Somers, then age 5 (hereinafter Grandchildren). The Trust was funded from the residuary estate of Eula Somers in an amount of approximately $120,000. By January 2001, the value of the Trust had increased to approximately $3,500,000.
The payout provision of the Trust instrument states in Article X(b):
“I authorize and direct my Trustee to pay, from the Trust Estate, beginning August 25,1966, or one year after my death, whichever is the later date, the sum of $100.00 per month each to my said granddaughter, SUSAN ANN SOMERS, and to my grandson, KENT CLIFFORD SOMERS, so long as she or he shall live or until my Trust Estate is exhausted. If either of my such grandchildren should die before or after such monthly payments begin and before the Trust Estate is exhausted, then such deceased grandchild shall have no further interest in or right to receive monthly payments accruing after the date of her or his death, from the Trust Estate. If both of such grandchildren should die before or after such monthly payments begin and before the Trust Estate is exhausted, then there shall be no monthly payments accruing after the date of the death of the survivor of my such grandchildren made from the Trust Estate, and the remainder of the Trust Estate, after payment of the expenses of the trust, shall be distributed and paid over to the SHRINERS HOSPITALS FOR CRIPPLED CHILDREN, a Colorado Corporation, free of any trust and this trust shall terminate.”
The Trust was originally placed with the Johnson County National Bank and Trust Company. Firstar Bank, N.A. (Firstar) is the successor to the original trustee and is the appellant/cross-appellee here.
The Shriners Hospitals for Children (Shriners) and the Grandchildren reached an agreement to terminate the Trust. They agreed that the Grandchildren would each receive a distribution of $150,000 from the Trust and that the remainder of the Trust assets would immediately be distributed to Shriners. Shriners agreed to continue the $100 monthly payments to the Grandchildren.
Firstar opposed the termination of the Trust. Shriners and the Grandchildren then filed a joint petition in district court asking that the Trust be terminated immediately. Each side filed a motion for summaiy judgment.
The district court denied tire petition to terminate the Trust and the Grandchildren’s request for individual distributions of $150,000. However, the district court concluded that it had equity jurisdiction and ordered an immediate, partial distribution of the corpus of the Trust to Shriners, but required that $500,000 remain in tire Trust to fund the annuity payments to the Grandchildren. The court further ordered that the attorney fees and expenses of the Grandchildren’s attorneys be paid from the Shriners’ distribution.
Firstar appealed. The Grandchildren and Shriners cross-appeal. We transferred the appeal to this court pursuant to K.S.A. 20-3018.
SPENDTHRIFT PROVISION
The Grandchildren argue that the district court should have terminated the Trust because all of the beneficiaries agreed to the termination and the termination would not frustrate a material purpose of the Trust. On appeal, Shriners appears to adopt a different view than the Grandchildren, arguing that the district court properly resolved the issue by distributing a portion of the Trust to them. In contrast, Firstar argues that the district court properly concluded that it could not terminate the Trust.
A spendthrift trust is defined in In re Estate of Sowers, 1 Kan. App. 2d 675, 680, 574 P.2d 224 (1977), as “a trust created to provide a fund for the maintenance of a beneficiaiy and at the same time to secure the fund against his improvidence or incapacity. Provisions against alienation of the trust fund by the voluntary act of the beneficiaiy or by his creditors are its usual incidents. [Citation omitted.]”
Article X(d) of the Trust prohibits alienation by a voluntary act of the beneficiaries:
“During the entire duration of the trust and as to each and every share or part thereof, said grandchildren and each of them shall be without power, voluntarily or involuntarily, to sell, mortgage, pledge, hypothecate, assign, alienate, anticipate, transfer or convey any interest in this trust or property or the income therefrom until the same is actually paid or delivered into her or his hands, and no interest of my said granddaughter or grandson in, or claim to, this trust or any part thereof or any income therefrom shall be subject to the claims of her or his creditors or of anyone else, nor to judgment, levy, execution, sequestration, attachment, bankruptcy proceedings or other legal process, nor pass or descend by operation of law. If my said granddaughter or grandson shall attempt to transfer or in any manner affect her or his interest in this trust or the income therefrom by voluntary act or by operation of law, or in the event any attempt is made to levy on, garnish, attach or sequester any such interest in the income or principal or to subject the same to the claims of creditors or others, the same shall be void and all payments and distributions to or for my said granddaughter or grandson, as the case may be, shall thereupon or thereafter, in the sole discretion of the Trustee, be made either to her or him personally, or be used by the Trustee for her or his support and maintenance.”
The parties do not dispute that the Trust is a spendthrift trust. Thus, the question is whether a court can terminate a spendthrift trust at the request of the beneficiaries, who are all in agreement and competent to consent, if the settlor is not available to consent to the termination. This is an issue of first impression in Kansas, requiring the application and interpretation of the Kansas Uniform Trust Code (KUTC), K.S.A. 2003 Supp. 58a-101 et seq., and the interpretation of the Trust. The interpretation of a statute and the legal effect of written documents are both questions of law over which an appellate court exercises de novo review. In re Harris Testamentary Trust, 275 Kan. 946, 951, 69 P.3d 1109 (2003); In re Estate of Sanders, 261 Kan. 176, 181, 929 P.2d 153 (1996).
The question as to whether the KUTC applies to a testamentary trust resulting from a death in 1956 is answered by K.S.A. 2003 Supp. 58a-1106(a)(3), which states:
“[T]his act applies to judicial proceedings concerning trusts commenced before its effective date unless the court finds that application of a particular provision of this act would substantially interfere with the effective conduct of the judicial proceedings or prejudice the rights .of the parties, in which case the particular provision of this act does not apply and the superseded law applies.”
The parties do not claim that the application of the KUTC would prejudice their rights, so we must first look to the code to determine whether the Trust may be modified or terminated. The KUTC addresses modification and termination of a trust in K.S.A. 2003 Supp. 58a-410 through K.S.A. 2003 Supp. 58a-417.
K.S.A. 2003 Supp. 58a-410(a) states in part: “[A] trust terminates to the extent the trust is revoked or expires pursuant to its terms, no purpose of the trust remains to be achieved, or the purposes of the trust have become unlawful, contraiy to public policy, or impossible to achieve.”
The pertinent provisions of K.S.A. 2003 Supp. 58a-411 provide:
“(a) A noncharitable irrevocable trust may be modified or terminated upon consent of the settlor and all qualified beneficiaries, even if the modification or termination is inconsistent with a material purpose of the trust. A settlor’s power to consent to a trust’s termination may be exercised by an agent under a power of attorney only to the extent expressly authorized by the power of attorney or the terms of the trust; by the settlor’s conservator with the approval of the court supervising the conservatorship if an agent is not so authorized; or by the settlor’s guardian with the approval of die court supervising die guardianship if an agent is not so authorized and a conservator has not been appointed.
“(b) A noncharitable irrevocable trust may be terminated upon consent of all of the qualified beneficiaries if the court concludes that continuance of the trust is not necessary to achieve any material purpose of the trust. . . .
“(c) A spendthrift provision in the terms of the trust is presumed to constitute a material purpose of the trust.”
The Grandchildren claim that the district court had the power to terminate the Trust with all of the beneficiaries’ consent because the spendthrift provision is not a material purpose of the trust. They appear to raise two arguments in this regard. First, the Grandchildren argue that the spendthrift provision is not a material purpose because it is a small fraction of the entire trust. The Grandchildren cite no authority for their proposition that a spendthrift provision must apply to a substantial portion of the trust to be considered a material purpose. The material purposes of a trust are subject to the settlor’s discretion, which is limited “only to the extent its purposes are lawful, not contrary to public policy, and possible to achieve.” K.S.A. 2003 Supp. 58a-404. Accordingly, we find no merit in this argument.
For their second argument, the Grandchildren claim that an annuity could continue their lifetime payments, thereby continuing the material purpose of the trust after its termination. This argument overlooks the purpose of a spendthrift provision, which “restrains either voluntary or involuntary transfer of a beneficiary’s interest.” K.S.A. 2003 Supp. 58a-103(15). An annuity purchased by Shriners outside the confines of the trust is not protected from alienation or attachment by the annuitant’s creditors. See K.S.A. 60-2304. The only way to ensure the protection of the spendthrift provision is for sufficient funds to remain in the Trust. Thus, Eula Somers’ purpose to protect the trust assets from her grandchil dren’s creditors cannot be accomplished by terminating the Trust and purchasing an annuity that would merely maintain the beneficiaries’ lifetime payments.
The Grandchildren cite Matter of Boright, 377 N.W.2d 9 (Minn. 1985), in support of their proposition that purchasing an annuity would accomplish the purposes of the Trust. In Boright, the remainder beneficiaries sought distribution of the trust corpus before the lifetime beneficiary died. The lifetime beneficiary, who did not consent to the termination of the trust, was entitled to a distribution of $1,000 per month for the remainder of her life, with her distribution being protected by a spendthrift provision. Noting that the annuity payments from an insurer were not guaranteed by Minnesota law, the Boright court refused to terminate the trust. Instead, the Boright court terminated a portion of the $900,000 trust and distributed that portion to the remainder beneficiaries, reserving enough funds in the trust to continue payment of the lifetime beneficiaiy’s annuity distribution from the trust. 377 N.W.2d at 13. The Boright decision does not support the Grandchildren’s proposition. The Boright decision supports the district court’s resolution of this matter.
It should be noted that K.S.A. 2003 Supp. 58a-411, by its express terms, applies to the modification or termination of a noncharitable trust. Clearly, this is a charitable trust as defined by K.S.A. 2003 Supp. 58a-103(3), which describes a “charitable trust” as “a trust, or portion of a trust, created for a charitable purpose described in subsection (a) of K.S.A. 2003 Supp. 58a-405, and amendments thereto.” K.S.A. 2003 Supp. 58a-405(a) states: “A charitable trust may be created for the relief of poverty, the advancement of education or religion, the promotion of health, governmental or municipal purposes, or other purposes the achievement of which is beneficial to the community.” The parties do not dispute that this is a charitable trust. Thus, we must consider whether, under these facts, a charitable trust with a spendthrift provision for certain beneficiaries for their fives may be modified, terminated, or partially terminated.
When there is no law directly on point, Kansas courts turn to the Restatement of Trusts. Sanders, 261 Kan. at 183. The Restate ment of Trusts does not distinguish between charitable and non-charitable trusts. The Restatement (Second) of Trusts § 337 (1957) provides:
“(1) Except as stated in Subsection (2), if all of the beneficiaries of the trust consent and none of them is under an incapacity, they can compel the termination of the trust.
“(2) If the continuance of tire trust is necessary to carry out a material purpose of the trust, the beneficiaries cannot compel its termination.”
The Restatement (Second) of Trusts § 337, comment 1, specifically proscribes the termination of spendthrift trusts, stating:
“If by the terms of the trust or by statute the interest of one or more of the beneficiaries is made inalienable by him (see §§ 152, 153), the trust will not be terminated while such inalienable interest still exists, although all of die beneficiaries desire to terminate it or one beneficiary acquires the whole beneficial interest and desires to terminate it.”
The principles found in the Restatement are echoed by other trust authorities. Generally, tire case law plainly acknowledges that the owner of property can do as he or she wishes with it. IV Scott on Trusts, § 337.3 (4th ed. 1989). Likewise, case law agrees that “the beneficiaries cannot compel the termination of the trust if its continuance is necessary to carry out the purposes of the trust.” IV Scott on Trusts, § 337.2. However:
“Where the continuance of the trust of the whole of the trust property is not necessary to carry out a material purpose of the trust, and all the beneficiaries consent and none of them is under an incapacity, they can compel the termination of tire trust as to a part of the property.” IV Scott on Trusts, § 337.8.
IV Scott on Trusts, § 337.8 further states:
“The question often arises as to whether the court will terminate a trust where tire only objection to its termination is that annuities are payable out of the trust estate. If the annuitants consent, or if their interests are fully protected, and if the termination of the trust would not defeat a material purpose of the settlor in creating the trust, the court will direct a partial termination of the trust. Thus in Harlow v. Weld [, 104 A. 832 (R.I. 1918),] it was held that where a testator directed that the estate should be kept together until tire death of all of the annuitants the court might order a partial distribution of the estate, retaining a sufficient amount to secure the payment of the annuities, if all the annuitants consented. By the terms of the will the trustees were directed to pay the net income after payment of the annuities to the testator’s widow and on her death to bis son for life and on the death of the son to his grandchildren. He expressly provided that the estate was to be kept together until after the death of every annuitant. The son died and later the widow died. There was one grandchild. The entire estate was worth over three million dollars and the annuities amounted to $5500. The court said that it was hardly conceivable that the testator if he had foreseen the situation would intentionally have directed that so large an estate should be kept together solely to secure the small annuities. Since the annuitants were all willing to waive the literal compliance with the language of the will, and since only their interests were adversely affected, the trust would be terminated in part.”
Both the Restatement (Second) of Trusts and Scott on Trusts support a conclusion that the tenet from K.S.A. 58a-411 may be applied equally to charitable and noncharitable trusts. Thus, the beneficiaries are precluded from terminating the Trust while continuation of the Trust is necessary to achieve a material purpose of the Trust. K.S.A. 2003 Supp. 58a-411(c) does not make a spendthrift provision a material purpose under all circumstances. Rather, it raises a rebuttable presumption that the spendthrift provision is a material purpose. The Grandchildren, however, offer no evidence to rebut the presumption that the spendthrift provision is a material purpose of the trust. As a result, we find the spendthrift provision of the Trust to be a material purpose of the Trust. The Grandchildren’s proposal that Shriners would purchase an annuity to continue their monthly payments does not satisfy the protections required by the spendthrift provision. Thus, termination of the trust would frustrate a material purpose of the Trust. The trial court did not err when it reached the same conclusion and refused to terminate the Trust.
Next, we must consider whether the trial court erred when it modified the Trust by distributing approximately $3,000,000 to Shriners before the death of both grandchildren. Shriners argues that the district court properly terminated and distributed a portion of the Trust to them. Firstar argues that the district court was precluded by law from terminating or partially distributing the Trust and had no equitable powers to grant a partial distribution to Shriners. The Grandchildren argue that the district court should have used its equitable powers to terminate the Trust rather than modify it and that the district court should have granted the $300,000 distribution they requested from Shriners’ portion of the Trust, which is not subject to the spendthrift provisions.
Resolution of this issue requires the interpretation of the KUTC as it applies to the Trust, both of which are questions of law. This court exercises unlimited review over questions of law. In re Harris Testamentary Trust, 275 Kan. at 951; In re Estate of Sanders, 261 Kan. at 181.
The KUTC allows greater flexibility regarding the modification of long-term trusts, as long as the objectives of tire settlor may still be carried out. K.S.A. 2003 Supp. 58a-412 provides:
“(a) The court may modify the administrative or dispositive terms of a trust or terminate the trust if, because of circumstances not anticipated by the settlor, modification or termination will further the purposes of the trust. To the extent practicable, the modification must be made in accordance with tire settlor’s probable intention.
“(b) The court may modify the administrative terms of a trust if continuation of the trust on its existing terms would be impracticable or wasteful or impair the trust’s administration.”
K.S.A. 2003 Supp. 58a-412 gives the court authority to evaluate the circumstances of the trust and determine whether the settlor anticipated such circumstances. If the settlor did not anticipate the circumstances, the court can modify the trust in furtherance of the trust’s purpose. The district court found that the dramatic growth in the Trust’s corpus presented a “unique and unusual set of facts” justifying modification of the Trust. We agree.
In 2003, the Maine Supreme Court ruled in a case factually similar to the case before us. University of Maine Found. v. Fleet Bank, 817 A.2d 871 (Me. 2003). In University of Maine Found., the Maine Supreme Court permitted the partial distribution from a trust to the remainder beneficiary, a charitable organization. 817 A.2d at 876. The trust granted certain life beneficiaries an annual payment not to exceed $5,000 each, subject to a spendthrift clause. When the trust corpus reached over $9,000,000, the remainder beneficiary offered to pay the three life beneficiaries $25,000 annually in return for terminating the trust. The life beneficiaries agreed, but the trustee rejected the proposal and refused to terminate the trust. The University of Maine Found. court refused to terminate the trust based on its determination that the spendthrift provision was a material purpose of the trust and the settlor s purpose was to exclude the life beneficiaries from the management and control of the trust assets. 817 A.2d at 875. Nevertheless, the court granted a partial distribution of the trust’s surplus corpus to the remainder beneficiary and required the trustee to retain sufficient assets to meet the trust’s obligations to the life beneficiaries. 817 A.2d at 876-77. The court concluded that a partial distribution to tire charity complied with the setdor’s purposes for both the remainder beneficiary and the life beneficiaries and adequately protected the life beneficiaries’ interests. 817 A.2d at 876.
The district court concluded that Eula Somers intended to provide for Shriners, that a partial distribution from the trust assets furthered her goal of providing for Shriners, and that the partial distribution was not detrimental to the payment of the Grandchildren’s annuity. All of these considerations comport with the requirements of K.S.A. 2003 Supp. 58a-412. Although the district court relied on its equity jurisdiction to order the partial distribution to Shriners, the award is proper under K.S.A. 2003 Supp. 58a-412.
We conclude that the district court was correct in its finding that the growth of the trust and its present worth constituted a circumstance that was not anticipated by the settlor and that modification or a partial distribution of the trust assets furthers the purposes of the trust, to benefit Shriners. We are, therefore, in agreement with the finding and order of the trial court that the corpus of the trust be distributed to Shriners, with the exception of $500,000 to be kept in the trust to provide for the payments to the Grandchildren under the provision of the spendthrift clause.
The Grandchildren further argue that if the district court had authority to modify the Trust to distribute funds to Shriners, it should have modified the Trust to grant the $300,000 in distributions in accordance with their agreement with Shriners. The Grandchildren claim that the $300,000 distribution would not have affected the spendthrift portion of the Trust because it was intended to come from Shriners’ remainder interest.
Unless a trust is ambiguous, the court looks to the four comers of the document to determine the legal effect of the document. See In re Estate of Sanders, 261 Kan. 176, 182, 929 P.2d 153 (1996) (noting that trusts are construed using the same rules as wills). A court cannot analyze a will by inferring a testator’s intention and then construing the will to effectuate those intentions, however probable the intentions may seem. The court cannot rewrite a will in whole or in part to conform to a presumed intention. It is the court’s duty to construe, not construct, the will. 261 Kan. at 182.
Eula Somers’ will and the Trust do not provide for any cash distributions to the Grandchildren aside from the $100 monthly payments. Other than the distribution of Eula Somers’jewelry and some miscellaneous household items that were devised to Susan, there are no other provisions in the will authorizing distributions to the Grandchildren. Consequently, the district court had no power to authorize a distribution from the Trust that was not authorized by Eula Somers’ will even though the beneficiaries consented to the distribution. Any lump sum payments made to the Grandchildren cannot come directly from the Trust. The record before us does not establish a contract between the Grandchildren and Shriners requiring any such payments, so the district court had no basis for ordering Shriners to pay a portion of its proceeds to the Grandchildren. The district court did not err when it denied the $300,000 distribution to the Grandchildren.
ATTORNEY FEES
Firstar and Shriners argue that the district court erred when it granted the Grandchildren’s request for attorney fees. Firstar and Shriners contend the action was not for the benefit of Eula Somers’ estate or the Trust.
The Grandchildren argue that the award of attorney fees was proper, in accordance with statutory and case law, and that the fees were beneficial and necessary for the proper administration of the Trust.
Two issues are involved in the attorney fee part of this appeal: (1) Who should pay and (2) in what amount?
K.S.A. 2003 Supp. 58a-1004 provides:
“In a judicial proceeding involving the administration of a trust, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.”
Pursuant to K.S.A. 2003 Supp. 58a-1004, the court has discretion over an award of attorney fees. This court reviews the district court’s order using an abuse of discretion standard. Judicial discretion is abused when no reasonable person would adopt the position taken by the district court. Varney Business Services, Inc. v. Pottroff, 275 Kan. 20, 44, 59 P.3d 1003 (2002).
While great deference is given a trial court in these matters, this court has stated that “appellate courts, as well as trial courts, are experts as to the reasonableness of attorneys’ fees and may, in the interest of justice, fix counsel fees when in disagreement with views of the trial judge.” Buchanan v. Employers Mutual Liability Ins. Co., 201 Kan. 666, 676, 443 P.2d 681 (1968); see Wolf v. Mutual Benefit Health & Accident Association, 188 Kan. 694, 714, 366 P.2d 219 (1961); Lattner v. Federal Union Ins. Co., 160 Kan. 472, 480-81, 163 P.2d 389 (1945).
The attorneys for the Grandchildren billed over 650 hours for six partners and three associates for the proceedings before the district court. Two partners billed 544.10 of these hours. In addition, expenses for computerized legal research totaled over $13,000. The total requested attorney fees and expenses at the district court level totaled $117,454.98. The trial judge allowed $111,149.93.
We agree with the conceptual framework that attorney fees “ordinarily are not properly allowed to counsel for the unsuccessful party.” Householter v. Householter, 160 Kan. 614, 620, 164 P.2d 101 (1945). In some cases, however, it is difficult to define success or determine who won and who lost.
Here, Shriners and the Grandchildren agreed to modify or terminate the Trust. Shriners gained access to a large sum of money significantly sooner than it would have. The Grandchildren stood to gain a large lump sum payout while preserving the material purpose of the Trust calling for each of them to receive $100 per month for life. The trustee bank, Firstar, resisted the modification because of its duty to cany out the terms of the instrument and the wishes of the settlor. But, also, Firstar stood to lose management fees should the Trust be terminated or reduced in corpus.
The trial court made a finding that the efforts of the Grandchildren’s attorneys secured a favorable result for the Shriners’ remainderman and clarified a controversy pending between the annuitants and remainderman and trustee.
The trial court further stated: “Whether the Court has made the correct decision in the case remains to be decided by our appellate court.”
Kansas Rules of Professional Conduct 1.5 (2003 Kan. Ct. R. Annot. 362) states:
“(a) A lawyer s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.”
Although we do not consider this litigation complex or contentious in the legal culture that we observe on a daily basis, we will defer to the judgment of the district court regarding the amount of the fees at the trial level.
We conclude, however, that the fees should be divided equally and that Shriners should pay half and the Grandchildren should pay half.
The fees on appeal are a different matter. This court has carefully examined the motion for the allowance of fees by the attorneys for the Grandchildren. The total requested on appeal is $45,566.92, including professional fees and costs. The hours of professional services this firm is requesting total 273.9. The expenses requested total $849.42, including $247 for online computer research.
On one day, Februaiy 17,2003, the firm sought to bill 17.7 hours of professional services, with a claim that three partners and a paralegal worked on the appeal that day. The amount billed for that day alone was $3,084.
Perhaps some of the time might be attributed to the fact that the firm was not from Kansas, but at least one of the firm partners has a Kansas license and is presumed to know Kansas law and appellate procedures.
We conclude that the amount of the attorney fees requested on appeal is unreasonable. We find that a reasonable amount of attorney fees for the appeal here would be $15,000 plus the expenses of $849.42. The Grandchildren shall be responsible for this amount.
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Opinion by
Simpson, C.:
The Eussell & Wilcox Hardware Company commenced an action in the district court of Eeno cotmty to foreclose a mechanic’s lien on lots 22 and 23, in block 1, in Ott & Tewksbury’s addition to the city of Hutchinson. Eauenzahn, the owner, the Kansas Mortgage Company, a mortgagee, and Abbott & Fisher, were made parties defendant. This suit was commenced on the 1st day of September, 1888.
On the 24th day of September, McCullam & Co. commenced an action in the same court against all the above-named defendants, and Mary E. Abbey, W. H. Smith, Lewis Padrick, and Eussell & Wilcox, to enforce another mechanic’s lien on the same property. These actions were consolidated and tried by the court. Special findings of fact and conclusions of law were made, and judgments rendered, as follows:
“1. The defendant the Kansas Mortgage Company holds a mortgage on the real estate in the petitions of the said plaintiffs described, to wit, lots numbered 22 and 23, in block No. 1, in Ott & Tewksbury’s addition to the city of Hutchinson, in the county of Eeno and state of Kansas, executed by the said I. W. Eauenzahn and his wife on the 2d of April, 1888, and duly recorded in the office of the register of deeds of said county on the 14th day of April, 1888, which mortgage was given to secure the payment of the debt of $1,000 owing by said Eauenzahn and wife to said the Kansas Mortgage Company, with interest, which said debt is not yet due, and that no payment, except of interest, has been paid thereon.
“2. The said defendant, I. W. Eauenzahn, is indebted to the said plaintiff, the Eussell & Wilcox Hardware Company, as alleged in said plaintiff’s petition, in the sum of $59.43, on an account for materials furnished for the erection of a building upon said real estate, to wit, lots 22 and 23, in said block. 1, which said materials were neither fixtures nor machinery; with interest thereon from the 10th day of July, 1888, which material was furnished prior to the execution of the mortgage above mentioned.
“ 3. The said defendant, I. W. Rauenzhan, is indebted to the said plaintiffs, E. McCullam & Co., as alleged in said plaintiffs’ petition, the sum of $544, with interest thereon from the 14th day of July, 1888, on an account for materials and lumber furnished for the erection of said building on said lots 22 and 23, in said block 1, which said lumber and materials were neither fixtures nor machinery, which said lumber and materials were not furnished until after the 15th day of April, 1888, the contract between said F. McCullam & Co. and said Rauenzahn for furnishing the same having been made, as alleged in the petition of said F. McCullam & Co., on said 15th day of April, 1888.
“4. Said I. W. Rauenzahn is indebted to said defendant Louis Padrick in the sum of $33, with interest from the 10th day of July, 1888, at the rate of 7 per cent, per annum, for work and labor, to wit, carpenter work, and said work and labor was not done prior to April 14, 1888.
“ 5. The said I. W. Rauenzahn is indebted to the said defendant W. H. Smith in the sum of $44.70, with interest from-, 1888, for material, the same being neither fixtures nor machinery, furnished for the erection of said building, as alleged in the answer of said Smith, which said material was not furnished by said Smith until the 18th day of April, 1888.
“6. The actual labor of constructing said building was not commenced at the date of the execution of said mortgage to the said the Kansas Mortgage Company, nor at the date of the filing of same for record, and at said dates and each of them no work or labor had been done upon said lots towards the construction of said building, except that material for the same had been'delivered upon the ground, which material was afterwards used in the erection of said building.”
The court found as conclusions of law:
“1. The said liens of the plaintiffs, F. McCullam & Co., the Russell & Wilcox Hardware Co., and of the defendants W. H. Smith and Lewis Padrick, date from the time the first materials were furnished for said building, and not from the time the erection of the building was actually commenced, to wit, from the 20th day of March, 1888, and are superior and .prior to the lien of the said mortgage held by the said defendant the Kansas Mortgage Company, to which conclusion of law the said defendant the Kansas Mortgage Company then and there excepted.
‘‘2. The said lien of the defendant the Kansas Mortgage Company is prior and superior to the liens of the said defendants Mary E. Abbey and J. F. Abbey and C. Bisher.
“3. The plaintiffs, F. McCullam & Co., and the plaintiff the Russell & Wilcox Hardware Company, and .the defendants L. Padrick and W. H. Smith, have valid and subsisting mechanics’ liens against the following-described real estate, to wit, lots numbered 22 and 23, in block No. 1, in Ott & Tewksbury’s addition to the city of Huchinson, Reno county, Kansas.
“4. The defendants the Kansas Morigage Company and Mary E. Abbey, J. F. Abbey and C. Bisher have mortgage liens against said described property. And the court further finds, that the mechanics’ liens of the plaintiffs F. McCullam & Co., and the plaintiff the Russell & Wilcox Hardware Company, and the defendants L. Padrick and W. H. Smith, are, and each of them are, prior and superior to the mortgage lien of Mary E. Abbey and C. Bisher.
“ 5. The mortgage lien of the Kansas Mortgage Company is prior and superior to the mortgage lien of Mary E. and J. F. Abbey and C. Bisher, and the defendant I. W. Rauenzahn is indebted to the above-named plaintiff's and defendants in the several amounts hereinafter named.”
The court ordered, adjudged and decreed that—
“ The plaintiffs F. McCullam & Co. have and recover of and from the defendant I. W. Rauenzahn the sum of $582.09, with interest thereon at 7 per cent, per annum from date, and costs of suit; that the plaintiff the Russell & Wilcox Hardware Company have and recover judgment against the said I. W. Rauenzahn in the sum of $63.07, with interest at 7 per cent, per annum from date, and costs of suit; that the defendant L. Padrick have and recover judgment against the defendant I. W. Rauenzahn in the sum of $35.20, with interest at 7 per cent, per annum from date, and for costs of suit; that the defendant William H. Smith have and recover judgment against the defendant I. W. Rauenzahn in the sum of $46.15, with interest at the rate of 7 per cent, per annum from date, and for his costs; that the mechanics’ liens of F. McCullam & Co. and Russell & Wilcox Hardware Company and L. Padrick and W. H. Smith are valid, prior and superior liens against the following-described real estate, to wit, lots No. 22 and 23, in block No. 1, in Ott & Tewksbury’s addition to the city bf Hutchinson, in Reno county, Kansas, and that the same be adjudged to be prior and superior to the lien of the Kansas Mortgage Company and the liens of Mary E. and J. F. Abbey and C. Bisher, and the lien of the Kansas Mortgage Company be adjudged to be prior to the lien of Mary E. and J. F. Abbey and C. Bisher; that said mechanics’ liens be foreclosed, and that if said mechanics’ lienors’ judgments be not paid within 10 days from this date, that the said described real estate be sold according to law, as is upon execution, and the proceeds of such sale be applied, first, to the costs of suit and sale, and then to the payment of said judgments herein rendered in favor of said mechanics’ lienors; and if there should not be funds sufficient to pay all of said judgments in full, then that same be paid pro rata, as their several interests may appear, and so far as the proceeds of such sale may go to pay the same, and that the said Kansas Mortgage Company, and the said Mary E. and J. F. Abbey and C. Bisher, are forever barred and foreclosed from setting up any title or interest in said above-described real estate, or any part therein, adverse to the rights of the said judgment creditors and mechanics’ liens, or either of them; that the defendants Mary E. and J. F. Abbey and C. Bisher have their cause continued as to Annie M. Rauenzahn for service, and have and recover judgment against the defendant I. W. Rauenzahn in the sum of $491.25, with interest at 10 per cent, from date, and for their costs; that the mortgage lien of said Mary E. and J. F. Abbey and C. Bisher be adjudged a valid and subsisting lien, but junior and inferior to the above-named mechanics’ liens and the mortgage lien of the Kansas Mortgage Company upon said real estate, and said described real estate, if sold by law under the mechanics’ lienors’ judgment, that the surplus, if any, from said sale, after paying said mechanics’ lienors’judgments and costs, be brought into court, and there be held by said court to await the action against said Annie M. Rauenzahn.” To the rendition of which judgment, and to each and every part thereof, except the part thereof which adjudges the mortgage lien of the defendant the Kansas Mortgage Company prior and superior to the liens of said defendants Mary E. and J. F. Abbey and C. Bisher, the said defendant the Kansas Mortgage Company then and there excepted.
From the first finding, it appears that the mortgage of the Kansas Mortgage Company was filed for record on the 14th day of April, 1888. From the record, it appears that the statement for a lien filed by the Russell & Wilcox Hardware Company shows that its first item was furnished April 23, 1888. The statement of Lewis Padrick shows that his claim was for labor performed in the 28 days prior to July 10, 1888. The statement of McCullam & Co. shows that their contract was made April 16, two days after the recording of the mortgage, and their account attached to their statement shows their first item on the 19th day of April, 1888. The statement and account of W. H. Smith shows that the first material furnished by him was on the 18th day of April, 1888. These liens of Russell & Wilcox, McCullam & Co., Padrick and Smith were declared prior to the mortgage. The plaintiff in error, the mortgage company, challenges the correctness of this ruling, having saved all proper exceptions.
.Two questions are discussed: the one is the proper construction of § 630 of the code, being the section of the mechanics’ lien law under which this action arose; and the other is as to whether or not the mechanics’ lien claimants are bound by the dates mentioned in their statements. In considering the first question, it is important to us to know for what Russell & Wilcox and the other claimants, whose liens are declared superior to the mortgage, asserted their liens. That of the Russell & Wilcox Hardware Company was for hardware, such as nails, locks, bolts, metal roofing, etc. That of Padrick was for carpenter work performed in the construction. That of McCullam & Co. was for lumber and other material furnished and used in the construction. That of W. H. Smith was for stone and lime. Under the construction of this section uniformly given by this court, liens for the purposes above mentioned all date from the commencement of the building. (Thomas v. Mowers, 27 Kas. 265; Lumber Co. v. Schweiter, 45 id. 207; Getto v. Friend, 46 id. 24.) Indeed, this is so plain from the letter of the statute that there seems to be no room for judicial construction. Under this statute, all work done and all labor performed and all material furnished in the construction of a house or other building is entitled to a lien to date from the commencement of the building; the lien for all fixtures and machinery furnished dates from the time they are furnished or put up. It is suggested that the case of Warden v. Sabins, 36 Kas. 165, prescribes a different rule, but this is a mistake, the only question in that case being as to whether a conveyance made by the owner after the right to a mechanic’s lien attaches is to be considered as an incumbrance. An expression is used by the court that counsel seize upon as conclusive of this question, but the contention here was not raised in that case, and was not in the mind of the court, and consequently could not have been decided. Liens under our law date from the commencement of the building, when one is constructed; from the making of repairs, when a building is altered or improved; from the furnishing or putting up of fixtures or machinery, when they are attached to or put in any building; and the Chief Justice, writing on another question arising under the section, mentioned in a passing way these things, without distinctly stating all the conditions. The case is not authority for the claim made from it in the brief of counsel for defendants in error. At least, in this case it seems perfectly clear to us, that as the labor performed and material furnished was performed and furnished in the construction of a house, and not in its repair or alteration, and as the court specially finds that the material furnished was not for either fixtures or machinery, that all these liens must date from the commencement of the building, and not from the date at which the first items in the various statements were furnished. And this brings us to what seems to be the controlling question in the case, and that is, What is “the commencement of the building”? The trial court says, in its sixth special finding, that—
“The actual labor of constructing said building was not commenced at the date of the execution of the mortgage to
the Kansas Mortgage Company, nor at the date of filing the same for record, and at said dates, and at each of them, no work or labor had been done on said lots toAvards the construction of said building, except that material for the same had been delivered upon the ground, Avhich material was afterwards used in the construction of said building.”
What the character or extent of the material delivered was we are not informed. It was held by this court, in the case of Thomas v. Mowers, supra, that the work of digging the cellar was the commencement of the building. This case cites Pennock v. Hoover, 5 Rawle, 291, wherein it is stated:
“The commencement of the building is the first labor done on the ground which is made the foundation of the building, and to form part of the work suitable and necessary for its construction. The commencement of a building in law takes place with the digging and walling of the cellar.”
The case of Brooks v. Lester, 36 Md. 65, is also cited, and the case holds:
“It is some work or labor on the ground, such as beginning to dig the foundation, Avhich every one can readily see and recognize as the commencement of the building.”
In the cases of Kelly v. Rosenstock, and Kugler & Kugler v. Same, 45 Md. 389, it was held that where a lessee, before he had acquired an interest in the property, and before a survey had been made, went with his foreman and a laborer and drove stakes to indicate the line of the foundations, and at one corner dug or scraped away the dirt down to a level, the whole work occupying but a part of a day, that this could not be considered as the commencement of the building.
In the case of Savings Bank v. Fellowes, 42 Conn. 36, it is held that bringing a considerable amount of lumber upon the premises and beginning to build a fence around the lot does not create a lien prior to a mortgage executed after the delivery of the lumber or the commencement of the fence, the work on the house not commencing- until after the execution of the mortgage.
Iu the case of Insurance Co. v. Rowland, 26 N. J. Eq. 389, it.is said:
“The legislature intended to make the actual and visible commencement of the building notice to all who might propose either to purchase or acquire liens on the property. The commencement of actual operations on the ground for the erection of the building is constructive notice to all such persons of tl*e claims which those who may contribute work or material for the building may thereafter make against the property by virtue of the mechanics’ lien law. The excavation for the foundation is such notice.”
In Conrad v. Starr, 50 Iowa, 470, a mortgage was recorded on the 12th of April; between the 1st and 10th of April the foundation of a block was staked out and some rubbish removed from the lot. The lien of the mortgage was held to be first and superior to mechanics’ liens.
These citations are enough to show the drift of judicial opinion upon this question. We venture to say that, as the avowed object and main purpose is to create an impression on the mind of any person who seeks to purchase of acquire an interest or lien in the land, the acts indicating that a building thereon is being commenced ought to consist of work of such character that a person of ordinary observation could determine that a building was in process of construction. Does the deposit of some material on á vacant lot create such an impression as amounts to notice? While it might, how much stronger does the excavation for the foundation walls or for the cellar convey the necessary notice. The material may turn out to be a temporary deposit, but the excavation is an unmistakable index to the intention of the owner to build. The trial court went upon the theory that the lien dated from the time the first item in the statement was furnished, but this is a mistake; and unless we can say that the fact found in the sixth special finding, that the act of delivering material which was subsequently used in the construction of the building was the commencement of the building, the judgment must be reversed.
We think it better for all concerned that we adhere to the beaten path followed by other courts, and hold that the mere placing of some material on lots is not the commencement of the building, as intended by the legislature. It is not certain, definite, or fixed. Questions may arise as to the amount, character or nature of the material, and after all the’ material may not be used, or, if used, only after a long time. TJie digging of the cellar, the excavation for the foundation walls, is a definite thing, open to the observation of all passers-by, very suggestive of its purposes, and is a better starting-point from which to date a lien, because it is unmistakably the commencement of a building. And there is another very good reason to sustain this construction. A lien for fixtures or machinery dates from the time they are furnished or put up, by the express words of the section; and the legislature having provided that one class of liens may date from the time the fixtures or machinery is furnished, and having provided that another class shall date from the commencement of the building, it would not be a sound construction to hold that both could date either from the commencement of the building, or from the time material was' furnished; In this view, the other questions become immaterial.
We recommend that the cause be remanded to the district ■court, with instructions to so modify its judgment as to give the mortgage the prior lien.
By the Court: It is so ordered.
All the Justices concurring. | [
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Per Qwiam:
The ruling of the district court is affirmed, under the authority of Dodge v. Beeler, 12 Kas. 524, and Fletcher v. Wormington, 24 Kas. 259. | [
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The opinion of the court was delivered by
Brewer, J.:
Information was filed in the district court of Labette county, charging that the defendant and one E. R. Marvin'did unlawfully sell intoxicating liquors, without having a permit. The information contained ten counts, charging a violation of the law on ten successive days. The jury returned a verdict of guilty as charged in the third count, upon which verdict a judgment was entered of a fine of $250 and costs; from which judgment the defendant Sterns appeals to this court. The material portion of the count upon which the defendant was found guilty is as follows: “ That at the county of Labette aforesaid, on the 22d day of October, 1881, in a certain wooden building known as the Belmont House, situated on fractional lots 14, 15, 16, in block 24, in the city of Parsons, in said county of Labette and state of Kansas, said E. R. Marvin and Joseph Sterns did unlawfully sell intoxicating liquors without having a permit to sell intoxicating liquors as provided by law.”
The first contention of counsel for appellant is, that the information does not state facts constituting a public offense, and is too indefinite to put the defendant upon trial, and that on the ground that there was no sufficient description of the liquors sold.
Section 21 of the prohibitory law declares that it shall not be.necessary, in the information, to state the kind of liquor manufactured or sold. This section has been adjudged constitutional. (The State v. Schweiter, 27 Kas.499.) Buttheprecise point of the argument made by counsel is, that the prohibitory law includes certain classes of liquors — (the first section reads: “Any spirituous, malt, vinous, fermented or other intoxicating liquors,”) —• and that the information, to be specific and definite, and to acquaint the accused with the nature and cause of the accusation as required by §10 of the bill of rights, should disclose the class of liquors, whether spirituous, malt, or other, though under § 21 it might not be necessary to state the hind in that class, whether whisky, gin, brandy,, beer, or ale. In other words, the specific kind of liquor need not be stated, but the class should be. This is straining a point, and is extremely technical. The object of the prohibitory law is to reach- all intoxicating liquors. • The-language of §§ 1 and 10 makes this very clear and emphatic. A fair and reasonable construction of § 21 shows that the legislature intended that it should be sufficient to charge generally the sale of intoxicating liquors, without descending into any specification of the particular liquor claimed to have been sold; and whatever may be thought of the wisdom of such legislation, it seems to be settled by abundant authority that the power exists to permit such general statement of offense in an information. But is it so lacking in precision and definiteness as counsel contend? The precise place at which the liquors were sold must be stated, and where the charge is that a party at such a place sold intoxicating liquors, is he not informed of the nature and cause of the accusation against him as fully as though he were charged with stealing in a certain county a horse belonging to a certain party? It is true there may be a hundred different kinds of liquor, but so in the other instance, the party from whom the horse is charged to have been stolen may have been the owner of a hundred horses — and yet would it seriously be contended that any further or more minute description of the property stolen is required, than that it belonged to the owner? The offense is in the stealing in the one case, and in the selling in the other; and when in addition to the county the precise place in the county must also be stated, it would seem that the defendant has no reasonable ground of complaint, if the prosecutor fails to allege in his information whether it was beer or whisky that was sold at that place.
The second objection is, that the court permitted an amendment of the information pending the trial. It will be perceived that the information contains a two-fold description of the place at which the sale was charged. It is described as a certain wooden building known as the Belmont House, and is thus described by its name. It is also described by its location as situated on fractional lots 14, 15 and 16, in block 24. Now after the jury had been impaneled, and while the state was introducing its testimony, the court permitted the prosecutor to strike out the words: “Situated on fractional lots 14, 15 and 16, in block 24,” leaving the description to read as: ■“A certain wooden building known as the Belmont House, in the city of Parsons.” This ruling is assigned for error. No ■delay was asked by the defendant after the filing of the amendment, no showing that he was surprised or prejudiced thereby; but the claim is that by striking out that portion of the information there was such a material change as of itself in the ■description to prejudice the substantial rights of the defendant, and that he is therefore entitled to another trial. It would seem probable, from the proceedings at the time the amendment was made, that the Belmont House was not in fact situated on the lots named; and the argument of counsel is-that the state was unable to prove the description of the place exactly as stated before the amendment, and must therefore have failed in the prosecution as it then stood; that by striking out the words which were stricken out the prosecutor was enabled to prove the place exactly as stated; hence the amendment was material, and the statute only allows an amendment in a mere matter of form after the case has gone to trial. (Criminal Code, § 72.) We do not think the objection is well taken. The criminal code, § 293, provides that ■on an appeal the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties. The testimony abundantly shows that there was a place known as the Belmont House in the city of Parsons, and that the defendant was carrying on business there. The description was complete after the amendment. There was no testimony tending to show that there were two places, each known as the Belmont House, or that by any means defendant could have been misled as to the place intended. Hence, to reverse the judgment on this account would be sacrificing substance to form. Indeed, if no amendment had been made, would the partially false description have been fatal to'the judgment? (Insurance Co. v. McLanathan, 11 Kas. 533.)
The third error alleged is, in the refusal of the court to give this instruction: “Evidence that the defendant Sterns committed an offense, but not jointly with the defendant Marvin, is a variance from the information, and under it the defendant Sterns cannot be found guilty upon this information of the offenses charged.” Defendant Sterns, upon his demand, was tried separately, and the court instructed the j ury substantially that if they found that the defendant Sterns sold the liquor at the time and place named without having a permit, they could find him guilty. In this we see no error. As far as the case of Stephen & Everett v. The State, 14 Ohio, 386, pronounces a different doctrine, it does not commend itself to our judgment. The offense charged in this case was not one that required the cooperation of two parties in order to its commission. It charged that two persons at a certain time and place unlawfully sold liquor, and under such an information as that we have no question that either may be convicted,, and this notwithstanding the testimony fails to inculpate in the slightest degree the other. It is an every-day thing in criminal practice, for indictments and informations to charge two or, more persons with the commission of an offense, and unless the offense be of such a nature that the coóperation of two or more is essential to its commission, the pleading is regarded as a separate charge against each. The verdict may be for one and against the other. (Cr. Code, § 114.) And where separate trials are awarded, each one is tried as if he were the only party charged.
The final matter that we shall notice is, the refusal of the court to instruct as follows: “That if the defendant Sterns was the employé or agent of the defendant Marvin, and sold intoxicating liquors in that capacity for Marvin, then a permit from the lawful authority to Marvin to sell intoxicating liquors would be a protection to Sterns, unless the state further shows that the liquors were sold in another manner and for other purposes than the manner and purposes allowed by such permit to Marvin.” The court properly refused this instruction, because there was no testimony upon which it could rest. The state proved by the probate judge that no permit had been issued to Sterns, proved that he sold liquor, and there was no testimony in any way tending to show that he was acting as the agent or clerk of Marvin. So far as the testimony showed, he was acting for himself; and in such a case it is unnecessary to introduce testimony proving that the other defendant, jointly charged but separately tried, had no permit. It is doubtless true, that if the testimony showed that Sterns was acting simply as an employé of Marvin, the question suggested by this instruction might have arisen in the case.
These are all the matters that we deem essential to notice. In them we see no error, and upon the testimony it is evident that the jury gave the defendant the' benefit of all possible doubts in simply finding him guilty upon one count.
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 of replevin, brought by W. T. Davidson to recover certain goods and chattels claimed by him, but which had been taken in execution by the defendants, Sechrist and Mahan. The sole question involved in the case is, whether such goods and chattels were exempt from the execution levied upon them. The case was. tried before the court below without a jury, and the court made the following findings of fact and law.
“findings op pact.
“The court doth find —
“ 1. That W. T. Davidson, the said plaintiff, is a bona fide resident of Dickinson county, state of Kansas, and unmarried, and not the head of a family.
“2. That he is an insurance agent and an abstracter of titles, and that he is dependent upon these things for his support.
“3. That he has no occupation other than as an insurance agent and an abstracter of titles.
“4. That the property replevied in this action, to wit, one iron safe and one set of abstracts, and one cabinet and table, were used and kept by him for the purpose of carrying on his business as an insurance agent and abstracter of titles.”
“finding op law.
“That the plaintiff, W. T. Davidson, is not entitled to claim said property exempt from seizure and sale upon the execution issued to the defendant Sechrist.”
Upon these findings the court below rendered judgment in favor of the defendants, and against the plaintiff; and the plaintiff now seeks a reversal of such judgment. The plaintiff claims that the property is exempt from execution under § 4, subdivisions 3 and 4, of the exemption laws, which reads as follows:
“Sec. 4. The following property only shall be exempt from attachment and execution, when owned by any person residing in this state, other than the head of a family: . . . Third, the necessary tools and instruments of any mechanic, miner, or other person, used and kept for the purpose of carrying on his trade or business, and, in addition thereto, stock in trade as provided in the last section. Fourth, the library, implements and office furniture of any professional man.” (Comp. Laws of 1879, p. 438.)
We think the property in controversy in this case is ex empt from execution,- under the third subdivision of the foregoing section, as being tools and instruments used by- the owner in carrying on his business. As often stated by this court, the exemption laws must receive a liberal construction for the purpose of carrying out their object and design, and one of the main objects of exemption laws is, that every person shall have the means of carrying on some useful business, and thereby of obtaining an honest livelihood. If .the property in the present case is not exempt, then the plaintiff will be stripped of all means of carrying on his business, and of thereby procuring a livelihood, and will be compelled to seek some other mode of obtaining a subsistence. This would not be in accordance with the beneficent design of the exemption laws.
The judgment of the court below will be reversed, and the cause remanded with the order that judgment be rendered upon the findings of fact, in favor of the plaintiff, and against the defendants.
All the Justices concurring. | [
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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 by the Commonwealth company, for the purpose of compelling the defendant, C. J. Brown, as clerk of the supreme court of the state of Kansas, to deliver to the plaintiff for publication in the Daily Commonwealth, a daily newspaper published at Topeka, Kansas, the official syllabi of the decisions of the supreme court. The facts of the case are such that the only substantial question involved in the case is, which of the two newspapers, the Daily Commonwealth, or the Daily Capital, is the “ official state paper ” of the state of Kansas. The statutes of Kansas provide among other things as follows:
“Sec. 89. An executive council is hereby created, consisting of the governor, secretary'of state, auditor, treasurer, attorney general and superintendent of public instruction, a majority of whom shall constitute a quorum for the transaction of business; but no question shall be decided without the concurrence of at least four members. The governor, or in his absence the attorney general, shall preside over the meetings of such council; the secretary of state shall be the secretary of the executive council, and shall keep a journal of its proceedings.
“Sec. 90. The executive council shall hold their meetings in the office of the secretary of state, and shall meet in regular session on the last Wednesday in every month, and in special session at such other times as occasion may require, at the request of any two members: Provided, That any official bond required of any state officer who is a member of the executive council shall be approved by the governor.”
“Sec. 104. The executive council shall, at their regular meeting in March of each year, designate some newspaper, printed and published at Topeka, as the‘official state paper/ and shall certify such designation to the secretary of state, who shall file and record the same. The paper so designated shall be the official state paper for and during one year from the first day of April next ensuing, and until its successor shall in like manner be designated; but if such newspaper be discontinued, or shall not be promptly and regularly issued and published, the executive council may appoint or designate some other newspaper, published at the capital, as the official state paper for the unexpired year.” (Comp. Laws 1879, pp. 904, 908.)
The statutes also provide that the clerk of the supreme court shall publish the official syllabi of the decisions of the supreme court in the official state paper. (Comp. Laws of 1879, p. 316, §10; p.908, §105.)
Among the admitted facts of the case are the following:
At the regular meeting of the executive council, on March 30, 1881, such council .duly designated the Daily Commonwealth as the official state paper for the ensuing year. The Daily Commonwealth was at that time owned and published by F. P. Baker & Sons. On April 1, 1881, the present plaintiff, the Commonwealth company, a corporation of which P. P. Baker and sons are members, purchased such newspaper from F. P. Baker & Sons, and have published the same ever since; and from the 1st day of April, 1881, to April 5th, 1882, the Daily Commonwealth was the official state paper of the state of Kansas. On March 29, 1882, the same being the last Wednesday in March of such year, and being the time for holding the regular meeting of the executive council in that month, the executive council met in regular session, a quorum of four members being present; and thereupon the council adjourned to meet again on April 5, following. On April 5, the council met pursuant to adjournment, and designated the Daily Capital as the official state paper for the year ending March 31,1883. This last-named designation, as well as the first, was duly certified to the secretary of state, and the publishers of the Daily Capital accepted such designation. Both of these newspapers are now, and have been for a long time, promptly and regularly printed, issued and published in the city of Topeka.
These are substantially all the facts in the case; and upon these facts the plaintiff claims that there has been no valid designation of any official state paper since the Daily Commonwealth was so designated, on March 30,1881; and there-, fore that the Daily Commonwealth still remains the official state paper, under that clause of said § 104 which provides-that the official state paper shall remain such until its successor shall be duly designated.
The plaintiff insists that the action of the executive council in designating the Daily Capital as the official state paper was utterly null and void. This is claimed upon the following grounds, to wit:
First. That the executive council has no power to adjourn its meetings, except from day to day, and then only when the amount of its business and the exigencies of the occasion require such an adjournment; and that there was really no-necessity for any adjournment of its meeting held on March 29, 1882.
Second. That even if the executive council has the power to adjourn its meetings to some future time, still, that it cannot so adjourn its power or authority to designate the official state paper as to make such a designation at some future time valid; and that any such designation made at any time after the first day of the regular meeting of the executive council in March, and while the previously-designated official state paper is still properly performing its duties, is utterly null and void.
Third. That even if the executive council could designate an official state paper after the first day of the regular meeting of such council in March, still, that such designation could not take place after the first day of April following, unless in fact there was no official state paper in existence at the time of such designation, or unless such official state paper was not promptly and regularly issued and published.
We think the plaintiff is mistaken in every particular. • In the absence of statutory or constitutional provisions, limiting or restricting the right of adjournment, every body of men, whether public or private, has the right to adjourn from day to day, or from time to time, and for any number of days at any time, as it thinks proper and expedient; and the validity of its adjournment cannot be inquired into by any other tribunal. This is not only the general understanding of all classes of men, but the universal custom of all classes and bodies of men with reference to adjournments corresponds to this general understanding. With reference to corporations, Mr. Field, in his work on Corporations, says that “It is a general rule that corporate meetings may be adjourned; and if a corporate meeting is regularly called, any business that might have been legally transacted at the original meeting ■may also at the adjourned meeting. This is also in accordance with the general rule of parliamentary proceedings. . . . In the absence of particular regulations on this subject, the power to adjourn corporate meetings is an incidental common-law right, and adjournments may be made in the usual way to any future time the same day or any other day, and even to another place than the one where it originally met, if within the territory of its creation.” It is also said in the case of Warner v. Mower, 11 Vt. 385, 391, that “It is too well settled to require comment, that all corporations, whether municipal or private, may transact any business at an adjourned meeting which they could have done at the original meeting. It is but a continuation of the same meeting. Whether the meeting is continued without interruption for many days, or by adjournment from day to day, or from time to time, many days intervening, it is evident it must be considered the same meeting without any loss or accumulation of powers.” Also, upon the same subject, see 1 Abbott’s Digest of Corporations, p. 460, No. 51, et seq.; 1 Dillon on Municipal Corporations, 3d ed., §§ 269, 287. With reference.to elections, see McCrary on Elections, pp. 109, 110, §§ 91, 92; and with reference to courts, see Jacobs’s Law Dict., title, “Adjournment;” Revel v. The State, 26 Ga. 275; Smith v. The State, 4 Neb. 277, 284. In the case last cited, it is said that “There can be no doubt that, in the absence of a prohibitory statute, the district court, when in actual session, may be adjourned by the judge to any time he may see fit, not beyond the next regular term for that county; provided it do not interfere with a regular term in any other county in his district. We regard this as one of the inherent powers of the court, to be exercised at the pleasure of the judge.” And as before intimated, the reasons for adjournment cannot be inquired into. It will be presumed that they are sufficient. In the present case, under said §89 of the statute, it required four members of the executive council to designate the official state paper. Now as there were only four members present at the original meeting on the 29th of March, it is possible that no designation of any paper could have been made, because it is possible that the four could not agree upon any particular paper. Each separate member of the council may have desired to designate a different paper. Besides, the council may have desired to obtain further information with respect to the circulation of the different papers published in Topeka; or it may have desired to know whether they were all of a permanent character and likely to be published during the year. At least the executive council may have had ample reasons for adjourning over to April 5; but whether it had or not, it is not for this court to inquire. And if the executive council had the power to adjourn then, as is shown by the authorities already cited, it had the power to transact any business at the adjourned meeting which it could have transacted at the original meeting. But it is contended that even if the executive council has the right to adjourn, and has the right to designate the official state paper at an adjourned meeting, still that the designation cannot be had at an adjourned meeting held after the first day of April, for the reason that the statute provides that the designation shall be at the regular meeting in March, and shall be for one year from the first day of April next ensuing. Now the statute does so provide; but by using the words “regular meeting in March,” it evidently means the regular March meeting. It means that the designation must take place at the regular March meeting, and not that it must take place in March. And if the designation does take place at an adjourned meeting of the regular meeting in March, it in legal contemplation takes place, as we have already seen from the authorities, at the regular March meeting. All lawyers are familiar with a similar use of language; judgments are- often rendered at the March term, which are in fact rendered in April. In this court, all judgments rendered from January till July are said to be rendered at the January term; and all judgments rendered from July till January are said to be. rendered at the July term. And further, the statute does not say in terms that the paper designated shall be the official state paper for one year from the first day of April next ensuing the designation; but it does say in substance that it shall be the official state paper “for and during one year,” that is, for the period or term of one year from the first day of April next ensuing the regular meeting; that is, next ensuing the time when the regular meeting commences. This clause of the statute is simply intended to fix the term or the period for which the newspaper shall be the official state paper, and is not intended to fix a limitation upon the appointing power or designating power of the executive council. It means that the term of the official paper shall be one year, and that the term in the abstract shall commence on the first day of April of each year. But it does not require that the actual term of any particular official state paper shall commence on the first day of April, or not at all. It is seldom, if ever, necessary that an officer shall qualify and take possession of his office on the very day on which his term, in the abstract, commences; but he may allow, if he chooses, his predecessor to fill a portion of his term; and he may then take possession of the office and hold the same for the remainder of his term. A few days at the beginning of a term is a very unimportant matter. It makes but little difference to the state or to any one else, whether the term of a particular paper should commence on the first day of its term, or on some subsequent day; whether it should commence on the first day of April, or on the fifth day of April. The legislature, in passing the statutes above ■quoted, intended that the term for which a paper should be the official state paper should be just one year, and not two years or a lo.nger period of time. But suppose, from some insuperable difficulty in the designation of an official state paper, that the one designated cannot commence its term on the first day of April, but must commence the same four or five days afterward, and therefore that it cannot'take the term for the full year, but must necessarily take it for a period of time four or five days less than a year: is that a sufficient ground for holding that such paper shall not be the official state paper at all, but that another paper, which has been the ■official state paper for the preceding year, shall continue to be the official state paper for still another year, and thereby be the official state paper for a term of at least two years? Which is the less irregularity, which is the less violation of ■.the will and intention of the legislature, and which is the less violation of the spirit of the law? Is it less in harmony with the will and intention of the legislature, that an official state paper should be such for five days less than a year, than it is that an official state paper should be such for a term of ■two full years? Evidently the object of the law would be 'better subserved, both in letter and spirit, by holding that if the executive council cannot or does not, for any reason, ■designate the official state paper on the first day of its regular meeting in March, then that it may designate such paper on some other day of such meeting, although it may be. on some day in the month of April. Of course, that provision of § 104 which says that the official state paper shall continue to be such until its successor is duly designated, must have some room for operation; but is it ■not more reasonable to say that' it shall have room for operation, (where the executive council has failed for a few days to makefile designation,) by its (the provision) continuing the old official state paper in its official position for such few days only, than it is to say that upon such a contingency -the old official state paper shall be continued in its official po sition for still another year? Suppose that, when the executive council met at its regular meeting on March 29, 1882, three of the members present were in favor of designating some particular paper as the official state paper for the ensuing year and that the other member present was opposed, and that it was impossible to obtain the presence of the two absent members .on that day, or on any day prior to April 5, 1882, and that for these reasons it was impossible for the executive council to designate the official state paper for the ensuing year earlier than April 5, 1882: then should it be held that the executive council was powerless for that year, and for the whole of the ensuing year, to elect or designate an official state paper for such year, and thereby allow the old official state paper to hold the position for still another year, although all the members of the executive council except one may have been in favor of designating another official state paper, and of designating one and the same paper as the official state paper? It must be remembered that it takes four members of the executive council to designate the official state paper. Three cannot do it, although four only of the members may be present. See said § 89.
There is no statute in force in this state prohibiting the executive council from adjourning from day to day or from time to time, and for any length of time which it may choose; and hence,, upon general principles of law and in accordance with universal custom, it must have such power. Of course it cannot adjourn beyond the next regular meeting, but that is probably the only limitation upon its .power to adjourn. Section 90, above quoted, provides when the executive council shall meet and where it shall hold its- regular sessions, but there is no law providing when its sessions shall terminate. Said § 90 provides that “ the executive council shall hold their meetings in the office of the secretary of state, and shall meet in regular session on the last Wednesday in every month.” Now if the legislature had intended that the executive council should hold its sessions only on the last Wednesday in each month, instead of using the language that it did use it would have used language in substance as follows: “The executive council shall hold its meetings in the office of the-secretary of state, and its regular sessions on the last Wednesday and on the last Wednesday only, in every month.” Taking this section of the statute together with all the other-sections of the statute, and in connection with the general principles of law and the universal custom, we think the executive council, when it met on the last Wednesday of March,. 1882, had the right to adjourn as it did to April 5, 1882;. and then had the right as it did to designate the official state paper for the ensuing year, the term of such official state paper to be considered as commencing on April 1st, of that year.
It is probably unnecessary in this case to mention the doctrine of relation; and yet, we might say that when a designation of an official state paper is had at an adjourned meeting-of the regular March meeting, such designation will probably relate back, so far as it is necessary for the purpose of rendering everything regular and legal and valid, to the first day of the regular meeting begun and held in March. All lawyers are familiar with the doctrine of relation. At common law, a judgment rendered at any time during the term relates back and has force and effect as from the first day of the term; and all orders and judgments made or rendered nunc pro iunc relate back to some previous time; and all sheriff’s deeds relate back to the time when the plaintiff first procured his lien upon the property conveyed by the sheriff’s deed. These are mere illustrations of the doctrine of relation, and are sufficient for the present purpose.
We think the action of the executive council on April 5,. 1882, in designating an official state paper, was legal and valid, and therefore that the judgment in this case must be rendered in favor of the defendant and against the plaintiff;, and it is so rendered.
All the Justices' concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Defendant in error, plaintiff below, recovered a judgment in the district court of Leavenworth county for the value of a mule, killed by one of the trains of the railway company. The action was brought under chapter 94 of the Laws of 1874. Plaintiff in error asks a reversal of that judgment on two grounds: First, because there was no testimony showing that the animal was killed or injured by the railroad company in operating its road; second, because the supposed injury did not occur at a place on the railroad where it was lawful or proper for the company to fence.
The first is a question of fact; and while it is true no witness saw the animal struck by one of the trains of defendant, we think there was testimony sufficient to sustain the verdict of the jury in this respect. The mule was last seen alive on the afternoon of March 22d. It was then alive in the streets of the village of Linwood, and was found dead some time thereafter in the Kaw river. Stranger creek runs through the village of Linwood. This creek is crossed by the railroad track, on an open bridge. The morning of the 23d the tracks of the animal were discovered leading upon this bridge, and along the bridge from the east end for from 15 to 25 feet were found blood and hair, the hair corresponding in color with that of the mule. A witness testified that at five minutes to twelve of the night of March 22d, he heard the westbound train whistle as it approached the bridge, and then he heard something fall into the water and swimming afterward. It appears that two trains belonging to the defendant passed west over that bridge that night. The engineer of one testified that he sawr no stock ; the engineer of the other was not a witness, and no testimony was offered as to whether that train ran into any stock or not. It is true the engineer of the one train testified that he passed the bridge at 11:35, and that the other train passed before that time. Now while there is a conflict between the engineer and plaintiff’s witness as to the hour, yet either witness, especially the plaintiff’s witness, might be mistaken as to the time, and this without in any way discrediting his testimony as to the fact. So that we have this testimony, which was properly before the jury for its consideration, and sufficient, we think, to justify its finding against the company. The animal was seen alive in the afternoon. In the night-time a train was heard to whistle for stock as it approached the bridge, and immediately thereafter something was heard to fall into the water and to commence swimming therein; the next morning the tracks of the animal were discovered leading to the bridge, and on it for a space of from 15 to 25 feet are indications that, either the animal was struggling forward from tie to tie, or was pushed forward by a train until it went over into the water. This testimony tends very strongly to show that the animal was thrown off the bridge by the train, and in a civil case is ■sufficient to sustain a verdict to that effect. It is a very different case from that of the Railroad Company v. Seeley, 24 Kas. 265, for there the only testimony really was, that the animal was found injured, and there was no testimony which showed that the animal was injured by the train of the railroad company or on its track, or even that it had been near the track on the day of the injury; and from the simple fact of the injury, we held that a jury was not warranted in finding that the railroad company caused it.
Upon the other question counsel for the railroad company have discussed several matters, many of which we think are without any bearing upon the real question in the case. The facts are these: The railroad track runs through the village of Linwood, crossing Stranger creek in the village on an open bridge, as heretofore stated. On the east side of the Stranger and about 100 feet from its bank, Mill street crosses the railroad at right angles, and, except where Mill street strikes the track, the road is properly fenced with line fencing. The only open way of reaching the track is along Mill street. On the east side of Mill street the right of way is protected by cattle-guards as well as by a fence. On the west side of Mill street the right of way is protected only. by the line fences. There is no cattle-guard under the track and no fence from the track to the line fence, so that an animal coming down Mill street can pass from it directly upon the right of way outside of the track or upon the track itself. Now whether the right of way is 100 or 400 feet in width is entirely immaterial. The law of 1874 does not require that the railroad company shall build the fence on the extreme limits of its right of way; it is sufficient if the road itself is securely fenced. So far as the application of the law of 1874 to fencing within the limits of an incorporated city bears upon the question, it is unnecessary to add anything to what has already been said in the case of the same plaintiff in error v. Dyche, just decided. Neither is it necessary to consider whether the district court ruled correctly in submitting to the jury as a question of fact whether this track was properly fenced in. It is clear that the road was properly fenced except as to the matter hereinbefore stated; and it is also clear from the testimony that the animal came down Mill street, and from it got upon the track; so that if all that is required of the railroad company is a fence parallel with its track, and nothing is required where a highway crosses the track to prevent the animals from passing from such highway upon its track or right'of way, then beyond question the company was not liable in this case. On the other hand, if the statute requires not merely a fence parallel with the track, but also cattle-guards or other protection wherever a highway crosses the railroad track, then the conclusion of the jury and court was correct and the judgment must be affirmed. Counsel for the company contends that as the law of 1874 does not name cattle-guards, none are required; that it discharges all duty imposed by that statute when it builds a fence parallel with its road, and thus separating the road from adjoining fields. We are constrained to differ with counsel, and to hold that the-end as well as the side of the track must be protected. Section 5 of the law of 1874 reads: “’This act shall not apply to-any railroad company or corporation, or the assignee or lessee thereof, whose road is inclosed with a good and lawful fence, to prevent such animals from being on such road.” Now can anything be said to be inclosed with a good and lawful-fence when the only fences are the side-fences, and there is no protection on the ends? The word “inclose” is defined by Webster, “to surround, to shut in, to confine on all sides,”' etc. It may be said that no fence is possible across the track,, because that would prevent the free passage of trains, and that as no fence can be required across the track, the statute-must be held to apply only to the parallel fences; but the-fence law, which was in force long before the passage of the act of 1874, after prescribing in the first three sections what shall constitute lawful fences, in § 4 reads: “ Fences of the material and of the height and sufficiency aforesaid, and all brooks, rivers, creeks, ditches and constructions which shall be equivalent thereto in the judgment of the fence viewers within whose jurisdiction the same may be shall be deemed sufficient and legal fences.” Now a cattle-guard is no more than a ditch, and with this before them as the statutory definition of what shall be deemed a good and lawful fence, the legislature in 1874 enacted that the road must be inclosed with a good and lawful fence, and to make its meaping more emphatic it added: “To prevent such animals from being on such road.” The mere building of a fence along the side of the track, leaving the ends unprotected, instead of inclosing the road so as to prevent animals from being on the track, would amount to little more than a cattle trap to catch and confine animals that might chance to be on the highway.
The statute of Indiana, from which ours was in a large meas ure copied, in its seventh section reads: “ This act shall not apply to any railroad securely fenced in, and such fence properly maintained.” The supreme court of Indiana in several cases have held that that language required cattle-guards at public crossings. (Rld. Co. v. Avery, 31 Ind. 277; Rld. Co. v. Morgan, 38 Ind. 190; Rld. Co. v. Bonnell, 42 Ind. 539.)
Again, §1 of chapter 81 of the Laws of 1869 reads: “'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.” Now in this case, where the railroad track left Mill street it passed from a highway upon land fenced upon both sides, so that within the obligations of that statute it was the duty of the railroad company to place cattle-guards on the west (as the testimony shows it had done on the east) side of Mill street.
We think therefore that whether the rulings of the district court upon all the questions suggested by the learned counsel were technically correct or not, the conclusion of the jury was correct, and must be sustained. The judgment of the district court will therefore be affirmed.
All the Justices concurring. | [
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Per Curiam:
We perceive no error in this case. All the contested questions in the case of a material and substantial character which were presented to the court below, or which were considered in or by it, were merely questions of fact; and these questions of fact were properly and fairly presented to a jury.- The jury found, in favor of the plaintiff below (defendant in error) and against the defendant below (plaintiff in error), and we think these findings are conclusive. It is true that these findings were made upon conflicting and contradictory evidence, but there was sufficient evidence to sustain them.
We might further say, that upon a previous trial of the case before another jury, this other jury also found in favor of the plaintiff below, and against the defendant below; and two juries having found the same way, it would seem that their verdict should be considered correct.
We perceive no error in the charge of the court below to the jury; and it does not appear that the defendant below (plaintiff in error) took any exception to the charge, or to any part thereof.
The judgment of the court below will be affirmed. | [
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Per Curiam:
This is a proceeding in this 'court brought to reverse a judgment of the district eourLt of Franklin county. The errors alleged are in the admission of testimony, and were sought tó be preserved by a case-made. This case contains the pleadings, the testimony, the demurrer to the evidence, and a motion for a new trial, but does not contain the verdict, the ruling of the court on the motion for a new trial, or the judgment. Only inferentially can it be determined in whose favor the verdict was, and nowhere does it appear that the eourt has ever passed upon the motion for a new trial, or bas ever rendered a judgment in the case; hence the record is incomplete, and it is impossible for us to reverse the action of the district court. We may not review proceedings in .a trial • until after a final decisioü. The fact of that final decision must affirmatively appear in the record. The- case must therefore be dismissed. (Hockett v. Turner, 19 Kas. 527; Smith v. Moore, 21 Kas. 161.) We may add further, that the ruling of the district court upon the admission of testimony was probably correct. One of the two affidavits objected to was unquestionably sufficient, and probably enough to sustain the action of the court in the admission of the record. | [
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The opinion of the court was delivered by
Horton, C. J.:
Objection is made by the counsel representing the state to any consideration of the alleged errors charged in the brief filed for the appellant, upon the ground that no certified transcript has been filed in this court. This objection is well taken. What purports to be the record is certified as .follows:
“State of Kansas, County of Montgomery, ss. — I, H. H. Dodd, clerk of the district court of the eleventh judicial district of the state of Kansas in and for said Montgomery county and state of Kansas, do hereby certify that the wdthin and foregoing is a full, true, correct and complete copy of the original bill of exceptions in the case of The State of Kansas v. C. W. Lund, as appears of record and now on file in my office.
“In witness whereof, I have hereunto subscribed my name and affixed the seal of said court, this--day of January, 1882. H. H. Dodd,
[seal.] Clerk of District Court.”
This certificate of the clerk is merely that the record filed in this court is a copy of the bill of exceptions filed in the district court. (Whitney v. Harris, 21 Kas. 96.) If the clerk’s certificate had stated in addition, that the record contained full, true and correct copies of the information, orders, judgment, etc., as the same appear, respectively, on file in his office, we might treat the record as correctly authenticated; and that while it was irregularly prepared, yet that the irregularity was not such as to avoid the force of the authentication. (Lauer v. Livings, 24 Kas. 273.) The bill of exceptions, as a fact, appears to contain the information, orders and judgment of the district court, but in the absence of a certificate to that effect the challenge of the record cannot be overlooked. Section 282 of the criminal code provides:
“An appeal from a judgment in a criminal action may be taken in the manner and in the cases prescribed in this article.”
Section 284 further provides:
“The appeal must be taken within two years after the judgment is rendered, and the transcript must be filed within thirty days after the appeal is taken.”
And § 289 reads:
“An appeal shall stand for trial immediately after filing the transcript, if the supreme court is in session. If not in session, at the next term thereafter on proof of notice of appeal to the appellee.”
As the certificate of the clerk is simply that the record is a copy of the bill of exceptions, and as there is no certificate that a full transcript of the case is before us, we cannot reverse upon the record the judgment of the trial court; and as we cannot tell how much of the record or how much of the proceedings is not brought to this court, from the certificate of the clerk, we cannot go into an examination of the alleged error. (Lauer v. Livings, supra; Whitney v. Harris, supra.) Where the defendant in a criminal action appeals to this court, he must file with the clerk of the court a transcript of the proceedings and record of the trial court, properly certified to by the clerk thereof.
We cannot accept and consider a paper purporting to be a transcript, unless it be duly authenticated- by the clerk.
In an appeal from a question reserved in a criminal action, on the part of the state, it is not necessary for the clerk of the court below to certify in the transcript any part of the proceedings and record, except the bill of exceptions and the judgment of acquittal. (Cr. Code, § 288.) In case of an appeal by the defendant, however, the clerk of the court below must certify that the transcript contains the entire, proceedings of record.
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
Fromme, J.:
James Costello was convicted by a jury of first-degree murder (K.S.A. 21-3401) and attempted aggravated robbery (K.S.A. 21-3427 and K.S.A. 21-3301).
On April 3,1981, the body of Andrew Johnson was found in his house at 1941 North 3rd Street, Kansas City, Kansas. An autopsy revealed that Johnson had been severely beaten and his body evidenced multiple cuts and bruises. A pathologist who performed the autopsy testified at the trial that the cause of death was an obstruction of the bronchial tubes caused by blood.
Detective James Parks of the Kansas City Police Department responded to the notice of discovery of the body. He began an investigation at the scene of the crime. While outside the residence where the body was found, he was approached by an informer who told him: “Check Costello; he was there last night; he is acting very strangely, along with a party by the name of Shug.” After determining the identity of Shug and talking with her mother, Detective Parks located James Costello. The detective recovered a knife from Costello, and observed what appeared to be blood stains or splatters on Costello’s shoes. At that time Costello was placed under arrest.
Subsequently, Mary Ella Bagby, also known as Shug, was arrested. At first she denied any knowledge of the homicide but later gave a statement to the police that James Costello was the party who killed Andrew Johnson. She was charged, along with Costello, with first-degree murder but she was discharged at the preliminary hearing. She testified against Costello at trial. As a result of Miss Bagby’s statement, the police were able to recover a pair of pants that Miss Bagby said Costello was wearing at the time of the homicide. Blood on those pants matched the blood type of the victim, Andrew Johnson.
The State presented two additional items of evidence against Costello: Costello’s fingerprints on a whiskey bottle found by the body of the victim, and a ring worn by Costello, which ring matched an impression or bruise appearing on the face of the victim. The ring was removed from Costello when he was booked into the county jail, and was introduced into evidence at the trial.
The appellant Costello raises two points of claimed error. First, he claims the court erred in refusing to dismiss the case because of a lack of probable cause for his arrest.
This claim of error is without merit. Probable cause for arrest exists if facts and circumstances within an arresting officer’s knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe that an offense has been or is being committed. State v. Weigel, 228 Kan. 194, 612 P.2d 636 (1980); State v. Williams, 229 Kan. 290, 623 P.2d 1334 (1981); Draper v. United States, 358 U.S. 307, 3 L.Ed.2d 327, 79 S.Ct. 329 (1959).
In the present case a detective interviewed a Mr. McGee on the day the body was found and the detective was told that Costello and Bagby were at Johnson’s house between 11:00 p.m. on April 2nd, and 2:00 a.m. on April 3rd. The body was found the after noon of April 3rd. McGee described Costello and later picked him out of a photo lineup. The detective who made the arrest first visited the scene of the crime, viewed the battered body, noticed numerous cuts on the legs, and a large amount of blood. The detective was approached by an informant in front of the residence where the body was discovered, and was advised to check Costello, because he was at the house the night before and was acting strangely. The detective knew Costello personally and located him. Costello had a knife on him at the time and the detective observed splatters of what appeared to be blood on Costello’s shoes and jacket. Under the rule stated in State v. Weigel, 228 Kan. 194, and iterated above, there was probable cause for the arrest. See also State v. Holthaus, 222 Kan. 361, Syl. ¶ 1, 564 P.2d 542 (1977), and State v. Stewart, 225 Kan. 410, 412-13, 591 P.2d 166 (1979).
Now we turn to the second point raised by appellant. At the time of appellant’s arrest and incarceration, a search of his person was made and various items of personal property were inventoried and placed in a personal property envelope for safekeeping at the Wyandotte County Jail. A large ring with a distinctive square face was removed from his finger and placed in the envelope. Just before the trial the ring was removed from the personal property envelope by the police, and it was introduced in evidence. Prior to its introduction, a pathologist testified that the body of the victim was examined by him, and the face of the victim bore a bruised impression which appeared to have been made by the impact of a square ring. He testified that the ring taken from appellant’s finger could have caused the specific injury to the face of the deceased.
Argument on this point is twofold. First, an objection is made to the introduction of the ring in evidence because it is alleged the ring was procured by the State from the personal property envelope without a search warrant and therefore obtained by an illegal search and seizure. Second, it is argued the prosecution did not divulge an intent to use this ring as evidence until the day of the trial and this resulted in a violation of the provisions of K.S.A. 60-445 relating to surprise. We will discuss these in turn.
It must be conceded that courts are in disagreement as to whether personal items exposed to police view in a search incident to a lawful arrest and then lawfully held by the police for safekeeping may be subjected to a “second look” while remaining in police custody. At least one appellate court in Illinois has held a “second look” under the circumstances described in the case was a violation of the defendant’s right of privacy as to his personal effects under the 4th Amendment. In Brett v. United States, 412 F.2d 401 (5th Cir. 1969), it was held that a clothing search was illegal in the absence of a warrant when the search was made in the property room three days after the arrest of the accused.
However, in Michigan a “second view” was held proper when possession was originally obtained by the police under unobjectionable circumstances. In People v. Rivard, 59 Mich. App. 530, 230 N.W.2d 6 (1975), it is held any expectation of privacy with respect to such items has dissipated substantially so that no reasonable expectation of privacy is breached by taking a “second look.”
In United States v. Jenkins, 496 F.2d 57 (2nd Cir. 1974), a defendant was arrested on a concealed weapons charge. His clothing and wallet containing several bills were taken from him, inventoried, and given to a jailer for safekeeping. A week later a federal agent was granted permission by the property custodian to view the money. The agent discovered that the serial numbers on eleven five-dollar bills were the same as serial numbers on “bait money” taken in & recent robbery. The search or “second look” was upheld. The Jenkins court, citing United States v. Edwards, 415 U.S. 800, 39 L.Ed.2d 771, 94 S.Ct. 1234 (1974), rejected the argument that a “second look” violated constitutional rights and said:
“Wilcox contends that the ‘second look’ at and warrantless seizure of the money by the agent violated his constitutional rights. However, the content must be rejected, in view of the Supreme Court’s recent decision in United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), upholding a warrantless search and seizure of the defendant’s clothing while he was lodged in a local jail after arrest and stating that such a seizure is permissible ‘where the clothing or effects are immediately seized upon arrival at the jail, held under the defendant’s name in the “property room” of the jail and at a later time searched and taken for use at the subsequent criminal trial.’ 415 U.S. at 807, 94 S.Ct. at 1239. This argument ignores the fact that once the money had been lawfully taken by the police for safekeeping Wilcox no longer could reasonably expect any right of privacy with respect to the serial numbers, see Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan,'J., concurring). The contention has been squarely rejected by the Ninth Circuit in Westover v. United States, 394 F.2d 164 (9th Cir. 1968), cited with approval by the Supreme Court in United States v. Edwards, supra, at 415 U.S. 804, 807, 94 S.Ct. 1234, where the court said:
“ ‘[I]t appears that taking a prisoner’s money from him and putting it in the property room was regular jail procedure for all prisoners. ... In taking the money, no one would suggest that at that instant a search warrant would be required to list the numbers of the bills. Thus, a search warrant to again look at the money already in police custody does not make sense.’ 394 F.2d at 165.” 496 F.2d at 73-74.
In United States v. Edwards, 415 U.S. at 807, the United States Supreme Court states:
“[0]nce the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing, on the one hand, and the taking of the property for use as evidence, on the other. This is true where the clothing or effects are immediately seized upon arrival at the jail, held under the defendant’s name in the ‘property room’ of the jail, and at a later time searched and taken for use at the subsequent criminal trial.”
In Edwards the defendant was arrested and detained in jail. More than 10 hours after incarceration his clothing was taken from him and examined for paint chips similar to those found at the scene of the crime. On finding paint chips, the clothes and paint chips were held for evidence. The court treated the search as a search-incident-to-custodial-arrest. As such the search was proper as an exception to the warrant requirement of the 4th Amendment.
In our case approximately two and one-half months passed from the time of the inventory of personal effects to the “second look” or search of defendant’s personal effects in hope of finding the ring. In the present case we believe it would be essentially the equivalent of a plain view case and consequently not such a significant intrusion as to require the prior authorization of a judicial officer. The ring had previously been viewed by the police when the personal effects of the defendant were inventoried. Once the object has been exposed to police view under unobjectionable circumstances and lawfully taken for safekeeping, a “second look” would not appear to unduly intrude upon the arrestee’s expectation of privacy.
Various cases have permitted a “second look” at items previously viewed by the police and inventoried for safekeeping. See Evalt v. United States, 382 F.2d 424 (9th Cir. 1967), where a packsack held in the property room was examined after some delay; United States v. Oaxaca, 569 F.2d 518 (9th Cir.), cert. denied 439 U.S. 926 (1978), where there was a six weeks’ delay before a search of defendant’s shoes; Baskerville v. United States, 227 F.2d 454 (10th Cir. 1955), where there was a 14-day delay in obtaining a forged I.D. card from personal effects held in the property room; and United States v. James, 432 F.2d 303 (5th Cir. 1970), cert. denied 403 U.S. 906 (1971), where there was a six-hour delay of the search of defendant’s wallet held in sheriff’s custody.
On the basis of the holdings in the foregoing cases, we hold when an accused has been lawfully arrested and is being held in custody, the personal effects in his possession at the time and place of his arrest may lawfully be searched, inventoried, and placed in safekeeping by the police without a search warrant when the search and seizure is incidental to the arrest. Thereafter, although a substantial period of time may have elapsed since the administrative processing, a “second look” at the inventoried personal effects may be obtained without a search warrant, and any property which is relevant for use as evidence in the accused’s trial may be removed from the place of safekeeping.
The final question is whether the trial court abused its discretion in allowing testimony regarding the ring and in admitting the ring itself into evidence because the appellant was unaware of this evidence until the day of the trial.
Under K.S.A. 60-445 the trial court has discretion to exclude relevant evidence based on surprise and prejudice to the defendant. K.S.A. 60-445 provides:
“Except as in this article otherwise provided, the judge may in his or her discretion exclude evidence if he or she finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered.”
This point is without merit. Appellant’s counsel first heard about the ring evidence during the prosecutor’s opening statements on the first day of trial. On the second day, before the court proceedings resumed, appellant’s counsel objected to this evidence on the basis of surprise. He argued he was not a doctor and had no opportunity to take the evidence to a pathologist at the K.U. Medical Center to refute what Dr. Roth was going to say. The trial court was sympathetic.
“THE COURT: Is there any reason why you could not call, after we hear from the doctor, why you could not call your pathologist at KU? I would have no objection to making an appointment for him as an expert if you could have someone deliver the ring and the photographs to him this afternoon and have him look at them and, you know, if you need a recess early this afternoon to go over and interview him, I’m more than willing to allow you to do that.”
Counsel did not take advantage of the court’s offer. The trial court did not abuse its discretion under K.S.A. 60-445 in admitting this evidence. State v. Egbert, 227 Kan. 266, 269-70, 606 P.2d 1022, cert. denied 449 U.S. 965 (1980).
In State v. Nicholson, 225 Kan. 418, 419-20, 590 P.2d 1069 (1979), it is said:
“The admissibility of physical evidence lies within the sound discretion of the trial court and is to be determined on the basis of its relevance in connection with the accused and the crime charged. [Citations omitted.] Moreover, relevant evidence is defined under K.S.A. 60-401(¿) as evidence having any tendency in reason to prove any material fact. The determination of relevancy, is a matter of logic and experience, not a matter of law. [Citations omitted.] Furthermore, when a physical object is offered into evidence and a question arises as to its connection with either the defendant or the crime charged, unless it is clearly irrelevant, the object should be admitted for such weight and effect as the jury sees fit to give it. [Citation omitted.]”
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The opinion of the court was delivered by
Herd, J.:
Dorothy Powell appeals from the trial court’s order granting a divorce to Ben Powell and dividing the marital property.
Dr. Ben Powell and Dorothy Blair were married September 3, 1949. At that time Ben had completed medical school and commenced his residency at Kansas City Research Hospital. Dorothy worked for most of the first years of the marriage. Ben became the major breadwinner of the family when he entered the Air Force in 1953. The couple raised six children, all of whom were adults at the time of trial. Due to Ben’s long working hours as a surgeon, the majority of the child-rearing duties fell upon Dorothy.
The thirty-one years of the Powells’ marriage were not without their problems. According to Dr. Powell, marital difficulty began when the honeymoon ended. He testified Mrs. Powell was extremely suspicious and would frequently call him in the evenings while he was at the hospital. There were physical altercations several times during the marriage. According to Dr. Powell these were the result of the need to restrain Mrs. Powell when she became irrational. Mrs. Powell testified her husband’s uncontrollable anger precipitated these episodes. Dr. Powell’s concern over his wife’s behavior even led him to dispose of all the firearms in the house.
The strain in the Powells’ marriage came to a head in January of 1980. One night, early in the month, Mrs. Powell threw her husband out of the house. He came back for a short period of time but moved out permanently on January 20, 1980.
Mrs. Powell filed for separate maintenance April 24, 1980. Dr. Powell cross-petitioned for divorce on the grounds of incompatibility. On May 11, 1981, the court granted an absolute divorce and took the issues of property division and alimony under advisement.
Mrs. Powell is a registered nurse. She has a bachelor of science degree and a master’s degree in Adult and Occupational Education. She worked during the early years of the marriage and after her children began to get older she held various part-time jobs including teaching at Stormont-Vail Hospital and Clark’s Business School in Topeka. In 1970 she began working as her husband’s scrub nurse. This relationship terminated in 1977. Since Dr. Powell left the home Mrs. Powell has made sporadic attempts at finding employment. She claims no one will hire her because of her age, 57 at the time of divorce, and lack of experience. Dr. Powell continued to pay her a monthly allowance until the court made an alimony award.
Dr. Powell was 54 at the time of the divorce. In 1955 he joined his father in surgical practice in Topeka. Since that time he has become a respected member of his profession and has built a successful practice in thoracic and vascular surgery. He is recognized as a knowledgeable doctor and a skilled surgeon. His adjusted gross income for 1979 was $99,204.00.
During the marriage the Powells acquired a considerable amount of property. The marital property included two houses in Topeka, bank and savings accounts in institutions in Topeka and Arizona, numerous stock, bonds and investments assets, Dr. Powell’s medical practice, one-half interest in the Vascular Diagnostic Center of Topeka (VDCOT), one-half interest in the Broadway Professional Plaza in Tucson, Arizona, one-half interest in the Glenn East Apartments in Tucson, Arizona, and an interest in Halric, Inc., which counted an airplane as its only asset. In addition to the liabilities of the Broadway Plaza, the Glenn East Apartments and the Halric corporation, Dr. Powell had borrowed approximately $171,900.00 from his retirement funds to allow him to make investments. He was paying this debt off at the rate of $1,702.00 per month.
After taking the matter under advisement the trial court, on June 12, 1981, reached the following property division:
“TO DR. BEN POWELL
Medical practice, equipment, accounts, pension, profit sharing $105,000.00
VDCOT 7,000.00
Energy Investments 2,692.00
Home on Pennsylvania [St.] 10,000.00
Halric 2,000.00
Glenn East Apartments (his share) 250,000.00
One-half Broadway Plaza (his share) 61,250.00
Topeka Country Club 6,750.00
Flight simulator 1,000.00
TOTAL $445,692.00
TO DOROTHY POWELL
Home on Mulvane $ 90,000.00
Furnishings, appurtenances, appliances and contents 10,000.00
Cash and savings accounts with Postal Savings 3,700.00
Stocks, bonds and investment assets 28,260.00
One-half Broadway Plaza (her share) 61,250.00
$193,210.00”
The court ordered Dr. Powell to pay costs of the litigation, including $5,000.00 to Mrs. Powell’s attorney, along with all current bills and expenses of the parties. Alimony was awarded to Mrs. Powell beginning with $1,500.00 per month from 1981 to 1983, then decreasing to $1,200.00 per month from 1983 to 1985; $900.00 per month from 1985 to 1987 and finally $600.00 per month from 1987 to 1989, for a total sum of $100,800. Division of the personal property of the parties is not in dispute except for Mrs. Powell’s claim the household furniture was overvalued.
Appellant first attacks the trial court’s division of the marital property. K.S.A. 1981 Supp. 60-1610(d) provides:
“The decree shall divide the real and personal property of the parties, whether owned by either spouse prior to marriage, acquired by either spouse in the spouse’s own right after marriage, or acquired by their joint efforts, in a just and reasonable manner, either by a division of the property in kind, or by setting the same or a part thereof over to one of the spouses and requiring either to pay such sum as may be just and proper, or by ordering a sale of the same under such conditions as the court may prescribe and dividing the proceeds of such sale.”
The judicial rules governing division of property pursuant to divorce are well settled.
“In determining a just and reasonable division of property, the trial court should take into consideration the following factors: (I) The ages of the parties; (2) the duration of the marriage; (3) the property owned by the parties; (4) their present and future earning capacities; (5) the time, source and manner of acquisition of property; (6) family ties and obligations; (7) the question of fault when determined; and (8) the allowance of alimony or lack thereof.” Parish v. Parish, 220 Kan. 131, 133-34, 551 P.2d 792 (1976).
See also LaRue v. LaRue, 216 Kan. 242, 250, 531 P.2d 84 (1975); Smith v. Smith, 5 Kan. App. 2d 117, 119, 612 P.2d 1257 (1980).
“In a divorce action the district court is vested with broad discretion in adjusting property rights, and its exercise of that discretion will not be disturbed on appeal absent a clear showing of abuse.” Downing v. Downing, 218 Kan. 549, 542 P.2d 709 (1976). See also LaRue v. LaRue, 216 Kan. at 249; Almquist v. Almquist, 214 Kan. 788, 791, 522 P.2d 383 (1974)..
“[Discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court then it cannot be said that the trial court abused its discretion.” Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973); Downing v. Downing, 218 Kan. at 550; Almquist v. Almquist, 214 Kan. at 791.
Measured against the foregoing standards, it is clear there was no abuse of discretion. When the alimony award is deducted from that portion of the property set aside to Dr. Powell and added to Mrs. Powell’s portion the trial court’s attempt at fairness is obvious. Although some might have divided the property differently it cannot be concluded the trial court abused its discretion.
As noted, the trial court awarded Mrs. Powell alimony on a declining scale beginning with $1500 per month in 1981 and terminating in 1989. The total alimony award, assuming Mrs. Powell does not die or become remarried during that period, was $100,800. Appellant claims the maintenance award was insufficient to meet her needs.
K.S.A. 1981 Supp. 60-1610(e) states: “The decree may award to either party an allowance for future support denominated as alimony, in such amount as the court shall find to be fair, just and equitable under all of the circumstances.”
Again, the judicial considerations regarding alimony are well settled. They were capsulized in Williams v. Williams, 219 Kan. 303, 306, 548 P.2d 794 (1976):
“Fault is but one element which may be considered in fixing alimony. Other matters which may be considered include the age of the parties, their present and prospective earning capacities, the length of the marriage, the property owned by them [citation omitted], the parties’ needs [citation omitted], the time, source and manner of acquisition of property, the. family ties and obligations [citation omitted], and the parties’ overall financial situation [citation omitted]. There is no fixed rule on the subject and the district court in a divorce action is vested with wide discretion in adjusting the financial obligations of the parties. Thus, its exercise of that discretion will not be disturbed on appeal in the absence of a showing of clear abuse.”
See also Parish v. Parish, 220 Kan. at 134.
The court heard evidence Mrs. Powell was capable of earning between $14,000 and $22,000 per year. The chronic shortage of nurses was also mentioned. Further, Dr. Powell’s take-home pay was approximately $4700 per month. Out of this he had to pay $1500 per month alimony. We find no abuse of discretion.
Similarly, there is no basis to appellant’s claim the trial court erred in excluding evidence of fault relative to its determination of alimony. Our review of the record reveals no improper exclusion of evidence regarding the fault of the parties.
Appellant next contends the trial court should have placed a “good will” value on Dr. Powell’s medical practice and made a cash award to her accordingly. The trial court considered the matter and concluded the alimony and property settlement awarded Mrs. Powell was sufficient.
In Avery v. City of Lyons, 183 Kan. 611, 621, 331 P.2d 906 (1958), this court discussed “good will”:
“Good will is property. It may be sold and it may be damaged. [Citation omitted.] The chief elements of good will are continuity of place and continuity of time. [Citation omitted.] Good will means an established business at a given place with the patronage that attaches to the name and the location. It is the probability that old customers will resort to the old place.”
More recently, and in a context closer to the case at bar, the New Jersey court stated:
“The usual classic definition of good will is that of Mr. Justice Story, cited in In re Ball’s Estate, 161 App. Div. 79, 146 N.Y.S. 499 (App. Div. 1914):
‘Good will may be properly enough described to be the advantage or benefit which is acquired by an establishment beyond the mere value of the capital, stock, funds, or property employed therein, in consequence of the general public patronage and encouragement which it receives from constant or habitual customers, on account of its local position or common celebrity, or reputation for skill or affluence, or punctuality, or from other accidental circumstances or necessities, or even from ancient partialities or prejudices.’ ” Levy v. Levy, 164 N.J. Super 542, 549, 397 A.2d 374 (1978).
Under the more narrow definition of good will, it was thought good will could only exist in a commercial enterprise and not in a professional business, such as a medical practice, which depended on the personal skill of and confidence in a particular person. 38 Am. Jur. 2d, Good Will § 8, p. 916. For example, in Nail v. Nail, 486 S.W.2d 761, 764 (Tex. 1972), it was held the good will of the medical practice of the husband “did not possess value or constitute an asset separate and apart from his person, or from his individual ability to practice his profession.” Other courts, including this one, have held good will may exist as an intangible but valuable property in a professional practice or in a business founded on personal skill or reputation. Mills v. Cleveland, 87 Kan. 549, 555, 125 Pac. 58 (1912). See also 38 Am. Jur. 2d, Good Will § 8, pp. 916-17.
The differing views of professional good will become most evident in divorce cases, when the existence of good will may have an important effect on the division of marital property and the decree of alimony. Some jurisdictions hold professional good will is not a marital asset to be divided at divorce (Nail v. Nail, 486 S.W.2d 761; Holbrook v. Holbrook, 103 Wis. 2d 327, 309 N.W.2d 343 [Ct. App. 1981]), while others who have dealt with the question hold good will should be included in the marital property subject to division. In re Marriage of Fleege, 91 Wash. 2d 324, 588 P.2d 1136 (1979); Goger and Goger, 27 Or. App. 729, 557 P.2d 46 (1976); In re Marriage of Nichols, 43 Colo. App. 383, 606 P.2d 1314 (1979); Nastrom v. Nastrom, 262 N.W.2d 487, 493 (N.D. 1978). The latter doctrine is well established in California. See Lurvey, Professional Good Will on Marital Dissolution: Is it Property or Another Name for Alimony? 52 Cal. St. Bar J. 27 (1977).
The question of whether this court should adopt the theory that good will of a professional practice is a marital asset to be divided at divorce is, in the final analysis, a public policy issue. In In re Marriage of Nichols, 43 Colo. App. at 385, the Colorado appeals court cited the reasons in favor of such a holding:
“Professional practices that can be sold for more than the value of their fixtures and accounts receivables have salable goodwill. A professional, like any entrepreneur who has established a reputation for skill and expertise, can expect his patrons to return to him, to speak well of him and upon selling his practice, can expect that many will accept the buyer and will utilize his professional expertise. These expectations are a part of goodwill, and they have a pecuniary value. [Citation omitted.] While we recognize that professional goodwill is not an asset which has an independent market value, it can, in conjunction with the assets of the practice, be sold. This limited marketability distinguishes professional goodwill from the advanced educational degree, which, because it is personal to its holder and is non-transferable, was held not to be property in Graham, [194 Colo. 429, 574 P.2d 75 (1978)].”
The Wisconsin Court of Appeals, in Holbrook v. Holbrook, 103 Wis. 2d at 350-51, provided the rationale for the opposite view:
“We are not persuaded that the concept of professional goodwill as a divisible marital asset should be adopted in Wisconsin. We are not obligated nor inclined to follow the twisted and illogical path that other jurisdictions have made in dealing with this concept in the context of divorce.
“The concept of professional goodwill evanesces when one attempts to distinguish it from future earning capacity. Although a professional business’s good reputation, which is essentially what its goodwill consists of, is certainly a thing of value, we do not believe that it bestows on those who have an ownership interest in the business, an actual, separate property interest. The reputation of a law firm or some other professional business is valuable to its individual owners to the extent that it assures continued substantial earnings in the future. It cannot be separately sold or pledged by the individual owners. The goodwill or reputation of such a business accrues to the benefit of the owners only through increased salary.
“Like an educational degree, a partner’s theoretical share of a law firm’s goodwill cannot be exchanged on an open market; it cannot be assigned, sold, transferred, conveyed or pledged. Although we recognize the factual distinction between a degree-holder and a partner or shareholder in a law firm, we think the similarities compel analogous treatment in a divorce setting. In both cases, the ‘asset’ involved is not salable and has computable value to the individual only to the extent that it promises increased future earnings.
“There is a disturbing inequity in compelling a professional practitioner to pay a spouse a share of intangible assets at a judicially determined value that could not be realized by a sale or another method of liquidating value.”
We are not persuaded a professional practice such as Dr. Powell’s has a good will value. The practice is personal to the practitioner. When he or she dies or retires nothing remains. The professional’s files and lists of clients are of no use to others. The very nature of a professional practice is that it is totally dependent upon the professional. We refuse to adopt the theory that good will in a professional practice is an asset subject to division in a divorce action. The issue is without merit.
Dr. Powell was required to pay $5,000 in attorney fees to Mrs. Powell’s counsel, Dan Hejtmanek. He was also charged with costs and expenses of the litigation. Mrs. Powell was required to pay a $1312.50 fee to Charles Fisher, who withdrew from the case, and any fees to Mr. Hejtmanek over $5,000. Appellant maintains the trial court erred in making this determination.
K.S.A. 1981 Supp. 60-1610(fc) states:
“Costs and attorneys’ fees may be awarded to either party as justice and equity may require.”
The rules regarding the award of attorney fees in cases such as this were summarized in Dunn v. Dunn, 3 Kan. App. 2d 347, 348, 595 P.2d 349 (1979):
“Pursuant to this statute [K.S.A. 1981 Supp. 60-1610(/¡)], the district court is vested with wide discretion to determine both the amount and the recipient of an allowance of attorney fees. [Citation omitted.] Upon review of an award of attorney fees, the appellate court does not reweigh the testimony or evidence presented nor reassess the credibility of witnesses. [Citation omitted.] The trial judge is considered an expert in determining attorney fees [citation omitted]; and an attorney fee award will not be set aside on appeal when supported by substantial competent evidence. [Citation omitted.] However, ‘[w]here the exercise of discretion is arbitrary and not judicial, and the judgment is inequitable, it will be set aside.’”
The only evidence before the court regarding attorney fees was a list of services provided by Mrs. Powell’s attorney. Since the trial court is considered an expert on the matter it cannot be said there was an abuse of discretion.
Appellant next contends the trial court erred in failing to comply with the requirements of K.S.A. 1981 Supp. 60-1610(i). That statute states:
“Every decree of divorce shall contain a provision to the effect that the parties are prohibited from contracting marriage with any other persons until 30 days after the entry of the decree and, if an appeal is taken, until the receipt of the mandate issued in accordance with subsection (c) of K.S.A. 60-2106. Any marriage contracted before the expiration of that period shall be null and void, and any agreement to waive the right of appeal shall not be effective to shorten such period of time.”
Here the decree of divorce was entered on a judgment form filed May 15, 1981. The judgment form did not state the provisions regarding remarriage as required by K.S.A. 1981 Supp. 60-1610(i). After the court made its determination regarding matters of property division and alimony a “Journal Entry of Divorce” was filed. The Journal Entry fully complied with the statute in question.
Appellee contends this court has no jurisdiction over the question of the propriety of the divorce because the judgment of divorce was not appealed until more than thirty days after its entry. K.S.A. 60-2103(i) states:
“When an appeal or cross-appeal has been timely perfected the fact that some ruling of which the appealing or cross-appealing party complains was made more than thirty (30) days before filing of the notice of appeal'shall not prevent a review of the ruling.”
Thus, in a divorce action both the divorce and division of property may be appealed at the same time even though the divorce may have been granted more than thirty (30) days before the filing of the notice of appeal. McCain v. McCain, 219 Kan. 780, 783, 549 P.2d 896 (1976).
Here no reversible error is shown. Admittedly the judgment form which was initially filed did not technically comply with K.S.A. 1981 Supp. 60-1610(i). Whatever possible error existed, however, was corrected by the trial court’s subsequent filing of the journal entry which stated the prohibitions contained in K.S.A. 1981 Supp. 60-1610(i). The purpose of the statute, to inform the parties that any marriage contracted within the time period mentioned is null and void, was thus served.
Appellant’s final contention is that the trial court erred in granting the cross-petition for divorce on the grounds of incompatibility when she sought only separate maintenance. Both the petition for separate maintenance and the cross-petition for divorce alleged incompatibility. Thus, there was agreement between the parties on that issue. All that remained was for the trial court to determine whether divorce or separate maintenance was appropriate. In a case such as this, where one party requests separate maintenance and the other party asks for divorce, the trial court must have some discretion in determining how the interests of the parties and the public welfare are best served. Berry v. Berry, 215 Kan. 47, 51, 523 P.2d 342 (1974). Here it is obvious the trial court did not abuse its discretion. ■
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Holmes, J.:
This is a search and seizure case which must be viewed in light of the recent decision in United States v. Ross, _U.S__, 72 L.Ed.2d 572, 102 S.Ct. 2157 (decided June 1, 1982). It involves the warrantless search of an automobile and its contents.
The State of Kansas brings this interlocutory appeal from an order of the district court suppressing certain physical evidence recovered by Wichita police in a warrantless search of a suitcase which was found in a warrantless search of an automobile driven by the defendant. The Court of Appeals, in an unpublished opinion, affirmed the district court order suppressing the contents of the suitcase, but reversed the district court as to the initial search of the automobile. State v. Jaso, #53,038 filed February 18, 1982. We granted review of the Court of Appeals decision upon a petition filed by the State. A rather detailed statement of the facts is necessary before turning to the issues involved on appeal.
On May 22, 1980, undercover narcotics detective Kim Brewer of the Wichita police department purchased 100 Quaaludes, pills in tablet form which contain the controlled substance methaqualone (K.S.A. 65-4107[e][l]), from Joseph Espinoza. The purchase was made in the parking lot of the Riverbend Apartments in Wichita. Espinoza had obtained the Quaaludes from an apartment in building #3000 of the apartment complex. Brewer desired to capture Espinoza’s supplier and told Espinoza he was interested in purchasing 10,000 more. Espinoza went back to building #3000 and returned shortly with the information that he could furnish 10,000 pills the next day and if Brewer was interested, he should call. Brewer then departed from the apartment complex to set up a further purchase in order to capture Espinoza’s suppliers.
Early the next morning Brewer telephoned Espinoza advising that he wanted to buy 10,000 Quaaludes. Espinoza replied that he would contact “his man” and then get back in touch with Brewer. A short time later, Espinoza called and said his man could furnish 10,000 Quaaludes for $20,000.00. Brewer agreed. In subsequent calls, Brewer and Espinoza arranged to complete the transaction later that morning at the parking lot of a shopping center close to the Riverbend Apartments.
Brewer then met with other members of the narcotics section of the Wichita police department and Assistant District Attorney Doug Roth. Brewer informed Roth of the 100 pills he bought from Espinoza the previous evening and the arrangements he had made to buy 10,000 more later that morning, and indicated he might need a search warrant for the apartment from which Espinoza was getting the pills.
A surveillance was set up to determine the apartment from which Espinoza was getting the pills and to assist in the “buy-bust” which Brewer would make at the shopping center and the arrest of Espinoza’s suppliers at the apartment building. Assistant District Attorney Roth and Detective Jack Henderson remained at the station to monitor the radio transmissions of the surveillance team. Brewer wore a body-pack radio which would transmit Brewer’s conversation with Espinoza. Captain Brown and Lieutenant Fulton would stay in range of Brewer’s body-pack. Detectives Trainer and Herbel would maintain stationary surveillance of apartment building #3000. Detectives Meyers and Barnes would be on foot posing as gardeners in front of the apartment building in order to ascertain the apartment number when Espinoza came out with the pills. Other detectives would be in their vehicles in the area to assist if necessary. All the officers were in direct radio communication with each other. These plans were carried out.
Later that morning officers saw Espinoza approach apartment building #3000. Shortly thereafter defendant Eddie Jaso came from the area of building #3000 and proceeded to the parking lot and a blue Monte Carlo automobile parked in the lot. Eddie Jaso then returned from the parking lot carrying a blue suitcase and entered apartment #3003. Espinoza then came out of apartment #3003, got into his car and drove to the shopping center where he met Brewer. Espinoza told Brewer that the pills were being counted and if Brewer could wait until 9:00 o’clock a.m., he would deliver as many as had been counted and let him know about the rest. Brewer agreed. Espinoza then left the parking lot, returning to the Riverbend Apartments where he entered apartment #3003. Shortly thereafter Espinoza emerged from the area of apartment #3003 carrying a full brown grocery sack, got in his car and departed for the shopping center parking lot where he delivered 5,000 Quaaludes, which he had in the sack. He told Brewer that the rest were back at his man’s place where three people were counting them and that there were approximately 3,000 more pills. At Brewer’s signal, officers of the surveillance team moved in and Espinoza was arrested. Brewer and several other surveillance team members then went to the parking lot of the Riverbend Apartments to wait for the issuance of a search warrant for apartment #3003.
In the meantime Assistant District Attorney Roth and Detective Henderson applied to Judge Robert C. Helsel for a warrant to search apartment #3003 for the rest of the Quaaludes. The warrant was issued. At about the same time Eddie Jaso came out of the apartment area and got into a brown Chevrolet automobile in the parking lot. Another individual, who turned out to be Charles Jaso, Eddie’s brother, was in the car. Jaso did not have a blue suitcase with him. Captain Brown, a member of the team, radioed Detective Booth to follow and stop the brown Chevrolet. The surveillance team was advised by radio that Judge Helsel had signed the warrant. Several officers then went to the door of apartment #3003 and knocked. Receiving no response, they shouted that they were police officers and that they had a search warrant. They knocked again and still received no response. The door was then forced open and no one was found inside the apartment. On a table they found a broken white pill they recognized as a Quaalude and covering about one-third of the surface of the table was a white powdery residue. In another room they found another broken Quaalude but there was no blue suitcase in the apartment and they did not find any of the 3,000 pills Espinoza had said were there. The officers then discovered for the first time that the apartment had a back door which had not been under surveillance. Obviously the sellers and the remaining drugs had departed through the rear door.
As the apartment was being entered, Detective Booth stopped the brown Chevrolet after pursuing it at speeds in excess of 50 miles per hour. He removed the occupants, who were identified as the Jaso brothers, and each was arrested, handcuffed and placed in a separate police car. Booth then radioed Lieutenant Fulton that he had stopped the car and had the occupants under arrest. Fulton told him the pills were not in the apartment and directed Booth to search the car. Booth began looking for the missing Quaaludes. He did not know where in the car the drugs might be located and did not know what kind of container the drugs were in. He had not been advised to look for a blue suitcase. In conducting the search of the stopped car, Booth removed the key from the ignition, unlocked the trunk and, finding a blue suitcase, opened it and discovered a large quantity (approximately 2,000) of Quaaludes and other evidence. The blue suitcase was later identified as the one Eddie Jaso carried into the apartment that morning. Booth did not have a search warrant for the car or the blue suitcase and defendant did not consent to the search.
Defendant Eddie Jaso filed a motion in the trial court to suppress the admission into evidence of both the blue suitcase and its contents. In a pretrial hearing the court found that although there was probable cause to stop and arrest the defendant and his brother, there were no exigent circumstances and that the warrantless search of the car and the suitcase were illegal. The admission in evidence of the suitcase and its contents was suppressed. On appeal by the State, the Court of Appeals found there was probable cause to search the automobile and that search was legal, but held that under Robbins v. California, 453 U.S. 420, 69 L.Ed.2d 744, 101 S.Ct. 2841 (1981), the search of the suitcase itself was illegal. The Court of Appeals reversed the trial court as to the suitcase, holding it was admissible in evidence and affirmed the trial court as to the contents of the suitcase (the drugs and other items), holding that the contents were inadmissible. United States v. Ross had not been decided when the trial court and the Court of Appeals rendered their decisions and those courts did not have the benefit of the change in the law of search and seizure as wrought by Ross. Based upon Ross we hold that both the trial court and the Court of Appeals were in error when they ordered any of the evidence suppressed.
In Ross the Supreme Court appears to have overruled the decision in Robbins, made only a year ago, and has specifically disapproved of some of its opinion in Arkansas v. Sanders, 442 U.S. 753, 61 L.Ed.2d 235, 99 S.Ct. 2586 (1979), reverting to the broad automobile exception to the Fourth Amendment’s warrant requirement originally established in Carroll v. United States, 267 U.S. 132, 69 L.Ed. 543, 45 S.Ct. 280 (1925). In view of the holding in Ross, it would serve no useful purpose for us to delve into the history and evolution of the law of search and seizure in vehicle cases as it existed prior to Ross. The Supreme Court has thoroughly traced and reviewed its decisions from the time of its opinion in Carroll. To repeat what has been said in Ross would add nothing to this opinion. Neither is there anything to be gained by a review of our prior Kansas cases on the subject. The decision in Ross, however, merits careful consideration. The facts as recited in the opinion were:
“In the evening of November 27, 1978, an informant who had previously proved to be reliable telephoned Detective Marcum of the District of Columbia Police Department and told him that an individual known as ‘Bandit’ was selling narcotics kept in the trunk of a car parked at 439 Ridge Street. The informant stated that he had just observed ‘Bandit’ complete a sale and that ‘Bandit’ had told him that additional narcotics were in the trunk. The informant gave Marcum a detailed description of ‘Bandit’ and stated that the car was a ‘purplish maroon’ Chevrolet Malibu with District of Columbia license plates.
“Accompanied by Detective Cassidy and Sergeant Gonzales, Marcum immediately drove to the area and found a maroon Malibu parked in front of 439 Ridge Street. A license check disclosed that the car was registered to Albert Ross; a computer check on Ross revealed that he fit the informant’s description and used the alias ‘Bandit.’ In two passes through the neighborhood the officers did not observe anyone matching the informant’s description. To avoid alerting persons on the street, they left the area.
“The officers returned five minutes later and observed the maroon Malibu turning off Ridge Street onto Fourth Street. They pulled alongside the Malibu, noticed that the driver matched the informant’s description, and stopped the car. Marcum and Cassidy told the driver — later identified as Albert Ross, the respondent in this action — to get out of the vehicle. While they searched Ross, Sergeant Gonzales discovered a bullet on the car’s front seat. He searched the interior of the car and found a pistol in the glove compartment. Ross then was arrested and handcuffed. Detective Cassidy took Ross’ keys and opened the trunk, where he found a closed brown paper bag. He opened the bag and discovered a number of glassine bags containing a white powder. Cassidy replaced the bag, closed the trunk, and drove the car to Headquarters.
“At the police station Cassidy thoroughly searched the car. In addition to the ‘lunch-type’ brown paper bag, Cassidy found in the trunk a zippered red leather pouch. He unzipped the pouch and discovered $3,200 in cash. The police laboratory later determined that the powder in the paper bag was heroin. No warrant was obtained.
“Ross was charged with possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a). Prior to trial, he moved to suppress the heroin found in the paper bag and the currency found in the leather pouch. After an evidentiary hearing, the District Court denied the motion to suppress. The heroin and currency were introduced in evidence at trial and Ross was convicted.
“A three-judge panel of the Court of Appeals reversed the conviction. It held that the police had probable cause to stop and search Ross’ car and that, under Carroll v. United States, supra, and Chambers v. Maroney, 399 U.S. 42, the officers lawfully could search the automobile — including its trunk — without a warrant. The court considered separately, however, the warrantless search of the two containers found in the trunk. On the basis of Arkansas v. Sanders, 442 U.S. 753, the court concluded that the constitutionality of a warrantless search of a container found in an automobile depends on whether the owner possesses a reasonable expectation of privacy in its contents. Applying that test, the court held that the warrantless search of the paper bag was valid but the search of the leather pouch was not. The court remanded for a new trial at which the items taken from the paper bag, but not those from the leather pouch, could be admitted.
“The entire Court of Appeals then voted to rehear the case en banc. A majority of the court rejected the panel’s conclusion that a distinction of constitutional significance existed between the two containers found in respondent’s trunk; it held that the police should not have opened either container without first obtaining a warrant.” 102 S.Ct. at 2160-61.
The Supreme Court granted the Government’s petition for certiorari, recognizing that considerable confusion had been generated by its decisions in Robbins and Sanders. In commenting upon the fact that those decisions have resulted in widespread disagreement over their proper interpretation, the court candidly stated;
“There is, however, no dispute among judges about the importance of striving for clarification in this area of the law. For countless vehicles are stopped on highways and public streets every day and our cases demonstrate that it is not uncommon for police officers to have probable cause to believe that contraband may be found in a stopped vehicle. In every such case a conflict is presented between the individual’s constitutionally protected interest in privacy and the public interest in effective law enforcement. No single rule of law can resolve every conflict, but our conviction that clarification is feasible led us to grant the Government’s petition for certiorari in this case and to invite the parties to address the question whether the decision in Robbins should be reconsidered.” 102 S.Ct. at 2161-62.
After tracing its decisions from Carroll through Robbins, the court reversed the Court of Appeals and remanded the case for further proceedings at the trial level. In its holding the court stated;
“We reaffirm the basic rule of Fourth Amendment jurisprudence stated by Justice Stewart for a unanimous Court in Mincey v. Arizona, 437 U.S. 385, 390:
‘The Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (footnotes omitted).’
The exception recognized in Carroll is unquestionably one that is ‘specifically established and well-delineated.’ We hold that the scope of the warrantless search authorized by that exception is no broader and no narrower than a magistrate could legitimately authorize by warrant. If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. ” 102 S.Ct. at 2172. (Emphasis added.)
The court was careful to point out, however, that not every probable cause search of a vehicle will justify the search of all containers in the vehicle. If the officers have specific knowledge that they are seeking a specific container and that container is discovered in the vehicle there appears to be no justification for a further search of the vehicle or even of the container itself until a warrant has been obtained. Thus the prohibition against a warrantless search of a specific container thought to contain the sought after contraband is still to be distinguished from the authorized search of a vehicle and its contents when the officers only have probable cause to believe that contraband is somewhere in the vehicle. The distinction established in United States v. Chadwick, 433 U.S. 1, 53 L.Ed.2d 538, 97 S.Ct. 2476 (1977), involving a footlocker loaded into an automobile and in Sanders involving a suspect green suitcase placed in a taxicab appears to remain viable under Ross. The court also pointed out that its ruling in Ross does not authorize the search of a container found in a vehicle, even though probable cause exists to believe contraband is located in the vehicle, if such container could not possibly contain the sought after contraband. In illustrating this point, the court stated:
“The scope of a warrantless search of an automobile thus is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found. Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase. Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.” 102 S. Ct. at 2172.
With the foregoing in mind we turn to the facts concerning Eddie Jaso. In the instant case the police officers knew that Jaso had been an occupant of apartment #3003, that the apartment had just been the source of some 5,000 illegal Quaaludes, that an additional 3,000 were supposedly in the apartment with Jaso and two other people and that Jaso had just been seen departing the scene in a Chevrolet automobile with another person. When the officers entered the apartment pursuant to the search warrant, they found evidence of the illegal drugs but the drugs and other participants in the sale had obviously fled through the back door. It was reasonable to assume that all or some of the drugs had been removed from the apartment to the Chevrolet automobile and the trial court found substantial competent evidence to support a finding that probable cause existed to believe that the Chevrolet might contain the contraband. We agree as did the Court of Appeals. See State v. Youngblood, 220 Kan. 782, 556 P.2d 195 (1976). In addition, there was no specific reason to be searching only for the blue suitcase and the searching officer had no knowledge as to any specific container. Under the holding in Ross the search of the Chevrolet and the blue suitcase did not constitute an illegal search and seizure under the Fourth Amendment and both the suitcase and its contents are admissible in a subsequent trial of appellant Jaso.
We hold that when police officers have made a lawful stop of a vehicle and have probable cause to believe that contraband is in the vehicle the officers may search every area of the vehicle and its contents which might reasonably contain the contraband, without the necessity of first obtaining a warrant. As stated in Ross, if the police officer has actual probable cause which would authorize the issuance of a warrant by a magistrate or judge, then such probable cause justifies the search of a lawfully stopped vehicle and justifies the search of every part of the vehicle and its contents that may conceal the object of the search. Previous opinions, of this court to the contrary are overruled.
The decision of the Court of Appeals is affirmed in part and reversed in part and the decision of the district court is reversed and the case is remanded for further proceedings consistent with this opinion. | [
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The opinion of the court was delivered by
Fromme, J.:
This case is before this court on a Petition for Review of an unpublished opinion of the Court of Appeals filed November 13, 1981, reversing a decision of the Montgomery District Court. The case concerns title to two small adjacent tracts of land deeded to a school more than 70 years ago to be used for school purposes but without reversion or other language of limitation in the deeds. The district court held that when these tracts were no longer used for school purposes, the tracts reverted to the heirs and assigns of the original grantors. On appeal the Court of Appeals reversed the decision of the district court and held the deeds conveyed fee simple title to the school district.
The school district sold the land in 1971. The defendants Rhodes acquired the tracts by mesne conveyances from the school district. The plaintiffs Roberts claim title to these tracts by deed from the heirs of the original grantors and by reversion, since the land is no longer used for school purposes. We will now look at the wording in the original deeds to the school district as set forth in the “Agreed Statement of Facts” appearing in the record:
“1. That on the 29th day of September, 1902, D. W. Smith and Margaret Smith, husband and wife, made a quitclaim deed to School District No. 35 of Montgomery County, Kansas. The consideration for said deed was One ($1.00) Dollar and contains the following: ‘WITNESSETH, That said parties of the first part, in consideration of the sum of One Dollar ($1.00), the receipt of which is hereby acknowledged, do by these presents, remise, release and quitclaim unto said parties of the second part, their heirs and assigns, all the following described Real Estate situated in the County of Montgomery and State of Kansas, to-wit: Beginning at the North West corner of the South Half of the Northwest Quarter of Section 10, Township 35, Range 14, running thence East 209 feet; South 418 feet; thence West 209 feet; thence North 418 feet to place of beginning, it being understood that this grant is made only for school or cemetery purposes. ’That said deed was duly executed by the grantors and recorded in the office of the register of deeds of Montgomery County, Kansas, on the 30th day of September, 1902, at 8:00 o’clock A.M. That at the time of the execution of said deed, D. W. Smith and Margaret Smith were the owners in fee simple of the South Half (S 14) of the Northwest Quarter (NW 14) of Section 10, Township 35, Range 14.
“2. That on the 9th day of April, 1908, T. A. Stevens and Louella Stevens, husband and wife, made, executed and delivered to School District No. 35 of Montgomery County, Kansas, a quitclaim deed. That said deed contains the following: ‘WITNESSETH, That said parties of the first part, in consideration of the sum of Seventy Five and No/100 Dollars, the receipt of which is hereby acknowledged, do by these presents Remise, Release and Quitclaim unto said party of the second part, its heirs and assigns, all of the following described real estate, situated in the County of Montgomery and State of Kansas, to-wit: Beginning at a point 418 Feet South of the Northwest corner of the South Half of the Northwest Quarter of Section 10, Township 35, Range 14, running thence East 209 feet; South 209 feet; thence West 209 feet; thence North 209 feet to place of beginning. It being understood that this grant is made for school and cemetery purposes only.’ That said deed was duly executed by the grantors and recorded in the office of the register of deeds of Montgomery County, Kansas, on April 11, 1908, at 8:00 o’clock A.M.” Emphasis supplied.
As may be noted, the two deeds contain the ordinary verbiage of a quitclaim deed except for the following additional phrases:
“1. . . , [I]t being understood that this grant is made only for school or cemetery purposes.”
“2. ... It being understood that this grant is made for school and cemetery purposes only.”
Under the agreed statement of facts, the two tracts of land were accepted and used for school purposes for over sixty years. They were not used for cemetery purposes. The understanding that the grant was made “for school or cemetery purposes” in the first deed, and “for school and cemetery purposes” in the second deed was clearly expressed. However, the grants were used for school purposes. A school district is not legally authorized to operate a cemetery. The difficulty in construing the deeds arises from a failure of the parties to provide for what should happen to the land after it has been used for school purposes for sixty years and then is no longer needed for such purpose. In the case of the second deed which provided the tract was to be used for school and cemetery purposes, there was no provision for reversion in case the tract was not used for cemetery purposes. Usually, if it is intended to limit the estate granted, some form of limitation over is required.
The general rule for creation of an estate in fee simple determinable is set forth in the Restatement of Property § 44, p. 121 (1936) as follows:
“An estate in fee simple determinable is created by any limitation which, in an otherwise effective conveyance of land,
“(a) creates an estate in fee simple; and
“(b) provides that the estate shall automatically expire upon the occurrence of a stated event.”
The difficulty here is that neither deed made provision for the estate to revert or terminate on the occurrence* of any stated events.
The statutory direction as to what interest generally should pass by conveyance is set out in K.S.A. 58-2202 as follows:
“The term ‘heirs,’ or other words of inheritance, shall not be necessary to create or convey an estate in fee simple; and every conveyance of real estate shall pass all the estate of the grantor therein, unless the intent to pass a less estate shall expressly appear or be necessarily implied in the terms of the grant.”
See Fast v. Fast, 209 Kan. 24, 26-27, 496 P.2d 171 (1972).
Where in the present conveyances to the school district can you find an intent to pass a less estate than one in fee simple? The conveyances run to heirs and assigns of the school district. It is true that it was understood by the parties that the grants were made for school purposes. It is also true that for over sixty years it was used for school purposes. The understanding under which these grants were made was fulfilled. In the absence of an intent to limit the title shown in the conveyance, either expressly or by necessary implication, the grantors pass all the interest they own in the real estate. The statute 58-2202 merely expresses the following accepted rules of real estate law. Forfeitures are not favored in the law. The general rule is well settled that the mere expression that property is to be used for a particular purpose will not in and of itself suffice to turn a fee simple into a determinable fee. 28 Am. Jur. 2d, Estates §29, p. 107; 2 Powell on Real Property § 188 (1981); Simes and Smith, Law of Future Interests § 248 (1956); Simes on Future Interests § 46 (1951); 4 Thompson on Real Property §§ 2063, 2064 (1979).
As pointed out in the Restatement, courts have in some cases recognized a special limitation on the interest conveyed which may cause the created interest to automatically expire upon the occurrence of a stated event. Words which are recognized as sufficient to express such automatic expiration include “until,” “so long as,” or “during,” or those conveyances which contain a provision that “upon the happening of a stated event the land is to revert to the grantor.” American Law Institute — Restatement of Property § 44, comment 1, p. 128. See also 28 Am. Jur. 2d, Estates § 30, p. 109. The conveyances in our present case contained none of these words limiting the period or term for which the grant was made.
It appears safe to say as a general rule the mere statement of the purposes of a conveyance will not limit the extent of the grant. 28 Am. Jur. 2d, Estates § 29, p. 107.
“[M]ere expression of the purpose for which the property is to be used will not in and of itself suffice to limit the estate conveyed.” Choctaw & Chickasaw Nations v. Board of County Com’rs, 361 F.2d 932, 934 (10th Cir. 1966).
“Although the purpose of the deeds is disclosed, words by which it is declared will not, without more, suffice to limit the estate granted.” Cleary Petroleum Corp. v. Harrison, 621 P.2d 528, 532 (Okla. 1980).
“[T]he simple phrase, ‘for school purposes,’ under the circumstances of this case would be insufficient to create a determinable fee.” Trone v. Nelson, 89 Ill. App. 3d 1000, 1004, 412 N.E.2d 172 (1980).
Among the illustrations appearing in the Restatement of Property appear the following:
“A, owning Blackacre in fee simple absolute, transfers Blackacre ‘to B and his heirs to and for the use of the C Church and for no other purpose.’ B has an estate in fee simple absolute and not an estate in fee simple determinable.” Restatement § 44, comment m, illustration 18, p. 130.
Restatement § 45, comment o, illustration 12, p. 143, is as follows:
“A, owning Blackacre in fee simple absolute, transfers Blackacre ‘to B and his heirs in further consideration that the said grantee shall keep on said property a first class hotel, and shall not use the property for any other purpose than the hotel business.’ B has an estate in fee simple absolute.”
The early Kansas case of Curtis v. Board of Education, 43 Kan. 138, 23 Pac. 98 (1890), follows the general rule. The grantor conveyed property to School District No. 45 by warranty deed containing the provision “for the erection of a school-house thereon, and for no other purposes. ” 43 Kan. at 140. When this deed was challenged by the original grantor, this court as constituted in 1890 held an absolute estate in fee simple passed to the school district. Curtis has been followed by this court and remains the law in Kansas.
In Trego County v. Hays, 93 Kan. 829, 145 Pac. 847 (1915), the deed there in controversy recited a part of the consideration to be “that the said county erect a building and maintain a county high school therein or revert to the original owner.” 93 Kan. at 830. A building was erected at a cost of $28,000.00 in which a high school was maintained for several years. It was held that the school was established and maintained in good faith as a permanent institution. The condition for “permanent” location of a school was held to have been complied with by its maintenance for a reasonable period (11 years) and the grantors had no longer any interest in the property conveyed.
In Finney County Comm’rs v. Welch, 133 Kan. 258, 299 Pac. 600 (1931), the basis for the court’s holding appears in Syl. If 1 as follows:
“A deed purported to convey all the grantor’s title to certain town lots to the county so that they might be used for courthouse purposes, and they were so used for twenty-eight years. Neither the deed nor the references therein to recitals in the journal of the county commissioners pertaining to the acquisition of the town lots intimated that any less estate than the whole was the subject matter of the conveyance. Held, the whole of the grantor’s estate passed to the county and no right of reversion remained in him when the use of the town lots for courthouse purposes was abandoned by the county.”
In that case the courthouse was originally built on the lots in 1901. A new courthouse was built on a new site in 1929, and the former site was abandoned. The construction and use of the 1901 courthouse for 28 years was sufficient to establish fee simple title in the county.
In Common School District No. 45 v. Lewis, 177 Kan. 261, 278 P.2d 596 (1955), the school district acquired a tract of land for a school building and school purposes in 1899. The deed contained no restriction on the right of possession and no provision for reversion of title when no longer used for such purposes. The original district was disorganized by statute in 1953 and became a part of District No. 87 after it had failed to maintain school for three consecutive years. It was held the school district owned fee simple title which passed to District No. 87.
It has been held that a school district which fences and builds a school building on a tract of land with consent of the owner may acquire title by adverse possession to the exclusion of the original owner. Casner v. Common School District No. 7, 175 Kan. 551, 265 P.2d 1027 (1954); Walton v. Unified School District, 203 Kan. 415, 454 P.2d 469 (1969).
However, where school districts have gone into possession of land and constructed school buildings thereon, which are being used for school purposes under an oral agreement or understanding, it has been held no right to lease for oil or gas is granted to the school district. The original owner and successors retain the oil and gas rights under the premises. School District v. Barnes, 110 Kan. 25, 202 Pac. 849 (1921); School District v. Fleak, 120 Kan. 570, 245 Pac. 150 (1926).
In cases where the deed for school purposes contains a reversion clause providing that when the premises “shall fail to be used for school purposes” they should revert to the grantor, the grantors or their successors generally are held to be the owners on the discontinuance and abandonment of the tract for school purposes. Thompson v. Godfrey, 191 Kan. 102, 379 P.2d 269 (1963); Rose v. School District No. 94, 162 Kan. 720, 179 P.2d 181 (1947).
However, in Rose v. School District No. 94, when the original deed conveyed the premises on an express provision for reverter in event the premises are abandoned for school purposes, it was held the land reverted but the buildings never became a part of the real estate. In such case the buildings remained the property of the school district which retained the right to sell the same subject to removal by a purchaser.
The appellees Roberts rely on Gotheridge v. Unified School District, 212 Kan. 798, 512 P.2d 478 (1973). In Gotheridge the deed to the school district contained the following express provision for reversion:
“[0]ne acre more or less to be used for school purposes, and whenever said School District shall fail to use the same for school purposes the land to revert to the said M. M. Minkler [grantor], his heirs and assigns.” 212 Kan. at 799.
In Gotheridge there can be little question as to the intent of the parties as to the reversion of the land when abandoned for school purposes. Minkler’s interest in the tract from which the one acre was carved passed through mesne conveyances to Gotheridge. Gotheridge’s title to the school tract was confirmed. The case does not support appellees’ position. In the present case there was no provision for reversion.
After considering all the foregoing cases and authorities we conclude under the facts and circumstances of this case a quitclaim deed from the owner of property to a named school district by which a small tract of land is remised, released and quit-claimed to the school district, its heirs, and assigns, by metes and bounds description, “it being understood that this grant is made only for school or cemetery purposes” and without reversion or other language of limitation used, conveys fee simple title when the land has been accepted and used by the grantee for school purposes for more than sixty years.
Accordingly the judgment of the district court is reversed and the case is remanded with directions to enter judgment for the defendants. The judgment of the Court of Appeals is affirmed.
McFarland, J., not participating.
Schroeder, C.J. and Herd, J., dissenting. | [
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The opinion of the court was delivered by
McFarland, J.:
This is an action by the lessees to quiet their title in certain oil and gas leasehold estates. The defendant-landowners appeal from an adverse judgment by the trial court. The plaintiff-lessees cross-appeal on a single issue.
The factual situation from which this controversy arises is involved and often technical. Although additional facts will be supplied later as needed, the following synopsis provides an adequate factual foundation.
Defendants are the owners of the surface and minerals in and to three parallel 80-acre tracts in Kingman County. On November 6, 1975, defendants executed identical oil and gas leases on each of the tracts, said tracts being hereinafter referred to as B-l, B-2 and B-3. The leases were for a primary term of three years and “as long thereafter as oil, liquid hydrocarbons, gas or other respective constituent products, or any of them, is produced from said land or land with which said land is pooled.” The Kostner B-l, B-2 and B-3 oil and gas leases were on Form 88 (Producers) Kansas, Oklahoma and Colorado 1962 Rev. Bw form, a standard form used in the industry. By mesne assignments, plaintiffs became the lessees under these leases.
In July, 1978, drilling was commenced on tract B-l. All testing indicated gas only was present in commercial quantities in both the Mississippi Chert and Mississippi Dolomite formations. On September 1, 1978, the well was completed and shut in awaiting hookup with the Peoples Gas Line. In October, 1978, K. S. Martin, the plaintiff-operator, executed an Affidavit of Production and a Declaration of Gas Unit, the latter being filed on October 16, 1978.
The pipeline hookup was made in late December, 1978, and the B-l well was turned on January 3, 1979. Within a few days the well commenced producing, in addition to the gas, a substantial amount of oil and has continued to do so. On February 26, 1979, plaintiffs began drilling a well on B-2. Said well has been completed and is now producing both oil and gas, similar to its sister well on B-l. Defendants challenged plaintiffs’ right to drill on B-2 and this action resulted. Subsequently, defendants disputed plaintiffs’ interest in any tract. The trial court upheld the plaintiffs’ leasehold interests in the three tracts and defendants appeal.
The trial court’s decision herein consisted of twenty-five pages of findings of fact and conclusions of law. Before proceeding to discussion of the individual issues on appeal, it is appropriate, for orientation purposes, to summarize the trial court’s key findings and conclusions as follows:
1. The lease for B-l was extended beyond the primary term by operation of the shut-in royalty clause. This clause requires payment of shut-in royalties only after the well has been shut in one year, as opposed to payment at the end of the primary lease term.
2. Upon discovery of gas in B-l, the pooling clause in all three leases allowed all three tracts to be unitized. Upon unitization, all three leases were extended beyond the primary term “for all purposes.” This includes the drilling of the B-2 well, the main purpose of which was to obtain oil.
3. The gas discovered in B-l was not “casinghead gas” and the B-l well was not an “oil well.” Thus, the restrictions in the lease as to unitization do not apply. B-l is properly classified as a “combination well.” Nothing in the lease prohibits unitization as to the “gas rights” based on a combination well.
We turn now to the specific issues on appeal. Defendants contend that the failure of the plaintiffs to tender or pay shut-in royalties before the end of the primary term resulted in the lease terminating at the end of the primary term. The applicable lease provisions are as follows:
“[A]t any time, either before or after the expiration of the primary term of this lease, if there is a gas well or wells on the above land . . . and such well or wells are shut in before or after production therefrom, lessee or any assignee hereunder may pay or tender annually at the end of each yearly period during which such gas well or gas wells are shut in, as substitute gas royalty, a sum equal to the amount of delay rentals provided for in this lease for the acreage then held under this lease by the party making such payments or tenders, and if such payments or tenders are made it shall be considered under all provisions of this lease that gas is being produced from the leased premises in paying quantities.”
The trial court reasoned as follows:
“The Kostner B-l lease was drilled before the expiration of its primary term. It was completed as a well capable of producing gas only in paying quantities. The lease was extended beyond its primary term because of the shut-in royalty clause which provides that a gas well may be shut-in after discovery and will continue in full force and effect upon paying at the end of each yearly period a sum equal to the amount of delay rentals provided for in the lease. This one-year period for remittance of shut-in payment does not commence until a well capable of producing gas is completed. Robinson vs. Continental Oil Company, 255 Fed. Supp. 61 (D.C. Kan. 1966). The Kostner B-l lease was therefore perpetuated beyond its expiration date by the shut-in royalty clause and since it was placed in production long before the expiration of the one-year period, such lease remained in full force and effect from its shut-in date and was extended by such shut-in clause beyond its primary term.”
We agree with the trial court. Its conclusion comports with the interpretation of this type of shut-in royalty clause in Carlisle v. United Producing Company, 278 F.2d 893 (10th Cir. 1960) and Robinson v. Continental Oil Company, 255 F. Supp. 61 (D. Kan. 1966). Cases cited by defendants to the contrary involved clearly distinguishable shut-in royalty clauses, and are not on point. The clear language of the clause here did not require payment until one year after the well was shut in. The trial court did not err in concluding the B-l lease was perpetuated beyond its expiration by the shut-in royalty clause and remained in full force and effect when production commenced in January, 1979.
We turn now to the issues relative to the validity and scope of the unitization of the leases herein. This hotly contested area of the litigation has spawned a number of issues on appeal. The leases herein contain the following provision relative to unitization:
“5. Lessee is hereby granted the right to pool or consolidate the leased premises, or any portion or portions thereof, as to all strata, or any stratum or strata, with other lands as to all strata, or any stratum or strata, but only as to the gas right hereunder (excluding casinghead gas produced from oil wells) to form one or more gas operating units of not more than 640 acres, plus a tolerance of ten per cent (10%) to conform to Governmental Survey quarter sections. Lessee shall file written unit designations in the county in which the premises are located. Such units may be designated either before or after the completion of wells. Drilling operations and production on any part of the pooled acreage shall be treated as if such drilling operations were upon or such production was from the land described in this lease whether the well or wells be located on the land covered by this lease or not. The entire acreage pooled into a gas unit shall be treated for all purposes, except the payment of royalties on production from the pooled unit, as if it were included in this lease. In lieu of the royalties herein provided, lessor shall receive on production from the unit so pooled only such portion of the royalty stipulated herein as the amount of his acreage placed in the unit or his royalty interest therein on an acreage basis bears to the total acreage so pooled in the particular unit involved.”
This provision does not permit unitization of casinghead gas produced from oil wells. Defendants contend the gas produced from B-l is casinghead gas and hence legally insufficient to support unitization. As would be expected, considerable technical evidence was introduced on this subject. The trial court made numerous findings relative to the casinghead gas controversy. Particularly illuminating are the following:
“23. The gas being produced from the Kostner unit is not casinghead gas. Casinghead gas is natural gas that is absorbed in solution, such solution being oil. As the oil is being removed from the oil zone, the pressure which it has been under is lessened. The casinghead gas then comes out of the solution in a gaseous form. The amount of casinghead gas which can be absorbed in a barrel of oil depends upon pressure and temperature, but in an area such as the Kostner field, the amount of gas would not be more than 500 cubic feet for a barrel of oil. From the amount of oil that was produced from the Kostner lease in 1979 of approximately 12,000 barrels such oil could not have contained more than 6 million cubic feet of gas. During this time the Kostner unit produced in excess of 34 million cubic feet of gas. It is therefore apparent that the gas being produced is from a gas zone lying above the oil zone and such gas is not casinghead gas coming out of solution.
“24. Casinghead gas may be compared to carbon dioxide which is absorbed in a bottle of soda pop. When the cap is released, the soda commences to bubble. Thus, when the pressure is released, the absorbed carbon dioxide comes out of the solution in a gaseous form. Casinghead gas is natural gas absorbed in oil solution in the same manner. The reason casinghead gas is prohibited from being utilized is because being confined in the oil solution it is no more mobile and it cannot be drained from a larger area than oil itself. In the Kostner B unit the gas is contained in a gas cap overlying an oil zone. While it may be defined as associated gas, it is not casinghead gas as that term is used and meant in the pooling clause of the oil and gas lease wherein casinghead gas as well as oil cannot be unitized.
“28. . . . [G]as from a gas cap .... is more properly defined as associated gas which is ‘free natural gas in immediate contact but not in solution with crude oil in the reservoir.’ . . . Associated gas or gas from a gas cap constitutes a gas right under the oil and gas lease permitting unitization or pooling of such right.”
These findings are supported by substantial competent evidence and, accordingly, will not be disturbed on appeal. City of Council Grove v. Ossmann, 219 Kan. 120, 546 P.2d 1399 (1976).
As will be recalled, the leases exclude pooling of “casinghead gas produced from oil wells.” We have just determined that the gas herein was not “casinghead gas.” Defendants take separate issue with the phrase “from oil wells.” They contend B-l could only be classified as an oil well because inter alia the oil produced is of significantly greater economic value than is the gas (79% compared to 21%) and a pump was placed on the well in February, 1979. Defendants specifically challenge the trial court’s finding that the well on B-l was a combination well. The classification of the well on B-l is essentially a question of fact and the trial court’s findings are supported by substantial competent evidence and will not be disturbed on appeal. There is nothing in the lease prohibiting unitization as to the “gas rights” based on a combination well.
Defendants’ next point on appeal is that the trial court erred in holding that plaintiffs’ unitization “for gas rights only” carried with it the right of plaintiffs to drill for and keep oil production on the unitized tracts.
At the time B-l was drilled, all parties were hopeful it would be an oil well. A verbal agreement had been entered into with the drilling contractor working on B-l to move the equipment to B-2 and commence drilling if B-l had oil capabilities. When B-l tested out a gas well, the drilling rig was released. One gas well can drain 640 acres as opposed to an oil well which can drain only about 40 acres. It was therefore not economically feasible to drill another gas well on the adjacent 80 acres. Instead plaintiffs exercised their contract right to unitize the three tracts. After B-l began producing oil in substantial quantities, the plaintiffs proceeded to drill on B-2. The well was another combination well which would, however, not have been drilled but for the anticipated oil production.
Defendants contend that even if unitization was proper, it was limited by the leases to the “gas right” and thus did not authorize plaintiffs to drill for oil on B-2 or B-3. Essentially, they argue that when the primary term of the B-2 and B-3 leases expired on November 6, 1978, without production from wells situated on those tracts, the leases expired for all minerals except gas which had been unitized for production from the B-l well.
An examination of the leases as a whole refutes this argument. Each lease specifically stated it was for a primary term of three years and “as long thereafter as oil, liquid hydrocarbons, gas or other respective constituent products, or any of them, is produced from said land or land with which said land is pooled’ (emphasis supplied). In addition, the unitization clause provided in part:
“Drilling operations and production on any part of the pooled acreage shall be treated as if such drilling operations were upon or such production was from the land described in this lease whether the well or wells be located on the land covered by this lease or not. The entire acreage pooled into a gas unit shall be treated for all purposes, except the payment of royalties on production from the pooled unit, as if it were included in this lease.” (Emphasis supplied.)
The language of these two clauses is clear and unambiguous. The valid unitization of B-2 and B-3 with B-l extended the leases thereon for all purposes so long as gas production continued on B-l (or the shut-in equivalent heretofore discussed). The fact that the B-l well, after unitization, commenced producing both gas and oil in commercial quantities in no way alters the legal status of the parties. Accordingly, when the plaintiffs drilled the well on B-2, they did so under the authority of the entire extended lease, not just under the unitization clause.
Defendants cite Skelly Oil Co. v. Savage, 202 Kan. 239, 447 P.2d 395 (1968), in support of their position. In Skelly a well was drilled on one tract of land and three other tracts were unitized with it under a clause, identical to that in this case, limiting the unitization to “gas rights” only. The well then produced certain liquid hydrocarbons along with the gas and the issue became whether the owners of the other tracts in the unit could share in the royalty interest for this liquid as well as the gas. The court affirmed the trial court’s finding that the liquid was a condensate or distillate associated with the gas produced from a gas well and held the royalties should be shared. No question appears in the case before us as to how or whether the royalty for the oil admittedly produced from the B-l well is to be shared among the owners of the unitized tracts. Skelly is not on point to the issue herein.
We conclude the trial court did not err in holding:
“[T]he Plaintiffs acquired a gas right in the Kostner B-l well which it was entitled to pool to prevent both economic and physical waste. The fact that such well may have subsequently become a combination well capable of producing both gas and oil in paying quantities does not detract from the fact that the gas right thereunder is and was properly unitized.
“Since the Kostner B-l is producing gas from a gas cap, the unit B-l, B-2 and B-3 has been and is being perpetuated so long as such production continues in paying quantities. Since the Kostner unit was validly formed as to the gas right, it perpetuated the three leases ‘for all purposes.’ ”
This result is in harmony with 6 Williams and Meyers, Oil and Gas Law § 973.2 (1981).
Finally, defendants argue plaintiffs did not act in good faith. Defendants specifically complain of the fact that plaintiff Martin had already filed the Declaration of Gas Unit when he sought agreement of some defendants to unitize. Conceivably, bad faith in concealing the true nature of a well or some equally serious matter might affect a contractual right to unitize. There is nothing herein even approaching such bad faith and the trial court made no findings of bad faith in any degree. This point is without merit.
The trial court held in favor of the plaintiffs on some alternative theories. Having reached the conclusions heretofore expressed, we need not determine the propriety of those alternative holdings. The cross-appeal, as noted by the cross-appellants, need not be determined by virtue of our affirmance of the trial court of the issues on appeal.
The trial court is to be complimented on its thorough and skillful handling of this highly technical and complex case.
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The opinion of the court was delivered by
Herd, J.:
This is an action for attorney fees under authority of 42 U.S.C. § 1988, growing out of this court’s previous opinion in Gumbhir v. Kansas State Board of Pharmacy, 228 Kan. 579, 618 P.2d 837 (1980).
Ashok K. Gumbhir received a bachelor’s degree in pharmacy from Punjab University in Chandrigarh, India. Later he immigrated to the United States where he now resides. After moving to this country, Gumbhir earned a masters degree in pharmacy from the University of Minnesota. He subsequently obtained his Ph.D in pharmacy administration from Ohio State University and was registered as a pharmacist in Ohio. Appellant made application for such registration in Kansas. His application was denied by the Kansas State Board of Pharmácy. He appealed the Board’s ruling to the district court, alleging K.S.A. 1979 Supp. 65-1631(a), the registration statute, was unconstitutional on the following grounds:
“(a) The statute contains an impermissible, unconstitutional and undue delegation of authority to some private body or entity other than the Kansas State Board of Pharmacy, and does not require nor permit defendant to exercise its own judgment; , . .:
“(b) the statute is violative of the Commerce Clause, Art. 1, § 8 of the Constitution of the United States;
“(c) because the American Council on Pharmaceutical Education does not accredit nor approve colleges or universities other than those in the United States of America, the statute is discriminatory and violative of the First, Fifth and Fourteenth Amendments of the Constitution of the United States, and is an improper delegation of authority;
“(d) the statute is unconstitutionally vague, ambiguous and susceptible of various interpretations.”
The district court upheld the Board’s decision, but on appeal the Supreme Court reversed. This court held K.S.A. 1979 Supp. 65-1631(a) was violative of the Kansas Constitution, Article 2, § 1, in that it resulted in an unconstitutional delegation of legislative authority to a nongovernmental agency. Thus, the court found it unnecessary to reach the other constitutional issues raised by appellant. Gumbhir v. Kansas State Board of Pharmacy, 228 Kan. at 588. In light of this decision Dr. Gumbhir became registered as a pharmacist in Kansas on February 8, 1981.
In April of 1981, Dr. Gumbhir filed a “Motion for Assessment of Costs,” requesting that the district court assess all costs and attorney fees incurred in this matter against the appellee pursuant to the authority of 42 U.S.C. § 1988, the Civil Rights Attorney’s Fees Awards Act. The district court denied the motion and Dr. Gumbhir has appealed.
The sole issue on this appeal is whether the district court erred in denying appellant’s request for attorney fees under the provisions of 42 U.S.C. § 1988.
First let us examine the provisions of 42 U.S.C. § 1988 (Supp. IV 1980), which provide in pertinent part:
“In any action or proceeding to enforce a provision of sections 1981,1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, [20 U.S.C. 1681 et seq.] or title VI of the Civil Rights Act of 1964, [42 U.S.C. 2000d et seq.] the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”
Appellant claims his original action qualifies as one “to enforce a provision of § 1983.” 42 U.S.C. § 1983 (Supp. IV 1980), provides:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 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. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”
As a preliminary matter, the propriety of state courts enforcing federal civil rights statutes should be examined. In Martinez v. California, 444 U.S. 277, 62 L.Ed.2d 481, 100 S.Ct. 553 (1980), the court held actions under 42 U.S.C. § 1983 may be brought in state courts. Similarly, in Maine v. Thiboutot, 448 U.S. 1, 65 L.Ed.2d 555, 100 S.Ct. 2502 (1980), the court applied § 1988 to a civil rights action brought in state court. Thus, it is apparent federal civil rights statutes are enforceable by state courts.
In considering the full import of this case it is necessary to bear in mind the history and purpose of the Civil Rights Attorney’s Fees Awards Act. It was signed into law October 19, 1976, by President Gerald Ford for the purpose of rescuing more than a decade of judicial decision-making which had, prior to May 12, 1975, made attorney fees available in most public interest cases. Prior to the late 1960’s the practice of allowing attorney fees as a part of the costs in public interest litigation was virtually unheard of. Civil rights plaintiffs were required to obtain counsel pro bono publico; to pay from their own pockets for litigating cases usually resulting in injunctive relief of value to large numbers of people with no damages from which a fee could be extracted; or to forget the rights existed because enforcement was too expensive. Civil rights were luxuries, not rights.
The situation changed in 1964. The Comprehensive Civil Rights Act passed. It provided for fee shifting upon proof of discrimination in public accommodations and employment. Realizing the federal government would be unable to handle all the cases involving this type of discrimination, the right to bring private enforcement actions was included in the act. It also provided for attorney fees as a vehicle for private enforcement because the beneficiaries generally lack the means to bring private suits.
The Supreme Court in Newman v. Piggie Park Enterprises, 390 U.S. 400, 19 L.Ed.2d 1263, 88 S.Ct. 964 (1968), expanded the legislative scheme by ruling even though Congress had made fee awards in discrimination cases in public accommodations technically “discretionary,” it would be a rare case in which fees would not be automatic. The court reasoned plaintiffs in such cases were “private attorneys general,” and it would be unfair to tax such plaintiffs with the cost of doing the work benefiting the whole country. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 45 L.Ed.2d 280, 95 S.Ct. 2362 (1975); Jeanty v. McKey &Poague, Inc., 496 F.2d 1119 (7th Cir. 1974); Northcross v. Memphis Board of Education, 412 U.S. 427, 37 L.Ed.2d 48, 93 S.Ct. 2201 (1973). In 1970, the Supreme Court again expanded the concept of fee shifting in Mills v. Electric Auto-Lite, 396 U.S. 375, 24 L.Ed.2d 593, 90 S.Ct. 616 (1970), where the plaintiff proved the use of misleading proxy statements. Because plaintiffs had benefited the corporation, shareholders and general public by disclosing the corporation’s lawlessness, the court reasoned it would be unfair for plaintiffs to bear the cost of the litigation. Following the foregoing cases, lower courts began to award fees in cases of all kinds, reasoning that whenever a private citizen sues to prevent a violation of the law, and thus provides the benefit of therapeutic enforcement for others as well as himself, he should not have to pay.
Attorney fee awards became increasingly common in suits involving school desegregation, jury discrimination, teacher dismissal, first amendment violations, unreasonable searches, legislative redistricting, prisoners’ rights, union matters, police harassment and consumer and environmental problems. Congress kept pace with the courts by making fees virtually automatic in certain areas of public interest law, among them school desegregation, voting rights, and certain types of consumer and environmental litigation.
The recognition of the concept of “private attorneys general” by the Congress and the courts had a salient impact on public interest law. Public interest law firms as well as major firms began to recognize there was a new area of lucrative practice. Fee awards made civil rights law a financially viable practice.
However, in 1975, in Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 44 L.Ed.2d 141, 95 S.Ct. 1612 (1975), the U.S. Supreme Court reversed the trend, holding the private attorney general rationale was applicable to public interest litigation only when specifically authorized by Congress. Alyeska was a drastic remedy for a practice the court apparently reasoned was getting out of hand. It held 28 U.S.C. § 1923 (1970) deprived courts of the equitable power to award fees in private attorney general cases, notwithstanding an unbroken line of cases since 1881 holding courts possess such equitable powers where necessary to obtain justice.
As a direct result of Alyeska, Congress passed the Civil Rights Attorney’s Fees Awards Act, 42 U.S.C. § 1988 (1976). In Alyeska the court abolished fee shifting under the “private attorney general” theory absent statutory authority. Section 1988 provided the statutory authority for the rationale and strengthened it by removing the uncertainty which characterized the theory before Alyeska. From the legislative history we must conclude that in order to achieve this congressional purpose to encourage compliance with and enforcement of civil rights laws, section 1988 should be construed liberally in favor of litigants who prevail in actions under 42 U.S.C. § 1983. Collins v. Chandler Unified School Dist., 644 F.2d 759 (9th Cir. 1981); Dennis v. Chang, 611 F.2d 1302 (9th Cir. 1980).
For Dr. Gumbhir to prevail in his efforts to apply § 1988 to his action, he must first demonstrate his action was brought to en force a provision of § 1983. Initially, let us examine the issue of whether the Kansas State Board of Pharmacy is considered a “person” under § 1983. Prior to 1977, the courts were almost unanimous in holding state agencies were not “persons” under § 1983. See, e.g., Edelberg v. Illinois Racing Bd., 540 F.2d 279 (7th Cir. 1976); Cheramie v. Tucker, 493 F.2d 586 (5th Cir. 1974), cert. denied 419 U.S. 868 (1974); Allison v. California Adult Authority, 419 F.2d 822 (9th Cir. 1969). However, in 1978 the court changed the rule with its decision in Monell v. New' York City Dept. of Social Services, 436 U.S. 658, 56 L.Ed.2d 611, 98 S.Ct. 2018 (1978), where it stated: “municipalities and other local governments] [are] to be included among those persons to whom § 1983 applies.” 436 U.S. at 690. Monell softened the old notion a state agency was not a person within the meaning of § 1983. Since then the courts are divided on the question. Some limit Monell to its facts, applying a literal translation that a state and its agencies are not “persons.” See Florida Businessmen, Etc. v. State of Fla., 499 F. Supp. 346 (N.D. Fla. 1980); Clark v. People of State of Mich., 498 F. Supp. 159 (E.D. Mich. 1980). Others have merely denied suit, holding the Monell decision did nothing to abrogate the states’ traditional immunity. See Ginter v. State Bar of Nevada, 625 F.2d 829 (9th Cir. 1980); Burkey v. Marshall Cty. Bd. of Ed., 513 F. Supp. 1084 (N.D. W.Va. 1981); Holladay v. State of Mont., 506 F. Supp. 1317 (D. Mont. 1981). However, even if the state or its agencies are considered a “person” after Monell, it has been held they are still immune from § 1983 suits under the 11th Amendment to the U.S. Constitution. See, e.g., Zentgraf v. Texas A & M University, 492 F.Supp. 265 (S.D. Tex. 1980). This theory was advanced by the U.S. Supreme Court in Quern v. Jordan, 440 U.S. 332, 59 L.Ed.2d 358, 99 S.Ct. 1139 (1979). Although it did not specifically state the term “person” did not include “state,” Quern held Congress, in enacting § 1983, did not intend to abrogate the 11th Amendment immunity and thereby force the states to answer in federal court for punitive constitutional violations. In spite of the Supreme Court’s careful avoidance of the issue, some courts have read into Quern a prohibition on states ever being “persons” under § 1983. See State v. Green, 633 P.2d 1381 (Alaska 1981); Boldt v. State, 101 Wis.2d 566, 305 N.W.2d 133 (1981); Edgar v. State, 92 Wash. 2d 217, 595 P.2d 534 (1979), cert. denied 444 U.S. 1077 (1980).
On the other hand, other post-Monell decisions have permitted § 1983 actions against a state and its agencies. Some find it inconsistent to hold municipalities are “persons” while state agencies are not. See, e.g., Atchison v. Nelson, 460 F. Supp. 1102 (D. Wyo. 1978). In Marrapese v. State of R. I., 500 F. Supp. 1207 (D. R.I. 1980), it was held a state can be a “person” under the broad scope of § 1983 if it waives its 11th Amendment immunity. Other cases have attempted to limit the Quern holding. For example, in Hodges v. Tomberlin, 510 F. Supp. 1280 (S.D. Ga. 1980), the court implied that if the claim for relief was injunctive rather than monetary, the state and its agencies would be considered “persons” under § 1983. In Thompson v. State of N. Y., 487 F. Supp. 212 (N.D. N.Y. 1979), it was suggested the Quern analysis was wrong and § 1983 was intended to override state immunity under the 11th Amendment. Finally, in Morrow v. Sudler, 502 F. Supp. 1200 (D. Colo. 1980), the court held the Colorado Historical Society, a state agency, was a person under § 1983.
We think the sounder view in a case such as this, where prospective injunctive relief is sought, is that a state agency should be considered a “person” under the statute. Most of the cases denying suit against the state or its agencies under § 1983 have done so under the 11th Amendment, which prohibits suits against the states in federal court absent consent. The 11th Amendment is not applicable to this case since the action was brought in state court. Further, a careful reading of Quern reveals that case did not hold states or state agencies could never be considered “persons” under § 1983. In fact, Justice Rehnquist’s majority opinion carefully skirted the issue. We conclude under the facts of this case the Kansas State Board of Pharmacy is a “person” as contemplated in § 1983.
Once suit is allowed against the state, attorney fees can be properly awarded out of state funds. Hutto v. Finney, 437 U.S. 678, 57 L.Ed.2d 522, 98 S.Ct. 2565 (1978), reh. denied 439 U.S. 1122 (1979).
Appellee next argues two procedural defects require this court to deny appellant’s motion. First, it is contended a plaintiff must specifically allege a violation of § 1983 to obtain attorney fees under § 1988. Here, Dr. Gumbhir alleged the appellee’s denial of his application violated his rights under the 1st, 5th, and 14th Amendments and Article 1, § 8 of the U.S. Constitution. § 1983 was never mentioned. Several courts have confronted this issue.
In Harradine v. Supervisors, 73 App. Div. 2d 118, 425 N.Y.S.2d 182 (1980), the court allowed recovery of attorney fees even though a violation of § 1983 had not been specifically alleged, stating:
“In view of the number of apportionment cases brought in Federal court pursuant to section 1983, the similarity in language of section 1983 and section 1 of article 1 of the New York State Constitution, the policy behind section 1988 which is to encourage the private citizen to take action as a 'private attorney general’, and the fact this action is premised upon a constitutional claim, we conclude that attorney’s fees may be recovered in this context pursuant to section 1988 in a State court. Plaintiff’s cause of action is embraced within the spirit of section 1983 . . . p. 126.
The Alaska Supreme Court has also examined the problem. In Fairbanks Correctional Center v. Williamson, 600 P.2d 743 (Alaska 1979), the sole mention of § 1983 was in parenthesis in the title of the complaint. Nevertheless, the court held § 1988 applied, stating that a combination of “the broad purposes of 42 U.S.C. § 1983 — to provide a cause of action upon allegations of facts constituting deprivation under color of state authority of federal constitutional rights with the liberal pleading provisions of Alaska Rule of Civil Procedure 8” allowed the complaint to state a cause of action under § 1983. 600 P.2d at 747.
The Wisconsin Supreme Court in Boldt, 101 Wis. 2d at 584, held a complaint alleging “a violation of the due process clauses of the Wisconsin and United States Constitutions,” was sufficient to state a cause of action under § 1983 because of that statute’s reference to “the deprivation of any rights, privileges, or immunities secured by the Constitution.”
Based on the foregoing decisions and Kansas’ liberal rules of notice pleading (K.S.A. 60-102), we hold appellant has adequately pleaded a violation of his civil rights under § 1983 to maintain a suit for attorney fees under § 1988, even though the better practice is to specifically plead a violation of § 1983.
It is also argued Gumbhir’s request for attorney fees must be denied because he failed to plead 42 U.S.C. § 1988 in his original pleadings. In White v. New Hampshire Dept. of Empl. Sec., 455 U.S. _, 71 L.Ed.2d 325, 102 S.Ct. 1162 (1982), the U.S. Supreme Court spoke to this claim in a unanimous opinion. The issue in the case arose from a post-judgment request for an award of attorney fees under § 1988 growing out of class action litigation where White claimed respondent failed to make timely determination of entitlements of unemployment compensation. His complaint did not request attorney fees. The trial court granted White’s claim. Pending the appeal the parties settled the case by agreement. Four and one-half months after entry of final judgment White filed a motion for attorney fees. The trial court awarded the requested fees over objection of respondent who claimed surprise. The Court of Appeals reversed the trial court, holding petitioner’s post-judgment motion for attorney fees constituted a motion to alter or amend a judgment and was governed by the ten-day time limit.
The case came to the Supreme Court in that condition. The court reversed the Court of Appeals, stating:
“Section 1988 provides for awards of attorney’s fees only to a ‘prevailing party.’ Regardless of when attorney’s fees are requested, the court’s decision of entitlement to fees will therefore require an inquiry separate from the decision on the merits — an inquiry that cannot even commence until one party has ‘prevailed.’ Nor can attorney’s fees fairly be characterized as an element of ‘relief’ indistinguishable from other elements. Unlike other judicial relief, the attorney’s fees allowed under § 1988 are not compensation for the injury giving rise to an action. Their award is uniquely separable from the cause of action to be proved at trial.
“Section 1988 authorizes the award of attorney’s fees ‘in [the] discretion’ of the court. We believe that this discretion will support a denial of fees in cases in which a post-judgment motion unfairly surprises or prejudices the affected party. Moreover, the district courts remain free to adopt local rules establishing timeliness standards for the filing of claims for attorney’s fees.” p.--
We conclude Gumbhir’s motion for attorney fees was timely filed. To avoid future confusion, however, we hereby adopt the rule that motions for attorney fees under 42 U.S.C. § 1988 must be filed no later than thirty days after the entry of final judgment, thus facilitating the determination of all issues in one appeal.
To obtain attorney fees under § 1988 the litigant must be the “prevailing party” in his action to enforce § 1983. Appellees argue Dr. Gumbhir is not a prevailing party because this court’s decision was based solely on a Kansas constitutional issue.
In Maher v. Gagne, 448 U.S. 122, 65 L.Ed.2d 653, 100 S.Ct. 2570 (1980), plaintiff brought an action alleging Connecticut’s Aid to Families with Dependent Children (AFDC) regulation violated the Social Security Act and the Equal Protection and Due Process Clauses of the 14th Amendment. Ultimately the case was settled and the district court entered a consent decree. Defendant then challenged the award of attorney fees to plaintiff. The Supreme Court upheld the award stating:
“We also find no merit in petitioner’s suggestion that respondent was not the ‘prevailing party’ within the meaning of § 1988. The fact that respondent prevailed through a settlement rather than through litigation does not weaken her claim to fees. Nothing in the language of § 1988 conditions the District Court’s power to award fees on full litigation of the issues or on a judicial determination that the plaintiff’s rights have been violated. Moreover, the Senate Report expressly stated that ‘for purposes of the award of counsel fees, parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief.’ ” 448 U.S. at 129.
Lower courts have fashioned more specific definitions of “prevailing party” for § 1988 purposes. In Nadeau v. Helgemoe, 581 F.2d 275, 279 (1st Cir. 1978), the court held plaintiffs can be considered prevailing parties if they succeed on any significant issue in litigation which achieves some benefit the parties sought in bringing suit, but the amount of the fees should be based only on work performed on issues in which they were successful. See also Draper v. Town Clerk of Greenfield,_Mass--, 425 N.E.2d 333 (1981). The Third Circuit Court of Appeals has stated the test of whether a person is a prevailing party is whether he “essentially succeeds in obtaining the relief he seeks in his claims on the merits.” Morrison v. Ayoob, 627 F.2d 669, 671 (3rd Cir. 1980), cert. denied 449 U.S. 1102 (1981). In Williams v. Alioto, 625 F.2d 845, 847 (9th Cir. 1980), the 9th Circuit Court of Appeals held plaintiffs who had won a preliminary injunction were prevailing parties because they had “succeeded on a ‘significant issue in litigation which achieve[d] . . . the benefit the parties sought in bringing suit.’ Sethy v. Alameda County Water District, 602 F.2d 894, 897-98 (9th Cir. 1979), cert. denied 444 U.S. 1046 . . . (1980).”
Here Dr. Gumbhir succeeded in getting the State Board of Pharmacy to register him. That is precisely what he set out to do. Under any of the above theories he is clearly a “prevailing party” even though his victory was based on the merits of his state constitutional claim and not a § 1983 action. See Seals v. Quarterly County Court, Etc., 562 F.2d 390 (6th Cir. 1977), where plaintiffs were awarded attorney fees when they prevailed only on their state law claim. There, however, the state claim involved a common nucleus of operative facts with a substantial federal claim. We hold Gumbhir is a “prevailing party” for § 1988 purposes, subject to a showing his claim complied with the Seals rule, which will be discussed later.
Appellees argue in order to reverse the trial court’s denial of attorney fees this court would have to find an abuse of discretion. Even though § 1988 states the award of attorney fees is within the sound discretion of the trial court, the legislative history and case law interpreting the act clearly indicate attorney fees are to be awarded to the prevailing plaintiff in § 1983 actions unless there are special circumstances making such award unjust. Busche v. Burkee, 649 F.2d 509 (7th Cir. 1981); Johnson v. Nordstrom-Larpenteur Agcy., Inc., 623 F.2d 1279 (8th Cir.), cert. denied 449 U.S. 1042 (1980); Love v. Mayor, City of Cheyenne, Wyo., 620 F.2d 235, 236 (10th Cir. 1980); Miller v. City of Mission, Kan., 516 F. Supp. 1333, 1338 (D. Kan. 1981). Of special significance to the instant case is Riddell v. National Democratic Party, 624 F.2d 539, 545 (5th Cir. 1980), where the court held the fact that defendant state officials enforced an invalid statute in good faith compliance with their official duties does not constitute special circumstances to deny attorney fees.
Since Gumbhir prevailed under a Kansas constitutional issue which properly prevented a ruling on the federal constitutional issues, we must now re-examine the case to ascertain if the State’s action involved a common nucleus of operative facts with a substantial federal claim constituting a deprivation of Gumbhir’s federal rights, privileges and immunities. Let us examine the conduct complained of in light of the two requisite elements for recovery under 42 U.S.C. § 1983.
The conduct complained of must have been by some person acting under color of law. Since we previously held “person” includes governmental agencies, it is clear the denial of Ashok Gumbhir’s application to take the pharmacy examination for admission under authority of K.S.A. 1979 Supp. 65-1631(a) came squarely within the first requisite.
To come under 42 U.S.C. § 1983, such conduct must have also subjected the complainant to the deprivation of rights, privileges or immunities secured to him by the Constitution and laws of the United States.
This requisite presents a more difficult question. Appellant argues the mere allegation of a substantial claim oí deprivation of rights, privileges and immunities secured by the Constitution and laws of the United States is sufficient to trigger the fee shifting mechanism of 42 U.S.C. § 1988, citing Maher v. Gagne, 448 U.S. 122, and Hagans v. Lavine, 415 U.S. 528, 39 L.Ed.2d 577, 94 S.Ct. 1372 (1974). In both foregoing cases the “substantial claim” statement pertains to the nature of the pleadings required to invoke jurisdiction of federal courts under 28 U.S.C. § 1343. That issue is obviously absent here. We are convinced § 1988 is applicable only in instances where the conduct complained of is an actual deprivation of federal rights, privileges and immunities. Let us now examine appellant’s complaint of a federal deprivation. The conduct at issue is the State Board’s denial of Gumbhir’s right to take the pharmacy examination. Dr. Gumbhir attacked K.S.A. 1979 Supp. 65-1631 under the 5th and 14th Amendment guarantees of Due Process and Equal Protection on the following theories which we will address in order. 1) The statute is unconstitutionally vague; 2) the statute creates an unreasonable classification; 3) the classification is based on the suspect trait of alienage; 4) the appellant was denied a liberty interest to practice his chosen profession; 5) the statute creates an unauthorized delegation of legislative authority.
Is K.S.A. 1979 Supp. 65-1631 unconstitutionally vague? The standard for determining whether a statute is unconstitutional for vagueness is a common-sense determination of fairness. Can an ordinary person exercising ordinary common sense understand and comply with the statute? If so, it is not unconstitutionally vague. 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); CSC v. Letter Carriers, 413 U.S. 548, 37 L.Ed.2d 796, 93 S.Ct. 2880 (1973).
Statutes which regulate the practice of a profession must be reasonable and advise registrants of the requirements imposed by law. Morey v. Doud, 354 U.S. 457, 1 L.Ed.2d 1485, 77 S.Ct. 1344 (1957). K.S.A. 1979 Supp. 65-1631 meets all of the above standards. We hold it is not unconstitutionally vague.
It is unquestioned that the State has a legitimate interest in assuring the public a cadre of competent pharmacists. In furtherance of the state objective, the statute in question creates two classes: a) those who receive undergraduate or first professional degrees from a school or college of pharmacy accredited by the American Council of Pharmaceutical Education (ACOPE) or a department of a university accredited by ACOPE; and b) all others.
The test of whether the classification offends the Equal Protection Clause involves a consideration of whether the state objective U.S. 420, 425-26, 6 L.Ed.2d 393, 81 S.Ct. 1101 (1961):
“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.”
Moreover, the statute in question is clothed with a presumption of constitutionality. Such being the case, the burden of proof as to the invalidity of the statute falls on the one attacking the statute. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79, 55 L.Ed.2d 369, 31 S.Ct. 337 (1911); Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 (1974).
The fact that such classification creates a potential inequity does not offend the 14th Amendment of the United States Constitution. See Dandridge v. Williams, 397 U.S. 471, 25 L.Ed.2d 491, 90 S.Ct. 1153, reh. denied 398 U.S. 914 (1970).
Hence, the paramount issue is whether the requirement of K.S.A. 1979 Supp. 65-1631 concerning accreditation is rationally based on the state interest in insuring the fitness and capacity of those who practice pharmacy in the State of Kansas. The State of Kansas has the general authority to prescribe qualifications for licensure of pharmacists in the state. There is no question that the state interest in developing a field of well-qualified pharmacists is a legitimate one.
“[T]he States have a compelling interest in the practice of professions within their boundaries, and ... as part of their power to protect the public health, safety and other valid interests they have a broad power to establish standards for licensing practitioners . . . .” Goldfarb v. Virginia State Bar, 421 U.S. 773, 792, 44 L.Ed.2d 572, 95 S.Ct. 2004 (1975).
The fact that filling of prescriptions and dispensing of dangerous drugs has such an obvious and direct impact on the public health hardly needs to be mentioned. This important state interest gives the Kansas Legislature a wide range of discretion in classifying applicants for registration as pharmacists to assure that those who are licensed are highly qualified to practice.
The accreditation requirement contained in K.S.A. 1979 Supp. 65-1631 is clearly designed to assure a competent field of practicing pharmacists in the State of Kansas. There is sound reason for distinguishing between graduates of accredited schools and graduates of non-accredited schools. Standards utilized in the accreditation process relate to such important qualities of education as faculty-student ratios, classroom and clinical facilities, and financial resources of the pharmacy program. The direct relationship between these factors and the quality of education offered by a particular program is difficult to dispute. That accreditation bears a direct relationship to the State’s interest in providing a field of competent pharmacists is readily demonstrated by an analysis of the criteria utilized in the accreditation process.
Additionally, in both state and federal courts, educational accreditation requirements have been upheld as constitutional under the 14th Amendment. See Lombardi v. Tauro, 470 F.2d 798 (1st Cir. 1972), cert. denied 412 U.S. 919 (1973); Kadans v. Collins, 441 F.2d 657 (9th Cir. 1971); Hackin v. Lockwood, 361 F.2d 499 (9th Cir. 1966), cert. denied 389 U.S. 143 (1967); Harris v. Louisiana State Supreme Court, 334 F. Supp. 1289 (E.D. La. 1971); In re Stephenson, 511 P.2d 136 (Alaska 1973); Application of Schatz, 80 Wash. 2d 604, 497 P.2d 153 (1972); In re Eisenson, 272 So. 2d 486 (Fla. 1973), Henington v. State Board of Bar Examiners, 60 N.M. 393, 291 P.2d 1108 (1956). The majority of these cases involve the requirement that a bar applicant must be a graduate of a law school approved by the American Bar Association and all cases upheld the requirement as constitutional.
In In re Application of Bryan M. Hansen, 275 N.W.2d 790 (Minn. 1978), the plaintiff attacked Minnesota’s rule requiring proof of graduation from an ABA-approved law school as a prerequisite to sitting for the bar examination as being unconstitutional in violation of the Due Process and Equal Protection clauses of the 14th Amendment. Here the Court noted that although the applicant may have a strong interest in being able to practice law, the state can regulate admission as long as such regulation is reasonably related to the state’s interest in a competent bar. The court noted that a procedure is reasonable as long as it is not arbitrary and capricious. The Minnesota Court also concluded that the ABA is best equipped to perform the function of accrediting law schools. 275 N.W.2d at 794. The Minnesota Court found that there is no violation of the Equal Protection Clause since classifications will be upheld as long as they are reasonably related to some legitimate governmental purpose. 275 N.W.2d at 796. The Court concluded that the distinction between graduates of accredited and non-accredited law schools is reasonably related to insuring a competent bar. Analogously, the distinction between graduates of accredited and non-accredited pharmacy schools is rationally related to insuring a competent field of practicing pharmacists.
Appellant argues the classification created by K.S.A. 1979 Supp. 65-1631 is based on the suspect trait of alienage and hence requires the courts to closely scrutinize the reasonableness of such classification. Cases involving “suspect classifications” or “fundamental interests” force the courts to peel away the protective presumption of constitutionality and adopt an attitude of active and critical analysis, thus subjecting the classification to strict scrutiny. The effect is to shift the burden of proof to justify the classification from the individual attacking such classification to the State or its agencies. Shapiro v. Thompson, 394 U.S. 618, 22 L.Ed.2d 600, 89 S.Ct. 1322 (1969). See also Graham v. Richardson, 403 U.S. 365, 29 L.Ed.2d 534, 91 S.Ct. 1848 (1971).
Contrary to the argument above, K.S.A. 1979 Supp. 65-1631 creates a classification based on education; there is no requirement which addresses citizenship or alienage. The statute, in fact, classifies on the basis of education and distinguishes between applicants whose education has met the standards and those whose education has not met the standards. Consequently, reliance on the case of Wong v. Hohnstrom, 405 F. Supp. 727 (D. Minn. 1975), is misplaced. In that case, the plaintiff was an alien who was denied application or registration solely for the reason that the statute in question explicitly referred to alienage for its turning point. In the case at bar, however, Gumbhir was denied application for registration solely because he had failed to meet the explicit educational requirements set forth in the statute. We hold the denial of appellant’s application was not based on alienage and his equal protection argument is gauged by the rational relation test.
Appellant further argues that because he was unable to practice his chosen profession in the State of Kansas he was being denied a liberty interest under the Due Process and Equal Protection clauses of the United States Constitution. Contrary to appellant’s assertion that he has a constitutionally secured right to practice his profession, numerous cases have recognized that there is no fundamental interest involved in the practice of medicine (Shaw v. Hospital Authority of Cobb County, 507 F.2d 615 [5th Cir. 1975]; Jones v. State Board of Medicine, 97 Idaho 859, 555 P.2d 399, cert. denied431 U.S. 914 [1976]), or in any other profession. Naismith Dental Corp. v. Board of Dental Examiners, 68 Cal. App. 3d 253, 137 Cal. Rptr. 133 (1977). Analogously, the practice of pharmacy is not a fundamental interest explicitly or implicitly guaranteed by the Constitution.
The appellant concedes that the Kansas State Board of Pharmacy is authorized to set forth requirements for licensure and registration of pharmacists. The provisions of K.S.A. 1979 Supp. 65-1631 bear a rational relationship to the state interest in protecting the health and welfare of its citizens by assuring competent practicing pharmacists and the statute therefore is able to withstand the attack that it does not provide equal protection.
Appellant has presented no personal interests which outweigh the important, substantive and administrative interests which Kansas has in the enforcement of K.S.A. 1979 Supp. 65-1631. The interests which appellant does assert are not based on constitutional guarantees, but upon his preference in pharmacy education and Kansas’ failure to conform or defer to that preference and its own constitution. We hold appellant’s liberty interest guaranteed under the U.S. Constitution was not unconstitutionally denied.
Finally, appellant contends the unauthorized delegation of legislative authority found herein to violate the Kansas Constitution is also a violation of the Constitution of the United States. We disagree. This case pertains to a state statute providing for the licensing of pharmacists by a state administrative body; a function of the state. Justice Cardozo, speaking for the U.S. Supreme Court, in Highland Farms Dairy v. Agnew, 300 U.S. 608, 612, 81 L.Ed. 835, 57 S.Ct. 549 (1937) states:
“The argument ... is that in this there was a grant of discretionary power overpassing the limits of lawful discretion.
“The Constitution of the United States . . . has no voice upon the subject. The statute challenged as invalid is one adopted by a state. This removes objections that might be worthy of consideration if we were dealing with an act of Congress. How power shall be distributed by a state among its governmental organs is commonly, if not always, a question for the state itself.”
E.g., Lombardi v. Tauro, 470 F.2d 798; Parcell v. State of Kan., 468 F. Supp. 1274, 1277 (D. Kan. 1979); Rite Aid Corp. v. Bd. of Pharmacy of State of N.J., 421 F. Supp. 1161, 1178 (D. N.J. 1976).
We therefore conclude the state claim upon which Gumbhir prevailed below did not involve a common nucleus of operative facts with a substantial federal claim because the Kansas State Board of Pharmacy did not subject Gumbhir to a deprivation of rights, privileges or immunities secured to him by the Constitution and laws of the United States. Thus, Gumbhir is not a prevailing party as required since there was no 42 U.S.C. § 1983 violation upon which a civil rights attorney fee claim could be based.
The judgment of the trial court is affirmed.
Holmes and McFarland, JJ., concur in the result. | [
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The opinion of the court was delivered by
Brewer, J.:
On June 15th, 1880, plaintiff in error (plaintiff below) commenced his action against the defendant to recover for personal injuries. The name of defendant as stated in the title to the petition is, “Union Pacific Railway Company, Kansas Division, formerly Kansas Pacific Railway Company.” In the body of the petition it is alleged “that said Union Pacific railway company, Kansas division, formerly Kansas Pacific railway company, defendant, is a railway company* duly organized under the laws of the state of Kansas, and as such corporation was, on the second day of August, 1879,” etc. The petition further alleged, that the injuries were done on the second day of August, 1879. Defendant answered by a general denial, and afterward, by leave of the court, filed an amendment to its alnswer, which, duly verified, denied that it was a corporation organized under the laws of the state of Kansas, as alleged in the petition. Upon the trial, after plaintiff had offered testimony tending to establish the allegations of his petition, and had rested, the defendant showed that at the time of the injury the Kansas Pacific railway company, a corporation organized under the laws of the state of Kansas, was the owner of and operating the road; that subsequently thereto, and on the 24th day of January, 1880, the Kansas Pacific railway company was consolidated with the Union Paoific railway company and the Denver Pacific railroad and telegraph company, and by such consolidation became merged in the Union Pacific railway company; and that the consolidated company, the. Union Pacific railway company, was since operating the road, and that all the agents and employés along the line of the road were the agents and employés of the consolidated company. A copy of the articles of consolidation was offered in, evidence. Upon this testimony, the district court instructed the jury to return a verdict for the defendant. Thereupon the plaintiff made a motion for a new trial, and in connection therewith asked leave to amend his petition so as to allege that at the time of the injury the Kansas Pacific railway company owned and' operated the road, and that on the 24th day of January, 1880, this corporation was consolidated with the Union Pacific railway and the Denver Pacific railroad and telegraph company, and by said consolidation forming and composing the present defendant; that by said consolidation the present defendant became possessed of all the properties and charged with all the liabilities of the Kansas Pacific railway; and that in pursuance thereof the present defendant had taken possession of •the road and other properties of the Kansas Pacific railway company, and the latter company had wholly ceased to operate the road or to have any agents within the state of Kansas; and that the present defendant had ever since been operating this road as a part of its line. This motion for leave to amend, and for a new trial, was overruled; and now the plaintiff brings the case here for review.
Plaintiff contends that the consolidation is, so far as the Kansas Pacific railway company was concerned, absolutely null and void; and secondly, that if it be valid he has ,a right to maintain this action directly against the defendant under the terms of the consolidation. On the other hand, defendant contends that the consolidation is valid, and that under its terms no action can be maintained against the defendant on account of this injury; and further, that the question of the validity of the consolidation is not properly presented in this case, and cannot properly be determined under the issues as formed by the parties. "Very full and elaborate arguments have been made on both sides upon all these questions, and we have also been favored with briefs prepared by the attorney general of the state and other learned counsel in cases involving the validity of this con solidation, pending in the United States circuit courts. Of course the first inquiry necessary is, what issues were presented by the pleadings, for it would be not only unnecessary but improper for us to enter into a-discussion and determination of questions whose decision would in no way affect the judgment in this case. And here we remark, that the validity of the consolidation is not in issue in this case. The reasons for this will be obvious as we proceed. And first, it is evident that under the pleadings and the testimony there are but two corporations, either in fact or in name — one the Kansas Pacific railway company, and the other the Union Pacific railway company. There is no corporation, no organization, either in law or in fact, bearing the name of the Union Pacific railway, Kansas division — none known or passing under such name.. There was and is unquestionably a corporation named the Kansas Pacific railway company. There is at least a pretended corporation known and styled the Union Pacific railway company. Whether the consolidation be valid or not, whether the consolidated company had a legal existence or not, there was an attempted organization of such consolidated corporation, whose name is alone “The Union Pacific Railway Company.” Of course if the consolidation be valid, such consolidated corporation legally exists, and bears only its chosen and legal name. On the other hand, if the consolidation be void, and the consolidated corporation without legal existence, the proceedings are not tantamount to a mere change of the name of the Kansas Pacific railway company. That corporation has simply pretermitted the discharge of its corporate functions and duties in favor of an irregular association. It has not attempted to assume a new name, to change its old, or permit itself to be known by such new name. Possibly a corporation, like an individual, may permit itself to pass under and be known by other than its legal name, and under such assumed name may sue and be sued; but there is no pretense of anything of this kind here. Neither the Kansas Pacific railway company nor its- officers nor stockholders, nor any. parties interested in the organization of the Union Pacific railway company, have assumed, or represented, or in any manner held out the idea that the Kansas Pacific railway company was existing under any other than its legal name. The parties have attempted a consolidation of that corporation with two others; they have pretended nothing else, and if the attempted consolidation fails, it fails in tolo, and does not work that which was not intended — a change in the legal name of either of the constituent companies. It is well to bear this very clearly in mind, so as not to be misled by the mere name given to the defendant in the petition. The words “Union Pacific, formerly Kansas Pacific railway company,” imply identity of corporation, with mere change of name. The testimony discloses no pretense of a change of name, but simply the attempt to organize a new corporation; and whether that attempted organization stands or falls, the .names of the constituent companies remain unchanged.
Secondly, it appears impliedly from the petition as originally framed, and clearly from the amendment tendered, that the party sued was the consolidated corporation; but that consolidation, whether it be a legal corporation or an irregular association, did not do' the injuries complained of. They were unquestionably done by the Kansas Pacific railway company. Now this consolidation can be held for the liabilities of either constituent company only by and to this extent of express stipulation. If A., B., and C., individuals, enter into partnership, form an association, or organize a corporation, such partnership, association or corporation is in no manner, except by express contract, liable for the individual debts of either A., B., or C. So the Union Pacific railway company, whether a legal corporation or an irregular association, a corporation de jure or de facto, is not liable for the debt of either constituent company unless it has in terms contracted to become so. Article 8 of the consolidation agreement provides for the transfer to the consolidated company of all the properties of the constituent companies, and closes with the words: “This assignment, transfer, sale and conveyance is made to the said consolidated corporation subject to all liens, mortgages and equities pertaining thereto.”
Article 10 reads as follows:
“The new company hereby formed does not.herein assume any separate or individual liability for the outstanding debts, obligations and liabilities of the respective constituent companies, whose several and separate existence as to/ third parties shall, as respects such debts, obligations and liabilities of every -kind and nature, still continue, notwithstanding these articles of union and consolidation. But nothing herein contained shall prevent any valid debt, obligation or liability of either constituent company from being enforced against the property of the' proper constituent company, which by force of these articles becomes the property of the consolidated company. The corporate existence of the respective constituent companies shall not absolutely cease eo instanti, on the consummation of the union and consolidation herein provided for, but shall remain and continue so far as necessary to carry out the intent and purpose thereof.”
This is all there is in the consolidation agreement, which bears upon the question of the liability of the consolidated company for any of the obligations of the constituent companies. Clearly that is not enough to sustain this action of the plaintiff, which is simply on an unliquidated demand ¿gainst the Kansas Pacific railway. The consolidated corporation has no power to adjust such a claim and bind the Kansas Pacific railway company by such adjustment; neither can it be compelled to bear the cost and. expense of an action for its adjustment. The Kansas Pacific has a right to be heard before any unliquidated demand against it is adjusted and paid out of the properties that it has turned over to the consolidated company. It has never made such consolidated company its agent for the purpose of adjustment.
Again, a judgment recovered in this action becomes a general lien on all the properties of the consolidated company, and this irrespective of the amount of properties received from the Kansas Pacific company. It is true, the amount claimed is but $20,000, and we may presume the value of the properties turned over by the Kansas Pacific, to be largely in excess of this amount; but the principle would be the same if the amount claimed was $2,000,000. The judgment, if non-collectible in Kansas by virtue of existing liens upon the property of the consolidated company here, could be transferred to any other state or territory, and would become a conclusive adjudication upon all the properties of said consolidated company, whencesoeVer obtained. The silence of the consolidation agreement would authorize no such action. The express repudiation of liability in article 10 only emphasizes the impossibility of maintaining an action like this. So that whether we look upon the defendant as an irregular association or a legal corporation; whether we consider the articles of consolidation and the express stipulations therein as valid, or ignore them entirely, defendant has no authority to adjust this unliquidated demand against the Kansas Pacific; no power to bind it by any admissions in an action; cannot be chargeable with the expense of a litigation for the purpose of adjusting such a demand; and is not liable to a general judgment against it, giving a lien upon all its properties.
Thirdly, the Kansas Pacific is the original, the primary debtor, and therefore prima facie the one to be sued for the alleged injuries. If the consolidation agreement be invalid, then of course tbe Kansas Pacific remains a corporation intact and in full vigor, and alone liable for this demand. If the consolidation agreement be valid, then by its terms the existence of the Kansas Pacific is preserved for the purpose of the settlement of all claims against it, and it, and it alone, is the defendant which must primarily be sued. Whatever proceedings may be proper after judgment for the purpose of enforcing such judgment, the first step is a judgment against the Kansas Pacific. It may be then that a common-law execution will be sufficient, or it may be that the powers of a court of equity will be requisite for the purpose of adjusting liens and equities. But we are met here by the objection of counsel for plaintiff, that according to the testimony there is no way of bringing the Kansas corporation into the courts of .this state. It is of course a citizen of this state, being a cor poration created by its laws, and yet it has turned all its properties over to a new organization, and is without officer or agent within the limits of the state upon whom to serve process. To that we reply — first, we cannot presume the impossibility of bringing the Kansas Pacific into court by ordinary process. If summons is placed in the hands of a sheriff, he may find the president- of the corporation or some duly-authorized agent upon whom to serve process. We pass by the promise of the learned counsel for defendant, that he himself would enter an appearance for the Kansas Pacific whenever suit was brought against it, with the just remark of the counsel for plaintiff, that it is not. a matter of grace or favor, but a matter of right, that a corporation created by the state should be subject to the reach of the process of its courts. It is true the learned counsel for defendant may be the party designated by the Kansas Pacific to receive service of process. Certainly his appearance in a court would be prima facie evidence of his right to enter the appearance of any client, and if there were any reason to doubt his authority, the statute (§7, ch. 11, Comp. Laws 1879) provides for proof of it. But secondly, beyond that, suppose all the officers of the Kansas Pacific are outside the state; that it has made no provision for service within the state, and that there is no individual within the state upon whom service can be made so as legally to bind the corporation; and suppose still further, that the corporation, pretermitting the discharge of its duties and functions as given to it by the state, has ceased all operations within its borders: and yet if there be properties accumulated by the corporation under its charter and in pursuance of the powers given to it by the state, which properties have not been actually appropriated to the discharge oí its debts, we think the plaintiff is not without remedy. Within the spirit of the attachment and publication laws, the plaintiff may cause process to issue to seize such properties and bring the defendant corporation into court, by publication as an absconding or concealing debtor. And beyond all this, there remains the visitorial power of the state to inquire into the proceedings of any corporation it has created, and to pursue and seize any property it has accumulated, for the purpose of applying it to the satisfaction and discharge of its liabilities. In all this we think ample remedy lies with the plaintiff Hence, in conclusion, we hold that the first step to be pursued by the plaintiff in respect to his claim for damages is, an action against the Kansas Pacific railway company, the corporation which did the wrongs alleged, and an adjustment and adjudication in such action of plaintiff’s claim for damages. After such claim has been thus adjudicated and converted into a liquidated debt, then we think the plaintiff may pursue the properties of said Kansas Pacific railway company into whosesoever hands they have passed. It follows from these considerations, that the ruling of the district court was correct, and its judgment must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On and prior to August 19, 1880, it was part of the business of Moulton & Yates, defendants below, to transport baggage in the city of Atchison, and deliver the ■same at the depots and residences in the city, for which purpose they kept horses and wagons, and also employed drivers. On the said 19th day of August, one Thomas N. Johnston, a driver employed - by them and in charge of two horses and a baggage wagon to which they were harnessed, was delivering a piece of baggage at a residence on South Fifth street in that city, when the horses ran áway with the baggage wagon, northwardly on the street, and, when near the crossing of Park street, struck against the wagon of the defendant in error (plaintiff below) and broke it, and also inflicted severe personal injuries upon him. A few months thereafter this action was commenced by plaintiff below, to recover damages on account of the injuries to his person and property. Among other matters the petition charged that the driver was the servant of the defendants below, and that while acting in the line of his employment, he negligently, carelessly and wrongfully left the team without being properly hitched or fastened, and without being attended by any one; that while the team was unhitched and unattended the driver negligently went away from the horses, into a house on the street, and as there was nothing to prevent, they ran away.
It is contended by the counsel prosecuting this proceeding in error, that the'special findings of the jury failed to show any negligence on the part of defendants below, and did show contributory negligence on the part of the injured party. To establish that the defendants were not guilty of negligence which caused the injury complained of,' counsel assert that there is no absolute rule of law that requires one who has a horse in a street to tie him, or hold him by the reins, and they refer to the special findings of the jury that the team had been used three or four years in drawing omnibuses and baggage wagons in the city, in close proximity to locomotives and moving trains; that it was gentle and quiet, and well adapted for the purposes for which it was being used; that it was without vicious propensities or restive disposition; that it had never before been frightened or run away, or ever exhibited any disposition or propensity to become frightened or run away; that the driver had had charge of the team for several months; that he was a careful and prudent person, of sober and steady habits, and was competent to discharge the duties devolving upon him by his employment; that there was no hitching-post, or tree, or fence, to which the team could have been fastened; that there was no object or thing about the team where it was left to frighten or cause it to run away; that the team was hitched to a large baggage wagon, weighingfrom fourteen hundred to seventeen hundred pounds; that the driver, when delivering the baggage, wound the reins around the brake-rod, and did not go from the team a greater distance than from twenty-five to thirty feet, and when the team and baggage wagon were so left by him, the rear wheels of the wagon rested in a ditch near the sidewalk, two and a half feet deep and three feet wide. Counsel conclude from all this, that the injuries were the result of an accident, unforeseen or fortuitous, and one which ordinary prudence could not have guarded against.
We do not hold that the leaving of a team of horses in a street, without being tied or held by the reins, is under all circumstances, as a matter of law, negligence per se. It is common for persons in a street doing business with horses, to leave them standing in their immediate presence while attending to business, and it is not unlawful for them to do so, unless prohibited from so doing by an ordinance, or the authorities of the city. It is commonly safe so to do, and tvhere the horse is in charge of a careful driver, and is neither vicious nor unmanageable, accidents are rarely occasioned thereby. The driver, however, in such eases ought to be near his horse, and in a condition to control him by his voice, and to reach him, if necessary, with his hand in an emergency. In this case, however, there were sufficient findings to establish culpable negligence on the part of the driver; and as he was the servant and employé of the defendants below, and acted in the line of his employment at the time, his employers are responsible for the injuries resulting from his negligence. The jury not only found that at the time the team started to run away, it was standing in a public street of the city without being securely fastened and without being attended by any one, but that the driver did not exercise reasonable and ordinary care in fastening the team; that he did not fasten it in the usual manner he had been in the habit of fastening the same, as he generally carried a weight for that purpose, and that it was negligence to leave the team in a public street of the city unhitched and unattended. Again, it appears from the findings that after the driver had driven his wagon in front of the dwelling-house where he was to deliver baggage, and had wound the reins around the brake-rod, he took from the wagon a trunk or box and carried it to the house, which was a distance of some twenty to thirty feet. ' It was at the time the driver was carrying the baggage to the house that the team started off; it soon got into a trot, and then began to run. At the time the team started the driver was not near enough to reach or stop it. He was not able to control the team by his voice when he started after it. With the baggage in his arms he was powerless to look after the team, and was unable to overtake it until plaintiff below had been run over. Clearly there was evidence tending to prove negligence, and it was at all events sufficient for the jury to consider. They had the opportunity to do this.- An examination of the decisions fully justifies the findings of the jury, that defendants below were guilty of negligence. In McCahill v. Kipp, 2 E. D. Smith, 413, a horse in charge of the defendant’s servant took fright from the act of a boy in carelessly throwing down a wheelbarrow, and ran away, bringing a cart attached to him in contact with a horse belonging to plaintiff. The evidence showed that at the time the horse became frightened, no efforts were made to guard against his running away, or by anyone having hold of him so as to prevent it. The servant in charge of the horse said he “seized hold of the horse after he ran, but could not hold him.” The court said the evidence was sufficient to satisfy the jury of the'defendant’s negligence, as the defendant was responsible if he or his servant was guilty of any negligence which caused the injury. In Illidge v. Goodwin, 5 C. & P. 190, it was decided that if a horse and cart be left standing in the street without any person to watch them, and a person jostles against the horse and causes it to back against a shop window, the owner is liable for the damage, for he must take the risk of all the consequences that result from the horse being unattended. In Dickson v. McCoy, 39 N. Y. 400, where the plaintiff, a child of ten years, was passing the stable of the defendant upon the sidewalk of a populous street in the city of Troy, when defendant’s horse came out of the stable, going loose and unattended, and in passing, kicked the plaintiff in the face, it appeared that the horse was young and playful, and there was no proof of a malicious or vicious disposition. The court said: “ It is not necessary that a horse should be vicious, to make the owner responsible for injury done by him through the owner’s negligence. The vice of the animal is an essential, if, only when but for it, the conduct of the owner would be free from fault. If the most gentle horse be driven so negligently as to do injury to person or property, the owner or driver will be responsible.” Many other cases of like purport could be cited.
We pass now to the consideration of the question of contributory negligence. At the time of the injury complained of, plaintiff below was engaged in hauling dirt and helping make a fill on Fifth street. He was therefore engaged in a lawful work, and had a right to be upon the street with his wagon and horses. According to his evidence, he had unloaded his wagon, driven up on Fifth street, the usual wagon track to pass back and forth on, and while he was on the Avagon, driving north, he was run over by the runaway team coming from the south, and he did not hear nor see the team coming behind him until it was upon him. The driver testified that plaintiff below was driving his wagon along Fifth street, going the same way the team was running; that he looked back towards the team when it was seventy-five or one hundred yards behind him, and jumped off his wagon on the left or west side, in front of the team running away. The jury found as a fact, that plaintiff below did not see the team after it started to run away until the collision.
Counsel however call special attention to certain findings, and strenuously contend that they establish that plaintiff’s injury was the result of his own carelessness. These particular findings are as follows:
“4. Did plaintiff, on said 19th day of August, 1880, in depositing said dirt in said fill, enter said street from Park' street, and drive his team below the level of the traveled portion of Fifth street? A. Yes.
“5. After unloading his wagon, and depositing said dirt, did plaintiff then drive his team up on to the traveled portion of said Fifth street? A. Yes.
“ 6. In driving up on to said Fifth street, did plaintiff’s team face south on said street, then gradually turn towards the west, and around so that his team faced north on the narrow part or portion of the traveled part of Fifth street? A. Yes.
“7. When said plaintiff drove out of said fill onto said Fifth-street, could he have seen several blocks south on said Fifth street ? A. Yes.
“ 8. Did plaintiff then look south on said Fifth street? A. No.
“42. For some three hundred feet south of where plaintiff was injured, was said Fifth street of uneven surface and covered with stone? A. Yes.
“43. After said plaintiff had come up out of said fill, could he by the proper use of his eyesight and hearing, have discovered said runaway team in time so that by the exercise of reasonable and ordinary care he could have avoided the injury complained of? A. Yes.”
• The only finding needing special comment is the one numbered 43, and this finding must be read in connection with the other special findings. Read in this connection, the finding may be interpreted to mean that when plaintiff drove his team up onto the traveled portion of Fifth street, he could then, after reaching said Fifth street and while his team was facing south, by the proper use of his eyesight and hearing have discovered the runaway team in time so that by the exercise of reasonable and ordinary care he could have avoided it. Other special findings show that the plaintiff, soon after he had reached the traveled part of Fifth street with his team from the part below the level thereof, had turned his team around so that it faced north on the traveled part of the street, and had driven north on the street about forty or fifty feet at the time he was run over; that at said time he was engaged in a lawful vocation; that the team which ran over him came from the corner of R and Fifth street, (south of and behind him,) and that he did not see the team after it started to run away before the collision. Considering the situation in which plaintiff below was placed at the time he was hurt, it appears to us, from a perusal of all the special findings, that the jury did not intend by finding No. 43 to attribute to the plaintiff negligence directly contributing to the injury complained of. In view of the other special findings, said finding cannot be interpreted to mean that at the time of being run over he could have avoided the team by the proper use of his eyesight and hearing. Said finding seems to have reference only to the time of his coming up out of the fill upon the street, and not to the time he was driving north. With the interpretation that we have given to this finding, all the findings are in harmony with one another, and in harmony with the general verdict. The failure of the plaintiff below, as he was driving upon the public street of the city, to look around him to discover an approaching team or wagon, would not, as a matter of law, render him chargeable with such contributory negligence as would prevent a recovery for injuries received from the team and wagon running over him. Under such circumstances a person would not be in a place to anticipate danger, and whether it was possible for plaintiff below to have looked up and down the street and have discovered the runaway team before the collision, is not necessarily controlling. He had the right, without being charged with negligence, to act upon the presumption that he would not be disturbed by a runaway team upon the' public street. This is not like the case of a person who is wrongfully on the track of a railroad, knowing that a train passing over the track would necessarily pass over him unless he got out of the way, and who fails to look and listen for a train; nor is this case .like that of a person approaching a railroad crossing upon a public highway, where, according to many of the authorities, before going upon such crossing he is bound to stop and look out for the train, and must not rush heedlessly nor remain unnecessarily on a spot over which the law allows engines to go to and fro. (Reeves v. Rld. Co., 30 Pa. St. 464; see, however, Rld. Co. v. Rice, 10 Kas. 426.) The trial judge fully declared the law upon this point in the following language: “The plaintiff was not bound to anticipate that the defendants’ servant would neglect his duty, nor that the defendants’ horses would run away. It devolved upon him, however, to use that care which men usually do in driving a wagon along such a street, and to make use of his eyes and ears for his own protection and safety. If he did this, nothing more can properly be required of him. But if he saw or heard the runaway team overtaking or coming upon him, it was his duty to get out of the way if possible. If however it came upon him suddenly, and without warning, or by unusual noise or otherwise, for a sufficient time to enable him to get out of the way, or if the roadway at the place was so narrow and the speed of the runaway team so great, that he could not get out of the way, then no negligence was attributable to the plaintiff to defeat a recovery.” Even if the injured party had seen the team coming, and in trying to save his property had stayed upon his wagon a little too long for his own safety, and then without time for cool deliberation had jumped off the wagon on the wrong side, we would hesitate to disturb the verdict of the jury, as it is almost impossible to determine in such an emergency, as a matter of law, what a prudent man might do. It would be unjust to hold him negligent because the instinct of self-preservation did not instantaneously suggest the most effectual method of avoiding the team, and of escaping the impending danger. (Shultz v. N. W. Rld. Co., 44 Wis. 638; Cottrell v. Railway Co., 47 Wis. 634; Ditburner v. Railway Co., 47 Wis. 138.)
Counsel assign as error the introduction of evidence tending to show that, at the time of the alleged settlement and adjustment pleaded in the answer, the plaintiff below was> mentally incapacitated from entering into any agreement. This upon the ground that the reply did not contain any new matter by way of confession and avoidance. The finding of the jury that there was no settlement agreed upon between the parties, and the further finding that the defendants below did not expend the money paid out by them for the use of the plaintiff below upon any contract, renders such evidence, even if incompetent, not very important. Had the jury found that there was a contract of settlement formally made, but that the plaintiff was mentally incompetent to make it, and it was therefore void, the question sought to be presented by counsel would be squarely before us. The reply denied the settlement as a fact. It is conceded that there was no release or agreement in writing signed by plaintiff below, as in Rld. Co. v. Doyle, 18 Kas. 58. Therefore evidence of facts showing it impossible for such 'party to have entered into any agreement, was competent. If plaintiff below was delirious and unconscious at the time of the pretended agreement, and never afterward while conscious assented to or ratified any such agreement, then in fact there was no settlement or adjustment. The evidence that defendant below was mentally incapacitated from entering into a contract or agreement was not offered as new matter in the way of confession and avoidance, but offered and admitted under the reply to prove the fact that there was no compromise or settlement between the parties. It is clear to us that where an agreement has not been formally reduced to writing, any facts may be shown under the general issue which destroy the effect of the allegations of the execution of the contract. In such a case, the evidence is offered to disprove the facts alleged and denied— not that the allegations of the pleading are proved, and that there are other existing facts which avoid their effect. In Massachusetts the doctrine is still stronger. (See Harris v. Carmody, 15 Western Jurist, 564.)
Several exceptions were taken to the charge of the court, and also to the refusal of the court to give instructions prayed for by defendants below. We have carefully examined all of the instructions, and do not perceive that the law was not sufficiently declared for the purpose of this case. In a part of the charge the court used the following language: “ But if said servant or driver was not then in the exercise of ordinary diligence, the plaintiff is entitled to recover, unless the defendants have established one of their said two defenses, viz., contributory negligence of the plaintiff, or a compromise adjustment and settlement between the parties.” Taken alone, this part of the charge, unexplained, in a case where the evidence of the plaintiff tended .to show him greatly guilty of contributory negligence as the proximate cause of the injury, might be misleading. But this language is to be construed with other portions of the charge; and as the court, prior to the giving of these words, directed the jury “that the burden of proof rested upon the plaintiff in the first instance to show that he was injured in person or property, and that the injury resulted from the negligence of the defendants’ servant in the use of the horses and baggage wagon, and that it devolved upon him to show these facts by preponder anee of evidence,” we see no cause of complaint. Of course, if the testimony of a plaintiff establishes that he is guilty of contributory negligence so as to debar him from recovering damages, it is not necessary that the defendants should establish over again, by their own testimony, such negligence. If the contributory negligence is established, either by the testimony of the plaintiff or of the defendants, the defense of such negligence is made out. The court in its charge, we suppose, merely intended to announce the rule laid down by this court, that the onus probandi as to the negligence of the plaintiff is on the defendants, and • if the evidence produced by the plaintiff shows negligence on the part of the defendants and is silent as to the conduct of the plaintiff', it makes out a case for recovery. (Railway Co. v. Pointer, 14 Kas. 37.) As the jury specially found that plaintiff below did not see the team after it started to run away before the collision, and as negligence is not imputable to a person for failing to look out for danger when under the surrounding circumstances he has no reason to suspect any, defendants below could not have been prejudiced by the instruction as to the onus probandi of contributory negligence.
The newly-discovered evidence presented upon the application for a new trial is called to our attention, and the claim is made that the court erred in refusing to grant a new trial thereon. Such evidence, at most, was merely cumulative, and its introduction would not have necessarily changed the verdict. ■ After a careful examination of the whole record and a consideration of every point presented, we are of the opinion that no substantial error appears. Judgments ought not to be reversed, except for errors which go to the merits, or in some way prejudice the rights of a party. Trifling matters that do not tend to mislead a j ury or affect any party’s right, are not grounds for reversal.
The judgment of the court will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The conclusions of law found by the trial judge upon the findings of fact made by him, appear to us to be erroneous. Admitting that the tenant was entitled to the improvements erected by him upon the lot, this did not give him such an interest in the premises beyond that of a mere tenant as prevented the plaintiff from having restitution thereof by the action of forcible detainer.
The stipulation-in the lease “that in ease of failure of the lessor’s title to the- lot, payment was to be made for all the lessee’s permanantand valuable improvements thereon,” does not figure in this controversy, as there is no pretense that the lessor’s title failed, and in the absence of express agreement the landlord is not bound to pay for improvements made by the tenant during his term. Therefore, there is nothing in the conclusions of fact which forbade the lessor to take possession until he had paid the value of the improvements. Admitting for the purpose of argument that the cottage which was erected by the lessee upon the lot was done so with the assent of the lessor and upon an agreement or understanding that the lessee might remove it when he pleased, the tenant did not thereby acquire such an interest in the premises as to permit him to hold possession without payment of rent. So far as concerns landlord and tenant, th.e general rule is, that the tenant’s right to remove fixtures continues during his original term and during such further period of possession by him as he holds the premises under a right still to consider himself as tenant. In some cases, an outgoing tenant has the right to enter and remove improvements erected by him during his term; but in the absence of any agreement between landlord and tenant at what time fixtures are to be removed, the tenant may rightfully remove the improvements at any time before his right or enjoyment expires.
The judgment of the district court must be reversed, and the case remanded with directions to the court below to render judgment upon the conclusions of fact in favor of the plaintiff.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This is a contest between owners of adjacent tracts of land, desiring to have established permanently the lines and corners thereof. The trial'was commenced at the May term, 1881, of the district court of Smith county, the trial being to the court without a jury. The court, after hearing all of the evidence and arguments of counsel, took the case under advisement until the October term following. At said term, and on the 6th day of October, the court rendered a finding that the survey and boundary lines between sections 33 and 34, 27 and 28, 21 and 22 in township 4, range 12, in Smith county, as made by the county surveyor on the fifth day of July, 1880, were erroneous, and judgment was entered that the survey be set aside; that the county surveyor, or his successor in office, make a resurvey of the lines, and in making such resurvey he was directed to disregard the lines as shown by the field-notes of the United States survey, and to locate the corners and lines of the land in accordance with the monuments found imbedded in the ground a short distance east of the line shown by the field-notes, which monuments the court found were the original monuments to mark the corners and lines of the land by the survey made thereof by the government of the United States.
The first point of alleged error the attention of the court is called to, is the rendition of the judgment at the October term. It is urged that as a decision was not rendered at and during the term in which the trial was commenced, there was a mistrial. , Butler v. McMillen, 13 Kas. 389, and In re Scrafford, 21 Kas. 735, are cited in support of this proposition. Neither of these cases is in point. In Butler v. McMillen, supra, the trial was commenced at the April term, 1872; the plaintiff introduced his testimony, and rested. The defendant then commenced his testimony, and examined a witness or two; before the defendant had rested, the April term closed, and the further hearing was postponed, and then was continued from term to term until the April term of 1873, when the same was resumed. By law, two terms had intervened between the commencement and the close of the trial, and the trial in April, 1873, was treated as a continuance of the trial begun in April, 1872. In the case of In re Scrafford, supra, the trial was commenced at the August term, 1878; that term of the court closed on Saturday, January 4, 1879; the trial was not finished, and the verdict of guilty was not returned until the next term, to wit, January 9, 1879. It was claimed therein by the counsel of the petitioner, that all the proceedings subsequent to the commencement of the January term were illegal arid void. Upon this question this court expressed no opinion, but simply held that under our habeas corpus act, Scrafford, upon the showing made, was not entitled to a discharge. In the case at bar, all the testimony was offered, the arguments concluded, and the case submitted to the court, at the term the trial was commenced. The judgment was rendered at the next term. It has been the common practice in this state, in a case tried to the court without a jury, for the parties to produce their evidence and submit the case to the court at one term, and for the court to take the evidence and arguments under advisement to the next or succeeding term. This power is, we think, unquestionable, and in the very nature of things must inhere in the court unless inhibited by statute. The reasons adduced for the decision in Butler v. McMillen, supra, do not conflict with these views. The exercise of this power in important cases, tried to the court without a jury, and especially in equity cases involving intricate questions of law and fact, make it desirable that the practice heretofore prevailing should be sustained, and we find nothing in the law that forbids. The proceedings, therefore, at the October term of the court, were not illegal or void. (Code, §§ 265, 395; Coleman v. Jackson, 5 Ohio St. 51; Brenner v. Bigelow, 8 Kas. 496.)
As another alleged error,- it is contended that the court failed to follow the law under which these proceedings were had. Not so. Sec. 3, ch. 177, Laws of 1879, (§ 173c, ch. 25, Comp. Laws of 1879,) provides, that upon an appeal being perfected in the district court, “the court shall hear and determine said appeal, and enter an order or judgment in the case either approving or rejecting said report, or modifying or amending the same' according to the rights of the parties, or may refer the same back to the surveyor to correct his re port or survey, in conformity with the judgment of the court, or may for good cause shown, set aside the report, and appoint a new surveyor, who shall proceed de novo, and survey and determine the boundaries and corners of the land in question.” The judgment, therefore, of the court referring the survey to the surveyor to correct his report and to resurvey in conformity with the findings and judgment of the court, if sustained by evidence, was exactly in accordance with the statutory provisions. It is said, however, that the judgment must fall because there was no evidence showing that the monuments contested were found imbedded in the ground, or were the original monuments to mark the corners and lines of the land. Upon this, all we need say is, that the evidence is greatly conflicting, and the preponderance thereof seems to be as claimed by plaintiff in error; but the court had all the witnesses before it, heard their evidence, their manner of testifying, and an examination of the record convinces us /that there is some evidence, and, within the rule already decided by this court, sufficient evidence, to uphold the judgment.
In regard to existing boundary lines, Judge Cooley says: “To bring these lines into discredit when people concerned have not questioned them, not only breeds trouble in the neighborhood, but it must often subject the surveyor himself to annoyance and discredit, since in legal controversy the law, as well as common sense, must declare that a supposed boundary line long acquiesced in, is better evidence of where the real line should be than any survey made after the original monuments have disappeared. . . . It is merely idle to direct a surveyor to locate .or establish a corner as the place of the original monument according to some inflexible rule, however erroneous may have been the original survey. The monuments that were set must nevertheless govern, even though the effect be to make one-half of a quarter-section of land ninety acres and the adjoining one seventy acres, for parties buy, or suppose they buy, in reference to these monuments, and are entitled' to what are within their lines, and no more, be it more or less.” (Engineering News, vol. 8, No. 8, 156-8. See also Stewart v. Carlton, 31 Mich. 270; Diehl v. Zorger, 39 Mich. 601; McAlpine v. Reicheneker, 27 Kas. 257; Everett v. Lush, 19 Kas. 195.)
Finally, it is urged that the court erred in taxing costs. It appears from the record that the survey of July, 1880, was made by the county surveyor upon a notification received from plaintiff in error and sixteen others. Appeal was taken from the report of the survey by. plaintiff in error and two other parties. Afterward, the cases were divided up, making the parties directly interested in the dividing lines parties to the actions. The court in this case taxed all the' costs of the action, amounting to $151.65, and also $44.92 of the cost in the case of Stonehocker and others against county surveyor, to plaintiff in error. This was erroneous. Sec. 4, eh. 177, Laws of 1879, (sec. 173d, ch. 25, p. 304, Comp. Laws 1879,) reads: “The expenses and costs of the survey and suit shall be apportioned among all the parties according to respective interests, except in cases of appeal, in which, if the report of the surveyor shall be affirmed by the court, the party appealing shall pay all the costs of the appeal.” Under this provision the expenses and costs of the survey and action must -be apportioned among the parties according to their respective interests, as upon appeal the report of the surveyor was not affirmed. ■
The judgment of the district court will be affirmed, excepting the part thereof relating to costs; and the case will be remanded, with direction to the court’below to retax the costs according to the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
YALENTINE, J.:
The defendant in this case was prosecuted, convicted and sentenced in the district court of Leavenworth county for murder in the first degree, and he now appeals to this court. The person alleged to have been killed and murdered was William N. Waddell. The defendant claims that the court below erred in overruling his challenge made for cause to four jurors, and particularly to the juror Samuel L. Norton.. The juror Norton, on his voir dire, said that he “was convinced that William N. Waddell was dead,” “ and that defendant had killed him,” and “that it would require a great deal of evidence to remove this conviction.” The record, however, shows that “it appeared from the questions asked by defendant’s counsel to other jurors before this challenge •was overruled, that the death and killing by defendant was conceded.” And immediately after the jury was impaneled, the defendant’s counsel stated to the jury “that it would appear from the evidence that defendant had killed the deceased,: but that it would be shown that the killing was done in self-defense;” and the evidence did in fact show beyond all possible doubt that the deceased was killed by the defendant. And the record also contains the following concession made by the defendant’s counsel after the trial of the case, to wit:. “It is conceded by counsel for defendant that the verdict is sustained by the evidence and justified by the testimony.”
Upon all these facts and circumstances, did the court below commit material and substantial error in overruling the-defendant’s challenge of said juror for cause? The question is, perhaps, a close one. The defendant claims that the question is decided by the case of The State v. Brown, 15 Kas. 400; but we do not think that it is. In that case no-such concessions were made by the defendant’s counsel as were made in the present case; and such concessions, we think, make a very great difference in the case. . Except for such concessions, the ruling of the court below would unquestionably be erroneous; for in this state, a defendant in a criminal action is entitled to have his case tried by an impartial jury. (Constitution, Bill of Rights, §10.) And certainly where a person is charged with murder in the first degree, and one of the jurors is “convinced” before he has-heard the evidence, that the defendant killed the deceased, and.is convinced to such an extent “that it would require'a great deal of evidence to remove this conviction,” such juror is not an impartial juror. Besides, § 205 of the criminal code provides that “It shall be a good cause for challenge to a juror, that he has formed or expressed an opinion on the issue, or any material fact to be tried.” (Comp. Laws of 1879, p.756.) And if the defendant, by his counsel, had not conceded that he killed the deceased, such killing would have been a very material fact in issue in the case, and a very material fact to be tried. • As the fact of the killing, however, was everywhere conceded in the present case, as it was not in reality a material fact in issue in the case, as it was not a fact contested by the defendant before the jury, but was a fact admitted and confessed to the jury, we think the court below did not commit any material and substantial error in overruling the defendant’s challenge for cause. The juror also stated upon his voir dire “that he believed he could give the defendant a fair and impartial trial.” There can probably be no doubt but that the juror was a fair and impartial juror upon every question that' was really in issue in the case. And we think the verdict in the case is unquestionably right.
The defendant also claims that the court below erred in its instructions. We think it is true that some of the instructions are open to criticism, but we do not think that any of them are materially and substantially erroneous. It is easy to perceive from the tone of the instructions that the court below believed that the defendant was guilty of the offense charged in the information and that he ought to be convicted; but the court at the same time told the jury that they were the exclusive judges of all questions of fact. Besides, the evidence so clearly and conclusively, showed that the defendant was guilty as charged in the information, that the court below would not have committed any error if it had told the jury in direct terms that it believed that the evidence was sufficient to warrant a conviction. The defendant admitted that he killed the deceased, and his only ground of defense was that he did it in self-defense; but he made out so weak a case in favor of the theory that the killing was done in self-defense that the court would probably have been justified in telling the jury that it believed the defense was not sufficiently shown, stating of course to the jury at the same time that the question whether the killing was done in self-defense or not was one of fact, and that they were the exclusive judges of all questions of fact.
We think no material error was committed in this case, and the judgment of the court below will be affirmed.
Brewer, J., concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The facts in this case are briefly as follows: •On October 28,1881, one Rhoda Parkin commenced an action against Jacob Poorman. In such action an attachment was issued and levied upon certain personal property then in possession of defendant in error, Ered. Hahn. After the levy had been made, Hahn went to one W. F. Wells and induced him to execute a redelivery bond for the forthcoming of the property, or its appraised value, to answer the judgment. Thereupon the constable returned the property to Hahn, who kept it in his possession until after judgment had been rendered in the Parkin-Poorman case, and then delivered it to the constable, by whom it was sold. After the sale, Hahn •commenced his action against the constable to recover the -value of said property; and the single question in this case •is, whether he can maintain such action. Unquestionably, ■under the authority of the cases of Sponenbarger v. Lemert, 23 Kas. 55, and Haxtun v. Sizer, 23 Kas. 310, if plaintiff had signed the redelivery bond, he would have been estopped from denying that the property belonged Poorman. See also the following cases: Hauness v. Bonnell, 23 N. J. L. 159; Bacon v. Daniels, 116 Mass. 474; Gray v. McLean, 17 Ill. 404; Dorr v. Clark, 7 Mich. 310; Staples v. Fillmore, 43 Conn. 510. As was said by this court in the first cited case:
“When a redelivery bond is given, the constable and the judgment creditor have a right to believe as against the parties giving it, that the property belongs to the judgment debtor, and that it will be returned to the constable on or prior to the day set for sale of the property. But if it is not so returned, then the satisfaction of the judgment is delayed •if not defeated, with much loss and inconvenience to the constable and judgment creditor.”
We think the same rule obtains in this case, though plaintiff did not sign the bond, for it was executed at his instance and for his benefit alone. The property was in his possession at the time of the levy. He procured the bond to be executed, and the property was returned to him and remained in his possession until after the judgment. Wells, who signed the bond, was in fact only plaintiff’s security. The statute under which this proceeding was had, (Compiled Laws 1879, p. 707, §33,) provides that “the constable shall deliver the property attached to the person in whose possession it was found, upon the execution by such person, in the presence of the constable, of an undertaking to the plaintiff, with one or more sufficient sureties,” etc. The plaintiff was the party in whose possession the property was found; the only one entitled to the benefit of the statute; the only one who received any benefit from the transaction. It was in law his undertaking, with Wells simply as surety, and he may not now repudiate the obligations assumed by such undertaking. The maxim, Qui faoit per alium, faeit per se, applies with full force to the action of plaintiff in failing to recognize and apply this doctrine. The district court erred, and for this error the judgment-must be reversed, and the case remanded for a new trial.
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The opinion of the court was delivered by
Brewer, J.:
Defendants were convicted in the district court of Wabaunsee county of the crime of grand larceny, and sentenced to the penitentiary. The proceedings in that case they have attempted to bring to this court by a petition in error. This cannot be done. Criminal cases are brought to this court by appeal only. (Comp. Laws 1879, ch. 82, art. 14; Carr v. The State, 1 Kas. 331; The State v. Boyle, 10 Kas. 113; The State v. Ashmore, 19 Kas. 544.) It is true that besides the petition in error, there appears in the record a notice of appeal served upon the county attorney, but this of itself is insufficient. Such a notice must also be served upon the clerk. (Comp. Laws 1879, ch. 82, § 285; Carr v. The State, supra.) Further than that, even if this notice served upon the county attorney were sufficient to perfect the appeal, the case would still have to be dismissed because the transcript was not filed in this court until more than thirty days after the service of such notice. (The State v. McEwen, 12 Kas. 37.) As this court has no jurisdiction to review the proceedings of the district court in this way, it follows that the petition in error must be dismissed.
Notwithstanding this, and to save the parties the trouble and expense of bringing the case here by appeal, we have examined the single matter of error they allege, and are satisfied that in it there is nothing which would justify a reversal of the judgment below. The only error alleged is in refusing an application. for a continuance. ' It is settled that questions of continuance, even in criminal 'cases, are largely within the discretion of the .trial court; and unless an abuse of that discretion appears, its ruling must be sustained. (The State v. Hagan, 22 Kas. 490.) Now we are not satisfied from anything in this record that the trial court abused its discretion." On the contrary, we think its ruling was correct. All that appears is the information, the affidavit for a continuance, and the journal entries of the trial and judgment. The information charged the defendants with having stolen, in April, 1881, in the county of Wabaunsee, two geldings, the property of Freeman Wilkinson, and of the value of $ 100 each. Each of the defendants filed an affidavit for a continuance, but as one is the counterpart of the other we need refer to . only one. This affidavit was presented on March 15, 1882, and stated that the defendants were arrested on the 29th of August, 1881; that one of them had been in jail ever since, and the other most of the time; that three witnesses, whose names were given, were, on the 27th day of April, 1881, at Junction City, Davis county, Kansas, on their way to Colorado; that though defendants had made diligent inquiry, they had not found the whereabouts of these witnesses until within the last three days, when they had ascertained from reliable information, as they believed, direct from said witnesses, that they were then on the branch of the RioGrande narrow-gauge extension that was building toward Salt Lake City, Utah .territory, about sixty miles from Georgetown, in Colorado. The only showing of effort and diligence was the general statement that they had made diligent inquiry, that they had written various letters to Colorado and elsewhere, and that the defendant out on bail had been to Junction City and tried to hunt up the witnesses. This showing is very general, and descends very little into details. In what way they made inquiry, to whom they wrote, and upon what information they were acting, are none of them shown. It nowhere -appears how they got their present alleged information, whether by letter, statements of third parties, or otherwise, or what reason they had to expect that the testimony of these witnesses thus in Colorado could be obtained at the next term. Incorporated in the affidavit are what purport to be the facts which each of these three witnesses would prove, which facts are, simply that the witnesses were camped on the 27th of April, 1881, at Junction City; that in the morning a man calling himself Charles Durant came to their camp with two sorrel geldings, about sixteen and seventeen hands high and six and seven years old, respectively, and tried to sell them to the witnesses; that witnesses had no money with which to buy, and while there talking about a sale defendants came along and bought the geldings for $175, which they paid in money, receiving from Durant a bill of sale. There is nothing in the affidavit which identifies these sorrel geldings with those which the defend ants were charged with stealing. In the information the charge is for stealing two geldings belonging to Wilkinson, in Wabaunsee county. If the witnesses state that they saw defendants buy two sorrel geldings in Junction City, Davis county, the defendants nowhere swear that these are the geldings which they"were charged with stealing; and there is nothing in the size, color, ownership and locality which identifies them. This whole statement of these witnesses might be absolutely true, and yet in no manner throw light on the larceny charged against the defendants. None of the testimony offered on the trial is preserved. ’ The trial court was not bound to presume in advance that the geldings of which these witnesses were to testify were the ones which the defendants were charged with stealing, and in the absence of the testimony from the record we cannot say that the subsequent developments in the case did not show conclusively not only that the larceny was committed in Wabaunsee county, but also that the whole connection of the defendants therewith was in Wabaunsee county. Further, it may be remarked that the transaction as to be given by these witnesses does not wear the appearance of probability, and the whole showing looks like a mere professional effort to postpone a trial. While of course no man is presumed to be guilty before trial, yet an application for continuance made after such a lapse of time should be so specific and minute and clear, and should so identify the testimony with the case then called for trial, that perjury therein might not only be alleged, but proven, and that the court may see that the defendant has made an honest, conscientious and diligent effort to secure testimony which will tend to exculpate him from the crime charged. We cannot think that in this case the showing was so made; and hence it cannot be held that the trial court .abused its discretion in overruling such application for a continuance. Further, if on the trial it had appeared that the animals stolen answered fully to the description of those described in the affidavit, that they were taken to Junction City, and that there was such a man as Charles Durant, who had some pos sible connection with the taking, anything indeed which would have rendered such testimony a reasonable and probable explanation of the connection of the defendants with the possession of the horses, the court would doubtless have granted them a new trial in order to enable them to establish their innocence. We can but presume that the testimony as it was developed satisfied the court that this plea of purchase — the common plea in horse-stealing cases — was in this as in others, a mere sham. If the case were properly before us we should be compelled to sustain the ruling of the district court. As it is, for the reason first given the petition in error must be dismissed.
Valentine, J., concurring.
Horton, C. J.:
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The opinion of the court was delivered by
Horton, C. J.:
In this case the petition does not state facts sufficient to constitute any cause of action against the defendant Danford. The Merchants’ and Drovers’ bank is the defendant which is primarily liable, and the first step is a judgment against the bank. Whatever proceedings may be proper after the judgment to enforce its collection, it is clear under the allegations of the petition that Danford is not primarily liable. The statute requires that the affidavit for attachment must contain a statement showing the nature of the plaintiff’s claim. This claim referred to in the affidavit must have reference to the cause of action set forth in the petition. In other words, the debt sued on in the petition must be the one sworn to in the affidavit. If the petition does not state a cause of action against the defendant, the plaintiff is not entitled to have his attachment. An attachment is obtained for the eventual satisfaction of the demand of the creditor, and if the creditor has no demand to satisfy, he is not entitled to an attachment. If he has a demand or cause of action, the petition must contain a statement of the facts constituting such cause of action. Where a person obtains an attachment to be issued against the property of another, and his petition on file does not allege a cause of action against the defendant, and such petition is not amended, no error is committed in dissolving the attachment. Sec. 228 of the code authorizes the defendant at any time before judgment, upon reasonable notice to the plaintiff, to move the discharge of an attachment as to the whole or part of the property attached. Under this section the defendant may make h.is application for a discharge or a dissolution of the attachment as soon as reasonable notice thereof can be given to the plaintiff. He need not wait until he files an answer, nor is he debarred from making such application because he has not filed an answer or demurrer to the petition. The objection taken to the affidavit for attachment for failing to set forth the nature of the plaintiffs’ claim was properly sustained by the district judge. The language contained therein is too indefinite and loose to show the nature of the alleged indebtedness, or to inform the defendant of the nature of the plaintiffs’ claim. It does allege that the defendants are indebted to the plaintiffs in the sum of $2,895.62 for and on account of- a sight draft drawn by the Merchants’ and Drovers’ bank, defendant, in favor of plaintiffs; but in what way Danford is connected with such draft, -is wholly omitted. The district judge had the right at chambers to permit the affidavit for attachment and the petition to be amended. (Wells, Fargo & Co. v. Danford, ante, p. 487;) But from the record before us, we cannot declare that any material error was committed by the refusal of the district judge to allow the amendments. There is no showing made in the record as to the character of the amendments requested, and therefore we cannot say whether the amendments would have been sufficient to cure the defects in the petition and affidavit. Without leave of the judgé, the plaintiffs had the right to-amend their petition, as no answer had been filed. If they had made the amendment and then the judge had ignored or refused to consider the petition as amended, the error would be material. If the record contained the proposed amendment to the affidavit, and it appeared from such amendment that the affidavit would be sufficient, the refusal of the judge to allow the amendment would also be material error. In the ease of Wells, Fargo & Co. v. Danford, supra, it appeared from the record that the plaintiffs applied for leave to amend the defective affidavit so as to make it show the nature of the plaintiffs’ claim against the defendants. Nothing appears of this kind in the record before us. Error is not to be presumed, but must be affirmatively shown, and we cannot say from this record that any material or substantial error was committed. Therefore the order of the district judge must be affirmed.*
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The opinion of the court was delivered by
Valentine, J.:
This was an action of ejectment, brought by Isaac Hudson against Henry E. Russell and others, for the recovery of certain real estate in Wilson county, Kansas. Judgment was rendered in favor of the plaintiff and against the defendant, Russell, for the recovery of the property; and the defendant, Russell, took the case to the supreme court, where the judgment of the court below was reversed, and the cause remanded for further proceedings. (Russell v. Hudson, 24 Kas. 571.) After its return to the district court, judgment was then rendered in favor of the defendant, Russell, and against the plaintiff, so far as the recovery of the land was concerned; but Hudson, who had previously claimed to own the land by virtue of certain tax deeds, then made application to the court to have the amount of taxes which he had previously paid out, together with interest, penalties and costs due thereon, determined and declared to be a lien upon the land, and the lien enforced. Upon this application it was admitted that the amount of taxes, interest, penalties and costs due him would be $628, provided the interest, penalties and costs should be calculated in the usual manner. And it was also admitted that at a previous time, when the whole amount of taxes, penalties, interest and costs amounted to only $275, Russell tendered to Hudson that amount, and had always afterward kept the-tender good; and that Hudson had always refused to accept the tender. The court below decided that the ténder had no effect in the case, and rendered judgment,in favor of Hudson and against Russell for that amount, to wit, $628, and declared it to be a lien upon the land, and ordered that unless that amount should be paid within ten days thereafter, the land, or so much thereof as might be necessary, should be sold, and the proceeds thereof applied to the payment of said amount. No general execution was awarded. To this judgment the defendant, Russell, excepted, and now, as plaintiff in error, brings the case to this court for review.
Under the statutes of Kansas, all taxes upon real property, with all proper penalties, charges and interest thereon, are liens upon such real property, from the time when they first accrue thereon until they are finally “paid by the owner of the property, or other person liable to pay the same.” (Comp. Laws of 1879, p. 956, §85; Gen. Stat. of 1868, p. 1044, § 74.) These liens are not extinguished by any attempt made on the part of some third person to obtain a tax title upon the property; but they still continue to be liens upon the property until the owner, or some person for him, by full payment, discharges the same. These liens may be determined and declared by the district court in an action of ejectment, whether the action is commenced by the party holding the tax deeds, or by the party claiming adversely thereto. (Fairbanks v. Williams, 24 Kas. 16; Arn v. Hoppin, 25 Kas. 707; Comp. Laws of 1879, p. 967, §142; Gen. Stat. of 1868, p. 1057, §117.) Such liens may also be determined and declared in actions to quiet title. (Knox v. Dunn, 22 Kas. 683; Corbin v. Young, 24 Kas. 198, 202; Shaw v. Kirkwood, id. 476; Cartwright v. McFadden, id. 662; McKeen v. Haxtun, 25 Kas. 698.) These liens are in their nature equitable as well as legal, and therefore we think they should be determined and declared upon equitable principles. All the statutes with reference to the subject would seem to indicate this. Of course they are sometimes determined, declared and enforced in actions of ejectment; but an action of ejectment is in this state an equitable action as well as a legal action, and the action to quiet title is unquestionably an equitable action; and if equitable principles are to govern in determining and declaring these liens, then it would seem that when the owner of the land has tendered the full amount of all the taxes, penalties, interest and charges, due on his land, or that could in any action be recovered from him, and afterward keeps his tender good, he should not be required to pay any further interest, penalties or charges upon the amount which he in fact tendered. Such is the universal effect of a tender in law as well as in equity. At the time when this tender was made, no valid tax deed had yet been executed or issued; and therefore if we should treat the deed as void, as an absolute nullity, as no deed, then, under the statutes of this state, the owner of the laud would have the right to redeem the same from all the taxes, interest, penalties and charges due thereon. (Comp. Laws of 1879, p. 963, §127; Gen. Stat. of 1868, p. 1051, §100; Matthews v. Buckingham, 22 Kas. 166.) Of course where the tax deed is not void, or. where the original owner has no right to treat it as void, a different rule prevails. (Cartwright v. McFadden, 24 Kas. 671.)
Where a tender is made after the deed has been issued, each party takes his chances as to whether the deed in the end shall be declared valid or void. In the present case,, it is admitted that the owner of the land, Russell, tendered a sufficient amount to redeem his land, provided a tender was allowable, and that he has at all times kept his tender good. It is true that the statutes provide that the tender should be made to the county treasurer; while in the present case the tender was made directly to the holder of the tax title himself. But upon equitable principles, we should think that the tender to the holder of the tax title ought to be considered fully as good as though the tender had beeu made to the county treasurer. When the tender is made to the county treasurer, it is made to him simply for the use and benefit of the holder of the tax title. Besides, as we have already intimated, there is no statute providing for a redemption of land from taxes after a valid tax deed has been issued. Hence it would seem more proper, where a tax deed has already been issued, that the owner of the land should make the tender directly to the holder of the tax deed, than to make it to the county treasurer for him; for while the county treasurer might possibly receive the money, yet he might not wish to do so, and might not wish to issue a certificate of redemption; for if the ta.x deed were good, the certificate of redemption would be a nullity; but the holder of the tax deed himself would have ample authority not only to receive the money tendered, but also to release all claim and interest in and to the property, whether the tax deed were good or bad,whether valid or invalid; and if the tax deed were not absolutely void, but only voidable, at the option of the original owner of. the land, then it would seem that in equity and good ■conscience the tender should be made directly to the holder ■of the tax title; for surely, in all fairness td him, he ought to receive notice when the original owner elects to treat the tax deed as void, and when such original owner takes the first step to avoid the-same; and possibly if the tender were made to the county treasurer only, under such circumstances ■the courts would not be inclined to hold it good. Upon this subject, see the case of Herzog v. Gregg, 23 Kas. 726.
Whether any additional taxes have been paid in this case by the holder of the tax deed since the tender was made to him, or not, the record of this case does not show. It tends, however, to show that no such additional taxes have been paid; hence it is not necessary in this case to consider the question whether the holder of the tax deed would be entitled to recover any additional amount of taxes, with interest, penalties and charges thereon, or any portion thereof, provided he had in fact paid such additional taxes since the tender.
The plaintiff in error, Russell, further claims that the court below erred in ordering the property to be sold to satisfy the lien for the taxes, interest, etc., due thereon, claiming that in no case cau the property be ordered to be sold in an action of ejectment. We think the plaintiff in error is in error in this particular. Said § 142 •of the tax law (Comp. Laws of 1879, p.967) provides that “If the holder of a tax deed, or any one claiming under him by virtue of such tax deed, be defeated in an action by or against him for the recovery of the lands sold, the successful claimant shall be adjudged to pay the holder of the tax deed, or the party claiming under him by virtue of such deed, . . . the full amount of all taxes paid on such lands, with all interest and costs, as allowed by law, up to the date of said tax deed,” etc. This provision of the statute contemplates a judg ment of some kind. It says that “the successful claimant shall be adjudged to pay the holder of the tax deed,” etc. It contemplates action by the court. The court must determine the-amount of taxes, penalties, interest and costs due to the holder of the tax deed, and then the court shall adjudge the successful claimant to pay the same. Now, may the court render a judgment that the successful claimant (the owner of the land) shall pay the taxes to the holder of the tax deed, and then not be able to enforce such judgment? This view of the law cannot, of course, be entertained. Whenever a court has authority to render ajudgment,it must also have the authority, impliedly at least, if not by express provision of the statute, to enforce such judgment. If the holder of the tax deed is in the possession of the land, the judgment is enforced by the holder of the tax deed being allowed to retain the possession until the owner of the land pays all the taxes, interest, etc., due him; but if the holder of the tax deed is not in the possession of the land, then the judgment of the court must be enforced in some other way; and the most direct and proper way and the one attended with the least expense and inconvenience, is to allow the land to be sold to pay such taxes, interest, etc., provided the owner fails or refuses to pay the same. This view of the question is entirely in accordance with the decision made in the case of Fairbanks v. Williams, 24 Kas. 16; and it in no manner conflicts with the decision made in the case of Corbin v. Young, 24 Kas. 198. The case last cited was an action to quiet title, and not an action of ejectment; and § 142 of the tax law does not apply to actions to quiet title. The case of Jeffries v. Clark, 23 Kas. 448, has no application to this case. In that case it was simply held that no general execution could be issued against the owner of the land, or his lands, tenements, goods and chattels, for the purpose of collecting the taxes due to the holder of the tax deed; but that is not this case. No such execution was allowed in this case. In this case it was simply ordered by the court that the land itself, the land upon which the lien for the taxes, interest, etc., existed, should be sold to satisfy and discharge such lien. Of course Hudson has no right to a general execution against Russell, nor has he any right to collect the taxes, interest, etc., due him, from any source, or by any procedure (provided Russell refuses to pay them), except by the sale of the land itself, upon which the lien exists. We think this mode of collecting the taxes, etc., is fairly authorized by The statutes; and it- is right. It avoids a multiplicity oí suits, and saves costs.
The judgment of the court below will be reversed, and cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The facts of this case are as follows: On the 20th of December, 1880, plaintiffs in error (who were plaintiffs below) filed in the district court of Sumner county, their petition against defendant in error and W. C. Campbell, setting forth in substance that defendant Campbell was indebted to plaintiffs -for goods sold by them to him; that after said debt was contracted, Campbell sold his stock of goods to defendant Purcell, who as part payment for said goods agreed in writing to pay the debt of plaintiffs; and praying judgment against both defendants for the amount of the debt. An attachment was issiled, and levied upon a stock of goods as the property of Purcell. On the 11th day of April, 1882, Purcell made a motion to discharge the attached property, on the ground that at the time of the levy of the attachment she was holding it under a replevin bond in an action pending in the same court, wherein she was plaintiff and one C. C. Shawver, special sheriff, was defendant. This motion was sustained by the district court, and this ruling is the error complained of. On the hearing of the motion it appeared that prior to this action one John G. Woods commenced an action against Campbell and attached this property, and that defendant Purcell replevied the same from the officer holding it under the attachment, giving bond as required by law; that having obtained possession of the stock, the defendant Purcell proceeded to sell the goods at retail in the ordinary course of trade for about thirteen days, and was so selling them when they were seized by the sheriff under the process in this action. The principle upon which the district court discharged the property from the attachment is this: that where goods are replevied pending the action of replevin, they are deemed to be in custodia legis, and not subject to seizure on any other process. While by giving a replevin bond the plaintiff obtains’possession of the goods, this does not change the fact that theyare still the' subject-matter of litigation, and by legal fiction still to be deemed in the possession of the law. If the replevin action be determined adversely to the plaintiff, he has the right to return the very goods replevied, and the defendant has the corresponding right to enforce such return. It is true the judgment in replevin actions ordinarily runs in the alternative to guard against an inability to make or compel a delivery of the property; but still the action of replevin is in its nature an action to determine and enforce the rightful possession of specific property, and while that action is pending the law should not permit the seizure under execution or attachment of that property in such a manner as to prevent the full enforcement of the judgment in the replevin action..
If, pending the replevin action, the property actually remains in the manual possession of the sheriff, it will not be doubted that such possession, being the possession of the court, is one which cannot be disturbed by any other officer holding attachment or execution. For convenience of the parties, and to save cost and expense, the statute has provided that upon the giving of a bond the plaintiff may, prior to the judgment, ■obtain temporary possession of the property; but still it does not change the fact that the replevin action is simply one to determine who is entitled to the possession, or make the prop-, erty pending the action, any the less in custodia legis. Authorities on this proposition are ample: See among others the following: Wells on Replevin, §§ 470, 486; Drake on Attachments § 331; Acker v. White, 25 Wend. 614; Selleck v. Phelps, 11, Wis. 380; Hogan v. Lucas, 10 Pet. 400; Rhiner v. Phelps, 3 Gilm. 455; Roberts v. Dunn, 71 Ill. 46. In the case from 11 Wis., supra, the court in the following language gives very -clearly some of the reasons for this ruling:
“Although a man may have purchased property under such circumstances as make the sale void as to the creditors of the vendor, that fact ought not to give the creditors any more than the right to take the property or its value once, and apply it in payment of the vendor’s debts. That is all they could have done if the sale had- not been made at all; that is all they could do if they should attach or levy upon it in the hands of the vendee, he not choosing to replevy it. The effect of the void sale is, that it leaves the property liable to be taken by creditors; but beyond this, the purchaser is not held responsible either by the policy of the law, or the requirements of justice. If then he chooses to assert the validity of the sale, and to test it legally, replevies the property, and obtains possession of it by giving such security as the law deems adequate, the security then stands in the place of the property, so far as the creditor who has seized it is concerned, and the person giving the security ought in justice to stand in the place of such creditor so far as the property is concerned; and this seems obvious from the great injustice of the contrary doctrine, for if this were not-so, although the purchaser who had replevied had on losing his suit paid the full value of the property to one of the vendor’s creditors, it would still be liable in his hands to be taken by another, and so be made to pay the vendor’s, debts indefinitely, if the purchaser should continue to replevy it.”
Counsel seek to distinguish this case in this, that' the order of attachment under which this property was taken does not run against the same party against whom the former order of attachment ran, and claim that by reason of this difference, the principles -upon which the cases cited rest have not application here. Their reasoning does not satisfy us. On the contrary, w.e think those principles applicable and controlling. How can the plaintiff in that replevin action return the property if it has been seized and disposed of on another order of attachment? It will be borne in mind that both actions really seek to take the property for the payment of the debts of the same party. The original debtor in both cases was Campbell. In the first case, the property was seized upon the claim that the sale from Campbell to Purcell was fraudulent, and therefore void as to creditors. In the second action, the same property was seized upon the claim that the sale was valid, and that Purcell, having obtained possession of the property under such valid sale and upon a promise to pay the debts of Campbell, was now fraudulently seeking to repudiate such obligation. In other words, if both actions are maintainable, and both orders of attachment are to be upheld, the same property is to be twice seized in payment of debts contracted originally by the same party. This seems plainly against the reasoning so forcibly put by the supreme court of Wisconsin, supra. Here is but the one property, and no matter what may have been the fraudulent transactions of Campbell or Purcell, all that can justly be required is, that that property be appropriated once to the discharge of Campbell’s indebtedness. Plaintiffs in this action cannot be heard to say that this is no longer Campbell’s debt which they are seeking to enforce, for in this action' they have made him a party defendant, and are seeking judgment against him on its account. The allegations in the attachment affidavit are generally of fraud against both defendants.. The order of attachment runs against both, and only by the return of the officer does it appear that Purcell’s property, and not Campbell’s, is seized. There is no pretense that Campbell had ceased to be bound, or that this is an entirely independent debt, and not arising in any manner from Campbell’s transactions or connection with the property. The law is satisfied when this property which Campbell owned is once appropriated in the payment of debts contracted by him, and this notwithstanding other parties may have become also responsible for any of those debts. It is unnecessary to determine absolutely what would be the rule if plaintiffs were pursuing a claim against Purcell in no manner founded upon Campbell’s connection with this property; and yet even then, if the replevin bond stands in lieu'of the property it would be strange if the law should permit its seizure for debts of the plaintiff in the replevin action in such a manner as to prevent that plaintiff from complying with the subsequent judgment in that action.’ In -the case of Kayser v. Bauer, 5 Kas. 210, this court, speaking of a replevin action, said:
“The title to the property during litigation remained the same as it was before, in every . respect, except that Hollenbeck (who was the plaintiff in the replevin action) and those holding under him, obtained the right of possession, with such a special right of property that they could have maintained replevin for the property against anyone who should disturb their possession.”
Again, in attachment actions the statute provides for two bonds — one a forthcoming bond^and another to discharge the attachment. (Civil Code, §§ 199, 213.) Now the forthcoming bond is in its nature very like the replevin bond. In each case it is a bond in lieu of the property. Drake in his work on Attachments calls this bond indiscriminately a delivery bond, forthcoming bond, and a replevy bond; and of it, in §331, he thus speaks:
“It differs, too, from a bail bond, in that it does not discharge the lien of the attachment; since the very object of the bond is to insure the safe-keeping and faithful return of the property to the officer, if its return should be required. It follows therefore that after property is thus bonded, it cannot be seized under another attachment or under a junior execution, either against the attachment debtor or against a third person claiming it adversely to the debtor and the creditor; for to hold otherwise would put it in the power of a stranger to the attachment suit,' by a levy and sale to cause a forfeiture of the condition of the bond.”
See also the following cases: Rives v. Wilborne, 6 Ala. 848; Kane v. Pilcher, 7 B. Mon. 651; Gordon v. Johnston, 4 La. 304. The same doctrine is recognized by this court in the case of Tyler v. Safford, 24 Kas. 580. So that it would seem that it is generally true that where the property is held by a party, under a bond given in an action and conditioned for the redelivery of the specific property, it is to be considered in custodia legis the same as if the actual possession was with the officer. (Turner v. Reese, 22 Kas. 322.)
In what we have said in this opinion we have had no reference to. those cases in which property taken in one replevin action is subsequently seized by process in a subsequent replevin action. There seems to be a distinction between such a case and the one at bar. See the following cases: Bulkley v. Bulkley, 9 Nev. 373; Gross v. Bogard, 18 Kas. 289.
One other point requires notice. Intermediate the levy of the order of the attachment and the motion to discharge the levy, plaintiffs applied for an order to sell the property as perishable property. Notice of this application was served upon the defendants, and they not appearing, the sale was ordered and made. Now plaintiffs contend that as the defendant Purcell could have sold at private sale, she could also assent to a sale, and by making no resistance to the application for sale, she has waived all right to object to this disposition of the property. We do not think this proposition is sound. The original seizure was wrong. Defendant did not assent to it. Her silence during the continuance of the attachment and her failure to object to any of the proceedings of the plaintiffs, give them no greater rights than they had in the first instance, and she waived none of her rights.
The judgment of the district court will he affirmed.
It is understood that the case immediately succeeding, No. 2615, involves the same questions, and the judgment in that case will therefore also be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
McFarland, J.:
This is an appeal by plaintiff, Rose Construction Company, Inc., from an order dismissing its garnishment proceeding against the garnishee, Farmers Insurance Company, Inc. The issue is whether or not a certain automobile insurance policy provides coverage for plaintiff’s property damage.
The facts, simply stated, are as follows. The plaintiff owns a commercial building which it rents to Art Smelser, d/b/a Autumn Heating and Air Conditioning. Defendant Sam Gravatt is an employee of Smelser, and, while operating his employer’s motor vehicle in the course of his employment, backed into and did damage to said building. The motor vehicle was insured by Farmers Insurance Company, Inc. Plaintiff brought this action against Sam Gravatt and Art Smelser and subsequently obtained judgments in the amount of $1,015.82 against each defendant. Plaintiff then garnished Farmers Insurance Company, Inc., to collect the Gravatt judgment. Farmers denied coverage under a policy exclusion and the trial court agreed therewith. Plaintiff appeals from the order dismissing its garnishment.
The issue raised is one of first impression in Kansas. In deter mining whether coverage was afforded, it is appropriate to work our way through applicable policy provisions.
The policy was purchased by Smelser to insure the motor vehicle in question. The policy provides:
“Named insured means the insured named in Rem 1 of the Declarations and, if an individual, includes his spouse if a resident of the same household;
“Insured. The unqualified word ‘insured’ includes (a) with respect to the described automobile,
“(1) the named insured or a relative, and
“(2) any other person while using such automobile and any other person or organization legally responsible for its use, provided the actual use of such automobile is by the named insured or with his permission; and . . . .”
Clearly Gravatt is an “insured” under such definition, although not the named insured.
The policy contains an exclusionary clause providing that liability coverage does not apply:
“[T]o damage to (a) property owned or transported by the insured, (b) property rented to or in charge of the insured other than a residence or a private garage, or (c) property as to which the insured is for any purpose exercising physical control.”
The damaged property was rented to Smelser who was in charge and control thereof. The exclusion would clearly apply to Smelser had the garnishment been sought to satisfy the Smelser judgment. However, this is not the question before us.
Gravatt neither rented, was in charge of, nor controlled the damaged building. Does the exclusion bar Gravatt under such circumstances by virtue of the employer-employee relationship between the named insured and Gravatt?
Pertinent to this question is the following policy provision:
“The insurance afforded under Part I applies separately to each insured against whom claim is made or suit is brought, but neither the inclusion herein of more than one insured nor the application of the policy to more than one automobile shall increase the limits of the Company’s liability.”
This type of provision is commonly referred to as a “severability of interests” clause.
There is no unanimity among other jurisdictions construing such clauses. Many of these cases have arisen under such distinguishable factual situations as to have little relevance to the matter before us. A good discussion of background of “severability of interests” clauses is found in Pennsylvania Nat. Mut. v. Bierman, 266 Md. 420, 292 A.2d 674 (1972). The factual situation involved in Bierman is a good example of how complex such litigation may become — one injured insured suing another insured, with both being employees of the named insured.
Fortunately, the matter before us is considerably simpler to resolve. The exclusion before us excludes damages to property “rented to or in charge of the insured.” Use of the term “the insured” is significant. It obviously is not the same as “named insured” or “any insured.” Even in the absence of a severability of interests clause, a strong argument could be made that the exclusions do not apply to Gravatt inasmuch as he is the insured for exclusionary purposes, and he neither rents, has charge of, nor controls the damaged property. The severability of interests clause can only buttress the argument that coverage as to each insured must be determined separately based on the facts applicable to each such insured.
We conclude that the severability of interests clause requires a finding that the exclusions are to be applied only against the insured for whom coverage is sought. Under the undisputed facts herein, defendant Gravatt was clearly not excluded from coverage, and the trial court erred in holding otherwise.
Ry virtue of this result, other issues raised need not be determined.
The judgment is reversed and the case is remanded with directions to enter judgment in favor of plaintiff on the garnishment herein. | [
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The opinion of the court was delivered by
Miller, J.:
The defendant and appellant, Robert Lee Carty, Jr., was convicted of one count of arson of the Coffeyville Memorial Hall, K.S.A. 21-3718, and one count of aggravated arson of the Caney Grade School, K.S.A. 21-3719, by jury trial in Montgomery District Court. He was sentenced to concurrent terms of ten to forty years and fifteen years to life. On appeal, his principal claims of error are that the trial court erred in admitting statements made by the defendant to a deputy sheriff during inter rogation, after defendant had requested counsel, and in admitting testimony of his confession to an act of arson seven years earlier.
On July 18, 1980, Carty was employed as the sole custodian of the Coffeyville Memorial Hall. He discovered a fire that day and turned in the alarm about 10 o’clock a.m. Carty was the only person in the building; the fire started in a storage area under the bleachers. The building was destroyed. An investigation conducted by the Coffeyville fire department with the assistance of an investigator from the State Fire Marshal’s office concluded that the fire was caused by a defective light socket.
Carty was next employed as a custodian for the Caney Grade School. On September 10, 1980, a fire broke out about 8:30 o’clock a.m. The defendant discovered the fire and sounded the alarm. All teachers and pupils escaped without injury. The fire started in the janitor’s room, just off the gymnasium. The Fire Marshal’s office conducted an investigation. The defendant, when interviewed, gave conflicting stories as to whether he was in the janitor’s room on the morning of the fire. No one had seen him in that room, but he could have entered or left the janitor’s room by a route behind the bleachers which would not have been open to the view of others in the building. The investigators concluded that the fire was set, either intentionally or accidently; all other causes were eliminated.
A second investigation of the Memorial Hall fire, conducted by a different investigator, uncovered evidence of flammable liquid at three points of origin. A background check on the defendant disclosed that he was wanted for parole violation in Texas. He was arrested for Texas authorities on that charge on September 19, 1980, and was confined in the Montgomery County jail. Investigation of both fires continued, and Carty was the prime and the only suspect.
Deputy Sheriff Wilson testified that he brought Carty from the jail to the county attorney’s office on September 22, 1980, to question him about the fires. The deputy read the Miranda warnings and announced that he was going to ask some questions about the fires. The officer testified that Carty stated that:
“[I]f I was there to charge him with the fire of the Caney School and possibly the Memorial Hall . . . that he wanted an attorney. And I advised him that I was not there for that purpose, all I wanted to do was talk to him.”
Deputy Wilson made a written report of the interview. He indicated therein that Mr. Carty had been advised of his rights before the interview started. The report continues:
“The first thing he said, if you charge [me] with the fire, I will sue you and I want a lawyer and won’t tell you anything.”
According to the deputy sheriff, Carty stated that he did not want to discuss the fires. He did not insist on the presence of an attorney, and he did not say he wanted to stop or terminate the conversation, so the officer continued with the interview. He did not advise Carty that he was the prime suspect. Throughout the interview, Carty did not admit setting the fires, but stated in substance that sometimes when he was depressed he did things that he could not later remember, and that he could have either accidentally or purposely set the fires at Memorial Hall or the Caney school, and not remember doing so. Carty also said that sometimes he became depressed as a result of constant criticism that he received at his place of employment, and he admitted that he was somewhat depressed on the day of the Caney school fire because he had some problems with the supervisors. Other facts will be developed during discussion of the issues raised.
We turn now to the first issue: Did the trial court err in admitting the oral statements made by the defendant to Deputy Wilson, after the defendant had requested counsel? We discussed the applicable rules relating to in-custody interrogation at length in the recent case of State v. Newfield, 229 Kan. 347, 623 P.2d 1349 (1981). During the interrogation which resulted in the challenged confession, Newfield had stated that he wanted to talk to an attorney before he talked to the agents any more. The questioning ceased; Newfield was offered the use of a telephone to call an attorney of his choice, and he was also told that he could have an attorney appointed for him. He declined to call an attorney, and stated that he did not want an appointed attorney. Some time later, he said, “Get your pencil. I’m going to tell you all about it.” His confession followed. We held that under the totality of the circumstances, the statement was voluntarily, knowingly and intelligently made, and thus was admissible in evidence. We said:
“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.”
“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.”
“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. ¶¶ 1, 2, 3.
We also said that when the admissibility of an in-custody statement, made after demand for an attorney, is challenged on appeal, this court must decide whether the State has adequately proved:
“(1) that the accused knowingly and intelligently waived his right to retained or appointed counsel; (2) that interrogation ceased for an appreciable period when the accused requested consultation with an attorney; and (3) that the statements made by the police after the request for counsel did not amount to questioning, its functional equivalent, or statements known to be likely to produce an incriminating response.” 229 Kan. at 355.
Carty in effect demanded counsel if he was going to be charged with arson. He was informed that the purpose of the deputy was not to charge him with the offenses, but merely to talk to him. At that time, unbeknown to Carty, the Texas warrant on which he was detained was discovered in the course of the Caney and Coffeyville arson investigations; Carty was the sole, prime and only suspect in the arson cases; the purpose of the interrogation was to secure information helpful to the State in its arson investigation. As surely as day follows night, Carty was going to be charged with arson. Carty was not offered the use of a telephone to call an attorney; he was not specifically advised that he could then have appointed counsel; and the interrogation did not cease. There was no interruption. Instead interrogation continued without pause for some four hours. Defendant has a third or fourth grade education, and is described as illiterate.
The State argues that the defendant’s request for counsel was conditional: If the deputy was there to charge the defendant with arson, then he wanted an attorney; and that since the deputy was not there at that time for the purpose of filing charges against the defendant, the condition imposed by the defendant was not met. This argument is specious. The defendant cannot be held to know whether the deputy sheriff or some other official has the duty of filing criminal charges or to know the purpose of the interrogation. The defendant’s desire was clear; if he was to be charged with arson, he wanted an attorney, and he did not wish to talk further to the officer without an attorney. His request was not “scrupulously honored.” It was not honored at all. The statements made by the defendant came thereafter, and in direct response to continued questioning by the deputy sheriff. Carty did not voluntarily commence communication anew, after cessation of questioning, as was the case in Newfield.
The United States Supreme Court dealt with the same problem in Edwards v. Arizona, 451 U.S. 477, 68 L.Ed.2d 378, 101 S.Ct. 1880 (1981), decided after our opinion in Newfield and after'the trial of this case. The court said:
“[A]lthough we have held that after initially being advised of his Miranda rights, the accused may himself validly waive his rights and respond to interrogation, see North Carolina v. Butler, [441 U.S. 369] 372-376 [60 L.Ed.2d 286, 99 S.Ct. 1755 (1979)] the Court has strongly indicated that additional safeguards are necessary when the accused asks for counsel; and we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.” 451 U.S. at 484-85.
We have reviewed the evidence as to the request for counsel in the fight most favorable to the State. This is not a case in which the fact of a request for counsel is disputed. Unless the oft-repeated declarations of the courts about the rights of an accused to counsel, and the duty of police officers to scrupulously honor a request for counsel, are mere “perfunctory regurgitations,” we must conclude that Carty’s statements to Deputy Wilson were inadmissible. Further, in view of the fact that the case against Carty was not strong, but was one in which the evidence of guilt was considerably less than overwhelming, we hold that the admission of the statements was prejudicial error.
Defendant next contends that the trial court erred in admitting, over objection, testimony of his confession to an act of arson seven years earlier. The evidence was offered by the State solely for the purpose of proving motive. The State called as a witness Detective L. M. Haller of the Odessa, Texas, police department. Before his testimony began, the trial court cautioned the jury that he anticipated that the detective would testify that the defendant had committed another crime or civil wrong, and that this testimony might be considered by the jury solely for the purpose of proving the defendant’s motive in connection with the charges upon which he was then on trial. The detective testified that he had investigated a lumberyard fire in Odessa, Texas, which occurred in 1973. He interviewed Carty on November 5, 1973, and the defendant admitted that he was the person who set the lumberyard on fire, saying that he did it “because he was depressed and down in the dumps.”
K.S.A. 60-455 provides in substance that evidence of prior crimes is inadmissible to prove an accused’s disposition to commit crime as the basis for an inference that he or she committed the crime charged. Such evidence, however, is admissible when relevant to prove some other material fact, including motive. In PIK Crim. 52.06 (1979 Supp.), we find the following discussion of motive:
“Motive may be defined as the cause or reason which induces action. While evidence of other crimes or civil wrongs may occasionally prove to be relevant to the issue of motive (State v. Craig, 215 Kan. 381, 382-383, 524 P.2d 679 [1974]), it is more often the case that the prior crime has no relevance to the issue. (See e.g., State v. McCorgary, 224 Kan. 677, 684-685, 585 P.2d 1024 [1978].) A prior crime would be relevant to the issue of motive where the defendant commited a subsequent crime to conceal a prior crime or to conceal or destroy evidence of a prior crime. It is not proper to introduce evidence of other crimes on the issue of motive merely to show similar yet unconnected crimes.” p. 22.
In State v. Craig, 215 Kan. 381, 524 P.2d 679 (1974), the defendant was charged with aiding, abetting, and procuring another to swear falsely upon oath, in an application for a cereal malt beverage license, that a tavern would not be operated by a manager, when in fact Craig would be the manager. Craig had a prior conviction for promoting obscenity which made him ineligible; he could not secure a license in his own name nor was he eligible to serve as manager. We said:
“The establishment of defendant’s prior conviction [of promoting obscenity] was necessary to show the reason for his inability to secure a license in his own right and, thus, establishes his motive in procuring the assistance of Linda Bybee.” 215 Kan. at 383.
Craig’s motive to procure another to make a false application was his desire and need to conceal his prior crime, and thus the prior crime was relevant and admissible to prove motive, a contested issue.
In State v. McCorgary, 224 Kan. 677, 585 P.2d 1024 (1978), we held that proof of a similar murder (robbery, a brutal killing, the body buried in a shallow grave in a remote location) was not admissible for the purpose of establishing the motive for a killing which occurred eleven years earlier. The murders were unrelated and motive was not a contested issue.
In the case now before us, Carty was charged with arson under K.S.A. 21-3718(l)(a), knowingly, by means of fire, damaging the building of another without the consent of such other person. No charge was made under K.S.A. 21-3718(l)(b), committing arson with the intent to defraud an insurer. Motive was not an element of the offense charged. The Texas confession was not probative of any fact in issue in this case except Carty’s propensity to set fires when depressed. One’s disposition or propensity to commit a crime is not a material fact for which other crimes evidence is admissible; to the contrary, the statute expressly declares that such evidence is inadmissible for that purpose. As we said in State v. Fennell, 218 Kan. 170, 542 P.2d 686 (1975):
“Evidence of other wrongdoing which tends to show no more than a propensity or disposition to commit that wrong is expressly prohibited by K.S.A. 60-455.” Syl. f 1.
The issue here was whether or not Carty set the two fires charged, not whether he was depressed or exhilarated, sad or happy, when he did so. We conclude that motive was not substantially in issue, and that the trial court erred in admitting evidence of the arson in Texas for the sole purpose of establishing motive. Since the evidence of guilt is less than overwhelming, we cannot say that the erroneous admission of the other crimes evidence did not affect the substantial rights of the accused or that it is harmless error. See State v. Bly, 215 Kan. 168, 178-79, 523 P.2d 397 (1974); State v. Fennell, 218 Kan. 170, Syl. ¶ 2; State v. Yates, 220 Kan. 635, 556 P.2d 176 (1976); and State v. Marquez, 222 Kan. 441, 565 P.2d 245 (1977).
It has been suggested that the other crimes evidence is admissible in this case for the purpose of establishing intent. The majority of this court, however, concludes that intent is not substantially in issue. If the fires were started accidentally, as the State suggests, then the acts were not knowingly done as required by K.S.A. 21-3718, and there was no arson. If the fires were set intentionally, then the intent is obvious: to damage public buildings by fire.
Defendant also contends that the Texas confession was declared inadmissible by a Texas court and is therefore inadmissible here. We need not rule upon that claim, or upon the limitation of cross-examination by defense counsel of Detective Haller, since it is unlikely those issues will arise upon retrial.
For the reasons stated, the judgment is reversed and the case is remanded to the trial court with directions to grant a new trial. | [
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The opinion of the court was delivered by
Herd, J.:
This is an appeal from a declaratory judgment. The essential facts are undisputed. On December 9, 1979, Patrons Mutual Insurance Association issued a policy of automobile insurance to Maeola Norwood. On March 10, 1980, Maeola Nor-wood was driving her automobile on Parallel Parkway in Kansas City, Kansas, when she made a left turn in front of a car driven by Elmer Rainey. The two automobiles collided. Charles Norwood was a passenger in the automobile being driven by his wife, Maeola. He sustained personal injuries as a result of the collision.
Charles Norwood proceeded to file a claim for damages against his wife, Maeola, under the liability provisions of the policy issued to her. Patrons denied the claim on the grounds of in terspousal tort immunity as outlined by this court in Sink v. Sink, 172 Kan. 217, 239 P.2d 933 (1952), and reaffirmed in Guffy v. Guffy, 230 Kan. 89, 631 P.2d 646 (1981). Charles Norwood then made a claim for uninsured motorist protection, arguing his wife, although insured, was uninsured as to him because of interspousal immunity. Patrons denied the claim on the grounds neither driver was uninsured.
In August of 1981 Charles Norwood filed a Demand for Arbitration with the American Arbitration Association, pursuant to the insurance policy issued to Maeola, claiming he was entitled to benefits under the policy’s uninsured motorist provisions.
On October 2,1981, Patrons filed a “Petition for Injunction and For Declaratory Judgment” asking the court to enjoin Charles Norwood’s efforts to force arbitration of his claim and to determine the rights of the parties. On January 11, 1982, the district court filed its “Memorandum Decision.” First, relying on Clayton v. Alliance Mutual Casualty Co., 212 Kan. 640, 512 P.2d 507 (1973), the court held Norwood could not force arbitration of his dispute with Patrons. Further, the court found Maeola Norwood was an uninsured operator of the automobile in which Charles Norwood was a passenger and that Charles Norwood was legally entitled to bring an action against Patrons pursuant to the uninsured motorist provisions of the policy.
Patrons has appealed.
The issue is whether the Kansas doctrine of interspousal immunity precludes recovery of damages by a husband for personal injuries suffered in an automobile accident caused by his wife’s negligence where such recovery is sought under the uninsured motorist provisions of a liability policy issued to his wife.
It should first be noted this court is without jurisdiction to hear appellee’s argument that the trial court erred in holding Charles Norwood could not force arbitration of his claim. That holding was not timely appealed and as such we are precluded from reviewing it. K.S.A. 60-2103(h); Chetopa State Bancshares, Inc. v. Fox, 6 Kan. App. 2d 326, 334, 628 P.2d 249 (1981).
Let us now turn to Charles Norwood’s claim against Patrons. The policy issued to Maeola Norwood defines “insured” as “the named insured [and] any relative.” The uninsured motorist section of the policy requires the company:
“To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease . . . sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile . . . .”
Under the policy an uninsured automobile includes “an automobile . . . with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies coverage thereunder . . . Thus Charles Norwood claims he is an insured under the terms of his wife’s policy, that his wife is an uninsured motorist because Patrons had denied coverage under the policy issued to Maeola and that pursuant to the uninsured motorist section of the policy Patrons should be required to pay all sums which he can show as damages resulting from the accident.
K.S.A. 40-284, the Kansas uninsured motorist statute, provides in pertinent part:
“(a) No automobile liability insurance policy covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state, unless the policy contains or has endorsed thereon, a provision with coverage limits equal to the limits of liability coverage for bodily injury or death in such automobile liability insurance policy sold to the named insured for payment of part or all sums which the insured or the insured’s legal representative shall be legally entitled to recover as damages from the uninsured owner or operator of a motor vehicle because of bodily injury, sickness or disease, including death, resulting therefrom, sustained by the insured, caused by accident and arising out of ownership, maintenance or use of such motor vehicle, or providing for such payment irrespective of legal liability of the insured or any other person or organization.” (Emphasis added.)
Initially, it is argued by appellee that because an insured’s claim against the uninsured motorist insurance carrier is based on contract, and the interspousal immunity doctrine set forth in Guffy v. Guffy applies only to actions for tortious personal injury, the defense should not be available to Patrons. Judge Abbott spoke to this issue in Hammerman v. Southwestern Ins. Group, 1 Kan. App. 2d 445, 448, 571 P.2d 1 (1977):
“It has been said uninsured motorist insurance is in the nature of a contract of indemnity as opposed to liability insurance. It does not protect the insured against liability but rather it insures him against loss by a limited group of tortfeasors. [Citation omitted.] Uninsured motorist coverage has been described as more closely resembling ‘limited accident insurance.’ [Citation omitted.]
“It must be kept in mind that we are dealing with a hybrid case in that the rights and duties as between the injured insured and his uninsured motorist insurance carrier are determined by contract law, and the liability of the uninsured motorist insurance carrier is determined by the legal liability of the uninsured motorist under tort law.”
We agree with the Hammerman rationale. Appellee’s argument provides no basis for denying Patrons the use of the interspousal immunity doctrine as a defense.
This case turns on the trial court’s holding the insurance company could not use interspousal immunity to deny Charles Norwood’s claim because “[t]he phrase ‘legally entitled to recover’ does not mean that the insurer stands in the tortfeasor’s stead, but simply that the plaintiff must be able to establish fault on the part of the tortfeasor.”
Both K.S.A. 40-284 and the insurance policy issued to Maeola Norwood contain the same requirement. Before an insured can recover under the uninsured motorist provisions of the insurance policy, that person must show he or she is “legally entitled to recover” damages from the uninsured motorist. Thus, in the case at bar Charles Norwood must show a legal right to obtain damages from his wife Maeola as a result of the automobile accident.
Although both parties cite numerous cases from other jurisdictions, let us first examine our treatment of the subject. Sturdy v. Allied Mutual Ins. Co., 203 Kan. 783, 457 P.2d 34 (1969), was this court’s initial opportunity to discuss K.S.A. 40-284. In that opinion we defined “uninsured motorist coverage” as “protection afforded an insured by first party insurance against bodily injury inflicted by an uninsured motorist, after the liability of the uninsured motorist for the injury has been established.” (Emphasis added.) 203 Kan. at 785.
Four years later in Winner v. Ratzlaff, 211 Kan. 59, 62, 505 P.2d 606 (1973), the issue was “whether it is requisite to recovery against an uninsured motorist liability carrier that judgment first be obtained against the uninsured motorist, that is to say, is the establishment of liability on the part of the uninsured motorist a condition precedent to recovery under an uninsured motorist policy?” There the court found no requirement the claimant must first sue and establish fault of the uninsured motorist before making a claim against the uninsured motorist insurance carrier. The court also construed the phrase “legally entitled to recover as damages” to mean:
“[T]he insured must be able to establish fault on the part of the uninsured motorist which gives rise to the damages and to prove the extent of those damages. This would mean that in a direct action against the insurer the insured has the burden of proving that the other motorist was uninsured, and the amount of this liability. In resisting the claim the insurer would have available to it, in addition to policy defenses compatible with the statute, the substantive defenses that would have been available to the uninsured motorist such as contributory negligence, etc.” 211 Kan. at 64.
Arguably, Winner v. Ratzlaff has settled the issue. If the insurance company here may use the substantive defenses available to the uninsured motorist in rejecting the insured’s claim, Charles Norwood must lose. Interspousal immunity is obviously a substantive defense which Maeola Norwood could have raised as a defense in an action brought by her husband.
However, let us not be too hasty to embrace this conclusion. Ratzlaff interpreted the phrase in question in the context of whether the insured had to first file an action against the uninsured motorist before recovering from the insurance carrier. Indeed, in the words of the issue as stated by the court, the holding in Ratzlaff was that “establishment of liability on the part of the uninsured motorist” was not “a condition precedent to recovery under an uninsured motorist policy.” 211 Kan. at 62. Additionally, subsequent cases have failed to include the Ratzlaff language regarding the availability of substantive defenses to the insurance company.
In Van Hoozer v. Farmers Insurance Exchange, 219 Kan. 595, 549 P.2d 1354 (1976), this court was again faced with the task of interpreting K.S.A. 40-284. Preliminary to discussion of the issues we noted the “typical” uninsured motorist clause “provides a motorist who carries a standard automobile liability policy with rights against his own insurance company equal to those he would have against the uninsured tortfeasor.” 219 Kan. at 600. In Van Hoozer the insurance company contended the plaintiff’s failure to file a claim in the estate of the uninsured motorist within the applicable period of limitations precluded a finding the insured was legally entitled to recover from the operator of the uninsured vehicle. The court rejected that claim and applied the longer statute of limitations on written contracts to the controversy. “Legally entitled to recover” was interpreted as meaning the “insured must be able to establish fault on the part of the uninsured motorist which gave rise to the damages and to prove the extent of those damages . . . 219 Kan. at 611. This wording was taken directly from Syl. ¶ 3 of Winner v. Ratzlaff, 211 Kan. 59. It was repeated in Welch v. Hartford Casualty Ins. Co., 221 Kan. 344, 348-49, 559 P.2d 362 (1977).
Finally, rules of statutory construction weigh in favor of appellee’s right to recover herein. K.S.A. 40-284 is remedial in nature and as such should be construed to provide the intended protection. Van Hoozer v. Farmers Insurance Exchange, 219 Kan. at 606-07; Winner v. Ratzlaff, 211 Kan. at 64. Also, the phrase “legally entitled to recover” should arguably be construed strictly against the insurer. The court stated the rule in Sturdy v. Allied Mutual Ins. Co., 203 Kan. 792:
“This court has held in numerous decisions that an ambiguous insurance policy will be construed strictly against the insurer. Where an insurer prepares its own contracts, it has a duty to make the meaning clear, and if it fails to do so, the insurer and not the insured must suffer. If the terms of a policy of insurance are ambiguous or obscure or susceptible of more than one construction, the construction most favorable to the insured must prevail.”
It thus becomes apparent the clause in question is subject to more than one construction.
As an aid in resolving the policy question presented, it is helpful to examine what other jurisdictions have done with the “legally entitled to recover” language. One year before Ratzlaff, in Bachman v. American Mutual Insurance Co. of Boston, 338 F. Supp. 1372, 1375 (D. Kan. 1972), Judge Theis held K.S.A. 40-284 required “a showing of liability on the part of the uninsured motorist as a prerequisite to recovery under an uninsured motorist provision.” Markham v. State Farm Mutual Automobile Ins. Co., 464 F.2d 703 (10th Cir. 1972), dealt with the Oklahoma uninsured motorist statute in terms of that state’s parent-child immunity doctrine. The trial court had held “legally entitled to recover damages” meant only that the claimant (mother) had to show negligence on the part of the uninsured motorist (daughter) and resulting damages. The Court of Appeals reversed and held under Oklahoma law the mother never even had a cause of action against her daughter. As such she could not be considered legally entitled to recover damages. See also Noland v. Farmers Insurance Exchange, 413 S.W.2d 530 (Mo. App. 1967), where the court interpreted the phrase “legally responsible to pay as damages to the insured” under that state’s uninsured motorist statute. The court held Missouri’s adherence to the interspousal immunity doctrine prevented the plaintiff’s husband from being held legally responsible for damages and thus absolved the insurance company from liability for plaintiff’s damages.
Other jurisdictions have reached different results. Both appellee and the trial court rely on Allstate Insurance Co. v. Elkins, 77 Ill. 2d 384, 396 N.E.2d 528 (1979). There Helen Elkins was injured in an automobile driven by her husband, Dorsey. Dorsey was the named insured, but the terms of the policy also included Helen as an insured. Because of a “household exclusion” clause in the policy Dorsey Elkins was considered uninsured with regard to his wife. Helen Elkins then filed a claim under the uninsured motorist section of the policy, which included a “legally entitled to recover” clause.
The lower court held that because of Illinois statutory inter-spousal immunity provisions Helen Elkins could not be considered legally entitled to recover damages from her husband. The appellate court reversed and its decision was affirmed by the Illinois Supreme Court, which stated:
“We agree with the appellate court that the proper interpretation of the words ‘legally entitled to recover’ means that the claimant must be able to prove the elements of her claim necessary to entitle her to recover damages. That the tortfeasor uninsured motorist in an action brought against him might be in a position to invoke a defense of limitations or some form of statutory immunity is relevant to the question of the right to enforce payment, but does not affect the claimant’s legal entitlement to recovery. In interpreting the provisions of an insurance policy the intent of the parties is the most significant factor and any ambiguity should be construed in favor of the insured.” 77 Ill. 2d at 390-91.
See also Guillot v. Travelers Indem. Co., 338 So. 2d 334 (La. App. 1976), where it was held the doctrine of interspousal immunity did not bar the wife’s recovery under an uninsured motorist endorsement because the defense was personal to the tortfeasor spouse and thus not available to his insurer.
In the final analysis our decision should be made by weighing the purpose of the uninsured motorist statute against the public policy issue giving rise to the interspousal immunity doctrine of Kansas.
In Sturdy v. Allied Mutual Ins. Co., 203 Kan. at 792, the court stated “the purpose of uninsured motorist insurance is to provide compensation for personal injury to the innocent victim of the uninsured motorist.” Similarly, in Winner v. Ratzlaff, 211 Kan. at 63-64, it was held:
“The purpose of legislation mandating the offer of uninsured motorist coverage is to fill the gap inherent in motor vehicle financial responsibility and compulsory insurance legislation and this coverage is intended to provide recompense to innocent persons who are damaged through the wrongful conduct of motorists who, because they are uninsured and not financially responsible, cannot be made to respond in damages.”
Finally, in Welch v. Hartford Casualty Ins. Co., 221 Kan. at 349, the court cited earlier decisions in formulating the purpose behind K.S.A. 40-284:
“In examining the intent of the legislature we said in Forrester v. State Farm Mutual Automobile Ins. Co., 213 Kan. 442, 517 P.2d 173:
‘The intent of the legislature in requiring the mandatory offering of uninsured motorist coverage was to insure that those insured under the contract of insurance would be protected generally against injuries caused by motorists who are uninsured and that such protection would complement the liability coverage.’ (Syl. 3.)
“In the recent case of Van Hoozer v. Farmers Insurance Exchange, 219 Kan. 595, 549 P.2d 1354, we examined the statute and stated:
. . . Uninsured motorist coverage was developed as a means of protecting the non-negligent motorist where the tortfeasor is uninsured. The typical clause provides a motorist who carries a standard automobile liability policy with rights against his own insurance company equal to those he would have against the uninsured tortfeasor. . . .’ (p. 600. Emphasis supplied.)”
If the purpose of the uninsured motorist statute is to afford the same protection to a person injured by an uninsured motorist as he or she would have enjoyed if the offending motorist had carried liability insurance, it makes sense to deny Charles Nor-wood’s claim. Under the doctrine of interspousal immunity he could not have recovered from his wife regardless of whether she carried liability insurance.
The basis for the doctrine of interspousal immunity was stated in Guffy v. Guffy, 230 Kan. at 93:
“[T]he foremost justification for immunity is based on the premise that personal tort actions between husband and wife would disrupt and destroy the peace and harmony of the home and this would be contrary to the public policy of the State.”
In balancing the public policy of providing liability insurance coverage for all drivers against that of preserving the peace and harmony of the home the former must give way. Guffy balanced the same issues and came down on the side of interspousal immunity. We are bound by that decision. We conclude Charles Norwood is not “legally entitled to recover” damages from his spouse and the uninsured motorist provision of her insurance policy does not apply.
The judgment of the trial court is reversed.
Prager, J., dissenting. | [
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The opinion of the court was delivered by
McFarland, J.:
This is a declaratory judgment action brought by the Department of Revenue and its Secretary, Michael Lennen, seeking a judicial determination that the Department: (1) has the authority to determine the liability of a corporation for Kansas corporate income taxes by the “combined reporting” method; and (2) is entitled to obtain information from defendant, Dow Chemical Company (Dow), which is relevant or will lead to the discovery of relevant information to determine whether Dow or any of its affiliates doing business in Kansas are, in fact, conducting a unitary business with any other affiliated corporation for “combined reporting” purposes.
The trial court entered summary judgment in favor of the Department in all respects. Dow appeals therefrom, contending the summary judgment was both procedurally premature and substantively erroneous.
The petition filed herein states the background from which the action arose as well as the relief sought and alleged legal basis therefor. By virtue of the issues herein, it is appropriate to reproduce the petition in full:
“PETITION FOR DECLARATORY JUDGMENT
“The Department of Revenue of the State of Kansas and its Secretary, Michael Lennen, plaintiffs herein, in support of their Petition for a Declaratory judgment allege as follows:
“1. The Department of Revenue of the State of Kansas and its Secretary are charged with the enforcement of the Corporate Income Tax of the State of Kansas.
“2. The Dow Chemical Company, headquartered in Midland, Michigan and duly incorporated in the State of Delaware, was qualified to do and was doing business in the State of Kansas for the tax years 1970-1974.
“3. Pursuant to the authority granted the Secretary of the Department of Revenue, he assigned an income tax audit of Dow Chemical Company and its affiliated corporations for the tax years 1970-1974 to the Multistate Tax Commission on a ‘combined report’ basis.
“4. The Multistate Tax Commission recommended ‘combined reporting,’ subject to obtaining substantial additional information as to whether' or not Dow Chemical Company was conducting a unitary business with some or all of its affiliated corporations for ‘combined reporting’ purposes which Dow Chemical Company refused to furnish to Multistate Tax Commission’s auditors.
“5. Dow Chemical Company, in response to a request by the Department of Revenue of the State of Kansas and its Secretary, for unitary information has taken the position that the Kansas Department of Revenue and its Secretary have no power to require a ‘combined report’ with any affiliated corporations; and that the furnishing of the information requested would be very costly and time-consuming to Dow Chemical Company and not within the authority of the Kansas Department of Revenue and its Secretary to demand.
“6. It is the position of the Kansas Department of Revenue and its Secretary that they have the power, under applicable provisions of the Kansas Corporate Income Tax law, to require a ‘combined report’ contrary to the position taken by Dow Chemical Company; and that they can properly determine Dow Chemical Company’s Kansas income tax liability only by application of unitary principles and ‘combined reporting.’
“7. There thus exists an actual case or controversy between Dow Chemical Company, on behalf of it and its affiliated corporations, and the Kansas Department of Revenue and its Secretary over the authority of the Kansas Department of Revenue and its Secretary to require Dow Chemical Company to furnish information pertaining to, and if the facts warrant, to require Dow Chemical Company and any of its affiliated corporations doing business in Kansas to report their Kansas income tax liability on a ‘combined report’ basis.
“8. In order to resolve this controversy, which involves only a question of law and to preclude unnecessary and costly compliance and administrative costs if Dow Chemical Company is right in its position in regard to the authority of the Kansas Department of Revenue and its Secretary, the Kansas Department of Revenue to require ‘combined reporting’ by application of unitary principles, the Kansas Department of Revenue and its Secretary have instituted this declaratory judgment action as provided in K.S.A. 60-1701. This section reads as follows:
‘§ 60-1701. Jurisdiction; generally. In cases of actual controversy, courts of record within the scope of their respective jurisdictions shall have power to make binding adjudications of right, whether or not consequential relief is, or at the time could be, claimed, and no action or proceedings shall be open to objection on the ground that a judgment or order merely declaratory of right is the only relief requested. Controversies involving the validity or interpretation of deeds, wills, or other instruments of writing, express trusts, statutes, municipal ordinances, and other government regulations, may be so determined, and this enumeration does not exclude other instances of actual antagonistic assertion and denial of right.’ (L. 1963, ch. 303, 60-1701; Jan. 1, 1964.)
“9. This action involves only a question of the interpretation of the statutes of the State of Kansas and is an action ripe for declaratory judgment and relief as provided for in K.S.A. 60-1701.
“WHEREFORE, it is respectfully prayed by the Kansas Department of Revenue and its Secretary that this Court find:
“1. That an actual case or controversy exists between the Kansas Department of Revenue and its Secretary and Dow Chemical Company over the authority of the Kansas Department of Revenue and its Secretary to require the use of a ‘combined report’ for Kansas Corporate Income Tax purposes;
“2. That this matter is ripe for a declaratory judgment under K.S.A. 60-1701;
“3. That the Department of Revenue and its Secretary have the authority to determine the liability of a corporation for Kansas Corporate Income Tax purposes by the ‘combined reporting’ method under applicable provisions of the Kansas Corporate Income Tax law; and
“4. That the Kansas Department of Revenue is entitled to obtain any information from Dow Chemical Company which is relevant or will lead to the discovery of relevant information to determine whether Dow Chemical Company or any of its affiliates doing business in Kansas are, in fact, conducting a unitary business with any other affiliated corporation for ‘combined reporting’ purposes.”
Any discussion of the nature and purpose of the Multistate Tax Commission would be inappropriate to the issues herein. If additional information is desired, see the Multistate Tax Compact, K.S.A. 79-4301 et seq.
The petition states, in paragraph 6, that plaintiffs have the “power, under applicable provisions of the Kansas Corporate Income Tax law, to require a ‘combined report.’ ” Dow filed a motion for a more definite statement pursuant to K.S.A. 60-212(e) to require plaintiffs to specify on which particular statutes they were relying for their alleged authority. Dow contended it could not intelligently prepare an answer without this basic information. The Department responded with a 48-page treatise on “the basic concepts involved in the attribution of net income for state purposes, the history and development of the unitary concept for the attribution of net income, and the Kansas statutory authority for the application of unitary concepts, including ‘combined reporting’ for Kansas corporate income tax purposes.”
The Department stated therein:
“The Authority of the Plaintiffs to Require ‘Combined Reporting’ Stems from the Inter-Relationship of Various Provisions of the Kansas Corporate Income Tax Act and the General Case Authority Which have Applied the Unitary Principles for State Net Income Tax Attribution Purposes.”
Lest this statement be too confining, the plaintiffs cautioned:
“It [the memorandum] is not intended to set forth all the provisions of Kansas law or all judicial authority which may be relevant in the resolution of this question. This memorandum is, thus, not to be construed as containing any limitation on the statutory or case authority which may be relied upon by plaintiffs in this proceeding in support of ‘combined reporting’ for Kansas corporate income tax purposes.”
In its response thereto, Dow pointed out that the Department’s memorandum was in no way “a more definite statement” and sought dismissal of the case for failure to state a cause of action appropriate for declaratory judgment. Plaintiffs then filed a response to defendant’s response, wherein they again discuss the unitary concept for the attribution of corporate income. At this point the trial court concluded, on its own motion, the matter was ripe for summary judgment and entered judgment in favor of the Department in all respects. Ry virtue of the sequence of events above set forth, no answer was filed by Dow.
There is much merit in Dow’s argument that the summary judgment was prematurely granted. It would be very simple to set aside the summary judgment and remand the case back to the trial court for trial. However, such a course of action is neither in the best interests of the parties nor the proper utilization of the court system.
Dow contends there is no actual controversy between the parties which is ripe for determination in a declaratory judgment action. We agree.
In Hays v. Rymph, 191 Kan. 361, 364, 381 P.2d 326 (1963) this court held:
“An action for declaratory judgment may be maintained only for the purpose of determining and declaring fixed legal rights where it will accomplish some useful purpose. It cannot be invoked merely to try issues and determine questions that are uncertain and hypothetical.”
Public Serv. Comm’n v. Wycoff Co., 344 U.S. 237, 243-44, 97 L.Ed. 291, 73 S.Ct. 236 (1952), is particularly pertinent herein:
“But when all of the axioms have been exhausted and all words of definition have been spent, the propriety of declaratory relief in a particular case will depend upon a circumspect sense of its fitness informed by the teachings and experience concerning the functions and extent of federal judicial power. While the courts should not be reluctant or niggardly in granting this relief in the cases for which it was designed, they must be alert to avoid imposition upon their jurisdiction through obtaining futile or premature interventions, especially in the field of public law. A maximum of caution is necessary in the type of litigation that we have here, where a ruling is sought that would reach far beyond the particular case. Such differences of opinion or conflicts of interest must be ‘ripe for determination’ as controversies over legal rights. The disagreement must not be nebulous or contingent but must have taken on fixed and final shape so that a court can see what legal issues it is deciding, what effect its decision will have on the adversaries, and some useful purpose to be achieved in deciding them.”
Let us apply the Hays and Wycoff holdings to the case at hand.
This court is being asked to “declare” two matters; (1) The Department has authority to determine the corporate income tax liability of a corporation on the “combined reporting method”; and (2) the Department has authority to request information from Dow relative to whether Dow and its affiliates are conducting a unitary business and thereby subject to the application of “combined reporting.”
Let us summarize the controversy herein. Combined reporting is, generally speaking, a method utilized by some jurisdictions to apportion income of affiliated corporate entities engaged in a unitary business in more than one state. “Combined reporting” is not such a term of art that its very use is shorthand for one complete and standardized procedure. There is no statute in Kansas defining “combined reporting” or expressly authorizing its utilization. There is no indication that the Department has, as to any other taxpayers, imposed or threatened to impose “combined reporting.” The trial court’s decision herein grants carte blanche authority to the Department to require Dow or any other corporation to file any variation of a “combined report” which the Department may now or hereafter favor. There are no limitations placed on the type or scope of preparatory information which any corporation may be required to file. Indeed, we do not even know what the information herein requested was. There is no limitation on percentage of ownership in affiliated corporations necessary to subject them to combined reporting. The action herein has enormous implications beyond the present dispute between the parties.
In short, the court is being asked to decide a nebulous and abstract question and thereby cloak the Department of Revenue with unlimited authority to require “combined reporting,” as the Department may later define it, by such corporations as the Department may consider subject to it.
We conclude the action herein does not constitute an actual controversy which is ripe for determination. The case is reversed and remanded to the trial court with directions to enter an order of dismissal. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action in the nature of ejectment, to recover certain real estate situate in Bourbon county. The plaintiff bases his right of recovery upon a tax title. Defendant has been in possession of the premises for twenty-five years. Plaintiff to sustain his cause of action offered in evidence a tax deed to his grantor, one E. L. Goddard, dated July 26, 18-75, and recorded August 16, 1875; also a subsequent tax deed, dated September 4,1877, and recorded August 26, 1880, alleged to have been issued to cure certain supposed defects in the first tax deed. The trial court sustained a demurrer to the evidence. This ruling is complained of, but the complaint is not tenable. The statute of limitation applicable to tax deeds where the holder thereof is out of possession, prevents any recovery.
The second tax deed does not count in this controversy, as the tax deed of July 26, 1875, does not substantially depart from the statutory form. It is urged by counsel that the first tax deed was irregular and imperfect, for the reasons that it contained no recital that the specific land deeded had not been redeemed, or set forth upon what specific land the three years’ subsequent taxes had been paid. Upon this matter we differ with counsel. The deed recites that-“three years have elapsed since the date of said [tax] sale, and said property has not been redeemed therefrom as provided by law;” and also recites that the “subsequent taxes, for the year 1872 for the sum of $10.34, and for the year 1873 for the sum of $7.85, and for the year 1874 for the sum of $7.30, have been paid by the purchaser as provided by law.” These statements evidently refer to the specific land transferred by the tax deed. As the deed prior thereto recites the portion of the land redeemed, therefore the land not redeemed is the portion not previously recited as released from the tax lien, and the payment of the subsequent taxes likewise refers to the land not so redeemed. The statute authorizes only one tax deed on each sale to be executed by the county clerk. If all the prooeedings up to the execution of the tax deed be regular and legal, the holder of the tax certificate is entitled to a deed in legal form and carrying that prima facie evidence of the regularity of all prior proceedings which belong to a statutory deed; and if through mistake or inadvertence a different deed and one substantially departing from the statutory form has been executed, the county clerk may execute and deliver a subsequent deed in correct and statutory form. (Douglass v. Nuzum, 16 Kas. 515.) But where a valid deed has once issued, the holder of the tax certificate is not entitled to a subsequent or second deed-merely for the purpose of evading the statute of limitations. The first tax deed was in all respects valid and carrying upon its face prima facie evidence of the regularity of all prior proceedings which belong to a statutory deed. As it was recorded August 16, 1875, and as no action was brought for the recovery of the real property sold for taxes within two years after the recording of the deed, plaintiff is not entitled under the statute of limitations to maintain any action thereon for the recovery of the real property mentioned therein. (Bowman v. Cockrill, 6 Kas. 311.) As plaintiff’s action for the recovery of the real property by virtue of his title under the tax deed was wholly barred by the statute prior to the commencement of this ac tion, the plaintiff is not entitled to recover back the taxes paid, nor have them declared a lien on the lanj. Section 142, ch. 107, Comp. Laws of 1879, applies to the holder of a tax deed or to a person claiming under him by virtue of the tax deed, who is defeated in his action on account of some defect in the tax deed or the tax proceedings. But this section was never intended to benefit a party who has obtained a good and valid tax deed and afterward permits it to become valueless by his own laches. The object of this statute was to assist in the collection of taxes, and not to benefit the negligent tax-holder who refused to, take any steps to recover the land described in his tax deed until after the statute of limitation has run. Section 1, ch. 40, Laws of 1879, gives the plaintiff1 no additional rights, The subsequent tax deed of September 4, 1877, was issued and recorded without au-. thority; and the.statute of 1879 was not enacted for the benefit of parties accepting or recording such deeds. Its object was to benefit parties claiming to own the land sold for taxes.
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
Brewer, J.:
This was an action in which the plaintiff in error, plaintiff below, attempted to foreclose a judgment lien. The district court held that this could not be done, and under the facts as stated in the petition we think the ruling of the district court was correct. On February 3, 1881, this action was commenced against Louisa Miner, Samuel Miner her husband, and Frederick Foster, in the district court of Bourbon county. The facts as stated in the petition are substantially as follows: On December 18, 1876, the plaintiff obtained judgment in said district court for the sum of $105 against the defendant, Louisa Miner, and at the same time obtained an order of sale of certain real estate attached in that action. On January 19, 1881, plaintiff caused an execution to be issued on said judgment to the sheriff of Bourbon county, who, unable to find any personal property, levied the execution upon the lands above described, but made no sale. Louisa Miner and husband now occupy and claim to have homestead rights in said lands, by reason whereof the plaintiff is prevented from selling the same under the execution. The defendant, Louisa Miner, has no land which she does not claim to be exempt by reason of her homestead rights. The lands were farming lands, and were not occupied at the time of the rendition of the judgment as a residence by the family of the owner, or since so occupied until March, 1881. The defendant Foster holds a mortgage executed March 12, 1879, junior and subsequent to the plaintiff's judgment, and yet said Foster claims it to be superior. These are all the facts as stated in the petition. So far as Foster is’concerned, little need be said. His mortgage was long subsequent to the judgment, and while doubtless by a proceeding under §481 of the code, or by action, the interest of a mortgagor in real estate may be subjected to the payment of a judgment, yet the fácts as stated make no such ease. The judgment was a lien upon the entire interest of Louisa Miner in the property. No subsequent mortgage could diminish the extent of the judgment lien or interfere with the sale under said judgment. And the same may be said as to the homestead claim of the other defendants. Where once a judgment or attachment lien has arisen, no 'subsequent occupation’ of the land as a homestead by the debtor affects the extent or. validity of such prior lien. (Bullene v. Hiatt, 12 Kas. 98.) So that upon the facts as stated there was nothing in the mortgage or the homestead claim to impair, modify or limit the extent of plaintiff's judgment lien, or its right to sell the land and acquire full title by an ordinary sale under an execution. Therefore the case is not brought within the old equity rules, by which a court of equity may set aside a fraudulent conveyance made by the debtor of his property, or any other apparently legal obstruction to a sale under the execution; for here there is no obstruction. (Stephens v. Beal, 4 Ga. 319; Coleman v. Rives, 24 Miss. 634; Robert v. Hodges, 16 N. J. Eq. 299.) It is a familiar doctrine that equity never interferes when there is a full and complete legal remedy. It will not remove an alleged cloud upon the title, when the defect appears upon the face, of the record through which the opposite party can alone claim title, and is one which no statute of limitations will cure. (Douglass v. Nuzum, 16 Kas. 515.) Now the foreclosure of a lien is either a statutory or an equitable proceeding. There is no pretense of any statute in terms providing for the foreclosure of a judgment lien, nor have counsel been able to cite us any case in which, in the absence of those facts which by established rule make out a case for equitable interference, the general lien of a judgment at law has been turned into the specific lien of a decree in equity. Counsel say the precedent ought to be established, and such a practice initiated. It would perhaps be sufficient'to say that the legislature is the proper body to initiate such a change in practice, and yet there is doubtless this much of truth in the argument of counsel: that the courts have sufficient control over their forms of proceeding, that to prevent wrong or protect right they may adopt such procedure as is absolutely essential thereto. But no- such case exists here. Plaintiff says that the defendants deny the validity of its judgment lien upon the premises, and then alleges facts which show that defendants’ claim is not only without foundation, but also without color of right. Why then should the interference of a court of equity be invoked ? By its own showing, a sale under its judgment would carry everything, and pass as perfect and complete a title as a subsequent sale under a decree of foreclosure. It has shown no legal defects, not even a color of defect in the title which it seeks to appropriate. It shows affirmatively that it has a complete, plain, simple and adequate remedy at law, and therefore has laid no foundation for the interposition of equity. But counsel say that by reason of defendants’ claim, plaintiff cannot make a sale of the prop-, erty under its execution; that if it' buys it itself, it will incur cost and expense, and may after subsequent litigation find that in fact the land is a homestead, and that it has acquired noth ing by reason of its purchase, and that therefore this question of homestead, which is an obstruction to the sale, should be settled in advance. In reply we would say, that if the facts stated by plaintiff are true, there can be no question ab.out the title which it will acquire; and for the purposes of the case as it now stands, we must assume that those facts are true. Second, if the defendant has made no fraudulent conveyance, or attempted to perpetrate no other fraud upon the plaintiff, it does not seem equitable that-she should be put to the cost and expense of a litigation before the plaintiff is willing to risk anything. 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All the Justices concurring. | [
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The opinion of the court was delivered by
Hobton, C. J.:
The only question raised in this case is based upon the findings of 'fact that the animal killed was struck by the cars of the railroad company upon a crossing used by the public for many years. There was no public way, however, laid put or of record across the track at this place. Counsel for the railroad company contend that the crossing was a highway defacto, and therefore that the company was excused from inclosing it with a fence. This identical question has been passed upon and decided in favor of the claim of plaintiff in error in Soward v. Rld. Co., 33 Iowa 386. We content ourselves with a reference to that case and the argument there stated. Although it was the duty of the railroad company to construct and keep in repair at the crossing of the public highway near by a good and substantial crossing as required by the statute, and although the company might in a proper action have been compelled to perform its duty, yet that in no manner prevented the crossing where the animal was struck from being a highway defactoso long as it was openly and notoriously used as a highway by the public.
The judgment of the district court must be reversed, and the cause remanded with direction upon the findings of fact, to enter judgment for the plaintiff in error (defendant below).
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action of replevin by Eva A. Randall, plaintiff in error, against John Shaw, defendant in error. The facts are substantially as follows: Plaintiff’ alleged in her petition special ownership and right of possession, to the personal property in controversy, by virtue of a chattel mortgage executed by Marvin Randall, the owner of the property, to G. W. Elliott, on October 20, 1880, to secure the payment of a note of $679, executed the same day, and due August 20, 1881. The mortgage was filed for record upon the date of its execution. The note and mortgage were afterward assigned by Elliott to plaintiff, but before the commencement of this action. The defendant is the sheriff of Rooks county, and as such sheriff, on the 3d day of January, 1881, upon an alias execution issued out of the district court of Rooks county, upon a judgment rendered on the 27th day of October, 1880, in that court, in the case of Weil & Co. v. Marvin Randall, et al., levied upon and took into his possession the personal property claimed by plaintiff. The answer alleged that the note and mortgage were executed without any consideration by Randall to Elliott, to defraud, hinder and delay the creditors of Randall, and that the alleged assignment thereof was wholly fictitious and fraudulent. On the part of the plaintiff, it was shown in' evidence that G. W. Elliott was the father of the wife of Marvin Randall; that Elliott, in October, 1880, held notes of Randall’s for money loaned him, and at some time in that month he sent the notes to his son. J. W. Elliott, to be placed in the hands of a lawyer for collection or to be secured; that Marvin Randall delivered the note and mortgage set forth in the petition to J. W. Elliott, for his father G. W. Elliott, and that the old notes were then taken up for the new one, given for the faces of the old ones. The judgment upon which the alias execution was issued was not rendered until after the chattel mortgage was filed for record, although the action of Weil & Co. v. Randall was pending at the date of the execution of the chattel mortgage. A large portion of the personal property embraced in the chattel mortgage was sold by Randall after its execution, but the proceeds thereof were applied by him upon the note. G. W. Elliott, the father of the plaintiff, prior to the transfer of the note and mortgage, had been in feeble health, and was not expected to live very long. He was arranging his business in anticipation of dying at any time. He was worth from $15,000 to $20,000, and had made advances to his other children, taking receipts therefor. He transferred the note and mortgage, without consideration, to plaintiff, the wife of Marvin Randall. There was no evidence introduced by the defendant contradicting or conflicting with the testimony of plaintiff, yet the court made a general finding in favor of the defendant, and rendered judgment that the latter was entitled to the possession of the goods and chattels-described in the petition. This judgment must be reversed, because upon the record it is wholly unsupported by the evidence. At the time the action of Weil & Co. was commenced against Marvin Randall, et al., Randall was then indebted to G. W. Elliott, and the indebtedness was evidenced by notes executed therefor. Pending the action against him, Randall had the legal right, in good faith and without an intention to defraud, to secure such indebtedness upon any property he had, and his giving a new note in lieu of the old ones, and the execution of a chattel mortgage as security was a legitimate and fair transaction, for aught that appears in the record. It is well settled that a debtor has the right to prefer one creditor over another, and that the vigilant creditor is entitled to the advantage secured by his watchfulness and attention to his own interests. (Avery v. Eastes, 18 Kas. 505; Campbell v. Warner, 22 Kas. 604.) Elliott had also the right to transfer the note and mortgage to the 'plaintiff merely as a gift, or as an advancement to her to equalize the distribution of his estate among his children before his death, and if valid in his hands they were equally so in the hands of his daughter, the plaintiff. We do not think the testimony justified the court as a trier of fact, in coming to the conclusion that the execution of the note and mortgage of October 20, 1880, was fraudulent.
Something is said in the brief of counsel for defendant, to the effect that the old notes at the time of the execution of the new note were barred by the statute of limitations, but the record does not clearly sustain this statement. Likewise, we find no justification for the assertion of counsel that plaintiff’s admissions show a fraudulent design .between her and her husband to make the husband execution-proof. If, upon another hearing, it shall appear that the alleged indebtedness of Marvin Randall to G-. W. Elliott prior to October 20, 1880, was fictitious, or that the old notes, if any existed, had been satisfied by a payment or gift before the execution of the new note and chattel mortgage, or if in any other manner it shall be shown that the new note and mortgage were delivered to Elliott without consideration, of course plaintiff would not be entitled to recover the property in dispute, as the mortgage, if void in the hands of her father, would have no force or validity by the transfer to herself.
The judgment of the district court will be reversed, and the case remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court w^s delivered by
Hokton, C. J.:
Although these cases are separate and distinct, and although the offenses alleged are different, we shall consider them together, inasmuch as the facts in each case are-very similar, and the cases have been presented to us at the-same time. Carr and Dillon were in the employ of the Atchison, Topeka & Santa Fé Rid. Co. as section foremen, with-headquarters at Kansas City, Mo. Carr was arrested for-forging time-checks, Dillon for obtaining money under false pretenses from the company. Upon preliminary examinations at Topeka, in Shawnee county, Kansas, it was decided that the offenses charged, had been committed; that there was probable cause to believe the petitioners guilty as set forth in the complaints and warrants, and they were ordered to give bail for their appearance before the district court of Shawne.e county at the next term thereof, to answer therefor. In default of bail, they were committed to the jail of the county.
The only question presented for our determination is as to-the jurisdiction of the courts .of Shawnee county. On the part of the petitioners, it is claimed that the supposed of fensés set forth in the several complaints were commenced and consummated in the state of Missouri, and that the defendants are in no wise amenable to the criminal law of Kansas.
On the part of the counsel for the state, it is contended that the petitioners had no intention whatever of defrauding anyone but the Atchison, Topeka & Santa'Fé Rid. Co.; that they only used the banks and other parties in Kansas City as a means to accomplish their ends, and as the time-checks finally reached the treasurer of the.company at Topeka, within the state, and were acepted by the treasurer as genuine,the petitioners, upon coming within the state, were liable to arrest for the offenses charged. In this connection they refer to § 21, ch. 82, Comp. Laws of 1879, which reads: “Every person, being without the state, committing or consummating an offense by an agent or means within the state, is liable to be punished by the laws thereof in the same manner as if the prisoner had commenced and consummated the offense within the state.”
It appears from the evidence that the company had a freight house, office, agent, and a corps of clerks, to transact its business at Kansas City. Among other duties, the freight agent at Kansas City had authority to collect money due for freight, pay back charges on freight from other roads, and remit the money of the company to its treasurer at Topeka, Kansas. He also had authority out of the funds of the company collected by him to pay off the valid obligations of the company upon proper vouchers. Supposing the checks forged by Carr valid obligations of the company, he made payments thereon within the state of Missouri. Afterward, the checks were sent by him to the treasurer’s office of the company at Topeka, and he was given credit for them as so much cash. But the agent drew no money at Topeka on the checks, and the money with which the checks were paid had never been in the treasury' of the company at Topeka, or in the possession of the company within this state. It is not claimed that the agent of the company at Kansas City acted in collusion with Carr, and upon the testimony such person was neither his guilty nor “innocent agent.” As the forgeries were committed and uttered by Carr within the state of Missouri, and the forged checks actually cashed by the company in that state, the crime was wholly consummated within Missouri. Therefore, in our opinion, upon the evidence submitted for our consideration, the offense was not committed or consummated “ by an agent or means within this state,” and however criminal Carr may. be, he. must be tried and punished in Missouri — not here.
Upon Dillon’s examination, it also appeared that all the transactions with which he was connected were done in Missouri. The false pretenses were made in Missouri, and the money he received was obtained by him in person in that state. As in the Carr case, so in this case, the time-checks finally reached the treasurer of the company at Topeka; but the checks came from banks in the state of Missouri to the Topeka bank and other institutions in the city of Topeka, in the regular order and course of business, and the money that was paid out of the treasurer’s office in the city of Topeka on the checks was not paid to Dillon, or to any other person for him, or for his use or benefit. “ If a man draws a check upon a bank with which he has no money, and hands it as a good check to another party, it is a false pretense as regards that party, but not as regards the banker.” (Rex v. Lara, 6 Term R. 565.) Counsel for the state seek, however, to charge the sending of the check through the banks to Topeka upon Dillon. What took place after Dillon obtained the money in Missouri he did not order, and is not criminally responsible for. He gained his full object when he obtained the money at Kansas City, and it was a matter of perfect indifference to him whether the banks afterward did or did not obtain payment on the checks from the railroad company, or from any other party. It would have been perhaps much more for his benefit had the checks been lost or destroyed before reaching Topeka.
Upon the evidence produced, Dillon was certainly guilty of the offense with which he is charged in Missouri; but can it be said he was guilty of a like offense each time the checks were transferred to a new holder? We think not. (Regina v. Garrett, 22 Eng. Law and Equity, 607.) These cases are unlike People v. Adams, 3 Den. 190. In that case, the fraud originated and was concocted in Ohio, by Adams. But it matured in the city of New York, for there the false pretenses were made, and the receipts and drafts presented through the instrumentality of innocent agents employed by Adams, and the signatures and money of the persons defrauded were obtained by Adams through such agents in that city. Nor is the case of Commonwealth v. Harvey, 8 Am. Jurist, 69, applicable, as in that case the defendant forged the draft at Albany, N. Y., and placed it in the hands of a broker there, to be forwarded by him to the drawee in Boston, where it was paid, and the proceeds remitted to the defendant in New York. These cases are not parallel with United States v. Davies, 4 Sumner, 485, where the defendant was accused of shooting from an American ship, and killing a man on board of a foreign schooner; because, upon the evidence, the parties here achieved their full wish and object upon receiving the moneys obtained by them in Missouri. The offenses, therefore, took effect in Missouri: in the one case, when Carr received payment upon the forged papers from the freight agent of the railroad company at Kansas City, and in the other, when Dillon actually obtained in person the money upon false pretenses from the banks of that city.
We fully recognize that the power of the- state to punish criminals extends to all persons who, being without the state, commit or consummate violations of the penal statutes within our state, “by an agent or means within the state.” Such persons, although out of the state, are, in contemplation of law, within the state. But where a forgery is perpetrated an<^ uttered beyond the state, and the forger actually obtains -the money thereon in another state, and before the false and spurious instrument reaches the limits of the state, the offense is consummated beyond this state, and the forger is not amenable to the provisions of our statute upon coming within the state. So also where a person guilty of false pretenses in another state obtains thereby from a banker or other person in such state, money, he is guilty of false pretenses as regards the party from whom he obtains the money, and may be punished at the place where the money was so obtained by him.
After the petitioners got the money, they had no longer any interest in the uttering or preservation of the time-checks, or in the action of the banks or freight agent at Kansas City concerning them. Neither the banks nor the freight agent were moved or asked by them to send the checks to Topeka for payment, or for any other purpose. They probably foresaw and anticipated that the checks would be sent there; but it cannot be said that they wished them sent, and therefore their agents did not send or present them to the treasurer of the railroad company. The credit and money obtained upon the checks within this state were not for the petitioners’ use or benefit, but solely for the benefit of the agent of the railroad company and the banks which had been defrauded by the petitioners in Missouri. If these petitioners had used the mail to collect the money from the treasurer at Topeka, or had employed the banks or the agent of' the railroad company at Kansas City to collect the' money for them, or had sent the checks through them for collection, then they would be guilty of crimes committed! within this state through “innocent agents.” Then the offenses charged against them would have been consummated “by an agent or means within this state,” and although out of the state, they would have been, in contemplation of law, within the state, and the right of punishment under the statute of this state would extend to them. But as the action of the freight agent and of the banks at Kansas City subsequent to the payment of the moneys to the petitioners was the separate and independent action of said parties for their own — not the petitioners’— benefit, the petitioners cannot be held here for trial. Therefore, they must be discharged.
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The opinion of the court was delivered by
Fromme, J.:
The Missouri Pacific Railroad (Mo-Pac) filed a declaratory judgment action in the district court to determine the validity of a home rule resolution referred to as the “Greeley County Dirt Embankment Act,” passed by Greeley County. The case was submitted to the court on documentary evidence which evidence included the pleadings, certain exhibits, affidavits and the deposition of Thomas Hall, assistant engineer for Mo-Pac. The district court found that several sections of the “Greeley County Dirt Embankment Act” contravened the home rule powers of the county granted in K.S.A. 19-101 et seq. and declared the Act void. The county has appealed from that ruling.
The court found that the Act was not such a restraint on interstate commerce as to be in violation of the Commerce Clause of the United States Constitution. No appeal has been taken from that ruling and that matter is not now before this court.
It may be helpful to review some of the history of home rule in Kansas. Home rule powers are those granted by the Constitution or by legislative act to units of local government to transact local business and perform such local legislative and administrative duties as these local units may deem appropriate, subject to certain limitations imposed upon such grant of power. Home rule powers were granted to cities by constitutional amendment in 1961. Kans. Const, art. 12, § 5. In 1974, thirteen years later, the legislature passed an act granting powers of home rule to counties. L. 1974, ch. 110. Counties in Kansas are now empowered to transact all county business and perform such powers of local legislation and administration as may be appropriate, subject, however, to the restrictions and prohibitions set forth in K.S.A. 19-101a.
Although there have been numerous cases decided by the appellate courts of this state dealing with city home rule, we find no Kansas cases dealing with county home rule powers. However, the home rule powers granted to cities by constitutional amendment and to counties by legislative act appear to be similar and parallel each other in many particulars. The case law dealing with city home rule powers should be particularly helpful here.
K.S.A. 19-101a provides in part:
“(a) Counties are hereby empowered to transact all county business and perform such powers of local legislation and administration as they deem appropriate, subject only to the following limitations, restrictions, or prohibitions: First, counties shall be subject to all acts of the legislature which apply uniformly to all counties; . . .
“(b) Counties shall apply the powers of local legislation granted in subsection (a) of this section by resolution of the board of county commissioners. If no statutory authority exists for such local legislation other than that set forth in subsection (a) of this section and the local legislation-proposed under the authority of such subsection is not contrary to any act of the legislature, such local legislation shall become effective upon passage of a resolution of the board and publication in the official county newspaper. If the legislation proposed by the board under authority of subsection (a) of this section is contrary to an act of the legislature which is applicable to the particular county but not uniformly applicable to all counties, such legislation shall become effective by passage of a charter resolution in the manner provided in K.S.A. 19-101b.”
K.S.A. 19-101c provides:
“The powers granted counties pursuant to this act shall be referred to as county home rule powers and they shall be liberally construed for the purpose of giving to counties the largest measure of self-government.”
Counties are prohibited, however, from passing any legislation which is contrary to or in conflict with any act of the state legislature which is of uniform application to all counties throughout the state. K.S.A. 19-101a(a) First, (b).
Defendants rely on City of Garden City v. Miller, 181 Kan. 360, 366, 311 P.2d 306 (1957), wherein this court stated:
“The fact that the state has enacted legislation on a subject does not necessarily deprive a city of the power to deal with the same subject by ordinance. [Citations omitted.] A municipality may legislate on the same subject so long as the municipal ordinance does not conflict with the state law [citations omitted], and if there is no conflict, both laws may stand.”
The Miller case, although decided prior to home rule in Kansas, sets forth rules of law which remain applicable to local ordinances and resolutions adopted under home rule powers. See City of Junction City v. Lee, 216 Kan. 495, 532 P.2d 1292 (1975). However, the Miller case is readily distinguishable from the present case. In Miller a traffic ordinance was being considered. The local ordinance against driving while under the influence of intoxicating liquors was found not to be in conflict with the state statute on the subject. Further, the state statute provided that cities could adopt “additional traffic regulations, which are not in conflict with the provisions of the act.” 181 Kan. at 365. Thus, there was no conflict or pre-emption of the field by state legislative action. The primary method of determining whether an ordinance or resolution of a county is inconsistent with a statute of the state is to see whether the local law prohibits what the state law permits or the state law prohibits what the local law permits.
The legislature may reserve exclusive jurisdiction to regulate in a particular area when an intent is clearly manifested by state law to pre-empt a particular field by uniform laws made applicable throughout the state. See discussion in Garten Enterprises, Inc. v. City of Kansas City, 219 Kan. 620, 623, 549 P.2d 864 (1976); City of Junction City v. Lee, 216 Kan. at 502-03; and City of Lyons v. Suttle, 209 Kan. 735, 738, 498 P.2d 9 (1972).
The rule denying power to a local body when the state has pre-empted the field is a rule of necessity based upon the need to prevent dual regulation which would result in uncertainty and confusion; and whether the state has pre-empted the field to the exclusion of local legislation depends not only on the language of the statutes, but upon the purpose and scope of the legislative scheme. Abbott v. City of Los Angeles, 53 Cal. 2d 674, 3 Cal. Rptr. 158, 349 P.2d 974 (1960); Kim v. Town of Orangetown, 66 Misc. 2d 364, 321 N.Y.S.2d 724 (1971); and City of Baytown v. Angel, 469 S.W.2d 923 (Tex. Civ. App. 1971).
Now we turn to the facts of our present case. Mo-Pac began acquiring a strip of land along the north side of its present right-of-way in Greeley County by both private contract and by eminent domain, said land to be used in the construction of a “dust levee” to control dust buildup and snow drifts in its trackbed along a seven-mile stretch of its right-of-way in the extreme western part of Greeley County which borders Colorado. Similar “dust levees” have been previously constructed along the tracks in eastern Colorado. The land being acquired by the railroad consists of a strip 100 feet wide adjacent to the north right-of-way line. The “dust levee” to be constructed will be 11 feet high and 36 feet wide at the base. The crown will be two or three feet wide and the slope will be 1 % to 1. Borrow pits on either side of the levee will be 12 feet wide extending out from the base of the levee and not more than five feet deep.
After the railroad began acquiring land by private contract, and about the time eminent domain proceedings were first undertaken, the county commissioners adopted the “Greeley County Dirt Embankment Act” which is as follows:
“RESOLUTION
“WHEREAS, it has come to the attention of the County Commissioners that various people and corporations are proposing to build dirt embankments over six feet in height in Greeley County and that said Dirt Embankments may endanger and adversely effect neighboring land owners and the welfare of citizens of Greeley County by causing unnatural diversion of winds, unnatural accumulation of weeds and snow, breeding grounds for insects and weeds, and health and death hazards for livestock which may stray in times of storms.
“IT IS THEREFORE RESOLVED:
“SECTION I
“A. No Dirt Embankments over six feet in height shall be constructed in the county of Greeley without first obtaining from the County Commissioners a permit to build said Dirt Embankment.
“B. A separate building permit shall be required for each 2,640 lineal feet of proposed Dirt Embankment.
“C. Any person or corporation building a Dirt Embankment after the passing of this resolution without first obtaining a building permit, as required by this resolution, shall be guilty of a misdemeanor and subject to a fine of $500.00. Each day a Dirt Embankment or a portion thereof, requiring a permit, exists without first having obtained a proper building permit shall be deemed a separate offense.
“SECTION II
“A. All application for Dirt Embankments shall furnish the following information:
“1. The exact location of the proposed Dirt Embankment, setting forth specifically, the number of feet between the edge of the Dirt Embankment and adjacent owner’s property lines.
“2. A description of the height and width of the proposed Dirt Embankment and the proposed material from which it is being constructed.
“3. A description of the safeguards taken to protect the health of livestock straying during storms.
“4. A description of the safeguards taken to protect adjacent property owners from damage caused by the unnatural accumulation of weeds and snow. “5. A description of the safeguards taken to protect adjacent land owners from crop damage caused by any accumulation of insects and weeds which may be caused by the construction of the Dirt Embankment.
“6. Proof that land adjacent to proposed Dirt Embankment has been a detriment to the security of the people and corporations.
“B. Any person or corporation making an application for the construction of a Dirt Embankment shall pay application fee in the amount of $5.00 for each application.
“SECTION III
“A. No building permit shall be issued for the construction of Dirt Embankments unless it is shown that adequate safeguards have been taken by the person or corporation proposing to construct said Dirt Embankments to protect the health and lives of straying cattle in times of storms and to protect adjacent land owners from the effects of unnatural diversion of surface winds including the unnatural accumulation of snow and weeds.
“B. No permit for building a Dirt Embankment shall be issued by the County of Greeley unless the application shows that there are adequate safeguards to protect adjacent land owners from an unnatural accumulation of weeds and insects caused by the construction of a Dirt Embankment.
“SECTION IV
“A. All Dirt Embankments constructed of dirt shall be planted within twelve month safter construction to native grass and the same shall be maintained throughout the life of the Dirt Embankment.
“B. In the event that a Dirt Embankment is constructed from dirt obtained from an adjacent pit or a pit within 100 yards of the Dirt Embankment or any extension thereof, then and in that event, said pit shall be no deeper than four (4) feet in depth and shall be surrounded by a fence of at least eight (8) feet in height containing a post at least every rod and at least four (4) strands of barbed wire no closer than one (1) foot apart, the first being no more than two (2) foot from the ground. Said fence shall contain an unlocked gate.
“SECTION V
“A. This resolution shall be cited as a Greeley County Dirt Embankment Act.
“B. If any provision of this resolution or the application thereof, to any person or circumstances is held invalid, the invalidity does not effect other provisions or applications of this ordinance which can be given without the invalid provision or application, and to this end the provisions of the resolution are severable.
“C. This resolution shall go into effect on the 1st day of March, 1980.
“THE BOARD OF COUNTY COMMISSIONERS OF GREELEY COUNTY, KANSAS”
Among the findings of the trial court appears the following:
“It should be noted that the evidence before the Court reflects that one of the purposes for the adoption of the Resolution was to delay Missouri Pacific Railroad in its construction of the ‘dust levees’.”
The appellant-board quarrels with this finding. The board argues the resolution was not limited to the construction of levees by the railroad, but applies to all persons and corporations desiring to build dust levees, dams, and.embankments on any property in Greeley County. However, there was adequate evidence to support the trial court’s finding. The action of the railroad toward construction of dust levees did precipitate the action of the county commissioners in adopting the resolution. The fact that others may be affected by the resolution does not change the apparent conclusion that the resolution was adopted in an effort to impose limitations on the railroad in constructing the levees along seven miles of its tracks in Greeley County.
The “Greeley County Dirt Embankment Act” became effective March 1, 1980. The district court in the eminent domain proceeding found the taking of private property for the purpose of constructing the dust levee was necessary for the lawful corporate purposes of the railroad. Further action has since been stayed pending a decision in this case.
As previously pointed out the exercise of home rule powers by a county must be directed to local legislation and administration. K.S.A. 19-101a(a). The power exercised cannot result in legislation which conflicts with an act of the legislature, and it cannot be exercised in any area which has been pre-empted by the state. Few, if any, ordinances and resolutions deal with an exclusively local matter and no statute regulates a matter which can be exclusively of statewide concern. The interests of the municipal ity or the county in such cases are nearly always concurrent with an interest of the state. Even if a local act has extraterritorial effect which makes its impact other than “purely local,” the local act should stand if not in conflict with a state statute and not in an area clearly pre-empted by the state. Clark, State Control of Local Government in Kansas: Special Legislation and Home Rule, 20 Kan. L. Rev. 631, 677 (1972).
The railroads in Kansas, as public utilities, have been placed under the general supervision and are subject to control by the Kansas Corporation Commission, an agency of the state. K.S.A. 66-156. In addition to this supervision and control, we find chapter 66 of Kansas Statutes Annotated devoted in large part to state statutes regulating the railroads. Article 2 of chapter 66 concerns the various duties and liabilities imposed on railroads, including furnishing, loading, repairing, and unloading cars; construction and maintenance of crossings; and imposition of civil liability for failure to comply with such duties, as well as payment of damages for fire along the tracks. Liability is imposed against the railroads for damages to persons and property caused by negligence. Regulations are statutorily imposed requiring the railroads to construct and maintain their property, including the tracks, switches, and guardrails. Liability is imposed for killing or wounding livestock and the railroads are required to fence the tracks with a lawful fence or become liable without regard to negligence. The list of statutes regulating railroads include K.S.A. 66-201 to 66-2,122; 66-301 to 66-319; 66-501 to 66-524; and 66-701 to 66-706. These state statutory requirements governing railroads are comprehensive and include inspection and regulation at the hands of the Kansas Corporation Commission. K.S.A. 66-165 even provides that certain complaints against the railroads may be filed with and heard by the commission.
An examination of these statutes discloses several conflicts with the “Greeley County Dirt Embankment Act.” K.S.A. 66-501 provides in pertinent part:
“Every railway corporation shall, in addition to the powers hereinbefore conferred, have power —
"Third. To lay out its road, not exceeding one hundred feet in width, and to construct the same; and for the purpose of cuttings and embankments, to take as much more land as may be necessary for the proper construction and security of the road; . . . and may take property under the power of eminent domain in the manner set forth in K.S.A. 26-501 to 26-516, inclusive.” Emphasis supplied.
K.S.A. 66-502 provides:
“The directors of any railway corporation may, by a vote of two thirds of their whole number, at any time change the roadbed, or road line, or any part thereof, for the purpose of shortening the line, or to overcome natural obstacles; but such corporation shall not change the general route or terminus of the road.” Emphasis supplied.
The Greeley County home rule resolution, as a condition precedent' to utilization of the additional land acquired by Mo-Pac, requires the railroad to obtain a permit to build each dirt embankment. Before a permit can be issued, an application must be filed with the county commission detailing the location, description of, and the safeguards the railroad will undertake to protect livestock and crops of adjacent landowners. In addition Section II A 6 of the Act requires:
“6. Proof that land adjacent to proposed Dirt Embankment has been a detriment to the security of the people and corporations.”
This requirement is vague and unclear if not totally unintelligible.
The trial court found that “[t]his language and the vagueness contained in other parts of the resolution could clothe the Commissioners with arbitrary power to be exercised merely at their will and caprice, whether they are disposed so to exercise it or not.”
The local Act conflicts with the grant of authority in the state statutes which authorizes the railroad to acquire additional land for the purpose of “cuttings and embankments” and “change the roadbed, or road line, or any part thereof, for the purpose of shortening the line, or to overcome natural obstacles.”
K.S.A. 66-295 et seq. imposes strict liability upon the railroad for killing or wounding livestock regardless of negligence, unless K.S.A. 66-299 is complied with. K.S.A. 66-299 requires the railroad to enclose the road with a good lawful fence. K.S.A. 66-308 relates to the construction of fences along the railroad and requires either a hog tight fence or a lawful fence corresponding in class to that maintained by the adjacent owner. In the case of a barbed wire fence, a railroad is required to construct a lawful fence which is described in K.S.A. 29-105, as follows:
“A barbed-wire fence, of not less than three wires, with the third wire from the ground not less than forty-four inches nor more than forty-eight inches from the ground, and bottom wire not more than twenty-four inches nor less than eighteen inches from the ground, with the center wire equidistant, or nearly so, between upper and lower wires; said wires to be well stretched and barbed, barbs to average not more than nine inches apart; said barbed wire to be composed of two wires not smaller than No. 13, or one wire not smaller than No. 9, wires to be securely fastened to posts, which shall not be more than two rods apart and not less than twenty inches in the ground, and set in a workmanlike manner.”
In direct conflict with the state fencing requirements, the “Greeley County Dirt Embankment Act” requires any borrow pit constructed by the railroad to be “surrounded by a fence of at least eight (8) feet in height . . . and at least four (4) strands of barbed wire no closer than one (1) foot apart, the first being no more than two (2) foot from the ground.”
The requirement of a fence eight feet in height is somewhat incongruous when coupled with a requirement for construction of a four-wire barbed wire fence. This provision in the county resolution conflicts with state laws pertaining to the fencing of railroad right-of-ways. Time will not permit us to specifically point to all of the state laws governing the construction, operation and maintenance of railroads with which the “Greeley County Dirt Embankment Act” conflicts.
The regulation of railroads in this state is a matter of statewide concern and should not be left to local county government. The State of Kansas by legislative acts has reserved exclusive jurisdiction to regulate in the areas covered by the “Greeley County Dirt Embankment Act” as applied to railroads, and said county resolution is invalid and beyond the home rule power of the county by reason of state pre-emption of the particular field covered by the county resolution, regulation of railroads. The need for statewide uniformity in regulation of the construction and maintenance of railroads which transverse this state is imperative when one considers the public interest to be served by these public utilities. It becomes even more imperative when you consider the possibility of confusion and capricious action if additional regulation by each county in the state is permitted. The foregoing considerations lead to the conclusion that this county home rule resolution is unconstitutional because the state has pre-empted this area of legislation; that is, the state has evidenced a purpose and design to occupy the field so as to prohibit additional regulation by local authorities in the same area.
The Greeley County home rule resolution is invalid for the reasons stated and the judgment is affirmed. | [
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The opinion of the court was delivered by
Prager, J.:
This is an action brought by the widow and children of Terry Pape against the defendant, Kansas Power and Light Company (KP&L), to recover damages for his wrongful death. Pape suffered fatal injuries on February 10, 1978, when a metal pole which he was using came in contact with KP&L’s uninsulated 7200 volt power line at the Fairview Elevator, Fairview, Kansas. Pape’s employer, Brockhoff Feed Yards, Inc., paid workmen’s compensation to the plaintiffs. Terry Pape died on February 20, 1978. Kathleen Pape, as executrix of the estate of Terry Pape, brought a survivorship action for the damages which occurred prior to Pape’s death. It was consolidated with the wrongful death action in plaintiffs’ petition.
Most of the essential facts in the case were undisputed and are as follows: In October of 1957, KP&L installed a pole, transformer and three strands of uninsulated wire carrying 7200 volts of electricity on the premises of the Fairview Elevator. In 1972, the owner of Fairview Elevator installed six 8-ton Butler bulk feed bins, and a metal access ladder was bolted to the side of a bin and welded at the top. On February 10, 1978, Terry Pape, an employee of Fairview Elevator, was standing on the catwalk cleaning out one of the bins with a 20-foot metal pole. The pole somehow came in contact with the 7200 volt uninsulated wire. Pape fell to the ground approximately 20 feet below the bins, causing fatal head and neck injuries.
After the case was filed, Brockhoff Feed Yards, Inc., Pape’s employer, was brought in as a party by KP&L to establish its percentage of causal negligence along with that of Pape and KP&L. The jury returned the following special verdicts:
“FAULT
Terry Pape, deceased 36-%%
Kansas Power & Light 35-%%
Brockhoff Feed Yards, Inc. 27-%%
“DAMAGES
Survivorship:
Pain and Suffering $2,000.00
Loss of Time 450.00
Medical & Hospital 8,700.00
$11,150.00
Wrongful Death:
Pecuniary Loss $320,000.00
Nonpecuniary Loss 30,000.00
Funeral Expenses 3,704.75
$353,704.75”
The court entered judgment in the survivorship against KP&L and for Kathleen Pape, executrix, in the amount of $4,037.39. The court entered judgment in favor of the widow and children for damages in the wrongful death action in the amount of $126,152.33. Defendant’s post-trial motions were overruled, and defendant appealed to this court.
It would serve no useful purpose to set forth in detail ail of the evidence presented by the parties in the case. Suffice it to say, the case was well tried by able counsel and the issues of both liability and damages were hotly contested. On the issue of liability, the plaintiffs’ evidence disclosed that the manager of Fairview Elevator talked to defendant’s foreman on three or four occasions before Pape’s fatal injury and requested that the line be raised or rerouted and the pole cleaned up. According to this witness, KP&L’s foreman also thought something should be done, but nothing was done. A number of employees of KP&L testified that it is foreseeable and known in the industry that persons using metal poles make contact with 7200 volt power lines. KP&L’s division manager and division supervisor in Hiawatha testified that they were aware of the proximity of the grain bins to the electrical line before Pape was injured. They knew that the wires carried 7200 volts of electricity and had a potential of causing severe injury or death. They admitted it was feasible to raise or relocate the line. No warning sign was placed on the wire, bins, or pole either before or after Pape’s injuries.
There was evidence from KP&L’s general foreman that, on the date of Pape’s injury, the electrical line did not meet the vertical clearance from the bins required by the National Electrical Safety Code. KP&L’s construction manual required a vertical clearance of 15 feet between 7200 volt lines and balconies, roofs, and areas accessible to pedestrians. The evidence in the case was that the line was in fact from 8 to 10 feet from the top of the grain bins. Other KP&L employees, who came upon the premises periodically to read the meter, observed the bins and knew the catwalk had been installed thereon. Other testimony showed that KP&L supervisors knew of numerous incidents involving lengths of metal pipes contacting KP&L’s uninsulated power lines which resulted in serious injury or death. Plaintiffs presented the testimony of experts in the electrical distribution field who inspected the premises in question after the fatal accident. They testified that the close proximity of the power line to the catwalk presented an extremely hazardous situation and that KP&L had failed to comply with the safety standards prescribed by the National Electrical Safety Code. Based upon this testimony, the jury brought in the verdicts favorable to the plaintiffs as set forth above.
The defendant’s first point is that the trial court erred in giving an instruction on the presumption of due care exercised by a deceased person. This is the so-called “love of life” instruction. This instruction, in substance, advised the jury that it is presumed that Terry Pape at the time of contact with KP&L’s line was exercising due care to avoid injury but that the presumption was rebuttable. Defendant complains that the instruction was improper, because the instruction was given in spite of the fact that the trial court had previously found Pape guilty of contributory negligence as a matter of law. We find no merit to this contention. We note from the record that, despite defendant’s repeated requests, the court refused to hold as a matter of law that Terry Pape was negligent, although the court opined outside the jury’s presence that the jury most likely would find him guilty of some negligence. The submission of the instruction in this case was proper, since there were no eyewitnesses to the incident and plaintiffs’ case was necessarily based on circumstantial evidence. The rule in Kansas is that, in a wrongful death action where there are no known eyewitnesses and plaintiff’s action is based on circumstantial evidence, a trial court may in its discretion submit an instruction on the presumption of due care of a decedent. See Akin v. Estate of Hill, 201 Kan. 306, 309, 440 P.2d 585 (1968); PIK Civ. 2d 2.70 (1977). Furthermore, in the special verdict in this case, the jury found Terry Pape to be 36%% negligent. The jury could not have been misled by the instruction, since the jury chose to follow the language in the court’s instruction that the presumption of due care is overcome if the jury is persuaded by the evidence that the contrary is true. We find no error in the giving of the “love of life” instruction.
The defendant raises several points concerning the admission of evidence. Defendant complains that the trial court erred in admitting, over objection, defendant’s official accident investigation report which identified the date, hour, and circumstances at the time of Pape’s injury and declared the power line’s clearance above the catwalk to be 8 feet. At the time of the trial, the defendant contended that the clearance was 10 feet. The report was admissible under K.S.A. 60-460(g) as an admission and also to test the credibility of defendant’s witnesses.
Defendant contends that the trial court erred in admitting evidence of previous KP&L accidents involving contact between metal poles and its electrical lines. This evidence was admissible on the issue of the foreseeability of the accident, which is present in many negligence situations. The defendant further complains because the trial court allowed plaintiffs’ expert witnesses to express their opinions that the power line installation at the Fairview Elevator was a hazard, that defendant’s employees should have recognized and corrected the hazard, and that the defendant had failed to comply with requirements pertaining to minimum clearance, warning signs, and mandatory inspections set forth in the National Electrical Safety Code. One of the plaintiffs’ experts testified that the hazard could easily have been eliminated by relocating the line. We have no hesitancy in holding that this evidence was properly admissible.
K.S.A. 60-456 provides the authority for asking an expert witness for his opinion on an ultimate issue in the case. That statute provides in pertinent part as follows:
“(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 the fact.”
Such opinion testimony is admissible if it will be of special help to the jury on technical subjects as to which the jury is not familiar if it will assist the jury in arriving at a reasonable factual conclusion from the evidence. In this regard see Plains Transp. of Kan. Inc. v. King, 224 Kan. 17, 578 P.2d 1095 (1978); Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-456, pp. 205-06 (1979). Under the circumstances in this case, the testimony of expert witnesses in the field of design and construction of electrical distribution systems would be of great assistance to the jury, since that area is not one within the typical juror’s common knowledge. Hence, the testimony of plaintiffs’ experts on those subjects was admissible.
The defendant next maintains that the trial court erred in not allowing defendant to introduce evidence that the decedent’s widow, Kathleen Pape, had remarried in less than seven months after the death of Terry Pape. Defendant argues that, under the Kansas Wrongful Death Act (K.S.A. 60-1901 et seq.), evidence of a widow’s remarriage is admissible on the question of mitigation of her damages. On this point, we have concluded that the trial court properly excluded evidence of the surviving spouse’s remarriage. The overwhelming majority rule throughout the United States is that damages for wrongful death are determined as of the date of death, and the fact that the surviving spouse has remarried is not a factor for the jury to consider in assessing either pecuniary or nonpecuniary damages of the surviving spouse. This subject is thoroughly discussed in an annotation entitled “Death Action— Evidence of Remarriage” in 88 A.L.R.3d 926, where many cases are cited on the subject. The rule which excludes such evidence is simply an application of the collateral source rule which is generally recognized. Simply stated, the collateral source rule is that benefits received by the plaintiff from a source wholly independent of and collateral to the wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer. The rule, which excludes evidence of remarriage of the surviving spouse in a wrongful death action, is mentioned in Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-471, p. 301 (1979).
In Kansas, we have no cases exactly on point on the issue of whether evidence of the remarriage of a surviving spouse in a wrongful death action is admissible in mitigation of her damages. Kansas has, however, long recognized the collateral source rule. In Berry v. Dewey, 102 Kan. 593, 172 Pac. 27 (1918), the plaintiff, a mother, brought an action for the wrongful death of her son. The defendant contended that the plaintiff, who was the sole heir of the decedent, received a substantial financial benefit as a result of the death of her son and that the benefit should have been deducted from the amount of the verdict. This court, in the opinion, stated that the proposition was untenable and, although it appears to have standing in the courts of some of the states, the proposition does not address itself to the judgment of this court as being sound, legal, equitable, or fair, and it cannot be permitted to reduce the amount of recovery in any way.
In Southard v. Lira, 212 Kan. 763, 512 P.2d 409 (1973), a personal injury action, it was held that the trial court properly applied the collateral source rule in excluding evidence of insurance proceeds received by plaintiff. The court relied on Rexroad v. Kansas Power & Light Co., 192 Kan. 343, 388 P.2d 832 (1964). More recently in Negley v. Massey Ferguson, Inc., 229 Kan. 465, 625 P.2d 472 (1981), it was held that it would not be proper in a wrongful death action to disclose to the jury the fact that the surviving spouse was receiving workmen’s compensation payments as the result of the death of her husband. It should also be noted that the United States District Court of the District of Kansas has followed the rule that, in a wrongful death action, evidence that the wife remarried following the wrongful death of the husband should be excluded. See Nichols v. Marshall, 486 F.2d 791 (10th Cir. 1973).
In our judgment, the rule which excludes evidence of the remarriage of the surviving spouse in a wrongful death action is sound and in accord with most of the other jurisdictions. The rationale underlying the majority rule is that the cause of action arises at the time of the death and damages are determinable as of that same time. Furthermore, some courts have observed that the rule providing for mitigation of damages because of the surviving spouse’s remarriage is highly speculative, because it involves a comparison of the earnings, services, and contributions of the deceased spouse as compared to those predicted from the new spouse. We find no justification to depart from our long recognition of the collateral source rule, as recognized in the cases discussed above.
The defendant next contends that the trial court erred in excluding defendant’s proffered evidence as to a purported common-law marriage of decedent, which defendant argues occurred prior to decedent’s marriage with the plaintiff, Kathleen Pape Johansen. The record shows that the only evidence proffered by the defendant on this issue was the deposition of Terry Pape’s former wife, Pamela Pape. The substance of the deposition was that, following their divorce, Pamela stayed with Terry Pape in his apartment in Missouri during 1974. Pamela Pape’s deposition clearly established that there was no holding out of the couple as husband and wife in Kansas after their divorce and that the living arrangement was merely a tentative trial run “to see if they could make it” and get along. Pamela Pape denied there was ever any agreement by Pamela and Terry that they were married. Terry Pape subsequently married Kathleen, his surviving spouse, and one of the plaintiffs here. This proffered evidence affirmatively negated two essential elements to prove a common-law marriage: (1) a holding out as husband and wife in a state recognizing common-law marriage, and (2) a present marriage agreement between the parties. Under these circumstances, the trial court correctly refused to admit the evidence or submit this issue to the jury because there was no evidence to support the claim of common-law marriage.
It is next contended by the defendant that the plaintiffs’ evidence was insufficient to show any conscious pain and suffering of the decedent prior to his death. The jury returned a verdict awarding $2,000 for Terry Pape’s pain and suffering between the accident which occurred on February 10, 1978, and Terry Pape’s death on February 20, 1978. We have examined the record and concluded that, although not extensive, there was sufficient evidence to justify a finding that Terry Pape suffered conscious pain and suffering from his injuries until his death. When discovered lying at the bottom of the bins, Terry Pape was breathing, had a bloody cut on his head, and was audibly moaning. In response to a request by Kathleen Pape to squeeze her hand if he understood her, Terry Pape squeezed her hand. Notes in the hospital record indicated that Terry Pape was very responsive to pain stimuli. Under the circumstances, we find that there was sufficient evidence to submit to the jury the element of damages of decedent’s conscious pain and suffering and to justify an award in the amount of $2,000.
The only other point raised by the defendant which requires comment is that the trial court erred in entering judgment in favor of the plaintiffs when the causal negligence of Terry Pape, when compared with the causal negligence of defendant KP&L, actually equaled 50%% as compared with 49%% causal negligence of the defendant. The basis of this contention is that the trial court erred in considering the negligence of the employer, which the jury found to be 27%%, in calculating causal fault of the parties, since the plaintiffs did not make a claim for recovery in the action against Pape’s employer, Brockhoff Feed Yards, Inc. Defendant argues that the plaintiffs cannot recover under the provisions of K.S.A. 60-258a(a) which permits recovery only if the decedent’s negligence was less than the causal negligence of the party or parties against whom claim for recovery is made. This same issue was raised and determined in Negley v. Massey Ferguson, Inc., 229 Kan. 465. In Negley, the plaintiff’s husband, an employee of Orrland, Inc., was electrocuted on the job when a forklift he was operating came in contact with overhead power lines owned and maintained by KP&L. The widow of the workman was paid workmen’s compensation benefits for herself and the minor children. The widow then brought a wrongful death action against the manufacturer of the forklift and KP&L. The jury found KP&L to be 10% negligent, the deceased employee to be 22% negligent, and the employer 68% negligent. The plaintiffs did not sue the employer for recovery in the action, since it had paid workmen’s compensation for the death of the employee. The defendant, KP&L, contended, as it does in this case, that the plaintiff could not recover from KP&L, the third-party tortfeasor, because its causal negligence was less than that of the decedent. Citing Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978), and Langhofer v. Reiss, 5 Kan. App. 2d 573, 620 P.2d 173 (1980), the court in Negley, held that the defendant’s position had no merit and that, in applying K.S.A 60-258a(a) plaintiff’s individual negligence should be compared with the collective causal negligence of all persons found by the trier of fact to have been causally negligent. The same rationale is applicable in this case.
Under the workmen’s compensation act the plaintiff was barred from bringing an action against the employer, Brockhoff Feed Yards, Inc. However, the defendant, KP&L, brought in Brockhoff under K.S.A. 60-258a(c). We have held in the past that the negligence of such persons brought in under K.S.A. 60-258a(c) is to be used for comparison purposes, even though these persons may be immune from liability or have previously settled with the plaintiff. Brown v. Keill, 224 Kan. 195, Syl. ¶ 6; Miles v. West, 224 Kan. 284, 580 P.2d 876 (1978). We hold that, under K.S.A. 60-258a(o), “parties against whom a claim for recovery is made” include all persons whose claimed causal negligence is submitted for determination to the trier of fact. Thus, the plaintiff can recover damages if his or her negligence is less than the combined causal negligence of all persons found by the trier of fact to have been causally at fault. We have, therefore, concluded that the trial court properly entered judgment in favor of the plaintiffs against defendant KP&L based on the jury’s findings of causal negligence, not only as to Pape and KP&L, but also as to Pape’s employer.
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The opinion of the court was delivered by
Holmes, J.:
Steve Woodard appeals from an order of the district court denying his motion to set aside a prior order of the court which severed his parental rights to his illegitimate daughter, Eva Woodard. In the original severance proceeding the only service upon appellant, a California resident, was by publication notice in The Garden City Telegram. When Woodard learned, some ten months later, that his parental rights to Eva had been severed, he took immediate steps to set aside the order of severance. His motion was denied by the district magistrate judge for failure to take a timely appeal and that ruling was upheld upon appeal by the district judge.
Eva Woodard was born August 26, 1978, in Ukiah, California, the daughter of Caroline Pickett and Steve Woodard. Although Caroline and Steve had lived together for a considerable length of time, they were never legally married. Sometime after the birth of Eva, Caroline and the baby departed from California without informing Woodard and he evidently had no knowledge of their subsequent whereabouts. In the spring and summer of 1979, Caroline and Eva were in Garden City, Kansas, where Eva was left in the care of a day-care provider on several occasions. Caroline was quite negligent about returning to pick up the baby and on one occasion left the baby with Mrs. Nowak, the day-care provider, for nearly five weeks without checking on the child. Mrs. Nowak eventually became concerned about the neglect of the child and on August 15, 1979, contacted the Department of Social and Rehabilitation Services (SRS). After an investigation by an SRS social worker, and after interviewing Caroline, SRS filed a petition on October 1,1979, seeking to have Eva declared a deprived child. The petition alleged the father was unknown and on the same date the court issued an order of protective custody committing Eva to SRS and temporarily placing the child with Mr. and Mrs. Nowak. Caroline has shown very little interest in the child or in the court proceedings and has not appealed any of the lower court’s orders.
On October 29, 1979, on oral motion of the county attorney’s office, an order was entered authorizing the filing of an amended petition to seek severance of the parental rights of both parents. The amended petition, filed November 20, 1979, named Steve Woodard as the father but asserted that the whereabouts of the father were unknown. In an order filed the previous day Mr. Van Smith, a respected member of the bar of Kansas, was appointed to represent Steve Woodard. A guardian ad litem for Eva had been appointed since the outset of the proceedings and the mother was also represented by appointed counsel. The publication notice directed to “Steve Woodard and all other persons who are or may be concerned” was published November 29 and December 6, 1979, in The Garden City Telegram and advised that the petition for severance of parental rights would be heard by the court on January 22, 1980, at 9:00 o’clock a.m. On October 30, 1979, the court had apparently entered another order based upon a motion of the deputy county attorney, seeking to amend the petition and seeking service upon Steve Woodard by publication. This order, which was not filed until December 18, 1979, appears to be based upon an undated motion filed November 16, 1979, some seventeen days after the court ruled on the motion. In the motion of the deputy county attorney it is alleged, “The movant further prays that the Court shall allow it to serve notice upon Steve Woodard by publication, for the reason that after due diligence the movant is unable to ascertain the whereabouts of said Steve Woodard.” Based upon this November 16, 1979, motion the court order of October 30, 1979, states:
“5. The presence as a party in this matter of Steve Woodard, natural father of Eva Woodard, is essential. Due to the unknown whereabouts of said Steve Woodard, service by publication as per K.S.A. 1978 Supplement 38-810a is proper.”
There are no findings of fact as to the attempt made, if any, to locate the father and no showing or finding of due diligence is contained in the order. It is interesting to note that the court’s order was originally dated November 30,1979, which would have been appropriate considering the motion was filed November 16, 1979. However, it soon became apparent to someone that there was a problem in that the first publication was November 29, 1979, one day prior to the order authorizing such service. Evidently alert counsel recognized the problem and crossed out November and inserted October in the order, which resulted in the order predating the motion upon which the order was based. Whether these procedural gymnastics were an after the fact attempt to clean up what is a woefully inadequate record we do not know. Despite the many procedural inaccuracies it appears that the severance hearing was heard by the court on the appointed date, January 22, 1980. Steve Woodard was represented by his counsel Mr. Van Smith, Eva Woodard by her guardian ad litem, and Caroline Pickett by her appointed counsel. Findings of fact and conclusions of law were filed February 28, 1980, and a journal entry of judgment was filed March 12, 1980.
In its findings of fact the court found that Eva was born August 26, 1977, and that Steve Woodard had failed to provide any parental support for at least two years. Eva was actually born August 26, 1978, and was less than seventeen months old at the time of the hearing. In fairness to the trial judge, it should be pointed out that the court may have been misled by the proposed findings of fact, filed by the deputy county attorney, which contained these inaccuracies. In its conclusions of law, the court found that Eva was a deprived child and that the parental rights of Caroline Pickett and Steve Woodard should be permanently severed. In the journal entry of judgment the court incorporated the findings of fact and conclusions of law previously filed and in addition found:
“3. The Court finds that the parental rights of Carolyn Pickett and Steve Woodard, natural mother and natural father of Eva Woodard should permanently and totally severed in that the said natural parents are found by the Court to be unfit parents and not proper persons to have the care, custody and control of the said child, Eva Woodard.”
No appeal was ever taken from the January 2,1980, order. Shortly before October 20,1980, Caroline wrote to Steve and advised him she no longer had the baby and that it had been taken from her in court proceedings. He immediately contacted the county attorney and was advised to call his appointed counsel Van Smith. On October 20,1980, Mr. Smith, at Woodard’s request, filed a motion to set aside the order of January 22, 1980, and to restore Woodard’s parental rights. Woodard alleges Caroline testified falsely about her lack of knowledge of his whereabouts and that the court did not obtain jurisdiction as the publication notice did not constitute service of summons as required by K.S.A. 38-820. On November 18, 1980, a hearing was held before the district magistrate judge. Steve Woodard was present in person, having traveled from California, for the hearing. The trial court ruled that Woodard would be denied the right to present evidence or a proffer of evidence and, after hearing legal arguments, denied the motion to set aside the prior order and thereby reopen the proceedings. The ruling of the magistrate judge was appealed to the district judge who requested briefs from counsel and, after receiving briefs, rendered a memorandum decision which, after reviewing the facts, reads, in part:
“Issue: It must be conceded that if the Court had jurisdiction to sever the parental rights of Steve Woodard on January 22, 1980, the appeal is moot in that Steve Woodard did not timely appeal the court’s findings of deprived child and severance of his parental rights. However, if the Court was without jurisdiction on January 22, 1980, did the Court err in overruling the natural father’s motion to set aside that Journal Entry?
“Conclusions:
“The Court must construe the facts in light of the following statutes: KSA 38-810a, 1979 Supp.; KSA 38-820, 1979 Supp.; KSA 38-1303, 1979 Supp.; KSA 38-1305, 1979 Supp.; and Kansas Appellate decisions construing these statutes.
“KSA 38-820 is very clear; that is, before a parent’s rights may be severed he must be represented by counsel and personally present or have been served with summons. In the matter now before the Court the natural father, Steve Woodard, was represented throughout by Van Smith, court-appointed counsel. It must be conceded that Steve Woodard did not personally appear in any of the proceedings prior to the Court’s ruling of January 22,1980. Therefore, the only question to be resolved is whether the natural father, Steve Woodard, had been served with summons.
“KSA 38-810a states:‘. . . . (a) All summons, notices and other process of the court for proceedings pursuant to the juvenile code shall be served in accordance with this section. . . . (b) The Court shall direct the method of service of summons, notice of hearings and other process from the following applicable alternatives:
. . . . (4) Service by Publication. Service by publication is completed by publishing a copy of the process once a week for two consecutive weeks in some newspaper authorized to publish legal notices; . . .’It must be conceded that the publication was in proper form as there has never been an objection as to form or an appeal perfected questioning the form of publication.
“The natural father, Steve Woodard, argues the service of summons by publication is improper in that personal service, residential service or restricted mail service must first be attempted unsuccessfully. A close reading of KSA 38-810a in no way mandates nor warrants such an interpretation. The statute leaves to the Court the manner of service and vests the manner solely in the Court’s discretion. The statute further states: \ . . (d) When personal service or residential service of process is directed, such process shall be served by a juvenile probation officer, the sheriff or any other person appointed by the Court for such purpose. . . .’
“In the matter now before the Court the order of October 30, 1980 [sic 1979) ], directed that service of summons be effectuated on the natural father, Steve Woodard, by publication. Once again no appeal was taken from that order.
“However, KSA 38-820 and KSA 38-810a must be construed in light of and in harmony with KSA 38-1303(a)(3) and KSA 38-1305(a)(l) through (4). KSA 38-1303(a)(3)(A) is explicit as to when a court may exercise its jurisdiction as to custody of children. In the matter before the Court it was alleged that the minor child had been abandoned on more than one occasion with the Day Care Provider. At the time the Court entered its initial order of custody the name of the natural father was unknown and when the final order severing parental rights and custody was entered the Court had determined the whereabouts of the natural father, Steve Woodard, was unknown and directed service of summons by publication in its order of October 30, 1980 [sic, 1979]; thus, compliance with KSA 38-1305(a)(4).
“The Court thus finds and concludes that on January 22, 1980, the Court had jurisdiction over the subject matter; i.e. the minor child; jurisdiction over the natural mother, Carolyn Pickett, and the natural father, Steve Woodard. To find otherwise would result in the juvenile code as adopted by our legislature being but a shell. Although the rights of parents should be jealously guarded they must be weighed against the rights of the child to a full and rich life with his natural parents or adoptive parents. In the matter before the Court there was no effort by the natural father to locate his child until approximately ten months after the Court’s order severing his rights. If this Court was to rule otherwise would, in effect, cause children to always be in a state of uncertainty.
“The Court further finds that applicable decisions of Kansas’ appellate courts support his ruling and there has been no violation of Steve Woodard’s rights to due process.
“Therefore, the finding of the District Magistrate on November 18, 1980, overruling the natural father’s motion to set aside the Journal Entry of January 22, 1980, was correct. The natural father, Steve Woodard, failed to timely appeal the Court’s order of January 22,1980, and therefore the issues raised on the appeal are moot.”
Steve Woodard has appealed the district court’s order and the case was transferred from the Court of Appeals to the Supreme Court pursuant to K.S.A. 20-3018(c). While appellant concedes that the procedure of the juvenile code was formally complied with and that publication service is valid in some severance cases, he asserts it was insufficient in the present case as there is no showing of what efforts were used to attempt to locate him so that actual notice could be given. It is further the position of the appellant that publication service can only be valid when it is shown that due diligence was used to effect a means of service that would provide actual notice.
On the other hand, the State and amicus curiae (the former deputy county attorney who handled all the proceedings at the trial court level) argue that the statute, K.S.A. 38-810a, makes no requirements that precede the utilization of service by publication and that the decision as to the type of service rests solely in the discretion of the trial court. It is also contended that inasmuch as the juvenile code establishes its own complete procedure, separate and apart from the code of civil procedure (In re Waterman, 212 Kan. 826, Syl. ¶ 3, 512 P.2d 466 [1973]), that appellant’s only remedy in this case was to appeal the trial court’s January 22, 1980, order within thirty days pursuant to K.S.A. 38-834. We agree with the position of the appellant.
The pertinent statutes have been summarized and sufficiently set forth in the trial court’s opinion quoted above and need not be repeated. Suffice it to say the trial court did have jurisdiction to enter appropriate custody orders for the protection of Eva. K.S.A. 38-1303. The serious question before this court is whether the court had jurisdiction to sever parental rights based upon constructive service by publication when the record does not reflect the need for resorting to such service. Unfortunately, the record does not include a transcript of the January 22,1980, proceedings which might show the exercise of due diligence on the part of the State in attempting to locate appellant.
The United States Supreme Court and our own state appellate courts have recognized repeatedly that parental rights are fundamental, substantive rights not to be meddled with absent a compelling countervailing protection interest. See Stanley v. Illinois, 405 U.S. 645, 31 L.Ed.2d 551, 92 S.Ct. 1208 (1972); In re Cooper, 230 Kan. 57, 631 P.2d 632 (1981); Sheppard v. Sheppard, 230 Kan. 146, 630 P.2d 1121 (1981); In re Lathrop, 2 Kan. App. 2d 90, 575 P.2d 894 (1978).
On the other hand, the State’s parens patriae interest in protecting the welfare of its children must take precedence over the rights of the parents when the welfare of the child requires such a determination. In Cooper, Justice Fromme summarized the balancing of the child’s welfare against the parents’ rights as follows:
“This court has long recognized the State’s interest in protecting its children and assuring they receive proper care. State ex rel. O’Sullivan v. Heart Ministries, Inc., 227 Kan. at 253; Murphy v. Murphy, 196 Kan. 118, 122, 410 P.2d 252 (1966). In the State’s exercise of its parens patriae powers, the child’s best interests are always the paramount consideration. In re Nelson, 216 Kan. 271, 276, 531 P.2d 48 (1975); In re Wheeler, 3 Kan. App. 2d 701, 703, 601 P.2d 15, rev. denied 227 Kan. 927 (1979). The parents’ rights cannot be disregarded, however, and the child’s best interests may be considered in conjunction with the parents’ rights. In re Armentrout, 207 Kan. 366, 370, 485 P.2d 183 (1971); Lennon v. State, 193 Kan. 685, 691, 396 P.2d 290 (1964). The parents’ rights are subordinate to the State’s parens patriae powers and must yield when adverse to the best interests of the child. State v. Garber, 197 Kan. 567, 572, 419 P.2d 896 (1966); Lennon v. State, 193 Kan. at 691. It is presumed that the best interests of the child are served by the retention of the child’s custody in the natural parents. In re Armentrout, 207 Kan. 366. Judicial recognition and legal representation of a parent’s interests in a child-deprivation proceeding does not, therefore, usurp the State’s parens patriae powers.” pp. 62-63.
However, the exercise of the parens patriae doctrine does not extend to the extreme of severing parental rights without a good faith effort to locate and notify the parents who are to be affected by the court’s determination.
In another juvenile proceeding, albeit of a criminal nature, the United States Supreme Court said that where the child’s future and the parent’s right to control and raise that child were at stake,
“Due process of law requires notice of the sort we have described — that is, notice which would be deemed constitutionally adequate in a civil or criminal proceeding.” In re Gault, 387 U.S. 1, 33, 18 L.Ed.2d 527, 87 S.Ct. 1428 (1967).
While it is true that our juvenile code sets up a complete and exclusive procedure, it is not unreasonable to look to our code of civil procedure and our decisions in other types of civil cases to determine the requirements of valid constructive service. It would seem only logical that due process of law would require at least comparable safeguards in a proceeding in which a parent might lose his or her child as would be required if that same person was a party to an action in which the loss of money or property was at stake. Fundamental fairness, which is the benchmark of due process, requires nothing less.
In Chapin v. Aylward, 204 Kan. 448, 464 P.2d 177 (1970), this court considered the validity of constructive service by publication in a tax foreclosure action. Without going into detail as to the facts of the case, it was apparent that the owners of the mineral interests being foreclosed were not residents of the county and all the procedural requirements of the statutes for publication service appeared to be in order. It appears that the owners’ names and addresses were, however, readily available to the foreclosing officials. In affirming the trial court’s decision setting aside the tax sale this court stated:
“In Walker v. City of Hutchinson, 178 Kan. 263, 284 P.2d 1073, the city condemned a part of Walker’s property for street purposes. The appraisers who were appointed to determine compensation were required by statute to give at least 10 days notice of their proceedings either in writing or by one publication in the official city paper. They chose the latter method of giving notice. Walker later sought an injunction to prevent the alleged trespass on his property alleging that he had not been notified of the proceedings, knew nothing of them, and that the publication notice was insufficient to satisfy the Fourteenth Amendment’s requirements of due process. The trial court denied relief. On appeal, this court affirmed - holding that the notice by publication did not deprive him of due process of law.
“Upon appeal to the supreme court of the United States that court reversed (Walker v. Hutchinson City, 352 U S 112, 1 L. ed 2nd 178, 77 S Ct 200) and held that the newspaper publication alone was not adequate notice as required by due process, where, as the facts showed, the owner’s (Walker’s) name was known to the condemning city and was on the official records. In so holding the court followed the rule announced in Mullane v. Central Hanover Tr. Co., 339 U S 306, 94 L ed 865, 70 S Ct 652, to the effect that, if feasible, notice must reasonably be calculated to inform parties of proceedings which may directly and adversely affect their legally protected interests.” p. 453.
Pierce v. Board of County Commissioners, 200 Kan. 74, 434 P.2d 858 (1967), was another tax foreclosure case in which publication service came under attack. In discussing the rule of Mullane, the court stated:
“In our opinion these facts bring this case fairly within the rule of Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 94 L.Ed. 865, 70 S.Ct. 652. The defendant in Mullane was trustee of a common trust in which many small trust estates were pooled in one fund for investment administration. Some months after the trust was established, the trustee petitioned for approval of its account as the common trustee, giving notice of the hearing to be held thereon, by publication in a local paper, which strictly complied with the requirements of the New York statute.
“Mullane, as special guardian, appeared specially objecting that the notice given and the provisions for giving notice were inadequate to afford due process to the beneficiaries under the Fourteenth Amendment. It appears that the trustee had on its books the names and addresses of the beneficiaries represented by Mullane, and had been able to give notice by mail to the beneficiaries who were known at the time the trust was established.
Under these circumstances the Supreme Court overruled the constitutional objections interposed to the publication notice as to those beneficiaries whose interests or addresses were unknown to the trustee. However, as to known beneficiaries the court said:
‘As to known present beneficiaries of known place of residence, however, notice by publication stands on a different footing. Exceptions in the name of necessity do not sweep away the rule that within the limits of practicability notice must be such as is reasonably calculated to reach interested parties. Where the names and post-office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency.’ (p. 318.)
“In the course of its opinion, the court said that due process of law at a minimum requires ‘that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case’ (p. 313) and, continuing in the same vein, the court spoke in the following language:
‘But when notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. . . .’ (p. 315.)” 200 Kan. at 82-82.
K.S.A. 60-307(d) requires that an affidavit by one of the parties to the action or the parties’ attorney must be filed setting forth specific facts as to why service by publication is necessary. We note that the new juvenile code adopted by the 1982 legislature and effective January 1, 1983 (S.B. 520), requires that a person seeking service by publication in a juvenile proceeding must file an affidavit setting forth that a reasonable, but unsuccessful, effort has been made to ascertain the names and/or residences of the persons upon whom publication service is desired.
Cases from other jurisdictions also support the rule that mere publication service without a showing of necessity is insufficient to support an order severing parental rights.
In Re Beebe, 40 Cal. App. 3d 643, 115 Cal. Rptr. 322 (1974), was an action to declare a four-year-old free of the custody and control of her father. The petition filed in the case alleged that the father had abandoned his child and further alleged that the address of the father was “unknown.” Based upon this allegation, the court authorized publication service. Later the father, having found out about the proceedings, attacked the adequacy of the showing to support the publication service. The California statute authorized publication service upon the filing of an affidavit alleging that the parent could not be served in another manner and that reasonable diligence had been used to effect actual service. The court held:
“In a proceeding to declare a minor child free from the custody and control of her father, the mere allegation that the father’s address was unknown was inadequate to support an order for service of notice on him by publication. A parent has a constitutional right to notice of such proceeding, and while a strict and literal reading of Civ. Code, § 235, could arguably require the court to order service by publication on the mere conclusory allegation that the father’s place of residence was unknown, that construction would fly in the face of the obvious legislative effort to comport with due process in the service of both summons and citation, and the statute should therefore be construed to require a showing of due diligence to locate and serve the parent as a prerequisite to an order for service on him by publication.” pp. 643-644.
The Georgia Court of Appeals in a consolidated case, In The Interest of: J.B., 140 Ga. App. 668, 231 S.E.2d 821 (1976), had before it the question of whether a putative father whose whereabouts are unknown may have parental rights severed based upon service by publication. In both cases the children were illegitimate and it was alleged that the whereabouts of the fathers were unknown. The trial court held that personal service on the fathers was necessary but the Court of Appeals reversed, stating that under a proper factual showing of reasonable diligence to locate and serve the fathers, publication service would be sufficient. The court stated:
“Whether publication notice is permissible here necessarily depends upon an investigation of whether the whereabouts of the fathers of J.B. and A.D.S. were unknown and whether they could be found with reasonable diligence. Oakley v. Anderson, 235 Ga. 607 (221 SE2d 31). As a consequence, the factual support necessary to a determination of the appropriateness of notice by publication in these cases is lacking and it cannot be said without further development of the record whether publication was here permissible.” p. 674.
In Lutheran Social Services of N.J. v. Doe, 172 N J. Super. 343, 411 A.2d 1183 (1979), the mothers of two illegitimate children refused to reveal the identities of the putative fathers in two combined severance proceedings. In approving service by publication on the unknown fathers, the court stated that service by publication is not generally favored and is only permitted after a showing that diligent inquiry has failed to locate the defendant.
Similar results requiring a factual showing of due diligence before publication service is valid in a juvenile or severance proceeding are found in In Interest of T.B., 65 Ill. App. 3d 903, 382 N.E.2d 1292 (1978); Tammie v. Rodriquez, 570 P.2d 332 (Okla. 1977); and In Re One Minor Child, 411 A.2d 951 (Del. 1980).
While it is universally recognized that service by publication under certain factual circumstances will satisfy the constitutional requirements of due process, we hold that in a severance proceeding it must be affirmatively shown that the party seeking such service exercised due diligence in attempting to identify and locate the parent upon whom such service is desired. If such investigation discloses the whereabouts of the absent parent, then service of summons must be effected in one of the other ways provided in K.S.A. 38-810a so that such parent may receive actual notice of the proceeding. In Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 94 L.Ed. 865, 70 S.Ct. 652 (1950), the United States Supreme Court stated:
“It would be idle to pretend that publication alone, as prescribed here, is a reliable means of acquainting interested parties of the fact that their rights are before the courts.” 339 U.S. at 315.
We do not question the validity of publication service under proper circumstances, but fundamental due process requires a factual showing that, after the exercise of reasonable diligence, other service calculated to give actual notice to the party sought to be served is not practical. In the instant case, the record is totally lacking of any showing of the effort made to ascertain the address of Steve Woodard so that actual service might have been had upon him. We will not here attempt to establish the scope or type of effort which might be considered the minimum requirements for a showing of due diligence and, hence, due process. Each case must rest upon its own particular facts. However, if an appellate court is to grant meaningful review the record should contain the facts upon which the determination to seek publication service was based and the trial court should include sufficient findings of fact to support its conclusion that due diligence was exercised.
One other matter complicates our decision in this case. We are advised in the briefs and were told at argument that a final decree of adoption of Eva Woodard by Mr. and Mrs. Nowak was entered on the 20th day of October, 1980. Apparently that judgment has not been appealed and there is no showing what notice, if any, Steve Woodard received of the adoption proceedings. While the record before us fails to show the necessary requirements to support the publication service in this case and therefore fails, on its face, to show that Woodard has been afforded his constitutional right to due process of law, it would cause unnecessary hardship to formally set aside the judgment severing parental rights prior to a rehearing. The apparent defect in service may not, in fact, exist if it is determined that the necessary requirements for valid publication service were met. Therefore, we are remanding this case to the district court with directions that a hearing be held, after notice to appellant, to determine whether, in fact, the State exercised due diligence in its attempts to locate appellant prior to seeking publication service. If a factual determination discloses that the State did exercise such diligence, then publication service was proper and appellant has, in fact, been afforded due process and the order of severance was proper. If, on the other hand, it is determined that publication service was improper then the court should proceed to hear the matter on the merits and determine whether there is clear and convincing evidence to support a severance of parental rights. If not, the order of severance must be set aside. Santosky v. Kramer,_ U.S--, 71 L.Ed.2d 599, 102 S.Ct. 1388 (1982).
The judgment of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion.
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The opinion of the court was delivered by
Herd, J.:
This is an action to recover uninsured motorist benefits under an insurance policy.
On June 4,1980, Kevin Wilds, a Missouri resident, while riding a motorcycle, was involved in a collision with an automobile owned and driven by Audrey Brown. The accident occurred at 7th and Funston Streets, Kansas City, Kansas. The parties stipulate the accident was the fault of Brown and that the vehicle she drove was uninsured.
Wilds sustained damages in excess of $30,000. He owns two vehicles, both of which are registered and principally garaged in Missouri. Mid-Century Insurance Company is a California corporation authorized to do business in Kansas. Mid-Century insured both of Wilds’ vehicles with uninsured motorist coverage limited to $10,000 per individual on each policy. Mid-Century paid Wilds the sum of $20,000, representing the stacked total stated coverage in both policies. Wilds contends Mid-Century is obligated to pay $30,000 under Kansas uninsured motorist coverage for accidents occurring in Kansas.
The trial court held Kansas minimum coverage applied to the policy on the motorcycle since it was in Kansas, and the stated amount in the policy applied to the car which remained in Missouri, for a total of $25,000. Mid-Century appealed.
The sole question is whether the Kansas automobile injury reparations act, K.S.A. 40-3101 et seq., mandates $15,000 uninsured motorist coverage on each policy for an out-of-state motor ist who has an accident in Kansas involving the nonresident’s vehicle and an uninsured motorist.
The following statutes are relevant to this discussion: K.S.A. 40-284 (Weeks):
“Coverage relating to injury or death caused by uninsured motorist; rejection; renewal policies; effect of prior policies. No automobile liability insurance policy covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state, unless the policy contains or has endorsed thereon, a provision with coverage limits not. less than the limits for bodily injury or death set forth in K.S.A. 1967 Supp. 8-729, providing for payment of part or all sums which the insured or his legal representative shall be legally entitled to recover as damages from the uninsured owner or operator of the motor vehicle because of bodily injury, sickness or disease, including death, resulting therefrom, sustained by the insured, caused by accident and arising out of ownership, maintenance or use of such motor vehicle, or providing for such payment irrespective of legal liability of the insured or any other person or organization.”
K.S.A. 1980 Supp. 40-3106:
“Prohibited vehicle operation by certain nonresidents; report of violations; declaration of policy coverage by insurers, (a) A motor vehicle owned by a nonresident shall not be operated in this state upon a highway or upon property open to use by the public, unless a motor vehicle liability insurance policy meeting the requirements of K.S.A. 1977 Supp. 40-3107 is in effect for such vehicle, or such nonresident has qualified as a self-insurer pursuant to K.S.A. 1977 Supp. 40-3104(d). Whenever the privilege of a nonresident operating a motor vehicle in this state is suspended for failure of the owner thereof to maintain financial security, in effect, the director shall report such violation to the motor vehicle administrator in the state wherein the vehicle is registered. The director is hereby authorized to enter into such reciprocal agreements with the motor vehicle administrator or other appropriate official in other jurisdictions as may be necessary to effectuate the provisions of this act.
“(b) Every insurance company authorized to transact the business of motor vehicle liability insurance in this state shall file with the commissioner as a condition of its continued transaction of such business within this state a form approved by the commissioner declaring that its motor vehicle liability policies, wherever issued, shall be deemed to provide the insurance required by K.S.A. 1977 Supp. 40-3107 when the vehicle is operated in this state. Any nonadmitted insurer may file such a form.”
K.S.A. 1980 Supp. 40-3107:
“Motor vehicle liability insurance policies; required contents. Every policy of motor vehicle liability insurance issued by an insurer to an owner residing in this state shall:
“(e) contain stated limits of liability, exclusive of interest and costs, with respect to each vehicle for which coverage is thereby granted, not less than fifteen thousand dollars ($15,000) because of bodily injury to, or death of, one person in any one accident and, subject to said limit for one person, to a limit of not less than thirty thousand dollars ($30,000) because of bodily injury to, or death of, two (2) or more persons in any one accident, and to a limit of not less than five thousand dollars ($5,000) because of harm to or destruction of property of others in any one accident . . . .”
Missouri revised statute § 379.203:
“Automobile liability policy, required provisions — uninsured motorist coverage required — recovery against tortfeasor, how limited. — 1. No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits for bodily injury or death set forth in section 303.030, RSMo . . . .” (303.030, now amended, required $10,000 per person in benefits.)
K.S.A. 40-284 has been amended and now refers specifically to K.S.A. 40-3107 (Ensley) instead of K.S.A. 1967 Supp. 8-729. K.S.A. 1980 Supp. 40-3107(e) has also been amended and now requires a $25,000 per person minimum limit of liability.
The trial court held the language of K.S.A. 1980 Supp. 40-3106(h), requiring liability policies of companies doing business in Kansas to meet the K.S.A. 1980 Supp. 40-3107 standards, extends to uninsured motorist coverage “when the vehicle is operated in this state,” no matter where the policy may have been issued or the car principally garaged. Thus appellant was required to pay appellee $15,000 under the policy covering the motorcycle, but only $10,000 under the policy covering the car because it was not being operated in the state of Kansas.
Appellant argues the trial court ignored the explicit language of K.S.A. 40-284, which mandates offering minimum uninsured motorist benefits only in policies regarding motor vehicles “registered or principally garaged in this state.” Appellee argues he should be entitled to the same protection he would have received had he collided with an insured motorist. In effect he claims the protections afforded by K.S.A. 1980 Supp. 40-3106 and 40-3107 should apply to uninsured motorist coverage independent of K.S.A. 40-284. He ignores the fact that uninsured motorist coverage was optional at the time this case arose, unlike liability coverage which was mandatory.
K.S.A. 40-284 specifically pertains to uninsured motorist benefits. The statute applies only when the motor vehicle is regis tered or principally garaged in this state. Wilds’ vehicles were neither. K.S.A. 1980 Supp. 40-3107(e) has no connection with uninsured motorist coverage except through K.S.A. 40-284. Because the “principally garaged” language of K.S.A. 40-284 was retained even after recent amendments, K.S.A. 1980 Supp. 40-3107(e) is inapplicable. We conclude the Missouri statute, with its lower minimum coverage, applies.
The judgment of the trial court is reversed. | [
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The opinion of the court was delivered by
Holmes, J.:
This is a workmen’s compensation case in which we granted review of the unpublished decision of the Court of Appeals filed December 3, 1981. Cudahy Foods Company, a self-insurer, appealed to the Court of Appeals from a decision of the district court awarding W. D. Martin compensation based upon an occupational disease which developed while Martin was employed by Cudahy. The Court of Appeals reversed the decision of the district court and ordered the case remanded for the entry of an award based upon accidental injury rather than on an occupational disease.
The facts are not in substantial dispute. Claimant was employed by Cudahy for a period of about twenty years. In 1973 he was working as a ham-grader, a job which required claimant to lift, examine and trim hams of varying size and weight, and thus to use his arms, wrists and hands repeatedly. He developed pain and swelling in his right wrist for which he received medical attention from the company nurse and others, and he was off work for a short period of time in 1973, and periodically thereafter. He continued to work at the same job, and had problems with his wrist continually until on June 15, 1975, when he was forced to leave his employment due to the pain. Two days later he saw Dr. Tyrone D. Artz, who diagnosed the problem as tenosynovitis, an inflammation of the tendon sheaths in the wrist. At first, conservative treatment was tried; later, on July 29, 1975, Dr. Artz performed surgery. About that time, the Cudahy plant closed. Claimant applied for various jobs during the following year, but continued to have problems with his wrist. Dr. Artz performed a second operation in April, 1976, to release scar tissue. Claimant was released to return to work in July, 1976. All of Mr. Martin’s hospital and medical expenses were paid by Cudahy. In July, 1976, he obtained a job with the MBPXL meat processing plant, and he has continued in that employment, doing work similar to that which he did at Cudahy.
Several points are raised in the original appeal to the Court of Appeals and in claimant’s petition for review, including various arguments about notice, service of a proper claim, whether claimant proved a diminution in earning capacity which would support the award of the district court, and whether the district court followed the correct rule in determining the amount of the award. The bottom line, however, is the determination of whether claimant suffered an accidental injury or an occupational disease. There is no contention that claimant’s disablement, however it may be classified, did not arise out of and in the course of his employment. The examiner found claimant had suffered an accidental injury while the district court made an award calculated on the basis of an occupational disease. If claimant suffered an accidental injury as opposed to a disablement from occupational disease, the Court of Appeals was correct in remanding the case with directions to award compensation based upon accidental injury. While the Court of Appeals based its decision on the sufficiency of the notice and claim, we nevertheless find that it reached the right result, albeit for the wrong reason.
The evidence was generally undisputed that claimant suffered from tenosynovitis brought about and aggravated by his work at Cudahy. Depositions of three doctors were admitted before the examiner and there is no serious dispute about the nature of claimant’s ailment. All of the experts classified claimant’s problem to be tenosynovitis, although they did not agree as to whether tenosynovitis was a disease or an injury. All agreed, however, that it resulted from the constant repetitive cyclic activities of claimant in using his hands and wrists in performing his duties as a ham-grader or ham-boner.
K.S.A. 44-5a01(h), as amended in 1974, states:
“ ‘Occupational disease’ shall mean only a disease arising out of and in the course of the employment resulting from the nature of the employment in which the employee was engaged under such employer, and which was actually contracted while so engaged. ‘Nature of the employment’ shall mean, for purposes of this section, that to the occupation, trade or employment in which the employee was engaged, there is attached a particular and peculiar hazard of such disease which distinguishes the employment from other occupations and employments, and which creates a hazard of such disease which is in excess of the hazard of such disease in general. The disease must appear to have had its origin in a special risk of such disease connected with the particular type of employment and to have resulted from that source as a reasonable consequence of the risk. Ordinary diseases of life and conditions to which the general public is or may be exposed to outside of the particular employment, and hazards of diseases and conditions attending employment in general, shall not be compensable as occupational diseases . . . .” (Emphasis added.)
Prior to the adoption of the present version of 44-5a01, the statute, K.S.A. 44-5a02 (Corrick, repealed 1974), specified certain conditions, including tenosynovitis, and classified them as occupational diseases for purposes of the workmen’s compensation act. See Schubert v. Peerless Products, Inc., 223 Kan. 288, 573 P.2d 1009 (1978). Claimant asserts that the 1974 amendment which eliminated specific conditions previously classified as occupational diseases was intended by the Legislature to broaden the definition of occupational disease and that all of the conditions contained in the earlier statute should continue to be read into the present statute. We disagree.
The testifying physicians agreed that tenosynovitis, also known as De Quervain’s Disease, may be caused by repetitive cyclic activity such as that which Mr. Martin was required to perform on his Cudahy job. It is a condition that generally develops over a period of time as opposed to being the result of a single traumatic occurrence and results in the inflammation of a tendon and its sheath. It is not confined to the wrist but may occur in various parts of the body when the tendons are subjected to repeated cyclic activities which might be described as repeated small traumas occurring over a long period of time. It may also result from puncture wounds, contusions and lacerations, or be caused by lymphatic extension from an abrasion. Taber’s Cyclopedic Medical Dictionary (12th Ed. 1973, p. T-16).
K.S.A. 44-5a01(fe) states that an occupational disease must result from the nature of the employment which requires that there be attached to the employment a particular and peculiar hazard of such disease which distinguishes the employment from other occupations and which carries with it a special risk of such disease connected with the particular type of employment. The disability suffered by claimant was one which may be common to numerous occupations or employments where repeated cyclic use of a portion of the body may result in inflammation of tendons and sheaths. Dr. Artz testified it was not limited to the meat processing or assembly line type industries and that it may occur in housewives or from other employment which requires use of the hands. Thus it is clear that tenosynovitis may be incurred from various types of activity or from individual incidents of trauma or injury. In the present case, it is more akin to accidental injury from repetitive small traumas than to occupational disease as defined in the statute.
We hold that tenosynovitis when incurred through repetitive cyclic activities of an employee is an accidental injury within the meaning of the workmen’s compensation act and not an occupational disease as defined in K.S.A. 44-5a01(¿).
In view of the foregoing, it is not necessary to consider the other points raised.
The ruling of the Court of Appeals in reversing and remanding the case for further proceedings is affirmed, the decision of the district court is reversed and the case is remanded to the trial court with directions to award claimant compensation based upon accidental injury.
Miller, J. not participating. | [
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The opinion of the court was delivered by
Fromme, J.:
Jim W. Harrison appeals from a conviction of aggravated robbery and a sentence entered under the provisions of the mandatory sentence statute, K.S.A. 21-4618. On a first offense appellant was sentenced to a period of five to twenty years and probation or suspension of sentence could not be granted by reason of the court’s finding at the sentencing hearing that a firearm was used in the commission of the crime.
The appellant admitted that he entered a liquor store in Wichita, Kansas, and robbed it. He told Peggy L. Thomas, the clerk at the store, that he had a gun. However, during the sentencing procedures, he denied having a gun. The main, if not the only, factual dispute in the case concerned whether a gun was used by Harrison in the commission of the robbery. He was charged by information with aggravated robbery while armed with a handgun.
During the preliminary hearing it became apparent that Ms. Thomas had not seen the gun Mr. Harrison was professed to have. Defense counsel determined at that time he would defend the case by establishing no gun was used, thereby sparing his client, a first offender, from a mandatory sentence under 21-4618.
Just prior to trial plea bargain negotiations occurred and the assistant district attorney then learned that Ms. Thomas would not testify a gun was used by Harrison. Pursuant to discussions with Ms. Thomas and after a review of the police reports which were in the State’s file, the following agreement was reached as shown by the statements of counsel in front of the sentencing judge:
“Mr. Moses [assistant district attorney]: ... In addition to dismissing count one in the complaint/information, the State has also agreed to recommend that the defendant be sentenced to the minimum sentence in this case, that being not less than five years and not more than twenty years. The State has also agreed to advise the Court that the evidence presented at trial would show that neither one — or excuse me, that the victim in count two did not actually see a handgun in the possession of the defendant; however, the threat and suggestion that he did have a handgun was made, and on the basis of that we would recommend or suggest to the Court that the mandatory minimum under K.S.A. 21-4618 would not apply.
“Mr. Kimmel [defense counsel]: It’s my understanding, Your Honor, that since on trial it’s our belief that the evidence would not disclose any gun was used, that this defendant would enter a plea to aggravated robbery and the Court would consider making the finding, as the jury would be asked to make the finding, that no gun was used.” Emphasis supplied.
Judge Helsel thoroughly advised defendant about the effects of entering a plea. The judge read the charges to the defendant who indicated to the court that he understood them. Judge Helsel explained to Mr. Harrison that by entering a plea he was waiving his right to a jury trial and the right to confront the witnesses against him. He advised defendant of the burden of proof the State would have to meet in a trial; the right of appeal from a jury trial; and the right not to incriminate himself. The court pointed out to Mr. Harrison that “if you plead guilty you admit that you did what the State says that you did,” to which defendant replied he understood. Judge Helsel advised the defendant that he was not bound by the recommendation of the State made pursuant to plea bargain negotiations. The defendant understood that his sentence could be “five to twenty or fifteen to life,” and a fine could be imposed. The defendant then entered a plea of guilty, explaining:
“The Defendant: I went into the liquor store and I did tell the clerk that I had a gun. I still don’t know why I did it; I know it was a terrible mistake, but I did do it.
“The Court: Did you take some money then?
“The Defendant: Yes, I did, Your Honor.”
Judge Helsel accepted defendant’s plea, finding that Mr. Harrison had “voluntarily, knowingly, understandingly and intelligently waived his Constitutional rights and entered a plea of guilty to the charge, that there is a factual basis for the plea and that he has done this understanding the nature of the charge and the consequences of such a plea.” The court ordered the preparation of a presentence investigation.
The defendant was scheduled to be sentenced on July 9, 1981, at which time the State was represented by Assistant District Attorney James E. Puntch, Jr., as Mr. Moses was unavailable. Mr. Kimmel and Mr. Harrison were present as well. Judge Helsel indicated that it was his belief from the police reports he had reviewed that a gun had been used in the commission of the crime. Judge Helsel sentenced the defendant to serve a term of from five to twenty years in the custody of the Secretary of Corrections. The question of whether or not a firearm was used in the commission of the crime was reserved until later that day, presumably so Mr. Moses could be present.
At 1:30 p.m. on July 9, 1981, Mr. Moses, Mr. Kimmel and the defendant appeared before Judge Helsel. After the morning session in court, defendant wished to withdraw his plea. Request by counsel for defendant to withdraw the guilty plea entered June 22, 1981, was made part way through the 1:30 p.m. court appearance. The court overruled the defendant’s oral motion to withdraw the plea, noting that it was not going to require a written motion under the circumstances. Under K.S.A. 22-3210(7) a plea of guilty may be withdrawn for good cause shown and within the discretion of the sentencing court on motion filed prior to the sentence adjudication. Burden v. State, 225 Kan. 549, Syl. ¶ 1, 592 P.2d 451 (1979).
Throughout the 1:30 p.m. hearing, defense counsel persistently and vehemently objected to the court’s finding that a gun had been used during the commission of the robbery. Mr. Kimmel advised the court that the plea agreement had been based on the State’s recommendation to the court on the sentence and their interpretation of what the evidence would show. The defendant objected to the court’s use of police reports in making a determination that a gun was used. Defense counsel argued that there had been a mutual mistake of the facts in the case. Mr. Kimmel admitted that he did not ask the district attorney to dismiss the charge against defendant and then refile it after excising all references to the use of a gun.
Refusal to follow recommended charge and sentence concessions is not in itself sufficient to constitute good cause for withdrawal of a guilty plea entered before sentence, provided the defendant was clearly advised by the court prior to entering his plea that the court was not bound by any charge and sentence concessions, and defendant was then offered a chance to withdraw said plea. Burden v. State, 225 Kan. 549, Syl. ¶ 2.
Assistant District Attorney Moses iterated his understanding of the plea agreement and candidly explained that upon further reflection he had not reviewed his evidence as completely as perhaps he should have prior to making the plea agreement. For the purposes of determining any factual issue that might arise during the sentencing, Mr. Moses had arranged to have the investigating officer that had interviewed the defendant following his arrest, Detective Bruce, present in the courtroom and available for questioning that afternoon.
The court remained steadfast in its decision, pointing out to the defendant that it is the duty of the sentencing court and not the jury to determine if a firearm has been used in the commission of a crime for the purposes of K.S.A. 21-4618. Judge Helsel iterated that plea agreements reached between the State and the defendant are not binding on the court, and reminded the defendant that he had been so advised at the time the plea was entered. The court sentenced the defendant to a term of from five to twenty years in the care and custody of the Secretary of Corrections, as he had earlier in the day, and found that a firearm was used in the commission of the crime and so invoked the mandatory sentencing provision. This appeal followed.
Evidence that a gun was used in the commission of the crime was scanty. This court is asked to determine there was insufficient competent evidence to support a finding that the defendant used a firearm in the commission of the crime. In the present case no trial was had and no witnesses testified to the facts and circumstances surrounding the crime. Pursuant to the plea negotiations the defendant entered a plea of guilty, the prosecutor stated to the court that the victim did not actually see a handgun, and that the State recommended or suggested to the court that the mandatory minimum sentence requirements not be applied. The defendant and his attorney stated that no gun was used, but no evidentiary hearing was afforded defendant to enable him to attempt to establish that fact at sentencing. When it became apparent the judge was going to impose the mandatory provision, counsel for Harrison immediately moved to withdraw the plea. The motion was summarily denied.
The rules concerning the imposition of mandatory minimum sentences under K.S.A. 21-4618 were summarized in State v. Mack, 228 Kan. 83, 85, 612 P.2d 158 (1980), as follows:
“For the statute to be applicable, the State must establish, and the sentencing court must find, that the firearm was an instrumentality of the crime. State v. DeCourcy, 224 Kan. 278, 281, 580 P.2d 86 (1978). The State is not obligated to charge, or to prove during trial, that the defendant used a firearm in the commission of the offense. Whether a defendant used a firearm in the commission of an Article 34 offense is a matter to be determined by the trial judge at the time of sentencing. It need not be submitted to the jury. State v. McCarty, 224 Kan. 179, 180-81, 578 P.2d 274 (1978); State v. Mullins, 223 Kan. 798, 800-01, 577 P.2d 51 (1978). We emphasized in State v. Quick, 226 Kan. 308, 318-19, 597 P.2d 1108 (1979), that the sentencing judge should make a finding which specifies who used the firearm. On appeal, the scope of review of sentencing under 21-4618 is limited to whether there was competent evidence to support a finding that the defendant used a firearm in perpetrating the crime. State v. Bryant, 227 Kan. 385, 388, 607 P.2d 66 (1980); State v. Taylor, 225 Kan. 788, 795, 594 P.2d 211 (1979).”
In State v. Mack it was held the failure of the sentencing judge to hold an evidentiary hearing did not constitute prejudicial error when in the trial of the case the evidence introduced clearly indicated the use of a gun. However, when sentencing is based on a plea of guilty and the defendant denies using a gun in committing the crime, the trial court should be required to hold an evidentiary hearing on the record so that this court may review the sufficiency of that evidence. In the present case reference has been made to police investigation reports which were not made a part of the record before us. Further reference is made to a presentence report obtained by the judge prior to sentencing. We cannot speculate as to its contents. No officer testified at the time of sentencing, although the record indicates one was present in court.
The question of allowing or denying a motion to withdraw a plea of guilty so as to proceed to trial is never an easy question. The question of when withdrawal should be permitted was addressed in Burden v. State, 225 Kan. 549, 551, where it is said:
“Our statute on withdrawal of pleas, K.S.A. 22-3210(7), provides;
“ ‘A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged. To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.’
“It should be noted that the withdrawal of a plea of guilty before sentence is ‘for good cause shown and within the discretion of the court.’ After sentence the court may set aside the judgment of conviction and permit the defendant to withdraw his plea ‘[t]o correct manifest injustice.’ ”
In our present case the motion to withdraw the plea was filed during the sentencing proceeding. The judge had accepted the plea and adjudged a sentence covering a period from five to twenty years, but had recessed the proceedings until after lunch when Mr. Moses could be present. The decision had not been made as to imposition of the mandatory minimum sentence. Under these circumstances the motion for withdrawal must be considered as made before sentence. When withdrawal of the plea is requested before sentence it may be allowed for good cause shown and within the discretion of the court. The burden is less in such case than when the request is made after sentence. After sentence the court may set aside the judgment of conviction and permit withdrawal of the plea only to correct manifest injustice.
Under the facts and circumstances of this case we believe good cause was shown to permit withdrawal of the guilty plea and the trial court abused its discretion in refusing the same. The sole witness, the victim of the crime, would have testified if called that she saw no gun used by defendant. The defendant would have testified no gun was used. On the basis of these known facts the prosecutor advised the court and recommended that the mandatory minimum sentence provision of the statute not be applied. This recommendation as well as the plea was pursuant to plea negotiations. Of course, such a recommendation is not binding on the court. However, at sentencing the judge did not hold an evidentiary hearing and no evidence as to use of a gun was in the record. When the sentencing judge was advised of the reason for requesting withdrawal of the plea of guilty, he summarily denied the motion and adamantly adhered to his previous opinion, formed in the absence of any sworn evidence that a firearm had been used in committing the crime.
The judgment of conviction is reversed, the motion to withdraw the plea of guilty is granted, and the case is remanded for further proceedings. | [
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The opinion of the court was delivered by
Herd, J.:
This is an appeal from an order terminating a testamentary trust. Mayme Harbaugh died July 19, 1977, survived by her three children: Pauline McClary, age 64, Louise Kirkbride, age 62, and Pete Harbaugh, age 60. Her last will and testament, dated October 24, 1969, was admitted to probate, and Pete, who was named executor in the will, was duly appointed and the estate was probated and closed.
Mayme Harbaugh’s will left her farm real estate, an undivided one-half interest in 1,040 acres, in equal shares to Pete and Louise. These two children already owned the other one-half interest in the property. The will made the following provision for Pauline McClary:
“All the rest and residue of my property shall, after payment of debts, costs of administration, and Federal Estate Taxes, if any, to go to Pete Harold (Pat) Harbaugh, my son, in trust, however, to manage, control, and operate said trust for the benefit of my daughter Pauline Kathryn McClary.
“My said trustee, after the payment of all costs of administering said trust, shall pay to my said daughter, Pauline Kathryn McClary, the income therefrom semiannually.
“This trust is to continue for the natural life of my said daughter, Pauline Kathryn McClary, and upon her death and after payment of all costs of administering the trust and the expenses of the funeral of said Pauline Kathryn McClary said trust shall terminate and the assets thereof shall go to my two grandchildren, the children of said Pauline Kathryn McClary, to-wit:
1. Cherlyn Hamilton, and
2. John Michael McClary, share and share alike.
“The said trust and my said trustee shall have the powers as provided in Article 12 K.S.A. 1968 Supp. entitled “Uniform Trustees Powers Act” and any amendments thereto, except as otherwise herein provided.”
The residuary estate contained $47,615.00. It was delivered to Pete, as trustee under the will, and he invested $47,000 in a thirty-month certificate of deposit at 9.25% interest. The remaining $615.88 was deposited in a passbook savings account. Interest rates soared but Pete did not change the investment. Pete also failed to make the semi-annual distributions to Pauline on time and was late in making his annual accounting to the court. Pauline McClary and her two children became dissatisfied with Pete’s performance.
On March 9, 1981, by an instrument entitled “Agreement and Conveyance,” Cherlyn Hamilton and John Michael McClary assigned their remainder interest in the trust estate to their mother, Pauline McClary. On March 23, 1981, Pauline filed a “Petition to Terminate Trust Estate and Distribute to Pauline Katheryn McClary” requesting “the trust be terminated and the trust property be distributed to her after payment of any reasonable expense of administration of the trust.” The magistrate judge granted the petition.
On appeal with a trial de novo the district court also granted Pauline’s petition and ordered the trust terminated and the “corpus together with accumulated income paid over to Pauline.” Subsequently the trustee’s petition for allowance of attorney fees and expenses was denied. Both rulings are appealed to this court.
Appellant first contends it was error for the trial court to order the trust be terminated. The question here is whether once Pauline McClary obtained her children’s remainder interest in the trust she could force the termination of that trust. This issue has been discussed by various authorities. In Scott on Trusts § 337.1, pp. 2658-61 (3rd ed. 1967), it is stated:
“Where a trust is created under which the income is payable to one beneficiary for life and on his death the principal is payable to another, and it does not appear that the settlor had any other purpose in creating the trust than to enable the beneficiaries successively to enjoy the trust property, the beneficiaries, if they both consent and if neither of them is under an incapacity, can compel the termination of the trust. So also where the life beneficiary acquires the interest of the beneficiary entitled in remainder, whether by conveyance inter vivos or by testate or intestate succession, he can compel the termination of the trust. . . .
“The result is different, however, where the purpose of the settlor in creating the trust was not merely to enable the beneficiaries to enjoy the property successively, not merely to give the income to one and to preserve the principal for the other. In such a case the beneficiaries cannot terminate the trust even though they all desire to terminate it and none of them is under an incapacity, or one of them has acquired the interests of the others and wishes to terminate it. Even though the interests of the beneficiaries are alienable, the court will not terminate the trust at their request if it appears that such termination would defeat a material purpose of the settlor in creating the trust.”
Similarly, Bogert, Trusts & Trustees § 1003, pp. 517-20 (2nd ed. 1962), observes:
“In a number of cases where the interests of equitable life cestui and legal or equitable remainderman have become vested in the same person by conveyance or operation of law, after the trust began, the courts have decreed that the trust was ended or terminable; but in other cases, where some useful purpose was deemed to be capable of accomplishment by the continuance of the trust, the courts have refused to regard the single ownership of the two items of property as fatal to the trust.”
Finally, Restatement (Second) of Trusts § 337 (1959), states:
“(1) Except as stated in Subsection (2), if all of the beneficiaries of a trust consent and none of them is under an incapacity, they can compel the termination of the trust.
“(2) If the continuance of the trust is necessary to carry out a material purpose of the trust, the beneficiaries cannot compel its termination.” p. 158.
This court recognized the above rules generally and the Restatement version specifically in In re Estate of Sheets, 175 Kan. 741, 748-51, 267 P.2d 962 (1954).
In light of the foregoing, the dispositive question becomes whether termination of the case at bar would frustrate a material purpose of the trust. To determine the purpose behind the trust we must first turn to Mayme Harbaugh’s will. There is no explicit purpose stated. It is thus difficult to perceive a clear purpose from reading the will as a whole. Appellant argues, however, the will is unambiguous; the purpose behind the trust was to protect Pauline McClary and termination of the trust will frustrate this purpose. He further claims it was improper for the trial court to admit extrinsic evidence to clarify the testator’s intent and define the purpose of the trust.
Let us examine this issue. Appellant relies on In re Estate of Wemet, 226 Kan. 97, Syl. ¶ 1, 596 P.2d 137 (1979), where it is stated:
“Where a court, either trial or appellate, is called upon to determine the force and effect to be given the terms of a will, its first duty is to survey the instrument in its entirety and ascertain whether its language is so indefinite and uncertain as to require the employment of rules of judicial construction to determine its force and effect; and where from an analysis of the entire instrument no ambiguity or uncertainty is to be found in its language, the intention of the testator being clearly and unequivocally expressed, there is no occasion to employ rules of judicial construction and the will must be enforced in accordance with its terms and provisions.”
See also Johnston v. Gibson, 184 Kan. 109, 334 P.2d 348 (1959). Other rules governing the construction of wills naturally compliment this precept. The primary consideration in construing a will is, of course, to determine the intent of the testator. If that intent can be determined from the four corners of the will itself the will is not ambiguous and it is not necessary to give consideration to any other element. See, e.g., Trustees of Endowment Fund of Hoffman Hosp. Ass’n. v. Kring, 225 Kan. 499, 592 P.2d 438 (1979); In re Estate of Showers, 207 Kan. 268, 485 P.2d 299 (1971); Giese v. Smith, 195 Kan. 607, 408 P.2d 687 (1965); Householter v. Householter, 160 Kan. 614, 164 P.2d 101 (1945). Evidence as to the testator’s intention is inadmissible for the purpose of giving unambiguous language in a will a different meaning. In re Estate of Laue, 225 Kan. 177, 184, 589 P.2d 558 (1979); In re Estate of Loomis, 202 Kan. 668, 451 P.2d 195 (1969). Obviously, then, where a will is found to be ambiguous, extrinsic evidence is admissible to assist in determining the testator’s intent. Indeed, in construing the provisions of a will the court must, as near as possible, place itself in the shoes of the testator at the time he or she made the will. Extraneous circumstances surrounding the execution of the will may assist the court in this task. Laue, 225 Kan. at 184; In re Estate of Lehner, 219 Kan. 100, 102-03, 547 P.2d 365 (1976); Wallace v. Magie, 214 Kan. 481, 485, 522 P.2d 989 (1974).
Restatement (Second) of Trusts § 337, Comment e, expands on the foregoing rules in the context of the particular issue involved herein:
“If the purposes for which the trust is created are expressed in the instrument by which the trust is created, a different purpose cannot be shown by extrinsic evidence. If, however, the purposes are not expressed in the instrument, extrinsic evidence of the surrounding circumstances to aid in the construction of the instrument is admissible in order to determine the purposes of the trust.” p. 159.
Mayme Harbaugh’s will was ambiguous with regard to the purpose of the trust. There was no specific clause or other explicit reason for the trust’s creation and a reading of the will as a whole similarly provides no clue. Thus, we find no error in the trial court’s admitting extrinsic evidence to explain the purpose of the trust. Actually, appellant was in greater need of parol evidence since the will articulated no purpose for the trust.
Let us now turn to the extrinsic evidence to determine if it supports the trial court’s ruling that there was no material purpose frustrated by the termination of the trust. Again Professor Scott is helpful in guiding the court’s examination of the evidence:
“It is more difficult to determine whether it would defeat a material purpose of the settlor in creating a trust for one beneficiary for life and another in remainder to permit the termination of the trust before the death of the life beneficiary if both consent to the termination or one of them acquires the entire beneficial interest. If the only purpose in creating the trust was to preserve the principal of the trust estate during the life of the income beneficiary so that it might ultimately be enjoyed by the remainderman, it would not defeat the purpose of the trust to terminate it before the death of the life beneficiary if both of the beneficiaries should desire to terminate it or if one of them should acquire the entire beneficial interest. On the other hand, if it was also a material purpose of the settlor to protect the life beneficiary against his own possible mismanagement of the property, the termination of the trust before his death would defeat this purpose, even though the remainderman should consent to the termination or the life beneficiary should acquire the interest of the remainderman. Whether this was one of the purposes of the settlor in creating the trust is a question of interpretation of the trust instrument in the light of all the circumstances. ... Although the cases are not altogether in agreement, it would seem to be the prevailing view that the mere fact that the trust was created for successive beneficiaries indicates no more than an intention to preserve the principal for the remainderman, and unless it appears from the language used in the trust instrument or from the circumstances that the settlor was desirous of protecting the life beneficiary against his own possible mismanagement of the property, the court will terminate the trust prior to the death of the life beneficiary if the remainderman consents or if the life beneficiary has acquired the entire beneficial interest. The trust will not be terminated, however, where the trust is a spendthrift trust, since in that case the protection of the life beneficiary is a material purpose of the trust.” Scott on Trusts § 337.1, pp. 2663-64.
We repeat, the trust is admittedly not a spendthrift trust. The evidence regarding the testator’s intent falls into two categories. First, there was testimony tending to show Mayme Harbaugh intended to treat her children equally. Second, there was evidence the purpose of the trust was to keep the money away from Pauline’s alcoholic husband, Jack. He died in 1974. If the purpose of the trust was indeed to keep the money from him that purpose no longer exists and termination of the trust was proper. See Restatement (Second) of Trusts § 337, Comment i (1959).
Appellant relies heavily on In re Estate of Sheets, 175 Kan. 741, a case in which this court refused to terminate a trust. J. W. and Medora Sheets had executed a joint will which gave each other a life estate with power of disposal and further provided:
“II
“ ‘At the passing of the survivor of us, what property remains whether real, personal, or mixed shall be held in trust and our son, Joseph Edwin Sheets, shall receive the income therefrom annually during the lifetime of his present wife, Lala Baldwin Sheets, and said trust shall continue during the lifetime of our son’s wife, Lala Baldwin Sheets. At the demise of our son’s said wife, the trustee shall immediately transfer by whatever instrument is necessary the corpus of the estate to our son, Joseph Edwin Sheets, to be his absolutely in both interest and enjoyment as of that date.
“II
“ ‘If our son, Joseph Edwin Sheets, predeceases the survivor of us, then the property he would have inherited had he lived shall go to his living child or children (he now has two, Joseph Edwin Sheets and Doratha Drew) with the same restriction as to the vesting of the corpus of the estate as is set out in paragraph two above; that is to say, the living child or children of our son shall receive the income of our estate from our trustee until the passing of Lala Baldwin Sheets and then the corpus is to vest absolutely in interest and enjoyment.
“IV
“ ‘In explaining paragraphs two and three above, we wish to make as clearly as possible that no part of our estate other than the income therefrom shall vest in anybody other than our trustee during the lifetime of Lala Baldwin Sheets.’ ” 175 Kan. at 742-43.
When Joseph Edwin Sheets, the sole beneficiary, attempted to terminate the trust, the court rejected the attack because termination would frustrate a material purpose of the trust. Although Sheets is obviously analogous -to the case at bar, there is a major difference. In Sheets it was clear from the will the purpose of the trust was to keep any part of the estate out of the hands of the testators’ daughter-in-law and the class of ultimate beneficiaries was not yet determined. Termination of the trust would thus have circumvented the testators’ intent. Here the purpose is not evident from the will itself and extrinsic evidence supports termination of the trust. We hold the trust was properly terminated.
Appellant finally argues he is entitled to an allowance for his expenses and the fees of his attorney in defending the trust. The trial court denied this request, finding the trustee proceeded in bad faith after the magistrate judge had ordered termination, and ordered a $500 fee for administering the trust.
K.S.A. 59-1717 states:
“Every fiduciary shall be allowed his or her necessary expenses incurred in the execution of his or her trust, and shall have such compensation for services and those of his or her attorneys as shall be just and reasonable. At any time during administration the fiduciary may apply to the court for an allowance upon his or her compensation and upon attorneys’ fees.”
According to Jennings v. Murdock, 220 Kan. 182, Syl. ¶ 15, 214, 553 P.2d 846 (1976), pursuant to this statute a trustee who has acted in good faith is entitled to an allowance for his compensation and expenses. Thus, it appears such an award is mandatory, conditioned solely upon the good faith of the trustee. In Burch v. Dodge, 4 Kan. App. 2d 503, 509, 608 P.2d 1032 (1980), the Court of Appeals stated, “The amount of compensation due the trustee and whether or not his breach of trust should be cause to reduce or forfeit that compensation lies within the sound discretion of the trial court.” See also Achenbach v. Baker, 154 Kan. 252, 254, 118 P.2d 584 (1941). These two statements are not inconsistent. The resulting rule is that when a trustee acts in good faith he is entitled to fees and expenses but the amount of that award is within the discretion of the trial court.
76 Am. Jur. 2d, Trusts §§ 653-60, pp. 864-71, covers the subject thoroughly. Section 653 at page 865 discusses good faith of the trustee:
“The conduct with respect to the administration of the trust generally — as distinguished from some particular fault or misconception leading to particular litigation — is sometimes mentioned by the courts as having a bearing on the question whether costs or attorneys’ fees should be imposed upon the trustee as an individual. It is less likely that costs or fees will be imposed against the trustee personally if he has been diligent and faithful in his general administration of the trust, than if he has been negligent or remiss. Furthermore, a trustee who has been guilty of some irregularity in his administration of the trust may be relieved of an imposition of costs or fees if his misconduct was occasioned by ignorance rather than wilful fault.”
The question of good faith of the trustees is one of fact and lies within the province of the trial court not to be disturbed on appeal unless the finding is unsupported by substantial, competent evidence. We find the trial court findings were so supported, except the trustee should be allowed attorney fees for the first hearing in the district court in the amount of $500.-
The judgment of the trial court is affirmed as modified.
Holmes, J., dissenting. | [
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The opinion of the court was delivered by
Miller, J.:
This is an appeal by the State on a question reserved, K.S.A. 22-3602(h)(3), following the trial and acquittal of the defendant, T.L. Jones, on a charge of driving while his license was suspended, in violation of K.S.A. 1981 Supp. 8-262. The trial court held that the State failed to show notice to the defendant that his driver’s license was suspended, and that notice to the defendant was essential before a violation of the statute could be found. The State contends that K.S.A. 1981 Supp. 8-262 is an absolute liability statute, and that no showing that defendant was given notice of suspension is necessary.
The facts are not in dispute. Jones was stopped for speeding on May 15, 1981. A computer check disclosed that his driver’s license was suspended on September 22, 1980, and remained suspended. Jones was arrested and charged with speeding and driving while his license was suspended. He pled guilty to speeding, and that matter is not before us. He pled not guilty to driving while his license was suspended, and at the close of a bench trial the judge found him not guilty, finding that “notice or knowledge and an intent to drive in violation of that notice” was essential, and that the State had not met its burden of proving either notice or knowledge.
The State first calls our attention to K.S.A. 21-3204, which provides:
“A person may be guilty of an offense without having criminal intent if the crime is a misdemeanor and the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described.”
The State contends that driving while one’s license is suspended is an offense within the quoted statute, and in support of its position cites State v. Merrifield, 180 Kan. 267, 303 P.2d 155 (1956), State v. Baker, 1 Kan. App. 2d 568, 571 P.2d 65 (1977), and City of Overland Park v. Rice, 222 Kan. 693, 567 P.2d 1382 (1977). In Merrifield, we said:
“It is clear that the statute makes it unlawful to drive a vehicle on the highways when the license to so drive has been suspended. The legislature made no exceptions, and the question of intent is not involved, and the motive or the circumstances under which the driving took place are immaterial. The legislature may forbid the doing of an act and make its commission criminal without regard to the intent or knowledge of the doer, and where the legislative intention appears, it is incumbent upon the courts to give it effect, although the intent of the doer may have been innocent. The doing of an inhibited act constitutes the crime, and the moral turpitude or purity of motive by which it is prompted, and knowledge or ignorance of its criminal character, are immaterial circumstances on the question of guilt.” 180 Kan. at 269.
The opinion in Merrifield, however, makes it clear that the defendant in that case had actual knowledge that his driver’s license had been suspended. His defense was that the sheriff had, in substance, directed him to drive, and that he had no intent to violate the law. In Baker, the Court of Appeals quoted the above language from Merrifield in holding that one need not intend to speed; that the statute fixing maximum highway speeds for vehicles is an absolute liability statute, and within K.S.A. 21-3204; and that the malfunction of a cruise control mechanism is no defense to a speeding charge. In Rice, as in Merrifield, the defendant knew that he had no license at the time he was driving a vehicle.
All three cases are distinguishable from the case at hand. Jones testified in substance that he did not know that his license had been suspended, and that he had not received any written notice of the suspension. He also testified that he had not lived at the address shown on the order of suspension for two years. The State’s evidence consisted of the testimony of the arresting officer, who had seen Jones drive a motor vehicle, and a certified copy of the suspension order and other documents which did not include a statement of mailing. There was no evidence that either a copy of the suspension order or any written notification thereof was ever mailed or otherwise given to the defendant.
K.S.A. 8-248 makes it incumbent upon every holder of a driver’s license to notify the division within ten days of the time the holder moves from the address designated on the holder’s license. Jones apparently had not done so; he was not charged with that omission, however, and, so far as this record discloses, no notice was sent to him at any address. The trial court was correct in entering a judgment of acquittal.
In prosecutions for driving while a license is suspended, it is incumbent upon the State to show compliance with K.S.A. 8-255(h), which provides:
“Upon suspending or revoking the license of any person as authorized by this act, the division immediately shall notify the licensee in writing. . . .” (Emphasis supplied.)
When a driver’s license is revoked or suspended, a copy of the order of revocation or suspension, or a suitable written notice of that action, must be mailed to the last known official address of the licensee. The State is entitled to rely upon its record of all licensees’ addresses, and it is also entitled to rely upon the presumption that letters, sent by ordinary mail postage prepaid, are received by the addressee in the ordinary course of the mails. The use of certified mail, return receipt requested, would be preferable but is not required. Once the State has complied with the mandatory notice requirement of K.S.A. 8-255(h) by mailing, the presumption of receipt arises and is not rebuttable. Evidence of non-receipt may, however, be introduced by the accused in mitigation at time of sentencing.
We hold (1) that the State must send a copy of the order of revocation or suspension or a written notice thereof to the licensee at the last known address according to the division’s records; (2) that when written notice has been mailed, then, after reasonable time for mail delivery has expired, receipt is conclusively presumed; and (3) that in a prosecution under K.S.A. 1981 Supp. 8-262, the State need not prove actual receipt of the notice, actual knowledge of the revocation, or specific intent to violate the statute, by the licensee.
The appeal is not sustained. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action commenced under §§ 230 to 236 of the civil code, on a promissory note, before it was due. An order of attachment was issued in the case by authority of the judge of the court, and levied upon certain property. Afterward, the defendant, Arthur S. Pierce, moved to set aside the order of attachment and. to discharge the property attached, on the grounds —“First, because no sufficient affidavit for attachment has ever been made in said action; second, because the pretended facts stated and set forth in the pretended affidavit, and the pretended grounds for attachment stated in said affidavit, are false.” This motion was never heard or decided by the court below, or by the judge thereof; but the plaintiffs, Myers & Campbell, appeared and made the following relinquishment, to wit:
“The above-named plaintiffs, D. H. Myers and J. P. Campbell, hereby release the attachment issued in the above entitled action on the first day of March, 1881, and levied upon certain real estate belonging to the said defendant, situated in Clay county, Kansas; the said plaintiffs hereby relinquishing, releasing and disclaiming to said defendant all claims, interest or lien in or upon the property in said attachment mentioned, which the said plaintiffs may have acquired under and by virtue of said writ of attachment.”
On the same day the plaintiffs filed a new and amended petition. This new and amended petition was the same as the original petition, except that it made no reference to the fact that the note was not then due, or that it was not due when the action was commenced, or to the fact that the defendant had disposed of, or was about to dispose of, his property, with the intent to hinder, delay or defraud his creditors. At the time that this new and amended petition was filed, the note was due. At the same time the plaintiffs filed a new affidavit for another order of attachment. This new affidavit was made and filed under §190 of the civil code; and the ground set forth therein, and the only ground for the order of attachment, was, that the defendant was a non-resident of the state of Kansas. Another order of attachment was then issued, and was levied upon the same property upon which the original order of attachment had been levied. Afterward the defendant filed a motion to dismiss the plaintiffs’ action, which motion reads as follows:
“Now comes the said defendant, Arthur S. Pierce, for the purpose of this motion only, and moves the court to dismiss the above entitled action, because the same was brought for a debt before the same was due, and the property attached therein released and discharged and the original attachment therein dismissed.”
This motion was overruled by the court; and thereupon the defendant filed a motion to strike the amended petition from the files of the court, upon the following grounds, to wit:
“1. Because the same was filed without leave of court, and without the consent of said defendant. 2. Because the same changes substantially the claims in said action. 3. 'Because the same changes the nature of the action. 4. Because the same is not an amendment to the original petition herein. 5. Because the same is not an amended petition herein. 6. And because no action was pending when the same was filed.”
This motion was also overruled by the court. The defendant made no further appearance in the case, and judgment was rendered against him by default for the amount of the promissory note and costs, and the attached property was ordered to be sold to satisfy such judgment. The court also ordered that the defendant should have sixty days from the date of the judgment within which to make and serve a case for the supreme court, which case was properly made, served, settled and signed, and then brought to this court. The case, however, was not properly attested by the clerk and authenticated until after it was brought to this court. After the same was brought here, the defendants in error (plaintiffs below) moved to dismiss the petition in error and to strike the case from the files of this court, for various reasons, among which were, that the case had not been properly authenticated by him. Immediately thereafter counsel for plaintiff in error, with leave of one of the justices of this court, withdrew the case temporarily, and presented it to the clerk of the district court, who then and there duly attested and authenticated the same with proper certificates and with his signature and the seal of the district court. The case was then returned to the supreme court. Under these circumstances, we think the motion of the defendants, in error should be overruled. (Lownsberry v. Rakestraw, 14 Kas. 151; Pierce v. Butters, 21 Kas. 125.)
The case was complete and perfect when it- was signed by the judge of the district court, and all that was then necessary to make it evidence in this court was, that it should be attested and authenticated by the clerk of 'the district court; and it is not essential to the validity of the case that it should be filed with the clerk of the district court immediately after it has been settled and signed by the judge of such court. If filed within any reasonable time after it has been settled and signed, that is sufficient. (See case first above cited.) And we cannot say in the present- case that the case was not filed within a reasonable time. This decision is in entire harmony with the case of Karr v. Hudson, 19 Kas. 474. In that case, the case had not been attested by the clerk of the district court at all, and did not have the seal of the court attached thereto.
We now come to the merits of the case. The plaintiffs below had a right to amend their petition at the time they did, by filing an amended petition, as they did, without leave of the court. The defendant had not yet filed his answer; and §136 of the civil code provides among other things that “the plaintiff' may amend his petition without leave, at any time before the answer is filed, without prejudice to the proceedings.” Besides, the district court ratified the filing of the same, by refusing to strike it from the files or to dismiss the action on account thereof. The amended petition was duly served upon the defendant’s attorneys, as required by § 136 of the civil code.
We also think that the amended petition was amply sufficient for the purpose of stating the plaintiffs’ cause of action, both at the time they filed the same and also at the time the original petition was filed. And the original petition would have been amply sufficient, if it had been drawn up in the exact form in which the amended petition was drawn.
In an action on a claim before due, it is not necessary to set forth in the petition the grounds upon which the attachment is obtained, any more than it is to set forth the grounds upon which an attachment is obtained where the claim upon-which the action is brought is past due. “The affidavit and order of attachment constitute no part of the pleadings in the action, and the grounds for an attachment should not be stated in the petition. This rule applies as well in case of an action for a debt not due as in other actions.” (Harris v. King, 9 Ohio St. 388.) The grounds for the attachment must be set forth in the affidavit of the plaintiff for the attachment, and need not be set forth anywhere else. At most, they should not be set forth in the pleadings.
We now come to the question whether the court below erred in refusing to dismiss the plaintiffs’ action, and in overruling the defendant’s motion for that purpose. That the court below had jurisdiction of the person of the defendant, there can be no question. A summons was personally served upon him; and he also appeared in the action otherwise than for the mere purpose of questioning the jurisdiction of the court. He appeared in the action and moved to discharge the attachment for the reason, among others, that the facts set forth in the affidavit for the attachment were untrue and false. He also appeared in the action and moved to strike the amended petition from the files, for various reasons other than that the court did not have jurisdiction to hear and determine the case. But the fact that the court below had jurisdiction of the person of the defendant, does not decide the question as to whether the court below erred in refusing to dismiss the plaintiffs’ action. That question probably depends upon the other question, as to whether the plaintiffs absolutely abandoned their original action or proceeding, as a' proceeding under §§ 230 to 236 of the civil code, and attempted to transform it into an ordinary action, with an ordinary order of attachment issued under §190, et seq., of such code. This depends upon various considerations. In an application for an order of attachment under § 230 et seq. of the civil code before the claim is due, if the order of attachment is not granted, then the action must be dismissed, (Civil Code, § 232;) and if the order of attachment is granted, but should afterward be set aside for the reason that the grounds therefor were not true, then the action should also be dismissed. (Heidenheimer v. Ogborn, 1 Disney, 351; Grier v. Fox, 4 Mo. App. 522; Crew v. McClung, 4 G. Greene, 153; Wadsworth v. Cheeny, 10 Iowa, 257, 259; Seidentopf v. Annabil, 6 Neb. 524.) But if the order of attachment, after being granted, should be set aside for some mere technical defect in the attachment proceedings, then we think the district court should, as a rule, exercise a sound and proper judicial discretion as to whether the action should be dismissed or not. (Ramsey v. Overaker, 1 Disney, 569.) And if not dismissed, the plaintiff should be required to immediately correct, by amendment or otherwise, the defects in his attachment proceedings, so as to make them correspond with the law governing actions and attachment proceedings instituted on claims not yet due. If the order of attachment should not be set aside, but should be upheld, and only the levy of the attachment upon particular property should be set aside, then we think that the action should not be dismissed, unless the plaintiff should then wholly abandon his attachment proceedings. Of course if only a portion of the attached property should be discharged from the attachment, then the action should not be dismissed, but should be proceeded with to judgment.
The present case is not in all its particulars just like any one of the cases above mentioned; but we think it is similar in principle to the case where the attachment is granted and afterward set aside upon the ground that the facts set forth in the affidavit for the attachment are not true. The defendant in this case moved to set aside the attachment on the ground of the insufficiency of the affidavit, and that the facts stated therein were false; and immediately thereafter the plaintiffs wholly abandoned their attachment and all the previous attachment proceedings, and commenced new attachment proceedings not authorized or provided for in actions commenced on claims not due. In this we think that they virtually confessed either that their affidavit for the attachment was not sufficient in form, or that the facts stated therein were not true; and perhaps by this relinquishment and abandonment they confessed both. Their relinquishment and abandonment of their original attachment proceedings was a virtual dismissal and discharge of all such attachment proceedings; for under the new attachment proceedings it was not pretended that the defendant had done or was about to do anything for the purpose of hindering, delaying or defrauding his creditors — matters essentially necessary to the maintenance of attachment proceedings on claims not due. The abandonment by the plaintiffs of their original attachment proceedings was a vir tual dismissal of their original affidavit for the attachment, was a virtual dismissal of their original order of attachment, and was a virtual dismissal of the levy of such original order; and it was' not a dismissal of any of these proceedings because ■of any merely technical defects or imperfections in any of the papers in the case, or because of any irregularity in the mode of procedure; for all the papers in the case — the affidavit, the leave of the judge, the undertaking, the order of attachment, the levy of the same, and all other papers and proceedings up to that time — seem to have been perfectly regular and proper and sufficient. Nor was the abandonment of the original attachment proceedings merely a discharge of the attached property on the ground or claim that it was,, exempt from attachment or not subject to attachment; for the new ■order of attachment was levied upon identically the same property, and there was no claim that it was exempt from attachment. However, the defendant’s motion to discharge the attachment really contained only two grounds: First, that the affidavit for the attachment was insufficient; and second, that the facts set forth therein were false. And because of this motion, and for no other obvious reason, that plaintiffs seem to have abandoned their original attachment. Now the first ground for the motion was clearly not sufficient. Therefore it would seem that the plaintiffs must have abandoned their attachment merely because of the second ground; that is, merely because they then believed that the facts set forth in their original affidavit were not true. And indeed, taking the whole case together, with all its facts and circumstances, it would seem that there could be no sufficient reason for the abandonment of the original attachment proceedings by the plaintiffs, except that they believed that the facts set forth and stated in their original affidavit, and upon which all such •attachment proceedings were founded, were not true. And if such facts were not true, then we think that according to all the authorities the action should have been dismissed. Undoubtedly the plaintiffs believed the facts set forth in their original affidavit to be true when they filed the same, but further investigation probably led them to believe otherwise.
The judgment of the Court below will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The. opinion of the court was delivered by.
Valentine) J.:
This was an action brought by Robert Greenwell against Dorcas Greenwell, for compensation for boarding the defendant and washing for her for twelve years, fro’m January 1, 1867, up to January 1, 1880, at the rate of $75 per year, amounting to $900.
The defendant answered the plaintiff’s petition, denying generally the allegations of the plaintiff’s petition; also setting up the three-years statute of limitations, and also setting forth that she was the mother of the plaintiff, and that during the • time for which he claims compensation for hoarding and washing, she lived with him as a part of his family, without any agreement, contract, promise or understanding that she should pay anything for her board or washing; that during the time that she so lived with him, she performed services for her son, and that neither intended to charge the other for anything done or performed by the one for the other.
The case was tried before the court and a jury, and the defendant’s evidence would seem to sustain her view of the case, while the plaintiff’s evidence would scarcely contradict it. The court gave general instructions to the jury, as well as special’instructions asked for by the parties. The plaintiff asked the court to give the following special instruction:
“1. If the jury find from the evidence that the defendant has lived in the family of the plaintiff and has had her boarding and washing done and furnished by the plaintiff and his family, and that there was no contract or agreement between the plaintiff and defendant, and as to how much defendant should pay plaintiff for said boarding and washing, then I charge you that the law is, that there was an implied contract that the defendant was to pay plaintiff what said boarding and washing were reasonably worth for the time said defendant so boarded at plaintiff’s house; and you will so find for plaintiff such reasonable compensation not to exceed the amount claimed in plaintiff’s petition.”
The court gave this instruction to the jury, but modified the same by adding the following thereto, to wit:
“The rule above applies, unless the jury find from the ■evidence that defendant lived with her son as a part of his family.”
The plaintiff duly excepted to the modification.
The defendant asked the court to give the following instructions :
“1. If the jury find from the evidence that the defendant is the mother of the plaintiff, and for the time mentioned in plaintiff’s petition the defendant lived with the plaintiff as ■one of his family, assisting in performing the ordinary duties of the household, and there was no express contract that the defendant was to pay for her board and washing, and no ■understanding by either party that such board and washing were to be paid for, then I charge that as between mother ■and son there is no implied promise to pay for such board and washing, and the plaintiff cannot recover in this case.'
“ 2. I charge you that if you find from the evidence that the defendant did not promise in writing to pay the plaintiff for the board and washing mentioned in plaintiff’s petition, then I charge you that the value of each' year’s board and washing would be barred by the statute of limitations in three years from the time such board and washing became due, and the plaintiff cannot recover for those years.”
This was modified by the court, by adding the following:
“The jury will find from the evidence whether the board became due at the end of each year,
“3. I charge you that a gift from the defendant to the plaintiff of money or property cannot be applied on an account to take it out of the statute of limitations.5’
The plaintiff duly excepted to the^ instructions.
The jury found a verdict in favor of the defendant and against the plaintiff, and the court below rendered judgment .accordingly; and the plaintiff now brings the case to this court, and asks that the judgment of the court below be reversed.
The plaintiff claims in this court that the court below committed material and substantial error in giving the instructions above quoted. We think, however, that the instructions-are right, and that they fairly come within the principle enunciated in the case of Ayres v. Hull, 5 Kas. 419. See-also, authorities cited in briefs of'counsel.
In addition to the facts already stated, we would mention that the plaintiff’s mother has been a widow for more than-twenty years, and that during this time she has lived with her children, several of whom reside in Kansas; that she is-very old and feeble, and not able to perform very much work; but still, during the time that she lived with the-plaintiff, she assisted, so far as she could, in the ordinary household duties; and there was no understanding on the part of either that either should receive any other or additional compensation from the other. For the last two years-the relations existing between the plaintiff and his mother-have not been very pleasant. They have not been the best of friends; and hence this and other litigation between them. (Greenwell v. Greenwell, 26 Kas. 530; Greenwell v. Greenwell, ante, p. 413.)
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 information filed in this case sets forth false pretenses within the statute, and the court committed no error in overruling the motion to quash. We held, In re Snyder, 17 Kas. 542, that it must appear that the pretense relied upon relates to a past event or to some present existing fact, and not something to happen in the future’. Yet we further said in that case, that it is not necessary, to constitute the offense of obtaining goods by false pretenses, that the owner has been induced to part with his property solely and entirely by pretenses which are false; nor need the pretenses be the paramount cause of the delivery to the prisoner. In this case, it is averred in the information that the appellant falsely and fraudulently pretended and said that the money which he was then and there procuring by loan from one S. P. Eobbins, he was so procuring for the purpose and with the intent and design to pay the same to the prosecuting witness, one August Todman, in satisfaction of the notes and mortgage then held and owned by Todman, and to secure the settlement and dismissal of the action brought thereon and then pending in the court against him. It also sets forth in the information that appellant falsely and fraudulently pretended to the said Todman that he had come to him for the purpose of paying the notes held by the latter against him. These statements are false pretenses, as they are the representations of facts calculated to mislead, which are not true, and moreover, they are fraudulent representations of existing or past facts. The appellant was not procuring money from S. P. Eobbins or anyone else to pay the same to Todman to satisfy the notes and mortgage held by him; and the appellant had not come to Todman to pay the notes secured by the mortgage. The mere promise of the appellant to pay the notes and mortgage, not relating either to a past or present event, would not support an information for false pretenses, as a promise is not a pretense; but as there are sufficient false pretenses of existing and past facts set forth in the information, blended, nevertheless, with a promise for the future, the pretenses are within the statute. Bishop says:.
“The English judges hold that where the pretense and the-promise, blended together, acted jointly on the mind of the defrauded person as the inducement to part with his goods,, and he would not have parted with them by reason of the pretenses alone without the promise, the case falls within the statute. If this doctrine seems at the first impression to-carry the law far toward the shadowy ground of mere promise, a single consideration added to what has already been-said shows that it does not carry it over the line. Were a promise not permitted to intervene between the pretense and the cheat, without destroying the indictable quality of the-transaction, the statute itself would be rendered almost null. And no construction of any statute is allowable, the consequence of which is to nullify it.” (2 Crim. Law, 6th ed.,, §§ 427, 429; The State v. Dowe, 27 Iowa, 273.)
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 action was commenced on a promissory note before it was due, by attachment, under §§ 230 to 236 of the civil code. The promissory note was executed September 16,1881, by the defendants, W. L. Capell, C. H. Taylor and J. B. Abbott, to the plaintiffs, John Harris & Co., for $1,000, due in 90 days after date, and drawing interest at the rate of 12 per cent, per annum. The note was not secured in any manner. On November 19, 1881, the plaintiffs desired the defendants to give security on the note, and the defendants offered to give a chattel mortgage on some personal property worth about $1,800; but the plaintiffs refused to accept such security, and demanded that the defendants should give to them a mortgage on real estate. This the defendants refused. Afterward, but on the same day, the defendant Taylor executed a voluntary assignment of nearly all his property, conveying the same to Almon H. Baldwin, in trust for the benefit of his (Taylor’s) creditors. On the same day the plaintiffs commenced this action, and on November 21st or 22d the property was taken by the sheriff from the possession of the assignee, Baldwin, on the order of attachment issued in this action. Afterward the defendants moved to discharge the attachment, on the grounds that the matters and things set forth in the plaintiffs’ affidavit for the attachment were untrue and false, and that consequently the attachment itself was null and void. The grounds for the attachment, as set forth in the plaintiffs’ affidavit, were that the defendants had sold, conveyed and otherwise disposed of their property, with the fraudulent intent to cheat or defraud their creditors, or to hinder or delay them in the eolléction of their debts; or were aboüt to make such sale or conveyance or disposition of their property with fraudulent intent; or were about to remove their property, or a material part thereof, with the intent or to the effect of cheating or defrauding their creditors, or of hindering or delaying them in the collection of their debts. A hearing was had upon the motion to discharge the attachment before the judge of the district court, at chambers, and on January 21, 1882, the motion was sustained, and the attachment discharged. Of this order the plaintiffs now complain, and ask for a reversal thereof in this court.
The only substantial question presented to the judge of the court below, or to this court, is, whether the defendant C. H. Taylor had sold, conveyed or disposed of his property, or any portion thereof, with the fraudulent intent to cheat or defraud his creditors, or to hinder or delay them in the collection of their debts; or was about to make such sale or conveyance or disposition of his property with such fraudulent intent, prior to the commencement'of this action.-
There was no claim made by the plaintiffs, on the hearing of the motion before the judge of the court below, nor is there any claim now made, that the defendants W. E. Capell or J. B. Abbott disposed of, or intended to dispose of, any of their property, for the purpose of hindering, delaying or defrauding their creditors, or of hindering, delaying or defrauding anyone else. We are inclined to think that the decision of the judge of the court below was correct. It is true that there was some evidence tending to show fraud; but we.are inclined to think that the weight and preponderance of the evidence tended to show that all the defendants and the assignee acted in good faith.
In addition to the facts already stated, the evidence tended to show that Taylor was in fact insolvent at the time he executed the assignment. It is true that the evidence tended to show that his property was worth an amount more than equal to the amount of all his debts and liabilities; but he did not have property, not exempt from execution, equal in value to the amount of his debts. In other words, his aggregate indebtedness was more than equal to the value of all his property which was not exempt from execution. Under such circumstances, he undoubtedly had a right to make an assignment for the benefit of his creditors. The plaintiffs, however, claim that the assignment was void for certain irregularities. Now whether the assignment was void or not, from irregularities, is not a question in this case. If the defendant Taylor acted in good faith in making the assignment, it is immaterial in this case whether he accomplished it or not; for if he acted in perfect good faith he was not guilty of selling, conveying or otherwise disposing of his property “ with the fraudulent intent to cheat or defraud his creditors, or to hinder or delay them in the collection of their debts;” nor was he “about to make such sale or conveyance or disposition of his property with such fraudulent intent,” so as to authorize the attachment under § 230 of the civil code. It must-be remembered that the material question in this case is simply, whether the attachment is valid, and that all questions with reference to the assignment arise only incidentally. This case is wholly unlike a case where an execution, with regard to the regularity and validity of which there is no question, or a case where an order of attachment, with regard to the regularity and validity of which there is no question, is levied upon property which is claimed by some person other than the defendant in the execution or the attachment proceedings, and claimed by him by virtue of an assignment made to him by such defendant of the property in question in trust for the benefit of creditors. In such a case the validity of the assignment arises fairly and squarely. In a case like this, however, the assignment can be used only for the purpose of tending to prove, or disprove, the good faith or the fraud of the defendant in making the assignment. If he made it for the purpose of defrauding his creditors, then it tends to uphold the attachment; but if he made it in good faith, it does not so tend to uphold the attachment, although possibly for some technical reason it may be void. The assignment may be void in this case, and yet the plaintiffs may not be entitled to their attachment.
The irregularities and other matters which the plaintiffs urge, as tending to defeat the assignment and sustain their attachment, are as follows:
They claim-that the assignment does not on its face purport to convey all of Taylor’s real estate.
They also claim that no schedule of liabilities was filed with the clerk of the district court on the day that the assignment was executed; .that when the schedule was filed that it did not include the plaintiff’s claim; that Taylor, shortly before making the assignment disposed of some stock; that Taylor kept some of the goods which were covered by the assignment.
Now, with the explanations given by the defendant’ Taylor and his witnesses, we do not think that any of these things show any want of good faith on the part of Taylor or his assignee in making the assignment, or in consummating any of the other transactions; and whether, technically, any of them render the assignment void, it is not necessary, as we have before stated, for us now to decide.
The plaintiffs also claim that the defendants admitted the truth of the matters and things set forth in the plaintiffs’ affidavit, by filing a general demurrer to the plaintiffs’ petition; because, as they claim, the petition alleged and set forth the same matters that were contained in their affidavit.
Now of course the demurrer admitted the facts set forth in the petition for the purposes of the demurrer, but for the purposes of the demurrer only, and did not admit t'hem for the purposes of the motion to discharge the attachment.
The plaintiffs also claim that the judge of the court below erred in admitting in evidence certain affidavits filed in the case prior to the filing of the motion to discharge the attachment. It is true that the judge of the court below permitted such affidavits to be read in evidence, but we do not think that he erred thereby. The plaintiffs had previously had ample time to examine them; they did not claim that they were surprised; they did not ask for further time to file other affidavits; and a portion of such affidavits they read in evidence themselves. We do not think that they have any reason to complain in this respect.
The order of the judge of the court below discharging the attachment will be affirmed. •
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
I. The court committed no error in permitting the sheriff to amend his return to the summons, and after such amendment had been made, it appeared from the return that due and proper service of the summons had been had upon the Valley Bank and Savings Institution. The amendment made was not to confer jurisdiction, but to make the return conform to the facts. (Forman v. Carter, 9 Kas. 674; Challiss v. Headley, 9 Kas. 684; Kirkwood v. Reedy, 10 Kas. 453.)
II. The exception that the plaintiff' named in the petition was not a proper party plaintiff, and a mere nullity, is untenable. The certificate of deposit was executed payable to the order of the plaintiff. (Esley v. The People, 23 Kas. 510.)
III. The objection to the sufficiency of the petition by the parties in default other than the Valley Bank and Savings Institution, is well taken. The petition charges: “That the said defendants, and each of them, On, before and after the said 10th day of March, 1879, [the date of the issuance of the certificate of deposit sued on,] were, and now are, stockholders in said corporation, the Valley Bank and Savings Institution, each holding and owning more than $500 of paid-up stock therein; that the said Valley Bank and Savings Institution has long ceased to transact business and is insolvent, and has no property or assets of any description out of which said sum or any part could be collected by execution or other process of law.” Now as a rule, outside of constitutional or statutory provisions, stockholders are not personally liable to the creditors of a corporation; therefore, unless there is some provision in our constitution or statute making the stockholders of a bank liable when it ceases to do business with debts unpaid, the petition fails to show that the persons in default were primarily indebted to the plaintiff. The only provision of our statute under which it can possibly be claimed that the stockholders are liable under the allegations of the petition is § 44, art. 5, ch. 23, Comp. Laws of 1879. This, among other things provides:
“ If any corporation created under this or any general statute of this state, except railway or charitable or religious corporations, be dissolved leaving debts unpaid, suits may be brought against any person or persons who were stockholders at the time of such dissolution, without joining the corporation in such suit.”
A corporation is dissolved — First, by the expiration of the time limited in its charter; second, by a judgment of dissolution rendered by a court of competent jurisdiction. (Comp. Laws of 1879, ch. 23, art. 5, § 40.) The allegations in the petition are sufficient to authorize -the commencement of an action for a dissolution of the Valley Bank and Savings Institution, but no such action has as yet been brought, and it does not appear that the corporation is dissolved; therefore the stockholders are not primarily liable to the creditors of the bank for its debts. A statement that a corporation has ceased to transact business and is insolvent is not equivalent to an allegation that the corporation is dissolved. Under the provision of § 32, art. 4, ch. 23, Comp. Laws of 1879, if execution issue against the property or effects of the Valley Bank and Savings Institution, and such execution be returned nulla bona, then execution may be issued against any of the stockholders thereof to an extent equal in amount to the amount of stock by him or her owned, together with any amount unpaid thereon. But prior to the issuance of the execution against any stockholders, the notice and proceedings set forth in said § 32 must be complied with. Perhaps in this connection we ought to remark that there are no allegations in the petition making the stockholders of the bank liable under the terms of ch. 47, Laws of 1879. The judgment against the Valley Bank and Savings Institution will be affirmed; but as the state of facts alleged in the petition does not authorize a recovery against the other plaintiffs in error, the judgment against them must be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action by defendant in error (plaintiff below) against plaintiffs in error (defendants below), to foreclose a mechanics’ lien on certain lots in the city of Topeka. William R. Hazen, one of the defendants below and the party who entered into the contract with plaintiff below for the erection of the dwelling house set forth in the petition, set up in his answer the'following contract:
“This agreement, made the 15th day of August, 1879, by and between Vm. M. Miley of the first part, and. Win. E. Hazen of the second part, witnesseth: That said party of the first part has this day abandoned all work on and control over •everything necessary to the completion of a certain house taken under contract by said party of the first part from said party of the second part, from want of means to complete the same. •Said party of the second part agrees to complete the said house for the consideration or as much of the consideration as is necessary to complete the house according to the contract previously entered into between said parties of the first part and second part; and the remainder of the original consideration, after deducting the amount necessary for the completion of the building, shall remain to be paid to said party of the first part, or to his creditors, as circumstances shall render necessary. If said party of the second part shall think best to add any additional expense to the completion of said house more than the original- contract called for, he shall be allowed to •do so, but at his own expense.
“In witness whereof, we have hereto set our hands, the day and year first above written. ' Wm. E. Hazen.
W. M. Miley.”
After Hazen had produced testimony upon the trial of the execution of such contract, he introduced evidence proving that he completed the house according to the contract first •entered into between himself and Miley; that he employed the same mechanics that Miley had employed, and paid them the same wages; that he bought the material to complete the house at its fair market value at Topeka; and then offered to prove what his expenses were in completing the building according to the terms of the original contract. To this question the plaintiff below objected, upon the ground that it was immaterial. The objection was sustained, the court remarking that it was not a question of what it cost to complete the building, but what it was worth. The defendant below then offered to show -the amount of money he actually paid out in completing the building. ■ Again, said defendant offered to show that in completing the building according to the contract he actually paid $401.53, and that this amount was necessary to complete the same. The court refused to admit the evidence. All this was erroneous, and sufficiently prejudicial to demand a new trial. The evidence should have been received; and while the cost to defendant below was not the proper testy for which the contractor was chargeable, yet this evidence tended to show what it was worth to complete the building. It was as satisfactory and conclusive, and perhaps, more so, than the mere opinions of experts. (Friedland v. McNeill, 33 Mich. 40; Smith v. Ferris, 1 Daily, 18.)
For the refusal of the court to receive competent evidence material to the party complaining, the judgment must be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Yalentine, J.:
This was an action of replevin, brought by H. P. Bishop against E. F. Jones, sheriff of Jackson county, Kansas, to recover certain property claimed by Bishop, which had been levied upon by Jones, on an order of attachment issued in an action in which Leiberman & Manheimer were plaintiffs, and Gilbert Bishop was defendant. It is admitted that Gilbert Bishop once owned the property, but it is claimed by the plaintiff H. P. Bishop, that Gilbert Bishop sold and transferred the property to him before the action of Leiberman & Manheimer against Gilbert Bishop was commenced. On the other side, it is admitted that such a sale was made, but it is claimed that the same is void as against the creditors of Gilbert Bishop, of which creditors Leiberman & Manheimer are a portion. The only substantial question presented to the court below for its determination was, whether the said purchase and sale were made in good faith and for a sufficient consideration, or were made in fact for the purpose of hindering, delaying, or defrauding the creditors of Gilbert Bishop. The case was tried by the court below without a jury, and the court made the following findings and conclusions of fact and law:
FINDINGS OF FACT.
“1. On the 28th day of February, 1881, one Gilbert Bishop was the owner of a stock of merchandise of hats, caps, shirts, boots, shoes, and notions, all of them being in a store at Holton, Kansas, and was then and there dealing with them in the usual way as a merchant. Said property was then worth about $1,650, and was all he had, except some accounts for goods sold.
“ 2. On said February 28, pursuant to arrangement between said Gilbert Bishop and one’ Eli Evans, before that time made by correspondence between them, and upon the invitation of said Gilbert Bishop, said Evans, representing the firm of Patterson, Noyes & Co., of St. Joseph, Mo., went from Valley Falls, Kansas, to'Holton, and visited the store of said G. Bishop about 7 o’clock p. M. of said day, and by an arrangement then and there, before 10 o’clock that evening consummated, the said G. Bishop made a sale of said goods and accounts to his brother H. P. Bishop, the plaintiff herein, it being agreed that said H. P. Bishop should, and he did, give to Patterson, Noyes & Co. his obligation in writing, payable at a future day, for $837.50, that being the amount of their claim for boots and shoes theretofore sold by them to said G. Bishop. The said H. P. Bishop was surety for said G. Bishop, upon a note then due for $500, with $70 accrued interest thereon, and said G. Bishop was indebted to H. P. Bishop in the sum of $240, on a note. The said Evans received for Patterson, Noyes & Co. the obligation above mentioned from the Bishops in payment of the said claim of $837.50. The said Evans was pressing the settlement of the claim of his principals, and induced the said G. Bishop to see the plaintiff and request him to buy the stock of goods above mentioned, and pay the claim of Patterson, Noyes & Co., which the plaintiff did, by taking the goods at a price agreed upon by the three, to wit: 70 cents on the dollar of the invoice taken January 1st, 1881, with amount of sales deducted, and purchases charged up; and the goods were turned over to the plaintiff.
“ 3. .This sale and purchase were made for the purpose of securing the said Patterson, Noyes & Co. and the plaintiff from loss on account of their claims above mentioned, and was so understood between all the parties.
“4. No invoice of the goods was taken at the time of the sale. The plaintiff was to take them at 70 per cent, of $1,535.64, their then estimated value, their actual value being 77 per cent, of that sum. The plaintiff took the book accounts at 50 per cent, of $291.90, their value as estimated by them. Part of the obligations of plaintiff to Patterson, Noyes & Co., and part of the debts for which he was surety, have been paid. But whatever has been paid thereon came from the proceeds of the sale of the goods and collection of the accounts above mentioned.
“ 5. On • February 28, 1881,. said Gilbert Bishop was largely indebted to others than Patterson, Noyes & Co. and the plaintiff, and that firm and the plaintiff knew such to be the fact at that time.
“6. From the time of said sale to the plaintiff until now, the said G. Bishop has, as the ostensible managing man, been selling from said stock, and the same has been replenished, upon the orders of said G. Bishop as the exigencies of the trade required; but nothing beyond the receipts of the sales or collections of accounts has been contributed by plaintiff thereto.
“7. On March- 7, 1881, Leiberman & Manheimer, merchants of Kansas City, Missouri, commenced in this court an action against said G. Bishop, upon a claim for $310.60, for hats, caps, gloves and other merchandise, not including boots and. shoes, before that time sold and delivered to said G. Bishop, which claim is admitted by the parties to be correct, and due at that time, and sued out an attachment in that cause, under which the sheriff of this county seized a portion of the goods in the store mentioned — chiefly hats, caps, gloves and other merchandise sold by said Leiberman & Manheimer to said G. Bishop;
“ 8. On March 8, 1881, the plaintiff commenced this suit against the defendant, he having the goods so seized in his custody as sheriff of Jackson county, Kansas, under the attachment above mentioned.
“9. The value of the goods at the time of the replevin thereof was $310.60.” '
CONCLUSIONS OP LAW.."
“The sale of the goods and accounts by the said Gilbert Bishop to the plaintiff was void as to the creditors of G. Bishop, and the defendant has a right to a judgment for a return of the goods, or for $310.60, their value, and for costs.”
The plaintiff duly excepted to these findings and conclusions, and also moved the court for a new trial, which motion was overruled, to which ruling the plaintiff also excepted; and the court below then rendered judgment in favor of the defendant and against the plaintiff in the■ alternative for the' delivery of the goods, or for the sum of $310.60, in case the goods could not be had, and also for costs of suit; to which judgment the plaintiff duly excepted. The plaintiff now brings the case to this court, and asks for a reversal of the judgment of the court below, upon the ground that the findings and conclusions of the court below do not sustain or authorize such a judgment.
We think the judgment of the court below is erroneous. There is no finding that the sale was made “with the intent to hinder, delay or defraud creditors of their just and lawful debts or damages,” so as to make the sale fraudulent and void within the provisions of § 2 of the act for the prevention of frauds and peijuries, (Comp. Laws of 1879, p. 464;) nor is there any finding that the sale was without sufficient consideration; nor is there any finding that the sale was not a completed sale, or that the goods were not delivered to the purchaser. On the contrary, the court below finds in substance that the sale was made in good faith, for a valid and sufficient consideration; that the sale was completed; and that “the goods were turned over to the plaintiff.” The court below finds that the “sale and purchase were made [not for the purpose of hindering, delaying or defrauding creditors, but] for the purpose of securing the said Patterson, Noyes & Co. and the plaintiff from loss on account of their claims above mentioned, and was so understood between all the parties.” The goods were purchased and sold for seventy per cent, of their invoiced value, while they were worth seventy-seven per cent, of such value; hence the purchaser gave within seven per cent, of the actual value of the goods. But while the goods were worth only about seventy-seven per cent, of $1,535.64, they were really taken in payment of and to secure debts amounting to $1,647.50. Gilbert Bishop owed Patterson, Noyes & Co. $837.50, and owed the plaintiff’, on a note, $240, and owed another creditor, on another note, for which the plaintiff was security, the sum of $570; and these goods were purchased and sold for the purpose of paying and securing all these debts, and this sale was not a mere inchoate sale, but it was actually completed and the goods delivered; or, in the language of the court below, “the goods were turned over to the plaintiff” at the time of the sale. Can such a sale be considered fraudulent or void? We think not. (Arn v. Hoerseman, 26 Kas. 413.)
It matters but little whether the change of possession was permanent and continued, or not, for it seems from the facts found by the court below that it was “shown that such sale was made in good faith, and upon sufficient consideration.” (Comp. Laws of 1879, p. 464, §3.) It seems that Gilbert Bishop, since the sale, has been “the ostensible managing man.” But evidently he managed affairs only as the agent of the plaintiff. Gilbert Bishop also owed several other persons besides Patterson, Noyes & Co. and the plaintiff; but a debtor, even in embarrassed circumstances, has a right to sell his property to pay his debts, and also to prefer creditors. If he could not sell his property, it would be difficult for him to pay his debts; and if he could not prefer one creditor to another, it would be equally difficult to pay his debts. If a debtor who has no money desires to pay his debts, he must first sell his property, and obtain the money with which to pay his debts; and when he comes to pay his debts, he must necessarily first pay one creditor before he pays another, for he could not easily pay all at the same time; and if lie pays one creditor before he pays another, then he is giving a preference to the one he pays first over the others whom he expects to pay afterward.
The judgment of the court below will be reversed, and the cause remanded with the order that judgment be rendered in favor of the plaintiff and against the defendant.
All the Justices concurring. | [
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Per Curiam:
The same questions are involved in this case as those decided in the case of Wells, Fargo & Co. v. Danford & Smith; and in accordance with the views therein expressed, the order of the district, judge in this case must be reversed. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action in the nature of ejectment, brought by plaintiff in error against the defendant in error, to recover possession of a fractional quarter of land, situate in Crawford county. The plaintiff claimed the legal title and the right of possession by virtue of a deed of general warranty, executed by the Kansas City, Fort Scott & Gulf railway company, on April 26, 1880. The defendant claimed that he had an equitable title to the land and was in the actual possession thereof, by virtue of two certain written contracts, executed by the Missouri River, Fort Scott & Gulf railroad company to one F. M. Chambers, on May 3, 1875, which contracts defendant claimed were assigned and transferred to him on August 19, 1878. In this case the record numbers 202 pages of manuscript, .and the brief presented by plaintiff in error consists of fourteen pages of manuscript, alleging a large number of supposed errors on the part of the trial court. Counsel filing the brief for plaintiff in error have failed to refer specifically to the pages of the record as required by the rules of this court. There is only one reference in their brief to any page of the record, and this reference is merely to the testimony of one witness, •although it is apparent that other witnesses testified the same way upon the same subject. Considering the length of the record and the number of errors alleged, this failure of counsel to comply with the rules of this court would be a sufficient reason for a refusal to consider the questions presented, and indeed such was our inclination at first as to the disposition of this case. We have, however, concluded in this instance, notwithstanding the violation of our rules, to pass upon some of the more important questions.
I. It is urged that the court erred in giving the defendant judgment for the possession of the land in controversy, because it is claimed there was no valid assignments of the land contracts to the defendant, in this, that the wife of F. M. Chambers and the husband of Electa J. Chambers did not join in the assignments; and further, that these contracts are void, because they were not recorded. Neither of these objections has any force whatever. The assignment of the land contracts from F. M. Chambers to Electa J. Chambers was made and acknowledged the 25th day of September, 1876, and the assignment from Electa J. Chambers to the defendant was made August 19, 1878, and acknowledged October 2, 1878. The defendant accepted the land contracts and the assignments thereof, and thereunder took actual possession of the premises, and made lasting and valuable improvements thereon. Thereafter, he had exclusive, open and notorious possession of the land, and the plaintiff and all other persons were bound to take notice of all the equitable interests which the defendant had therein. Neither the wife of F. M. Chambers nor the husband of Electa J. Chambers contests the possession of ■defendant, nor does plaintiff claim any title, interest, or possession under them or either of them, and therefore the matter of the non-joinder of the wife of F. M. Chambers and the husband of Electa J. Chambers in the assignments, and the failure to record the. land contracts, are not important, and in no way affect the equitable rights of the defendant.
II. The claim is made that the court erred in not granting on demand a'second trial. It appears that the first trial was had at the September term; of the district court for 1880, and on the 16th day of October; that on the 20th day of April, 1881, plaintiff filed an amended petition, and on May 11, 1881, defendant filed his second amended answer. The •second trial was had January 4, 1882, at the Januai’y term ■of the court for that year. It does not appear that the plaintiff demanded another or second trial under the terms of § 599 of the code after the amendment of the pleadings, and the ■question is not properly before us for our adjudication whether plaintiff was entitled to two trials after the petition and answer had been amended.
III. As it is admitted that the land in controversy originally belonged to- the Missouri River, Fort Scott & Gulf railroad company, and as the Kansas City, Fort Scott & Gulf railway company derived its title from the former company, and was possessed of the legal title upon the date it executed the deed to the plaintiff, the material question before the trial court was, whether the land contracts under which defendant claimed were subsisting and in force at the time plaintiff obtained his title, notwithstanding the nonpayment of the interest, taxes and other sums as therein •specifically provided. These contracts were prior to the con veyance to the Kansas City, Fort Scott & Gulf railway company; but plaintiff claims that they were forfeited and canceled April 24,1880- — -prior to the date of his deed. On the part of the defendant, it is contended that he took the assignment of the land contracts with the consent of the Missouri River, Fort Scott & Gulf railroad company, and through its land commissioner, John A. Clark; that at the time of obtaining the land contracts, Clark’extended the time of the payments thereon; that heiwent into possession of the land upon that condition, made extensive and valuable improvements, and that all defaults in the terms of the contracts were expressly waived.^ Upon these questions a large amount of evidence was introduced, some of which wras conflicting. The court instructed the jury upon all the questions of law involved, and no exceptions were taken. The jury found a verdict for the defendant, and thereby substantially found that at the time the defendant obtained the contracts it was agreed and understood by the railway company that he should have until the spring of 1880 to make payment, and no forfeiture or advantage would be taken under the clauses of forfeiture in the contracts. As there was sufficient evidence to sustain the verdict, the court did not err in deciding thereon that plaintiff was not entitled to recover, if the defendant paid to him all the money due upon the contracts.
While parties have the right to make their contracts as-stringent as they please, and to make time of payment of the very essence thereof, yet no forfeiture or advantage can be taken of a defaulting party where there has been an express waiver of the default, and an extension of time therefor agreed upon, and the party is in a condition to make payment in accordance with such subsequent agreement. And it is equally clear, that where a party with the express stipulation of the land-owner enters into possession thereof under the-assignment of a contract of sale.where time is of the very essence, and some of the payments therein provided for have not been made, and upon an agreement with such owner that.. the over-due payments are to be postponed to a future day, expends large sums of money in making lasting and valuable improvements thereon, the owner cannot forfeit and cancel the contract on account of the non-compliance with the exact terms of the original contract, regardless of the subsequent agreement of the parties. (Missouri River, Fort Scott & Gulf Railroad Co. v. Brickley, 21 Kas. 275.)
IV. After the jury returned a verdict in favor of the defendant, virtually deciding that as’the equitable owner of the premises he was entitled to the possession thereof, the court proceeded to determine the money due to the plaintiff upon the land contracts, and adjudged that the defendant pay to the clerk of the court below for the benefit of the plaintiff, the sum of $1,240.24, within sixty days from the rendition of the judgment. No objection seems to have been taken to this proceeding, except it is alleged that the amount due plaintiff is $1,440.89, in the place of $1,240.24. While the plaintiff has the legal title of the premises, and by the judgment of the district court holds such legal title in trust for the defendant, he is in fact an equitable mortgagee, and has a lien thereby for his security for the unpaid purchase-money. In addition to this, as he stands in the shoes of the railroad company executing the land contracts, he is also entitled to have repaid to him all the taxes paid on the land by the company after the execution of the contracts, together with lawful interest thereon, and also' the taxes- paid by himself, with interest. We have made a calculation of the amount of these various sums, but our estimate does not exceed the $1;240.24 ordered to be paid by the court below. In the calculation furnished by counsel of plaintiff in error, some accounts are entered which do not appear in the evidence, and no deduction is made in such estimate for the moneys paid by the defendant to Perry, and by Perry turned over to Clark. Therefore we do not perceive that the amount of the lien of plaintiff, as found by the court, is erroneous.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
"Valentine, J.:
It is admitted by counsel for both parties that the only substantial question involved in this case is, whether the plaintiff, A. Laura Armstrong, was legally dismissed as a school teacher from the public school held in Union school district No. 1, Dickinson and Saline counties, Kansas. She was employed as a school teacher by such school district on September 6, 1880, and immediately entered upon the discharge of her duties as such school teacher. The contract of employment was such as is generally used in the employment of a teacher, except that it contained the following proviso, to wit:
“And provided further, that if by the inability or neglect of the said Armstrong the interests of the school shall suffer, the district board shall have full power to annul this contract, after one month’s written notice.”
Section 24 of article 4 of the school law provides, among other things, that the school-district board, “in conjunction with the county superintendent, may dismiss for incompetency, cruelty, negligence, or immorality,” any school teacher of the district. The plaintiff continued to teach in said school district up to April 4, 1881, when the school board finally dismissed and discharged her, on the ground of inability and neglect. This was done in pursuance of a written notice previously given to her and served upon her, March 5,1881.
The defendant claims that this dismissal was legal and valid under the proviso of the contract between the parties; while the plaintiff claims that the dismissal was illegal and void under the statute. She claims that notwithstanding the contract, she could be dismissed only after a formal trial had before the school-district board, acting in conjunction with the county superintendent of public instruction. She therefore claims that the dismissal was illegal and void for two reasons: First, because she did not have a formal trial; second, because the school-district board in dismissing her did not act in conjunction with the county superintendent.
Counsel for plaintiff claim that the words “inability” and “neglect,” found in the contract, mean the same as the words “incompetency” and “negligence,” found in the statute. In this they are probably correct. But they further claim that the proviso of the contract means the same as the statute; and in this, we would think, they are not correct. The proviso prescribes, substantially, that the school-district board alone shall have full power to annul the contract, while the statute provides that the district board must act in conjunction with the county superintendent, in dismissing a teacher.
"We suppose, however, that counsel would claim that if the proviso differs in any respect from the statute, that the proviso is to that extent void. As authority for the claim that before the plaintiff could legally have been dismissed from the school, there must have been a formal trial for the determination as to whether she was incompetent, or not, or whether she had been guilty of any negligence, or not, affecting injuriously the best interests of the school district, counsel cite the following authorities: Murdock v. Phillips Academy, 29 Mass. (12 Pick.) 244, 262, et seq.; Searmont v. Farwell, 3 Greenl. (Me.) 450; Morley v. Power, (Sup. Ct. of Tenn.,) 12 Cent. L. J. 540. See also the cases of Neville v. School Directors, 36 Ill. 71; Wilson v. Board of Education, 63 Mo. 137. But these last two cases would seem to be rather against the views of counsel than in their favor. Also see the case of The State of Tennessee, ex. rel., v. John Leonard, 3 Cooper, (Tenn. Chancery,) 177.
If the contract in this case had been silent with reference to the dismissal of the plaintiff for inability or neglect, and if the question as to her incompeteney or negligence had been submitted to a tribunal consisting of the school-district board and the county superintendent, as provided by the statute, then as tó whether thé mode of procedure in the trial and determination of such question should have been such as is usually practiced by courts of justice, we think it is unnecessary to decide, because that is not this case; and as to whether the determination of such tribunal with reference to the question of the plaintiff’s incompetency or negligence would have been in the nature of a judicial determination and conclusive between the parties, we think it unnecessary in this case to express an opinion. The case was not so submitted and was not so tried; but it was submitted, tried and determined wholly under the contract between the parties, and did not have reference to the statute. The only substantial question, then, to be determined, is really whether the proviso contained in the-contract between the parties, with reference to annulling the contract for inability or neglect on the part of the plaintiff, affecting injuriously the interests of the school district, is valid or not. We think the proviso is valid. This question has been substantially decided in the case of School District v. Colvin, 10 Kas. 283. At the time that the facts occurred upon which that case arose, the same statute was in force which is now in force; and the contract in that case between the school-district board and the teacher contained a stipulation reserving to'the district board the right to discharge the teacher at any time when he should fail to give satisfaction to the board. In that case it was held that the stipulation was valid, and that under the stipulation the school-district, board had a right to discharge the teacher whenever he did not give satisfaction to the school-district board, in accordance with his contract. The object of the statute was simply to provide that the school district should not so bind itself by contract that a school teacher could not be discharged at any time by the school board, acting in conjunction with the county superintendent, for incompetency, cruelty, negligence, or immorality; and it was not intended to prohibit the school board from making other provisions for the dismissal or the discharge of an incompetent, cruel, negligent or immoral teacher. The object of the statute was simply to furnish additional protection and safeguards to the efficiency and best interests of the public schools of the state, and it was not intended to take away any of the power of the school-district boards to make contracts, which might also be for the protection of the best interests of the public schools. The-object of the statute was not to take away such power as the school-district board already had to discharge school teachers, but it was to confer upon the board, in connection with the county superintendent, other and additional powers.
We think the plaintiff in the present case was discharged in accordance with the contract. She was allowed to teach one month after being notified in writing that the school board did not desire her services any longer; and she was paid for teaching, up to the time that she was finally discharged.
As to the mode of procedure by the school board in coming to a determination whether it would discharge the plaintiff, or not, under the contract we think it had an almost unlimited discretion. Neither the contract nor the statute provides what the mode of procedure should be in such cases. Of course the decision of the school board against the plaintiff is not final. If the plaintiff had been a competent teacher, and not negligent in the performance of her duties, and if for that reason the dismissal had been unauthorized by the contract between the parties, then the school district would have been liable, and the plaintiff might have recovered for the full term, for which she was employed. The facts whether the jfiaintiff was competent, or not, and whether she was negligent, or not, and whether the interests of the school district suffered, or not, from her incompetency and negligence, were questions of fact to be tried by the trial court in the trial of the case. These questions were fairly submitted to the court, and with reference to them the court found against the plaintiff, and in favor of the defendant. We have hot the evidence before us, and we cannot, of course, tell whether the court decided correctly or not; but presumably the decision of the court upon the evidence is correct.
This is substantially all there is in the case. Counsel for plaintiff suggest some other questions; but having decided the main questions involved in the ease as we have, and under the circumstances of the case, we do not think that it is necessary to comment upon them.
The judgment of the court below will be affirmed.
Brewer, J., concurring.
Horton, C. J., dissenting. | [
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The opinion of the court was delivered by
Brewer, J.:
This is an action brought by plaintiff in error (plaintiff below), to recover of the city of Leavenworth for damages sustained in consequence of a defective sidewalk. Passing by the formal parts, the petition alleges as follows:
“And plaintiff further avers that in the months of Novem ber and December, 1880, said defendant did willfully, knowingly and negligently, let and permit said sidewalk on said Sixth street, between said Choctaw street and the bridge over said Three-mile creek, in said city, to get out of repair and to be and so remain out of repair and in a dangerous condition, for a great length of time, and to the great and imminent danger of travelers passing along thereon.
“And plaintiff further avers, that on the third day of December, 1880, and between the hours of seven and eight o’clock in the evening of that day, whilst in pursuit of his lawful business, and as he had a proper and legal right to do, he was passing along said street and sidewalk, and on the west side of said Sixth street; and between said Choctaw street and the bridge over said Three-mile creek, in said city of Leavenworth, and without any fault, wrong, or negligence upon his part, he fell and was precipitated from said sidewalk on the west side of said Sixth street, to the ground on the west side thereof, which was about eight feet below the level of the said sidewalk — for the reason that said sidewalk was not properly protected by banisters and railings, or other devices of a.similar or proper nature, for the protection of passengers passing over it, and because the same was improperly erected and constructed, and was allowed to remain in such dangerous condition, and after the attention of the proper authorities of said defendant had been repeatedly called thereto by and for said plaintiff and others, and after the legally-constituted authorities of said defendant had been notified that said sidewalk was unsafe and unfit for travel, and dangerous to pedestrians and others.”
The city answered by a general denial. On the trial the plaintiff was called as a witness, and narrated the circumstances of the injury. Thereupon the defendant’s counsel objected to any further testimony, because on the allegations of the petition, and the statement of the plaintiff as a witness, he could not recover, which objection and motion were by the court sustained; and thereupon the court discharged the jury from further consideration of the case, and entered judgment for the defendant. The plaintiff alleges error.
That the plaintiff was injured, and that the injury resulted from a defective sidewalk, is unquestioned; but the claim is that the plaintiff showed such contributory negligence as would prevent any recovery. As the court stopped the plaintiff before he had finished his ease, it must appear that his testimony conclusively showed contributory negligence, or else the ruling of the court cannot be sustained. Although it were conceded that the testimony as given tended to show contributory negligence, yet if by further testimony plaintiff’s conduct could be so explained as to show he acted with reasonable and ordinary prudence, or if with such further testimony a proper question of fact as to the existence of contributory negligence might be presented, obviously the court erred in discharging the jury and stopping the case when it did. Its ruling can be sustained only on the proposition that as a question of law, the plaintiff’s testimony conclusively disclosed contributory negligence. This we think does not appear, and therefore the court erred. A brief statement of the facts is necessary. The plaintiff was a laborer, working in a cooper shop on Sixth street, south of Three-mile creek, and boarding at a place north of Three-mile creek, on the coirner of Sixth and Cherokee streets, about a block and a half from his place of work. Between his boarding house and place of work there was a sidewalk on the west side of the street. After supper he started from his boarding house to the shop for the purpose of doing some work. It was in December, after sundown — cloudy, misty, and very dark. There were some wagons standing in the street, and so he crossd over to the west side and started toward the shop on the sidewalk. He was perfectly familiar with the condition of the road and the sidewalk, having traveled it backward and forward several times a day for months. He was an old man, and walking cautiously. A board in the walk gave way under his step; he fell, and there being no railing along the outer edge of the sidewalk, he fell over and down a descent of several feet. This we think for a general statement is perhaps sufficient. And upon this we remark, in the first place, that the mere fact that the plaintiff knew the sidewalk was defective did not prevent him from using it. The logic of a converse proposition would be this: that if all the sidewalks in a city are defective, and all the citizens are aware of it, no one could use a sidewalk except at his own peril. The city would then absolve itself from all liability by making known its omissions of duty. This is not the law. A city must discharge its duty of making its streets and sidewalks reasonably safe for public travel; and it does not necessarily release itself from liabilities to a traveler injured thereon, by mere proof that such traveler knew the condition of the street or sidewalk. As we said in the case of Corlett v. City of Leavenworth, 27 Kas. 673, “The fact that a person attempts to travel on a street or sidewalk after he has notice that it is unsafe, or out of repair, is not necessarily negligence.” Now in this case the plaintiff was intent on business. While he knew the condition of the sidewalk, he was cautious in his action. Ordinarily a party is not obliged to forsake the sidewalk and travel in the street, for while thereby he would avoid one kind of risk, he would expose himself to another, to wit, that of injury from passing vehicles. Besides that, the condition of a street on a rainy night is not such as to invite the steps of one traveling on foot. Neither is a party, although he is aware of the condition of the sidewalk, necessarily obliged to go around the block, or travel by another street. The reasonableness of his action depends upon the distance of the surrounding way and the urgency of his need. And all this presents a question of fact for the consideration and determination of a jury. We therefore think that the district court erred in discharging the jury and entering judgment for the defendant. Obviously there was a question of fact as to whether the conduct of plaintiff was reasonably prudent. If it was, the city is not absolved from liability on account of its own negligence. (Osage City v. Brown, 27 Kas. 74.)
The judgment of the district court will be reversed, and the case remanded for a new trial.
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The opinion of the court was delivered by
Brewer, J.:
This was an action instituted in the district court of Franklin county by the defendant in error against the pláintiff in error, to recover damages, on account of a breach of promise of marriage. The verdict and judgment were in favor of the plaintiff for $1,250, and defendant now brings the case here for review. The errors alleged are in the giving of one instruction, the refusal of two, a single ruling on the admission of evidence, and that the verdict was contrary to the evidence. The testimony discloses that the defendant was a man about forty-five years of age at the time of this alleged promise of marriage; that plaintiff was about eighteen years of age. The defendant had been living in the town of Peoria, in Franklin county, for several years. The plaintiff moved there with her mother sometime in 1876, and lived until the fall of 1879 in a house belonging to the estate of the defendant’s father, and of which he had the care. The contract is alleged to have been made sometime in' March or April, 1879, and the time set for their marriage was in the following November. It appears that the defendant waited on the plaintiff from about the time of-her removal to Peoria until 'November, 1879, at which time he was married to one Miss Florence Cary. The fact of these attentions — that he visited plaintiff, escorted her to church, to balls and parties, is admitted by him, but the frequency of these visits and the extent to which these attentions were paid is a matter about .which the testimony is somewhat conflicting. The plaintiff testifies distinctly to an engagement of marriage in the spring of 1879. The defendant as positively denies any such engagement, though he admits that in 1877 there was some talk between them about the possibility of marriage. Besides the positive statements of the two principal parties, there was on each side the testimony of several witnesses as to the conduct of the two parties, their apparent relation, and statements respecting the same made by each. Upon this testimony we shall have more to say hereafter. Now the first error complained of is, that the court gave this instruction :
“The jury are authorized to'take into consideration, in support of the express promise alleged on the part of the plaintiff, the facts and circumstances accompanying the acquaintance of the parties, the visits of the defendant to the plaintiff, his accompanying the plaintiff to meetings and social gatherings — in fact, the whole intercourse of the parties; and if from all the evidence you are satisfied that the contract testified to by the plaintiff was in fact entered into, you will be authorized to find for the plaintiff.”
The case of Walmsley v. Robinson, 63 Ill. 41, is cited by plaintiff in error as an authority to show that this instruction is incorrect. "We think that authority is not in point, and that the instruction as given is correct. . In that case, under the instruction the jury were authorized to find the promise fr°m the conduct of the parties, while here they were simply told that they* might consider such cpnduct in corroboration of the promise testified to by the plaintiff. Clearly this is correct. .The conduct of the parties will always make for or against the'statement of either that a marriage contract has been entered into. If the parties never visit, seldom meet, manifest no interest in each other, such circumstance3 will tend strongly against the-claim of either of the fact of a marriage contract. While on the other hand, if he is constant in his visits, pays the ordinary attentions of a suitor, frequently escorts her, and in various ways manifests a peculiar interest in her welfare, these are circumstances which clearly corroborate and tend to support her assertion of an actual marriage contract. This is the extent to which the instruction goes, and to that extent we think is a correct statement of the law.
Plaintiff further objects that the court erred in refusing to give the two following instructions:
“If the plaintiff stated to the defendant, or to others who repeated her statement to the defendant, that she was engaged in marriage to a person named Artz, and the defendant believed it, it makes no difference in the case whether in fact she was so engaged.” “ If the defendant only paid such attentions to the plaintiff as a man might pay to a woman engaged to another, in consequence of plaintiff’s statements to defendant that she was so engaged, then the plaintiff cannot rely on such attentions to prove or substantiate a promise of marriage.”
In explanation of these instructions, it may be stated that the defendant claimed that plaintiff said to him that she was ■engaged to a man named Artz, who lived in Illinois, in the place where the plaintiff formerly resided, and in corroboration thereof that he had at her request directed several letters to a man of that name. There was similar testimony of other witnesses in reference to her statements. On the other hand, •she offered the depositions of sundry witnesses, as well as her own testimony, that this whole matter of another engagement to a man named Artz or anyone else was a myth. Now the ■counsel for plaintiff in error argue very strongly, that if defendant believed plaintiff to be a young lady already engaged to be married to a gentleman residing in a distant place, he might feel at greater liberty to pay her attentions — doing so not as a suitor, or with any idea of interfering with the existing engagement, but simply as perceiving her to be a young lady so situated as not likely to receive attentions from the young unmarried gentlemen in the vicinity; and that as the jury had been instructed that the fact of these attentions was matter to be considered in corroboration of the alleged engagement, they ought also to have been told to consider the explanation given by him;'and further, that attentions which a gentleman might properly pay to a lady already engaged, were not to be considered as tending to prove or corroborate a contract of marriage. We think there is great force in the argument made by counsel, that the court might properly have given the instructions asked; and yet the question as it comes before us is not whether it- would have been error to have given those instructions, but whether it was error to refuse them. Oftentimes instructions are perfectly proper, and the giving of them involves no error, yet at the same time the refusal to give them is also no error. Particularly is this true as to instructions respecting the tendency and effect of certain portions of the testimony. It would sometimes tend to embarrass and perplex a jury, hinder rather than assist them in arriving at the exact truth, if the court were to take the different portions of the evidence and give special instructions as to their tendency and effect. So also at times very slight action on the part of the court makes undue impression on the jury, and casts the weight of the court’s- supposed opinion into the jury’s decision upon a doubtful and disputed question of fact. In the case at bar the plaintiff asked no special instructions, and the only ones-asked by the defendant 'were the. two above quoted and refused. In its general instructions the court sufficiently and very fairly presented the questions of fact for the determination of the jury. It stated to them that the plaintiff’s cause of action rested upon proof of a marriage contract; that the plaintiff positively testified to such a contract; that the defendant as positively denied it. Then it gave the instruction' heretofore quoted, of which the defendant complains —an instruction which, as we think, was proper under the circumstances of the case.
It then followed with this instruction ón behalf of the defendant :
“On the other hand, you may look to the denial of the de fendant, and to the facts testified to by the witnesses in the case in support of his denial; and if from all ‘the evidence,, the facts and circumstances testified to by the witnesses, including the testimony of the defendant, you are not satisfied that a contract of marriage did exist between the parties as claimed by the plaintiff, it is your duty to find for the defendant.”
Not only did it thus place the case of the plaintiff' over against that of the defendant, but it followed these instructions by limiting their inquiry to the existence of the express contract made in March or April, as testified to by the plaintiff; and told the jury that the plaintiff must stand or fall by this contract, and that all other testimony offered by her was simply to be considered as . tending to corroborate her evidence of such a contract. It further stated to the jury that they were exclusive judges of the weight to be given to-the testimony, and to each and every part thereof, and fully indicated to them their duty in respect to weighing and analyzing the testimony. Now it seems to us that the court having once stated the distinct question of fact to be passed' upon by the jury, and indicated to them in a general way the-matters outside the positive testimony of the two parties-which it was their duty to consider, and also their functions in weighing and passing upon the testimony offered, it cannot be held that the court erred in failing to give the special instructions asked by the defendant. We have hesitated, as heretofore intimated, not a little upon this question. If we thought that the instruction implied, as counsel for plaintiff in error contend, that greater freedom or familiarity of intercourse was proper between two unmarried persons of opposite sexes whenever each is under engagement of marriage to another party, we should unhesitatingly sustain the ruling of the district court. We cannot think that the instruction justly carries such an intimation. All we think that it implies is, that a gentleman may pay ordinary civihties to a young lady recently moving to hiS' community, whom he supposes to be already engaged, without thereby laying the foundation for the imputation of a marriage contract between himself and the lady. In short, we think the instructions asked might properly have been given, and yet we are constrained to hold that the failure to give them was not under the circumstances such an error as justifies a reversal of the judgment.
In reference to the single ruling upon the testimony, the facts are, that the defendant called a witness, a young lady, who testified, to conversations with the plaintiff which tended to support her claim of a marriage contract. It was evidently a surprise to the defendant, who had been led to suppose from the witness’s statements to another party, that the plaintiff in her conversations with the witness had denied the existence of the contract; and he sought to impeach the witness, by proof that she had stated to such third party that the plaintiff had in conversations with her, substantially negatived the existence of any marriage contract with the defendant. The court declined to hear this.testimony, holding apparently that as the witness was produced by the defendant, he must take •her testimony for what it was worth, and could not thereafter impeach his own witness. That this is the general doctrine, •counsel for plaintiff in error do not question; but they contend that this rule is not absolute and imperative, and that there are circumstances in which a party may fairly impeach his own witness. They cite in support thereof, the provision in the new common-law procedure of England, act of 1854, '§ 22, which reads as follows:
“A party producing a ^witness shall not be allowed to impeach his credit by general evidence of bad character, but he may in case the witness shall in. the opinion of the judge prove adverse, contradict him by other evidence; or by leave of the judge, prove that he has made at other times a different statement, inconsistent with his present testimony. But before such last-mentioned proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.”
We think that, independent of any special statutory provision, the matter is left largely within the discretion of the trial court; that that court may, when it thinks the interests of justice require, permit a party to show that he is unexpectedly mistaken in the testimony of any witness; that he had good reason to expect other testimony, and what such other testimony would be. But being a matter so largely within the discretion of the trial court, we ought not to reverse a judgment on account of its ruling, unless it is very clear that the party complaining has sustained- substantial wrong thereby. Now in the case at bar, the testimony expected from the witness was a statement of the plaintiff in disavowal of any engagement; her testimony in fact was of statements of the plaintiff supporting such an engagement. As several witnesses were introduced who testified to statements of plaintiff substantially in disavowal of any engagement, and as this witness stood in no such relation to the plaintiff as would justify an expectation that to her alone rather than to others plaintiff would state the exact truth of her relationship to the defendant, we cannot think that the court abused its discretion in refusing to permit the defendant to impeach her testimony. If the witness was one who was supposed to be personally cognizant to any contract, or one whose relations to the plaintiff were such that she might be the special confidant of the plaintiff, perhaps the decision might be different, but under the circumstances we think there was no such abuse of discretion as justifies any interference with the judgment.
The final matter complained of is, that the verdict is against the evidence. Counsel contend that the large preponderance of the testimony was with the defendant, and that the trial court disregarded its duty as heretofore announced by this court, and practically declined to express any opinion as to the weight of the,evidence. We must disagree with counsel upon both propositions; so far from thinking it clear that the preponderance of the testimony was with the defendant, to say the least there was a very doubtful question of fact. The plaintiff swore positively one way, the defendant the other. For aught we can perceive, one party was as fully entitled to credence as the other. The plaintiff was supported by very strong testimony on the part of her mother, by the testimony of her step-father, by the general conduct of the defendant, and by the statements of defendant as disclosed by some of the witnesses. On the other hand, the defendant, admitting that there was at one time some talk of marriage between himself and plaintiff, but denying positively any marriage engagement, is supported almost alone by evidence of contradictory statements made by her. It is true, there were a number of these in which either indirectly or directly plaintiff disavowed any engagement with plaintiff, and talked of another engagement with a party in Illinois. In reference to this testimony, counsel for plaintiff well say that a young lady who is engaged to be married does not generally seek, to advertise the fact, and that when teased or quizzed about the matter is very apt to answer by evasions and sometimes by denial. There is a maidenly modesty which seeks to keep such matters secret from the public gaze, and which often prompts the party, when persistently questioned, into positive denial. We cannot ignore the fact, and it serves to explain and interpret many of the denials testified to by witnesses, so that as we read the testimony through it seems to us there was fairly presented to the jury a doubtful question of fact, one upon which their verdict must necessarily be conclusive. This is all that we think the district court meant in announcing its decision. We do not understand that it is the duty of the trial court, where a doubtful question of fact exists, to disturb the verdict of the jury simply because its judgment inclines the other way. The case » ^ ° J of Williams v. Townsend, 15 Kas. 564, carries no such intimation. The jury are the triers of the fact, and while it is the duty of the district court to interfere, yet as stated in that case, it is only when they have manifestly mistaken the evidence, and where the verdict is manifestly erroneous. Where the question is absolutely doubtful, where some men would naturally come to one conclusion and others to the opposite, then the verdict of the jury is conclusive. They are the triers of the fact, and although the judgment of the court may incline against the verdict of the jury, yet it ought not to interfere. Its duty of interference arises only when the jury have manifestly mistaken the testimony, when the verdict is manifestly against the evidence. Then, as we have repeatedly said, it is its duty to interfere; and if it sustains the verdict, we take it in this court, no matter how weak the testimony seems to be, as reduced to writing and incorporated in the record, that really as heard by the jury and the court and compared with the testimony on the other side and weighed by the apparent credibility of the respective witnesses, it was sufficient to sustain' the verdict. Taking the whole record through, it does not seem to us that if we had occupied the position of trial judge we should have disturbed the verdict. It was a determination by the proper tribunal of what evidently was a doubtful question of fact. Because it was unnecessary, we have not considered the question raised by counsel as to the sufficiency of the record. We have assumed it to be sufficient; and except for the second question heretofore noticed, we should unhesitatingly, and with that we do hesitatingly, sustain the verdict and the judgment.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Per Curiam:
Judgment of the district court reversed, upon the authority of Underhill v. Spencer, 25 Kas. 71, and case remanded. | [
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/The opinion of the court was delivered by
Horton, C. J.:
This action was commenced in a justice’s court and appealed to the district court, where the judgment complained of was rendered. The defendant below did not file any written answer or other pleading before the justice, and no demand therefor was made. Upon the appeal the case was tried on the original papers, and therefore the defendant was authorized to introduce on the trial any evidence to prove any defense which he had, and without filing an answer, he was authorized to set up any defense that he had to defeat a recovery upon the notes sued on. He therefore had the right to show that the notes were obtained by fraud, and without consideration. It is established from the evidence and findings, that the defendant is a Swede who cannot read or understand English thoroughly, and relied upon and believed to be true all that was said to him by one Carl Carlson, in regard to the meaning of the words “before that date” contained in the notes signed by him, who was selected by John Swanson, a director of the Salina & Southwestern railroad company, to go among the Swedish people in Smoky Hill township, McPherson county, and work up private subscriptions for the company. Both Carlson and Swanson are also Swedes, and men of great influence among the population of the neighborhood where they reside. Carlson, who obtained the notes from the defendant, told him that the railroad was to be completed from the city of Salina to the town of Lindsborg on or before the first day of June, 1879; that that was the condition of all the subscriptions, and that the words “before that date,” contained in the notes, referred to and meant the 1st day of June, 1879. Carlson further said that if the railroad was not so completed to Lindsborg before the 1st day of June, 1879, that the defendant need not and would not have to pay the notes at all. The defendant, wishing to transport to the railroad several hundred bushels of wheat on hand at the time of these representations, and relying upon the representations as true, signed the notes in controversy. It also appears from the findings that Swanson and Carlson believed the representations, at the time they were made, to be true. Even if this be conceded, the contracts which the defendant was induced to enter into were fraudulent. Whoever positively and generally makes a false assertion, as an inducement • for another to contract with him, and succeeds on that ground, is guilty of a fraud which vacates the contract. It must be as represented, or it is fraudulent. A man who does so, ought to suffer; he must answer for the truth. (Snyder v. Findley, Coxe, 78.) Even where the representations, however innocently made, are untrue in fact, the party who relies upon them ought npt to be bound by a misrepresentation which positively and directly deceives him; and where an expressed representation turns out to be untrue, it is immaterial whether the party making it knew it to be false, or not. If he did not know it to be true, (and he could not know it to be so if it were false,) he is as answerable as if he made it knowing it to be false. As the defendant by confiding in the false and erroneous representations of Carlson was induced to sign the notes, he ought in equity and good conscience not to pay them. ( Waters v. Mattingly, 1 Bibb, 244; East v. Matheny, 1 A. K. Marsh. 192.) As the board of directors of the railroad company delivered to Swanson, a resident director at Lindsborg, the blank notes, and as he chose Carlson to take the notes and obtain subscriptions thereby, the company could not accept such notes and obtain the benefits therefrom, and at the same time disown or disregard the representations and means by which the signers were induced to execute them. The notes are non-negotiable, and the plaintiff cannot enforce their collection if they were void in the hands of the railroad company. It is immaterial, in our view, upon the findings of fact, whether Swanson had any authority to employ Carlson to take subscriptions and to direct him to make the representations so made, or not; and it is likewise immaterial whether he informed the railroad company of the representations made to secure and obtain the subscriptions. The company accepted the notes and must take them, as was well said by the court below, “with their burdens, as well as their benefits.”
Our attention is called to Cornell v. Railway Co., 25 Kas. 613, and it is urged that’ that case is decisive in favor of the plaintiff. All that was decided or intended to be decided in that case was, that parol testimony is inadmissible to contradict the terms of a written agreement, ánd that the testimony of a conversation between the parties at the time of the execution of a contract, varying, enlarging or changing its terms, is inadmissible. Here the testimony of the defendant was admitted, not to contradict the terms of the notes, but to show that he was imposed upon, and that a fraud in law was practiced in obtaining his signature thereto. Fraud vitiates everything it touches, and a contract obtained thereby is not enforcible. Evidence is always admissible to show that contracts, and even final judgments of courts of record, have been fraudulently obtained; and where the evidence sustains it, courts have the power to grant relief in all cases.
The judgment of the court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The facts in this case are -as follows: The congress of the United States, by an act approved July 2, 1862, granted to the state of Kansas 90,000 acres of land for the endowment, support and maintenance of an agricultural college. The state of Kansas accepted this grant by a joint resolution approved June 2,1863, (Comp. Laws 1879, p. 80,) organized the Kansas State Agricultural College, and provided that these 90,000 acres of land should be used solely for the endowment of said college. (Compiled Laws 1879, pp. 81, 83, §16.) Authority was.given by the state legislature for the sale of these lands, and for the investment of the proceeds of the sales in notes secured by mortgage on real estate. In pursuance of this authority the authorities of the college loaned a sum of money on note and mortgage. The mortgagor failing to pay, the mortgage was foreclosed, and no one else bidding and the mortgagor being insolvent, the mortgaged premises were bid in by the college authorities.
The act establishing the college provides for its government by a board of regents, and creates such board a body corporate. (Comp. Laws 1879, pp. 81, 82, §§ 2, 3.) The note was taken in the name of this body corporate, the foreclosure was in its name, and the title to the mortgaged property at the time of its purchase was taken in its name. After title had been thus acquired, the property was leased and the rent appropriated to the use of the college. Subsequent to this purchase, and while the title was still in the college corporation, the authorities of the county of Saline, the county in which the property was situate, listed said property for taxation, and levied upon it the ordinary state, city and county taxes. The single question presented in this case is, whether this property, subsequent to its purchase at such foreclosure sale by the college authorities, was subject to taxation. The district court held that it was, and in this we think it erred. Subdivision 5 of § 3 of ch. 107, Comp. Laws 1879, p. 938 provides that “All property belonging exclusively to this state or to the United States” shall be exempt from taxation. It will be noticed that this subdivision refers to actual ownership, and not to the mere location of the legal title. The controlling question in matters of taxation is, who in fact owns the property, and not where rests the mere legal title. Thus, though the legal title to real estate remained in the United States, yet if in fact a full equitable title had passed, the land unquestionably would be subject to taxation. The mere failure or delay in transferring the legal title by issue of a patent would not affect the state’s right to tax. (Comm’rs of Douglas Co. v. Rld. Co., 5 Kas. 615; K. P. Rly. Co. v. Culp, 9 Kas. 47.) The question then is, who really and equitably owned this land? Unhesitatingly we affirm, the state. The Kansas state agricultural college is a state institution; it is absolutely and exclusively under the control of the state; its properties belong to the state. It is true that to-day the state has created the board of regents into a body corporate, but to-morrow it may set aside this body corporate and place the control of the properties in any other board or organization. No private rights intervene. It is purely and solely a matter of state and public control. The state created a body corporate, but why, we cannot say. In regard to certain state institutions, why it did the same — as for instance the state university, (Comp. Law 1879, ch. 115;) why it omitted to do so as to the normal school, (Comp. Laws 1879, ch. 70,) as to the state penitentiary, (Comp. Laws 1879, ch. 77,) — we do not know. We cannot determine why .in the one instance it provided for the organization of a body corporate, and in the other instance, not. It is enough for the purposes of this case, to know that the state is the absolute owner and controller of the institution and its properties, and the mere manner in which it executes the trusts reposed in it by the act of congress, or disposes of the public property vested in it, is for the purposes of this case entirely immaterial. It is enough to know that the properties are the properties of the state; and while to-day it may place the control of such properties in the hands of one party, to-morrow it may place such control in the hands of another. It is in fact the property of the state, and subject to its absolute and unlimited control. This agricultural college has been the subject of repeated appropriations. (Laws 1864, ch. 90; Laws 1867, ch.2; Laws 1872, ch. 58; Laws 1875, ch. 16; Laws 1877, ch. 22; Laws 1881, ch. 4.) And these various appropriations only serve to make more emphatic what is already clear by the language of prior acts, and that is, that the Kansas agricultural college is absolutely a state institution. This agricultural college is not a private college, nor a mere institution organized under the general corporation laws, whose existence the state by virtue of its control over the general corporation laws controls, but is on the contrary a mere instrument created directly by the state, and by which it manages the properties conveyed to it by the United States. It is in fact simply an arm by which the state holds and controls the properties given to it by the United States. Under these circumstances, its properties are the properties of the state, and therefore exempt from taxation. The exemption of this property is not under subdivision 4 of § 3, above cited, for that refers to mere sectarian and private corporations, all of whose moneys and credits are exempt from taxation, provided the institutions are benevolent and charitable institutions; but the exemption is under subdivision 5, heretofore quoted, by which all properties of the state (and by this is meant all properties which in .fact belong to the state) are exempt from taxation. Authorities are not wanting upon this question. See the Board of Trustees v. Champaign Co., 76 Ill. 184, a case which is on all fours with the case at bar, and in which the supreme court of Illinois held the property exempt from taxation. See also the case of the City of Chicago v. The People, ex rel., 80 Ill. 384. Our conclusion therefore is, that this real estate, belonging absolutely to the agricultural college, which is wholly and purely a state institution, and whose properties are in fact and equitably the properties of the state, is exempt from taxation. Therefore the judgment of the district court sustaining the demurrer is erroneous, and should be overruled.
The case of Oswalt v. Hallowell, 15 Kas. 154, in no manner conflicts with this decision. In that case the title to the land had passed to an individual, and the state occupied simply the position of an equitáble mortgagee, and in such case, in the absence of express provision to the contrary, the mortgagor’s interest, like any other property, was subject to taxation. In the present case there is no relation of mortgagor and mortgagee; that ceased at the time of sale, and today the full ownership and control of the property are vested in the college, which is merely the hand of the state for the management of its properties, and therefore its properties are exempt from taxation.
The judgment of the district court will be reversed, with instructions to overrule the demurrer.
All the Justices concurring. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This is a criminal action in which James A. Bagby (defendant-appellant) appeals convictions by a Sedgwick County jury of aggravated burglary (K.S.A. 21-3716), attempted rape (K.S.A. 21-3301 and, 21-3502), and aggravated sodomy (K.S.A. 21-3506).
The convictions were obtained in the consolidation of two separate criminal actions against the defendant which together involved three victims and alleged in multiple counts aggravated burglary, attempted and actual rape, and aggravated sodomy. Each of the three victims testified as prosecution witnesses; however, at the conclusion of the State’s case, the court dismissed six counts relating to two of the victims. Three counts relating to one victim went to the jury, and the jury returned verdicts of guilty on all three counts.
The case submitted to the jury involved an incident which occurred at approximately 7:00 p.m. on January 27, 1981. Ms. W. was standing in a walk-in closet in her apartment when she saw a man come into her bedroom. He forcibly removed her from the closet and threatened to harm her if she screamed. At that time he had in his possession a yellow-handled screwdriver. After securing the door and turning the lights out, the man forced Ms. W. to perform acts of oral sodomy. Before an actual rape occurred, Ms. W. managed to leave the bedroom on a ruse and flee through the back door to a neighbor’s apartment. Meanwhile, Ms. S., a neighbor who was unlocking her back door, saw a black man run past, carrying part of his clothing.
Police officers arrived and, within the hour, took Ms. W. and Ms. S. to the scene of a nearby automobile accident. Ms. W. positively identified the driver of the car, James Bagby, as her assailant. She also made positive identifications of the defendant at the preliminary hearing and at trial. Ms. S. identified Bagby as the man who had run past her apartment earlier. She, too, made a positive in-court identification of the defendant.
James Bagby appeals from the jury convictions of aggravated burglary, attempted rape, and aggravated sodomy, alleging prejudice in the consolidation of the two complaints for trial and in the handling of the subsequent dismissal of six counts. He also alleges that an eyewitness identification instruction should have been given and that the State’s cross-examination of the defendant was improper.
The defendant first alleges that it was error to consolidate the multiple charges of aggravated burglary, attempted or actual rape, and aggravated sodomy involving three victims.
K.S.A. 22-3203 governs consolidation for trial of separate complaints or informations:
“The court may order two or more complaints, informations or indictments against a single defendant to be tried together if the crimes could have been joined in a single complaint, information or indictment.”
Joinder in the same complaint or information is proper if the crimes charged: (1) are of the same or similar character, (2) are based on the same act or transaction, or (3) are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan. K.S.A. 22-3202(1).
Consolidation in the instant action rests on the same or similar character of the crimes involved. State v. Ralls, 213 Kan. 249, 256-57, 515 P.2d 1205 (1973), further delineated the prerequisites for consolidation under these circumstances:
“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.”
Within these guidelines, the decision to consolidate rests within the sound discretion of the trial court and its holding will not be disturbed on appeal, absent a clear showing of abuse of the exercise of that discretion. State v. Adams, 218 Kan. 495, 506, 545 P.2d 1134 (1976); State v. Browning, 182 Kan. 244, 248, 320 P.2d 844 (1958); State v. Acheson, 3 Kan. App. 2d 705, 707, 601 P.2d 375 (1979).
With respect to each victim in these consolidated cases, the defendant was charged with aggravated burglary, attempted or actual rape, and aggravated sodomy. In each instance, the aggravated burglary was committed to advance the sexual acts. The offenses occurred in Wichita, Kansas, and required the same kind of, although not identical, evidence. At the preliminary hearing, each victim described a black man who threatened her with an object like a screwdriver or an ice pick. Two of the victims described similar clothing and recalled the assailant making a reference to being from New York. One positively identified the defendant and the other two said the defendant resembled the assailant although they could not make a positive identification.
Based on the offenses charged and the information available to the judge prior to trial, we cannot say he abused the exercise of his power of discretion in ordering consolidation nor can we say the defendant was prejudiced by the consolidation. The case at bar is readily distinguishable from State v. Thomas, 206 Kan. 603, 481 P.2d 964 (1971), to which the defendant draws our attention. In Thomas, unrelated forgery and murder charges were consolidated, and no instruction was given to the jury that the evidence pertaining to the forgery should be limited to that case. The court found prejudice to the defendant sufficient to require reversal. In the case at bar, the charges consolidated were the same or similar. During the course of the trial, the court dismissed the charges relating to two of the victims and admonished the jury to disregard the testimony of those two witnesses. A review of the evidence relative to the attack on the third victim reveals sufficient evidence, independant of the testimony of the other two alleged victims, to support a conviction. The third victim positively identified the defendant as her assailant. The neighbor’s identification of the defendant placed him in the vicinity at the time of the attack. In addition, a latent fingerprint lifted from the closet knob in the victim’s apartment matched that of the defendant. We do not find abuse of discretion or prejudice to the defendant in the consolidation of these cases.
The defendant raises other issues related to the consolidation issue. He first contends the trial court erred in denying a motion for mistrial at the time six counts of the complaint were dismissed. K.S.A. 22-3423(l)(c) provides:
“The trial court may terminate the trial and order a mistrial at any time that he finds termination is necessary because:
“(c) Prejudicial conduct, in or outside the courtroom makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution . . . .”
Declaration of a mistrial under the provisions of K.S.A. 22-3423 is a decision largely within the discretion of the trial court, and that decision will not be set aside on appeal absent a clear showing of abuse of discretion. State v. Everson, 229 Kan. 540, 543, 626 P.2d 1189 (1981); State v. McQueen & Hardyway, 224 Kan. 420, 427, 582 P.2d 251 (1978). The defendant in this case has not shown the substantial prejudice necessary to a finding of abuse of discretion. State v. Everson, 229 Kan. at 543.
The defendant next attacks the adequacy of the trial court’s explanation to the jury of the dismissal of six counts of the amended complaint. After a conference out of the presence of the jury, the judge announced to the jury that six counts were being withdrawn from the jury’s consideration by operation of law and that the jury was to disregard the testimony of those two victim-witnesses. The defendant argues that reference to “operation of law” implies the six counts were dismissed due to a legal technicality, an implication that would have a negative impact on the jury. While the dismissal could have been explained in other terms, we do not think the explanation given carried negative connotations which operated to prejudice the defendant. If the defendant feared such a negative interpretation, he should have requested a different explanation be made.
The defendant also complains that a further instruction should have been given to disregard the stricken testimony. As noted above, the jury was admonished to disregard the stricken testimony at the close of the State’s evidence. The defendant did not request a further instruction and made no objection to the instructions as given. K.S.A. 22-3414(3). He cannot now be heard to complain of the failure to give further instruction. State v. Graham, 172 Kan. 627, 629, 242 P.2d 1067 (1952).
The defendant next asserts error in the court’s failure to give a cautionary instruction on eyewitness identification as developed in State v. Warren, 230 Kan. 385, 635 P.2d 1236 (1981). Warren provides that “in any criminal action in which eyewitness identification is a critical part of the prosecution’s case and there is a serious question about the reliability of the identification, a cautionary instruction should be given advising the jury as to the factors to be considered in weighing the credibility of the eyewitness identification testimony.” 230 Kan. at 397.
Two witnesses are of concern to the defendant. Ms. W. testified that the man who came into her home had sunglasses on and that at the scene of the accident gauze covered his face from just below the nose down. The record also reveals, however, that Ms. W. saw the defendant in a lighted room prior to the attack and that he did not wear the sunglasses the whole time. Ms. S. saw the defendant running past her apartment and apparently made a reference to the defense attorney prior to trial about the difficulty of identifying a black person. Nevertheless, Ms. S. did see the defendant in a well-lighted area and, like Ms. W., did make a positive identification shortly thereafter despite the presence of gauze on the lower part of his face. We find no serious question about the reliability of either identification; therefore, no cautionary instruction under Warren was required. We note also that no cautionary instruction was requested by counsel for the appellant at the trial in this case.
Finally, the defense claims the State’s cross-examination of the defendant improperly implied that he had a burden to bring forth evidence to prove his innocence. In an apparent attempt to explain the existence of his fingerprint in the victim’s apartment, the defendant took the stand and testified that he had been employed by a pest control service operating in this general area of the city. On cross-examination, the State’s attorney inquired into the existence of records which would establish the defendant’s presence in the house in the course of his employment. The defendant argues this line of questioning shifted the burden to him to produce evidence to prove his innocence. We think the line of questioning did nothing more than explore an area opened up by the defendant on direct examination. When the defendant partially explains a subject on direct examination, the prosecutor on cross-examination may explore that subject further. State v. Morris, 208 Kan. 464, 467, 493 P.2d 274 (1972); State v. Burnett, 4 Kan. App. 2d 236, 604 P.2d 284 (1979).
The decision of the lower court is affirmed. | [
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WHEREAS, John W. Newhart was admitted to the practice of law in the State of Kansas on June 24, 1948, and to the practice of law in the State of Missouri on September 1, 1951, and
WHEREAS, it has been brought to the attention of the court that the said John W. Newhart was convicted in the State of Missouri of the crime of felonious stealing, a felony, and whereas such conviction was affirmed on appeal by the Missouri Court of Appeals, and
WHEREAS, on the 10th day of May, 1977, the said John W. Newhart was disbarred from the practice of law in the State of Missouri by the Supreme Court of Missouri, and
WHEREAS, a certified copy of the judgment, sentence and committment issued by the Circuit Court of Platte County, Missouri, and a certified copy of the order of disbarment issued by the Supreme Court of Missouri, have been filed with this court; and
WHEREAS, John W. Newhart has failed to register with the Clerk of the Supreme Court and has never paid the annual registration fee required by Rule No. 208, and
WHEREAS, on the 25th day of May, 1982, an order for John W. Newhart to appear before this court on the 11th day of June, 1982, at 9:30 a.m., and show cause why he should not be disbarred, was mailed by the Clerk of the Supreme Court by United States certified return receipt mail to Respondent at his last known address as furnished by the appropriate disciplinary officials of the State of Missouri, which notice was returned unclaimed;
NOW, THEREFORE, IT IS ORDERED that John W. Newhart be and he is hereby disbarred from the practice of law in the State of Kansas and the Clerk of the Supreme Court is directed to strike the name of John W. Newhart from the rolls of attorneys in the State of Kansas. | [
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The opinion of the court was delivered by
Miller, J.;
Which is prior, the lien of a hospital which cares for an accident victim, or the lien of an insurance carrier which pays personal injury protection (PIP) benefits to its injured insured? That is the issue confronting us in this case.
The plaintiff, Vivian Richards, was injured in an automobile accident. Providence-St. Margaret Health Center, the intervenor and appellant, treated her for her injuries in August, 1978. On November 8, 1978, Providence-St. Margaret filed a lien for $7,178.85 (later amended upward to $10,258.20), pursuant to K.S.A. 65-406. However, Providence-St. Margaret now claims only the statutory amount of $5,000 as provided in K.S.A. 65-406.
The plaintiff’s insurer, Kemper Insurance Company, the inter venor and appellee, paid plaintiff $9,800 in PIP benefits as the result of her injuries. Of that amount, Kemper paid $2,000 to Providence-St. Margaret for plaintiff’s medical bills, and $7,800 directly to plaintiff for wage loss.
On July 3,1980, plaintiff filed suit against the defendant, Larry Etzen, claiming that he negligently caused the collision and her resulting injuries and damages. These parties reached a compromise settlement in 1981 for $10,000. Attorney James Yates represented plaintiff under a contingent fee arrangement. Both Providence-St. Margaret and Kemper intervened.
On July 17, 1981, the plaintiff filed a motion for an order for distribution of funds which was heard on August 28, 1981. The district court ordered the following disbursement:
“1. That plaintiff’s attorney is entitled to the payment of $5,000.00 pursuant to his contingent fee contract and said attorney fees constitute a first and prior lien under K.S.A. 40-3113a. The Court finds under the circumstances that said amount is a reasonable attorney fee in this particular case.
“2. That Kemper Insurance Company is entitled to be reimbursed for payment of PIP benefits which would be the balance of funds remaining due to the fact the total PIP payments almost totaled the entire amount of the settlement.
“3. That Providence-St. Margaret Health Center has a valid lien for health services, but their lien is inferior to the above two (2) claimants. Since there are no remaining funds, the lien cannot be exercised in this case.”
Providence-St. Margaret agrees with the trial court’s holding that the attorney’s lien is superior to the hospital lien under the terms of K.S.A. 65-406 and K.S.A. 40-3113a. However, Providence-St. Margaret claims a lien superior to that of the PIP carrier, Kemper, under K.S.A. 65-406, which provides:
“Every hospital in the state of Kansas, which shall furnish emergency, medical or other service to any patient injured by reason of an accident not covered by the workmen’s compensation act, shall, if such injured party shall assert or maintain a claim against another for damages on account of such injuries, have a lien not to exceed five thousand dollars ($5,000) upon that part going or belonging to such patient of any recovery or sum had or collected or to be collected by such patient, or by his heirs, personal representatives or next of kin in the case of his death, whether by judgment or by settlement or compromise to the amount of the reasonable and necessary charges of such hospital for the treatment, care and maintenance of such patient in such hospital up to the date of payment of such damages: Provided, however, That this lien shall not in any way prejudice or interfere with any lien or contract which may be made by such patient or his heirs or personal representatives with any attorney or attorneys for handling the claim on behalf of such patient, his heirs or personal representatives: Provided further, That the lien herein set forth shall not be applied or considered valid against anyone coming under the workmen’s compensation act in this state.”
Kemper, on the other hand, points to K.S.A. 40-3113a, and argues that it is entitled to full reimbursement of the PIP benefits paid to its insured, Vivian Richards. K.S.A. 40-3113a provides in applicable part:
“(a) When the injury for which personal injury protection benefits are payable under this act [is] caused under circumstances creating a legal liability against a tortfeasor pursuant to K.S.A. 40-3117, the injured person, his or her dependents, or personal representatives shall have the right to pursue his, her or their remedy by proper action in a court of competent jurisdiction against such tortfeasor.
“(b) In the event of recovery from such tortfeasor by the injured person, his or her dependents or personal representatives by judgment, settlement or otherwise, the insurer or self-insurer shall be subrogated to the extent of duplicative personal injury protection benefits provided to date of such recovery and shall have a lien therefor against such recovery and the insurer or self-insurer may intervene in any action to protect and enforce such lien. Whenever any judgment in any such action, settlement or recovery otherwise shall be recovered by the injured person, his or her dependents or personal representatives prior to the completion of personal injury protection benefits, the amount of such judgment, settlement or recovery otherwise actually paid and recovered which is in excess of the amount of personal injury protection benefits paid to the date of recovery of such judgment, settlement or recovery otherwise shall be credited against future payments of said personal injury protection benefits.
“(d) In the event of a recovery pursuant to K.S.A. 60-258a, the insurer or self-insurer’s right to subrogation shall be reduced by the percentage of negligence attributable to the injured person.
“(e) Pursuant to this section, the court shall fix attorney fees which shall be paid proportionately by the insurer or self-insurer and the injured person, his or her dependents or personal representatives in the amounts determined by the court.”
It is clear under the terms of K.S.A. 40-3113a that when an injured party settles his or her entire claim with a tortfeasor and the amount of the settlement is duplicative of PIP benefits paid by the PIP carrier, then the carrier has a lien for the full amount of PIP benefits paid, subject only to the two exceptions set out in K.S.A. 40-3113a(<i) and (e), above. K.S.A. 40-3113a does not make an exception for hospital liens.
There is an apparent conflict between the two applicable statutes. We agree with the trial court’s conclusion that the conflict should be resolved in favor of the PIP carrier, Kemper. The Kansas automobile injury reparations act, K.S.A. 40-3101 et seq., is designed to make personal injury protection insurance mandatory by requiring every owner of a motor vehicle to obtain first party PIP coverage payable by his own insurance company re gardless of fault. See Easom v. Farmers Insurance Co., 221 Kan. 415, 560 P.2d 117 (1977).
The act, commonly referred to as the “no-fault law,” has as one of its primary purposes the reduction of automobile accident litigation. At the same time, the law provides for prompt compensation to auto accident victims for certain economic losses, thus avoiding the delay often encountered in seeking damages from the party at fault. See Russell v. Mackey, 225 Kan. 588, 594, 592 P.2d 902 (1979), where we construed K.S.A. 1977 Supp. 40-3113a and held:
“We have concluded that K.S.A. 1977 Supp. 40-3113a should be construed to mean that, if the injured insured settles his total claim with the tortfeasor, including those elements of damage represented by the PIP benefits, the recovery is duplicative, since it includes the PIP benefits. Since the PIP carrier has a lien under the statute, it is subrogated to and may recover the full amount of its PIP benefits paid out of any recovery made by the insured, subject only to the two statutory exceptions specifically provided for by subsections (d) and (e) of 40-3113a. As noted above, there may be a reduction for attorney fees under subsection (e) and a reduction under subsection (d) for the comparative negligence of the insured where the insured’s recovery is reduced by his own negligence in an action brought pursuant to K.S.A. 60-258a.”
See also Ballweg v. Farmers Ins. Co., 228 Kan. 506, 618 P.2d 1171 (1980).
The language of K.S.A. 40-3113a places only two limitations upon the right of a PIP carrier to reimbursement and subrogation. Those limitations are not at issue here. The legislature did not provide an exception in 40-3113a which would give the hospital lien priority over the PIP benefit lien.
We are not unaware of the competing policy arguments made by Providence-St. Margaret and the amicus curiae, Kansas Hospital Association. Although these are appealing, certain rules of statutory construction compel our conclusion here. The hospital lien statute, K.S.A. 65-406, was enacted in 1939, and was last amended in 1972. K.S.A. 40-3113a was enacted in 1977, long after the hospital lien statute. The legislature did not provide any accommodation between the two apparently conflicting sections. It is a settled rule of statutory construction that where an irreconcilable conflict exists between statutes, the latest enactment will be held to supersede, repeal or supplant the earlier by implication. Thus, the later enactment must prevail. American Fidelity Ins. Co. v. Employers Mut. Cas. Co., 3 Kan. App. 2d 245, 250, 593 P.2d 14 (1979); Kimminau v. Common School District, 170 Kan. 124, Syl. ¶ 4, 223 P.2d 689 (1950); 73 Am. Jur. 2d, Statutes § 256, p. 426.
Additional rules of construction applicable to this case were stated in Ballweg, where we said:
“The fundamental rule for construction of statutes, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute even though words, phrases or clauses might be omitted from the statute. . . .
“. . . Even if the legislature does not contemplate the occurrence which confronts a court in construing a statute, that court may not supply omissions in a statute. This is true regardless of whether the omission resulted from inadvertence or because the case in question was never contemplated.” 228 Kan. at 510-11.
Here, as in Ballweg, the legislative intent is clear and there can be no justification for the judicial engrafting of another exception not found in the statute. The legislature may, of course, place other statutory restrictions on, or enact other exceptions to, the right of a PIP carrier to reimbursement or subrogation if it chooses to do so.
The judgment is affirmed.
Schroeder, C.J., dissenting. | [
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The opinion of the court was delivered by
McFarland, J.;
Jeffery- Lynn Ashworth appeals his jury trial conviction of second-degree murder (K.S.A. 21-3402). Diverse issues are asserted on appeal.
The facts are synopsized as follows. On June 13, 1980, defendant and his roommate, David Cook, drove to Quenemo, Kansas, to attend an event known as a “Friday the Thirteenth” celebration. During the course of the evening they crossed paths with Terry Ferguson, whom defendant had previously met. With Ferguson was Randy Sible, later to become the victim. The four young men talked briefly and then parted company.
Later while Ferguson and Sible were watching the motorcycle races, defendant walked up to them. Defendant had both a gun and a knife in his belt. Shortly thereafter, Ferguson observed defendant with one hand on the back of Sible’s neck and the other hand holding a knife to Sible’s throat. When Ferguson asked defendant what was going on, he answered, “Well, nothing, nothing” and put the knife away. Two or three minutes later the defendant said, “I’ve got a gun, too, m_f__” Defendant then pulled out the gun and, as he did so, the gun struck Ferguson in the cheek. Defendant, according to Ferguson, then leveled the gun down at Sible’s chest and shot him. Sible bled to death in moments as the bullet had ruptured his aorta.
According to defendant’s version of the events: (1) the shooting was accidental; (2) he did not know Sible and was not angry with him; and (3) he did not intend to shoot anyone. Defendant testified the gun fired when it was bumped by Terry Ferguson. Defendant left the scene after the shooting and was subsequently arrested in the State of Arizona. Other facts will be stated where necessary to the discussion of particular issues.
Defendant’s first issue is a three-pronged challenge to the validity of his preliminary hearing. Defendant argues that he was denied his right to a full and fair preliminary hearing pursuant to K.S.A. 22-2902 because: (1) the prosecution failed to give defendant names, addresses and telephone numbers of witnesses; (2) the court refused to allow a continuance in order that a tape recording of Terry Ferguson’s statement to police could be transcribed; and (3) the defendant was precluded from calling Officer Max Ferguson, a subpoenaed witness.
As to the first point, the county attorney provided defense counsel all of the information he had. Defense counsel desired to subpoena all known witnesses but was thwarted in doing so by virtue of faulty addresses of some of the alleged witnesses. This difficulty was not unusual considering the circumstances involved. There is no indication, nor is it alleged, that the State intentionally withheld any information in its possession.
The second point concerns a taped statement given by Terry Ferguson to investigating officers. The trial court refused to grant a continuance in order for a transcription to be made because the tape was unintelligible and due to the number of continuances already granted to defendant.
The third point was the inability to call Officer Max Ferguson as a witness. Officer Ferguson was ill at the time of the preliminary hearing and unable to be present. Apparently Officer Ferguson’s only relevant involvement with the case was through the making of the witness Ferguson’s taped statement. Inasmuch as the tape was not considered by virtue of its inaudibility, the trial court concluded the officer’s testimony would not be relevant.
The purpose of a preliminary hearing was discussed in State v. Ramsey, 228 Kan. 127, 132, 612 P.2d 603 (1980), where it was stated:
“At the outset it may be stated a preliminary examination is not a trial of a defendant’s guilt; it is rather an inquiry whether the defendant should be held for trial. Its principal purpose is the determination of whether a crime has been committed and whether there is a probability that the defendant committed the crime. Its main object is to apprise the accused of the nature of the crime or crimes charged against him, and to apprise him partially, at least, of the sort of evidence he will have to combat when he is subjected to formal prosecution in the district court.”
A review of the record shows eight witnesses were called to testify at the preliminary hearing including the State’s main witness, Terry Ferguson. Additionally, evidence as to the cause of death was presented to support the findings that a crime had been committed and that defendant had probably committed it. Defendant was freely allowed to cross-examine witnesses, and was certainly apprised of the nature of the crime charged against him and of the sort of evidence he would have to combat at the trial.
The first issue, in its entirety, is considered and held to be without merit.
The second issue is alleged error by the trial court in refusing to discharge the defendant for failure of the county attorney to produce certain items. The items in question were the previously referred to Ferguson tape and a letter written by defendant to David Cook while in an Arizona jail awaiting extradition. It appears that the tape was reasonably made available to defense counsel. It further appears that the letter in question was made available promptly after the order for the production was entered. No error is shown in regard to this issue.
The third issue is alleged error in permitting the State to cross-examine defendant as to certain contents of the Cook letter. The letter from defendant to David Cook was not introduced into evidence and is not before us. Without the letter it is rather difficult to follow the lengthy discussion among court and counsel concerning same. Ultimately, the State was permitted to cross-examine the defendant on particular subject matters relative to the letter. Generally they were: (1) failure of defendant to indicate the shooting was accidental when discussing the incident; (2) defendant’s requests pertaining to what Cook should say about the shooting; and (3) defendant’s expressed intention to establish an insanity defense.
We have carefully considered the record of the cross-examination of the defendant relative to the Cook letter and find no reversible error in connection therewith.
The fourth issue is whether the trial court erred in refusing to order a change of venue. In State v. Schlicher, 230 Kan. 482, 484, 639 P.2d 467 (1982), the rules relative to change of venue were summarized as follows:
“(1) the burden of proof is on defendant, (2) not only prejudice must be shown but it must be such prejudice as to make it reasonably certain the defendant cannot obtain a fair trial, (3) there must be more than speculation, (4) the state is not required to produce evidence refuting that of the defendant, and (5) granting a change of venue lies within the sound discretion of the trial court and its ruling will not be disturbed if supported by competent evidence and if there is no showing of prejudice to the substantial rights of the defendant.”
In support of his motion for change of venue, defendant introduced affidavits from certain attorneys practicing in Osage County to the effect they believed defendant could not get a fair trial in that county. Additionally, defendant presented copies of media stories and testimony of media personnel relative to the news coverage of the cas.e. There is nothing in the record before us indicating there was any particular difficulty in selecting a jury nor has such been alleged.
The news media coverage of the event appears to have been objective and factual with no sensationalism. The affidavits of attorneys are basically speculative in nature. Applying the aforecited standards to the facts herein, we are satisfied this point is without merit.
The fifth issue is alleged error by the trial court in admitting repetitious and gruesome photographs taken during the performance of the autopsy on'the deceased. Seven color photographs of the deceased were admitted into evidence. Three were taken immediately prior to commencement of the autopsy. Two show the bullet entry wound in the upper left side of the chest and the other shows the bullet exit wound in the upper right side of the back. The other four photographs show the body after it has been disturbed by autopsy procedures. One of these four portrays the bullet exit wound with a surgical probe in it to indicate the angle of the wound. These first four photos, while not pleasant, are without question relevant and admissible. The real controversy pertains to the other three photographs. These three photographs, taken at successive points in the conduct of the autopsy, were used in the testimony of Dr. Dwight Adams to illustrate his findings as to the path of the bullet through deceased’s body on an oblique plane. As would be expected, these latter photographs are gruesome by any standard. This fact, taken by itself, does not automatically render the photos inadmissible. As we held in State v. Henson, 221 Kan. 635, Syl. ¶ 3, 562 P.2d 51 (1977):
“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. Boyd, 216 Kan. 373, 532 P.2d 1064 (1975), involved some fourteen autopsy photographs. In Boyd the court recognized the general principles as follows:
“The defendant further urges that the trial court committed prejudicial error in allowing the state to introduce into evidence photographs of the body of the deceased taken at the autopsy. He contends they were repulsive, inflammatory, without probative value, and highly prejudicial to the defendant’s right to a fair trial. In State v. Randol, 212 Kan. 461, 513 P.2d 248, we held that when photographic evidence is used by a coroner in describing the wounds in the body and internal organs of the victim, which wounds were received as a result of a crime of violence, such evidence is relevant and admissible to establish material facts, such as the manner and cause of death. In Randol we cited a number of cases where this rule has been applied. We pointed out that the trial court has broad discretion to exclude such evidence if it finds that such photographic evidence is unduly repetitious and offered solely to prejudice the minds of the jurors.” 216 Kan. at 377.
Applying these principles to the photos before it, the court stated:
“Several of the photographs show the angle at which the deceased’s body was penetrated by a sharp instrument and would seem to be reasonably necessary to explain the testimony of the state’s medical witness. We believe, however, that exhibit 39 was so gruesome and repulsive that the trial court abused its discretion in admitting that exhibit into evidence. In our opinion the offer of this exhibit could be but for a single purpose — to inflame the minds of the members of the jury. This court has gone a long way, perhaps too far, in countenancing the introduction of grisly, gruesome photographs. Here exhibit 39 shows the body of the deceased cut open from chin to groin and laid out like a disemboweled beef in a packing plant. A flap of chest skin partially covers the deceased’s face and the chest and abdominal organs of the deceased are presented in full view. In this case the cause of death of the victim was really not in dispute. The state’s medical expert made it clear that death was due to internal bleeding resulting from stab wounds. Some of the photographs which were admitted could have been helpful to the jury by showing the angle of penetration of the murder instrument into the deceased’s body. We fail to see the necessity, however, of the state’s offering repetitious exhibits to prove the same point. In our judgment the trial court abused its discretion in admitting into evidence repetitious photographs of the deceased’s body taken at the autopsy and especially exhibit 39.” 216 Kan. at 377-378.
See also State v. Clark, 218 Kan. 18, 542 P.2d 291 (1975), which obviously involved a substantial number of autopsy photographs although we do not know the precise number. The court found prejudicial error in the admission of the photographs, stating:
“In the instant case the state introduced the majority of the photographs objected to by defendant for the alleged purpose of demonstrating the flight path of the bullet through the deceased’s body. Yet, upon examining the record we find six of the admitted photographs were not used for any purpose. Although evidence of autopsy photographs may properly be admissible to show the flight path of the bullet through the deceased and thereby weaken defendant’s claim of self-defense, we cannot approve the wholesale admission of similar grotesque and bloody photographs which add nothing new to the state’s case. We conclude the trial court abused its discretion in admitting into evidence certain autopsy photographs of the deceased and defendant was prejudiced thereby.” 218 Kan. at 24.
In the case before us, the trial court inquired of the medical witness, Dr. Adams, as to whether the photographs were necessary to his testimony. The physician stated they would be helpful in illustrating his testimony relative to the trajectory of the bullet.
The big issue in this case was whether defendant intentionally shot the deceased, or whether the gun accidentally fired as a result of being bumped by Ferguson. It was defendant’s testimony he was pulling the gun out of his belt preparatory to shooting the gun in the air when the bumping occurred. As will be set forth in greater detail in the subsequent issue, the physical location of defendant, Ferguson and deceased in relation to each other as well as the trajectory of the bullet and the distance from which it was fired were all significant factors in determining whether decedent’s death was intentional or accidental. The coroner’s testimony was very relevant to this issue and the photographs were in fact utilized in his testimony. The photographs were not repetitious. These factors alone are sufficient to show the trial court did not abuse its discretion in admitting the photographs.
Before concluding this issue, it might be well to note another aspect of the matter. Legal discussions relative to the admissibility of gruesome photographs center on the concern that jurors will be so inflamed over the photographs that they will be prejudiced against the defendant. In the case before us, the big issue was whether defendant killed Randy Sible intentionally or by accident. There is no question but that defendant’s finger was on the trigger when the gun fired. This being so, it is difficult to see how autopsy photographs could inflame the jurors and affect the determination of the basic question.
In any event, we conclude the trial court did not abuse its discretion in admitting the autopsy photographs.
The sixth issue pertains to alleged juror misconduct. The defendant’s version of the shooting involved Ferguson being almost between defendant and deceased when the bumping occurred. For the shooting to have happened as related by defendant would have required an almost gymnastic sequence of events. During their deliberations, the jurors attempted to reenact the movements of the principals which defendant testified caused the gun to fire. The jury was unable to recreate the shooting in the manner described by defendant. The only time the gun fired, it was in the wrong position to have hit deceased.
An experiment or demonstration is proper when conducted by the jury with the use of exhibits properly submitted to it for the purpose of testing the truth of statements made by witnesses or duplicating tests made by witnesses in open court. Christopher & Son v. Kansas Paint & Color Co., 215 Kan. 185, Syl. 12, 523 P.2d 709 (1974). The jury’s experiment and demonstration herein clearly comes within said rule and no error has been shown.
As a second point of alleged juror misconduct, defendant makes a rather bald assertion that one juror was coerced into voting in favor of the verdict. We have examined the record and find this point to be without merit.
The seventh issue is alleged error in failing to grant a new trial on the basis of newly discovered evidence. The issue involves a novel twist'in the facts. It is undisputed that decedent died as a result of a gunshot wound to the upper left chest, said shot being fired at very' close range The victim was wearing a T-shirt. Nevertheless, there was no visible bullet hole in the front of the shirt. There was an exit wound hole in the back of the shirt and extensive blood stains on both front and back of the shirt near the wound sites. There was much speculation and theorizing at trial as to this apparent phenomenon. The State theorized defendant must have pulled the shirt up or down before firing although no witness so testified. One expert witness commented bullets sometimes can pass through cloth leaving little or no visible path, but he had made no investigation of this subject. The jurors were curious over the absence of a hole and repeatedly attempted to locate even a small hole during their deliberations.
The newly discovered evidence on which a new trial was sought consisted of two witnesses who came forward after the trial with a natural explanation of the T-shirt phenomenon. They testified that the victim was not wearing his T-shirt in a normal manner when he was shot. Instead, he had the front of the shirt hooked over the back of his neck thereby exposing his chest. These witnesses further said the T-shirt was drawn down to its normal position by a person giving aid immediately after the shooting, probably Ferguson. Certain jurors testified at the motion relative to the jury room demonstration, previously referred to, and the search for the bullet hole.
The rules relative to the granting of new trials on the basis of newly discovered evidence were summarized in State v. Andrews, 228 Kan. 368, 376, 614 P.2d 447 (1980), as follows:
“The granting of a new trial for newly discovered evidence is in the trial court’s discretion. (State v. Larkin, 212 Kan. 158, 510 P.2d 123, cert. den. 414 U.S. 848, 38 L.Ed.2d 95, 94 S.Ct. 134.) A new trial should not be granted on the ground of newly discovered evidence unless the evidence is of such materiality that it would be likely to produce a different result upon re-trial. (State v. Hale, 206 Kan. 521, 479 P.2d 902.) The credibility of the evidence offered in support of the motion is for the trial court’s consideration. (State v. Anderson, 211 Kan. 148, 505 P.2d 691; State v. Larkin, supra.) The burden of proof is on defendant to show the alleged newly discovered evidence could not with reasonable diligence have been produced at trial. (State v. Lora, 213 Kan. 184, 515 P.2d 1086; State v. Arney, 218 Kan. 369, 544 P.2d 334.) The appellate review of an order denying a new trial is limited to whether the trial court abused its discretion. (State v. Campbell, 207 Kan. 152, 483 P.2d 495; State v. Anderson, supra.)”
The trial court, in denying the motion, concluded that the absence of a bullet hole in the front of decedent’s T-shirt was a matter of curiosity rather than a material fact and that the new evidence was not likely to produce a different result upon retrial. Upon a review of the record we conclude that the trial court’s denial of the motion did not constitute an abuse of discretion.
The eighth issue in this appeal is alleged error in the trial court’s refusal, generally, to grant a new trial. This issue is but a restatement of all previous issues herein and needs no further discussion by virtue of the conclusions heretofore reached.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
Ronald D. Churchill was convicted by a jury in Johnson District Court of murder in the first degree, K.S.A. 21-3401. He appeals, raising a number of issues, most of which challenge the propriety of the admission of evidence.
On January 30, 1980, Mr. and Mrs. Kerry Hailing, with their three children, lived in a second floor unit of the Oak Park apartment complex in Lenexa, Kansas. Mr. Hailing left for work at a local bottling company at 4:30 o’clock that morning; a friend, David Stevens, who was staying with the Hallings, left the apartment around 5:30 o’clock a.m. As was his custom, Mr. Hailing called his wife from work at approximately 9:15 o’clock a.m., and spoke with her briefly.
Mrs. Halling’s mother, Teresa Peck, arrived at the apartment about 10:30 o’clock a.m. The oldest child, age three, told her that his mother was sick. Mrs. Peck went to the bedroom and found her daughter lying on the floor. Mrs. Hailing had been subjected to a savage knifing, and had been stabbed twelve or thirteen times; some of the wounds extended completely through her torso. The physician who performed the autopsy later that day found that Mrs. Hailing could have died either from the stab wounds, which severed her aorta, or from strangulation.
Ronald D. Churchill and Robert Mall lived together in the same apartment complex, one floor below the Hailing apartment. During the investigation, the police discovered that the defendant had been seen walking around the building with his dog earlier that morning; he had at one time been within a few feet of the front door of the Hailing apartment. Detective John Meire, investigating the homicide, went to the apartment occupied by Churchill and Mall about two hours after Mrs. Halling’s body was discovered. He was making an area canvass. Churchill answered the door and in response to Meire’s questions stated that he had been outside four or five times that morning, once quite close to the victim’s apartment. He had seen and heard nothing unusual, and had seen no strangers. Mall stated that he had been sleeping and didn’t see or hear anything.
Later, Detective Meire heard from another officer that during the 9:15 o’clock telephone conversation, Mrs. Hailing asked her husband to bring some grape soda pop for the two men in apartment 114, Churchill and Mall. Meire, accompanied by. Detective Allen Harris, returned to apartment 114 about 1:30 o’clock p.m. Churchill and Mall invited them to come inside, and they did so. After some conversation, Meire asked Churchill if they had any large knives in the apartment; defendant replied that they had some knives; the detective and Churchill went into the kitchen. Churchill opened a drawer and picked up a large knife. Meire took it from him, noted that it appeared similar in size to the one used in the homicide, and asked Churchill if he would mind if the detectives took it with them. He said, “No.” He also said that he had washed the knife that morning. Mall had worked the night before, arrived home at 8:15 o’clock a.m., and then slept until afternoon.
The knife and a doorknob from apartment 114 were subjected to laboratory examination. Human blood was found under the wooden handle of the knife; it matched the blood of the victim. A small amount of blood was found on the doorknob; it was consistent with Mali’s blood, but the amount found was not large enough so that a full test could be run.
Michael Kelty, an experienced firearm and toolmark examiner with the Johnson County Criminalistics Laboratory, examined both the knife taken from the Churchill-Mall apartment, and the sternum of the victim. He expressed the opinion that the cuts in the victim’s breastbone were made by the knife.
Churchill and Mall were arrested about 6:00 o’clock p.m. on February 1, two days after the homicide, and both were taken to the Overland Park police station where they were placed in separate rooms. Defendant was questioned by Detective Ellen Hanson. Around 9:00 o’clock p.m., another officer told Detective Hanson that Mall had not passed a polygraph examination. Churchill overheard this report, became very upset, and later asked to be left alone for a few minutes. He said he wanted to do the right thing. He couldn’t understand why Mall didn’t pass the polygraph test, and stated that he was certain that Mall had not committed the crime. Detective Hanson stepped out of the room. When she returned, Churchill told her that he had killed Mrs. Hailing; that he wanted to do the right thing and that he did not want anybody else to take responsibility for what he had done. He then proceeded to confess the crime in considerable detail. The confession was written and was also tape recorded. The trial court determined that the statement was voluntary and admitted it into evidence. The tape recording was played for the jury at both of defendant’s trials. The first trial resulted in a hung jury, the second in his conviction.
Defendant first contends that the trial court erred in overruling his motion to suppress the confession. He argues that it was inadmissible because it was given only after he was tricked or deceived into believing that his friend, Mall, had failed a poly graph examination; thus, he maintains that the confession was involuntary. The evidence establishes that defendant and Mall had a close relationship which apparently developed while both were in protective custody in the state penitentiary at Lansing, Kansas. This tends to support his contentions that his confession was motivated from a desire to protect Mall; that he was tricked into believing that Mall was in trouble because he had failed the polygraph examination, and was thus the prime suspect in the Hailing murder.
During the questioning of defendant by Detective Hanson, defendant overheard a report from another officer that Mall had not passed the polygraph examination. This statement was essentially true; Mai] had not passed the examination. The polygraph findings were deemed inconclusive by the technician who conducted the test because Mall had not had sufficient rest and sleep during the twenty-four-hour period prior to the taking of the examination. However, Mall had not failed the polygraph examination in the sense that one who has guilty knowledge fails such an examination.
Defendant, in support of his argument that the confession was involuntary, cites K.S.A. 60-460(/) which provides:
“Confessions. In a criminal proceeding as against the accused, a previous statement by the accused relative to the offense charged if, and only if, the judge finds that the accused when making the statement was conscious and was capable of understanding what he or she said and did, and that the accused was not induced to make the statement (1) under compulsion or by infliction or threats of infliction of suffering upon him, her or another, or by prolonged interrogation under such circumstances as to render the statement involuntary, or (2) by threats or promises concerning action to be taken by a public official with reference to the crime, likely to cause the accused to make such a statement falsely, and made by a person whom the accused reasonably believed to have the power or authority to execute the same; . . .”
The defendant concedes that this is not a case involving an explicit threat or promise which caused him to make a false confession. He contends, however, that the police, by implication, indicated that Mall would be held responsible for the murder. It is clear from the record that no threats or promises of any kind were made by the police. We discussed the general rules relating to the voluntariness of confessions in the light of K.S.A. 60-460(f)(2) in State v. Kanive, 221 Kan. 34, 37-38, 558 P.2d 1075 (1976). We said:
“In considering the effect of a promise made by the police to an accused during an interrogation various factors have been recognized as worthy of consideration in determining the voluntariness of a subsequent confession. To render such a confession involuntary it is generally held that the promise must concern action to be taken by a public olff cial, that the promised action must be such as would likely cause the accused to make a false statement to obtain the benefits of the promise and the promise must be made by a person whom the accused reasonably believed to have the power or authority to execute the same. (State v. Stuart, 206 Kan. 11, Syl. 4, 476 P.2d 975; State v. Harwick, 220 Kan. 572, 576, 552 P.2d 987; K.S.A. 60-460[f][2].) In addition it is generally recognized that a promise of some collateral benefit is less likely to induce a false confession. In the case of a promise concerning a collateral benefit, as distinguished from a promise to relieve the accused of some consequence of the crime charged, a more stringent test is applied. To hold that a promise of some collateral benefit renders a confession involuntary it must appear that the collateral benefit promised was of a nature calculated to produce a confession irrespective of its truth or falsity. (3 Wharton’s Criminal Evidence, 13th Ed., § 680, p. 464, n. 11; 29 Am. Jur. 2d, Evidence, § 561,. p. 619; 23 C.J.S., Criminal Law, § 825 d, p. 214.)
“We have previously considered the probable effect of a promise of collateral benefits. In State v. Pittman, 199 Kan. 591, 433 P.2d 550, there was evidence that the chief of police told the defendant during questioning that if he was holding back through fear of what would happen to his family, he (the chief) would see that the proper authorities were contacted and the family would be cared for. This court held:
‘. . . This is not the sort of promise, either in phraseology or content, which would overcome a defendant’s free and unfettered will. . . .’ (p. 596.) See also Baker v. State, 204 Kan. 607, 464 P.2d 212.
“A confession induced by a promise of a collateral benefit, with no assurance of benefit to accused with respect to the crime under inquiry, is generally considered voluntary and admissible in evidence, unless the circumstances surrounding the promise of the collateral benefit were such as to render the confession untrustworthy or the promise could reasonably be calculated to produce a confession irrespective of its truth or falsity.”
In this case the “collateral benefit” was that Mall would not be charged with the murder. The police, however, made no promises to the defendant regarding the treatment of Mall, and said nothing to the defendant about what they planned to do. Defendant’s conclusion that things would go better for Mall if he (Churchill) told the truth about the crime was not induced by any promises or threats made by the police. The mere statement that Mall had not passed the polygraph examination certainly was not a promise or device “calculated to produce a confession irrespective of its truth or falsity.” The fact that the defendant may have been motivated to confess to the crime in order to remove his friend from suspicion is not sufficient to render the confession involuntary. The trial court found the confession to be voluntary and admissible. There is no evidence of police coercion or promises in the record which would render that conclusion incorrect.
The Nebraska Supreme Court in State v. Stevenson & Jackson, 200 Neb. 624, 264 N.W.2d 848 (1978), was faced with a situation where the police told one arson suspect that his confederate had told them the truth about the fire. He had not. A second suspect, upon hearing the statement, confessed to setting the fire. The court held that the confession was admissible. It said:
“The general rule is that police deception is not sufficient to make an otherwise valid confession inadmissible, unless it is such as to produce a false or untrustworthy confession. . . . The investigators simply told Jackson that Stevenson had told them the truth about the origin of the fire. There is no evidence of any threats or coercion and no evidence whatever that the form of the deception suggested the answer. The trial court was correct in concluding that the deception did not render the confession inadmissible.” 200 Neb. at 629.
We conclude that Churchill’s confession was voluntary, and was properly admitted into evidence.
The defendant relies upon United States v. Remolif, 227 F. Supp. 420, 424, (D. Nev. 1964), and Lisenba v. California, 314 U.S. 219, 86 L.Ed. 166, 62 S.Ct. 280 (1941). Lisenba involved threats, physical abuse, and continued and prolonged police interrogation. We have examined both opinions and find them distinguishable on the facts and not persuasive.
Defendant next contends that the trial court erred in admitting, over objection, the opinion testimony of Michael Kelty, the firearm and toolmark examiner. It is well established that the qualifications of expert witnesses and the admissibility of expert testimony are matters which lie within the sound discretion of the trial court; its rulings upon such testimony will not be disturbed on appeal, unless the appellate court finds an abuse of discretion. K.S.A. 60-456; State v. Bright, 229 Kan. 185, 190, 623 P.2d 917 (1981); State v. Reed, 226 Kan. 519, Syl. ¶ 1, 601 P.2d 1125 (1979); Curtis v. Freden, 224 Kan. 646, 585 P.2d 993 (1978); Spraker v. Lankin, 218 Kan. 609, 613, 545 P.2d 352 (1976).
Mr. Kelty had been employed for many years as a toolmark and firearms examiner; he had made hundreds of toolmark comparisons and had testified frequently as an expert during that period of time. He testified that he had not previously performed tests to determine whether marks upon the human body were made by a given tool, but he testified that toolmark examinations in human tissue were conducted by the same procedures and governed by the same principles applicable generally in toolmark examinations, and that the procedure used was acceptable in his profession. It would appear from the record that he has the requisite skill and training to perform the tests, and that the methods used were reliable. The defendant presented expert testimony to the jury in order to call into question Kelty’s methods and conclusions. The witness’s experience or lack of experience in previously performing similar examinations goes to the weight of the testimony, not to its admissibility. See State v. Peoples, 227 Kan. 127, 133, 605 P.2d 135 (1980). We hold that the trial court did not abuse its discretion in admitting the testimony.
Next, defendant contends that the trial court erred in admitting into evidence his prior rape conviction in Sedgwick County. A certified copy of the journal entry of judgment in the Sedgwick County case was received in evidence. Defendant first argues that there was no proper foundation to identify the prior conviction, and that it was therefore hearsay. We have examined the exhibit and find that it was certified as a true and correct copy of the original instrument by a deputy clerk of the Sedgwick County District Court, as required by K.S.A. 60-465(3). A witness testified that defendant here was the same person as the defendant in the Sedgwick County case. We conclude that the exhibit was admissible under the cited statute and K.S.A. 60-460(o).
Appellant next argues that the prior crime was inadmissible under K.S.A. 60-455. That statute, by its express language, makes evidence of other crimes inadmissible to prove an accused’s disposition to commit a crime; the evidence is admissible only to prove one or more of the eight material factors specified in the statute. Motive and identity are two of the specified factors. The rules relating to the admissibility of other crimes evidence to prove identity are succinctly set forth in State v. Bly, 215 Kan. 168, 177, 178, 523 P.2d 397 (1974):
“Where a similar offense is offered for the purpose of proving identity, the evidence should disclose sufficient facts and circumstances of the other offense to raise a reasonable inference that the defendant committed both of the offenses. In other words to show that the same person committed two offenses it is not sufficient simply to show that the offenses were violations of the same or a similar statute. There should be some evidence of the underlying facts showing the manner in which the other offense was committed so as to raise a reasonable inference that the same person committed both offenses. As pointed out by Mr. Justice Kaul in State v. Johnson, 210 Kan. 288, 502 P.2d 802:
“ ‘The quality of sameness is important when pondering the admission of other crimes to prove identity.’ ” (p. 294.) (Emphasis supplied.)
“To prove identity it is necessary to introduce evidence of the underlying facts and circumstances to show that the crimes were committed in a similar manner so as to raise a reasonable inference that the person who committed one crime committed the other.”
Before evidence of the defendant’s rape conviction was admitted into evidence, the trial court conducted a hearing pursuant to defendant’s motion in limine to suppress the prior crimes evidence. Detective Hanson testified about the similarities between the two offenses. She did not have first-hand knowledge of the Wichita crime, but testified from investigative reports supplied to her by the Wichita police department. No Wichita officer appeared at the hearing to determine the admissibility of the prior crimes evidence. Although this could have been done, we find no error in the procedure followed. The evidence presented disclosed a large number of similarities as well as dissimilarities. Both victims were young, white females living in second floor apartments; both crimes were committed in the morning hours; and in both cases a large, wooden-handled knife was wielded by the accused. The young woman in Wichita was threatened with strangulation and with the knife; Mrs. Halling’s body bore bruises in the neck region, and she was actually stabbed. Many other similarities and dissimilarities have been called to our attention by industrious counsel.
The defendant points out that the prior conviction was for rape, while in the case at hand there was no evidence of rape or attempted rape. Both crimes, however, were crimes of violence committed against young women in their homes. In State v. Gourley, 224 Kan. 167, 578 P.2d 713 (1978), we found that evidence of the crimes of attempted rape and aggravated burglary was properly admitted by the trial court on the issue of identity where the crime charged was first degree murder and aggravated burglary. In both instances, the defendant had attacked a young woman alone in her home, choked his victims with an electrical cord, and sought or forcibly took guns and jewelry. See also State v. Hanson, 221 Kan. 635, 645, 562 P.2d 51 (1977), where evidence of an aggravated assault was held to have been properly admitted to show identity in the trial of a first degree murder case.
Detective Hanson testified, and it was conceded, that the defendant was the same Ronald D. Churchill who was convicted in the Sedgwick County case. The trial court gave an appropriate instruction, limiting the jury’s consideration of the other crimes evidence to motive and identity. It does not appear that motive was substantially in issue. See State v. Craig, 215 Kan. 381, 524 P.2d 679 (1974); State v. Myrick & Nelms, 228 Kan. 406, 616 P.2d 1066 (1980); and State v. Carty, 231 Kan. 282, 644 P.2d 407 (1982). We conclude that the similarities between the rape and the murder provide sufficient probative value to be relevant on the issue of identity, and that the trial court did not err in admitting evidence of the prior crime on the identity issue. Since it was relevant on that issue, error in admitting it to show motive was not prejudicial.
As we have already noted, the trial court heard the State’s evidence with reference to the Wichita conviction in camera. The court then ruled that evidence of that offense was admissible for limited purposes, and the journal entry of conviction was offered and received in evidence upon trial. The State, however, did not call any Wichita police officer or anyone familiar with the facts of the Wichita conviction, and no evidence of the details of that offense were presented to the jury. This was error, but no objection to the reception of the journal entry into evidence was made on that ground. Evidence of the details of the rape, including a description of the large knife used, would certainly have been unfavorable to the defendant and its omission does not constitute prejudicial error.
The journal entry of the rape conviction, which was admitted in evidence, included a statement that Churchill had previously been convicted of burglary and larceny, and that he was sentenced as an habitual criminal. The State concedes that this was improper; that it was inadvertent; that both counsel for the State and the defense saw the journal entry before it was admitted; and that the State intended to excise those portions of the journal entry before it was introduced in evidence, but failed to do so. The defense had a continuing objection to the admission of the journal entry on K.S.A. 60-455 grounds, but the defense did not make a specific objection to the journal entry on the issues now argued. There was no specific objection as required by our long-standing contemporaneous objection rule, K.S.A. 60-404, and the trial court was not afforded an opportunity to correct the error. The evidence before the jury in this case clearly established that the defendant and Mall were long time close friends, that Mall had recently been released from the Kansas State Penitentiary after serving a fifteen-year-to-life term, and that Mall was approximately twenty years older than the defendant. Much of this evidence was brought out by the defense. The jury could not have failed to be aware that Churchill, too, had been confined in the penitentiary. The prior offenses described in the journal entry were nonviolent. Under all of the attendant circumstances, we find no prejudicial error.
For his next point the defendant contends that the trial court erred in admitting a statement made by Robert Mall, explaining a small cut on his hand, because the statement was hearsay. At the time Mall was arrested, one of the officers observed a small abrasion on his right hand. It appeared to be nearly healed. Both Mall and Churchill told the officers that Mall had been walking with their German Shepherd puppy and that it had nipped him on the hand. The defendant objected to the admission of Mali’s statements as hearsay because Mall was not available as a witness at trial. The trial court admitted the testimony because the cut or injury did not appear fresh, because Mall was not available to testify at the time of trial, and under K.S.A. 60-460(d)(3), which makes hearsay admissible on the grounds of necessity. It reads:
“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:
“(d) ... A statement ... (3) if the declarant is unavailable as a witness, a statement narrating, describing or explaining an event or condition which the judge finds was made by the declarant at a time when the matter had been recently perceived by the declarant and while his or her recollection was clear, and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort; . . .”
As previously stated, a small amount of blood compatible with that of Mall was found on the doorknob. This statement would tend to explain the presence of Mali’s blood on the knob. The trial judge made the findings required by the quoted statute, and exercised his discretion in admitting the statement. Since Mali’s explanation of the abrasion — which was said to be nearly healed at the time of his arrest, two days after the murder — was the same explanation given to the officers by Churchill and received in evidence, we find no error.
Finally, defendant contends that the trial court erred in denying his motion for new trial due to the various errors in the proceedings heretofore described. In view of our rulings upon defendant’s claims of error, we find that the trial court did not err in overruling the motion for new trial.
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The opinion of the court was delivered by
Miller, J.:
This is an appeal by Judith Lygrisse, one of the defendants in a real estate mortgage foreclosure action commenced by the plaintiff, First National Bank & Trust Company of El Dorado, Kansas. The mortgage upon which the action is brought covered a loan of $47,000. It contains a “dragnet” or “future advances” clause. The trial judge held that the mortgage secured a debt of some $206,000 plus interest. The Court of Appeals reversed, finding that only $47,000 plus interest was secured by the mortgage. First Nat’l Bank & Trust Co. v. Lygrisse, 7 Kan. App. 2d 291, 640 P.2d 1274 (1982). On April 14, 1982, we granted review.
The sole issue raised by the appellant in her brief is whether “future advances” were made by the bank to the mortgagors, Lowell and Judith Lygrisse, and whether the “future advances” are secured by the real estate mortgage.
On January 30, 1976, Lowell Lygrisse and Judith Lygrisse, husband and wife, executed a note and mortgage to the bank. The note was for $47,000; the mortgage covered a quarter section of land in Sedgwick County which was the homestead of the mortgagors. In the lower left hand corner of the note appears the following reference to the mortgage:
“NOTE SECURED BY R. E. Mtg. dtd. 1/30/76.”
The mortgage contains the following paragraph which gives rise to this dispute:
“It is the intention and agreement of the parties that this mortgage also secures any future advancements made to mortgagors, or either or any of them, by mortgagee and all indebtedness in addition to the above amount which mortgagors, or either or any of them, may owe to mortgagee, however evidenced, whether by note, book account or otherwise, in amount not to exceed $400,000.00. This mortgage shall remain in full force and effect until all amounts due hereunder, including future advancements, are paid in full, with interest. Upon the maturing of the indebtedness for any cause, the total debt on -such additional loans, if any, with interest, shall at the same time and for the same specified causes be considered matured, and shall be collectible out of the proceeds of sale through foreclosure or otherwise.”
The figure “$400,000.00” was typed into the printed mortgage form.
A few weeks later, on April 12, 1976, Mr. and Mrs. Lygrisse executed another note to the bank in the amount of $274,664.01. This note consolidated various obligations of the Lygrisses to other banks, the original $47,000 debt, other obligations of the Lygrisses to the plaintiff bank, accrued interest, and a new advance of $18,000. In the lower left hand corner of the note appears:
“NOTE SECURED BY S/A 509 head of cattle, machinery & equip., Financial Stmt., R. E. Mtg. dtd. 1/30/76.”
On October 15, 1976, both Mr. and Mrs. Lygrisse signed a renewal note in the amount of $287,960.76. It recited the same notation referring to the mortgage.
Subsequently, two renewal notes were signed by Lowell Lygrisse only. Interest on the principal sum was the only amount added. On May 10, 1977, Lowell Lygrisse signed the first of the two renewal notes in the amount of $295,000; a notation referring to the mortgage appeared thereon. On November 15, 1977, Lowell Lygrisse signed the final renewal note, in the amount of $309,000. Reference to the mortgage was omitted.
The trial judge made the following findings:
“The question is whether the subsequent consolidation of the $47,000.00 indebtedness, secured by the mortgage, with other notes of indebtedness antecedent to the execution of the mortgage; and subsequent renewals of this consolidated indebtedness with the addition of interest charges fall within the scope of the above [’dragnet’ or ‘future advances’] clause.
“The law as stated in Emporia State Bank & Trust Company v. Mounkes, 214 Kan. 178, provides as follows: ‘Dragnet clauses are not, however, highly regarded in equity and should be carefully scrutinized and strictly construed.’
‘Where a mortgage is given to secure a debt specifically named, the security will not ordinarily be extended to cover debts subsequently incurred unless they be of the same class or character and so related to the primary debt secured that the assent of the mortgagor can be inferred.’
‘In the absence of clear evidence of a contrary intention, a mortgage containing a dragnet type provision will not be extended to cover subsequent advances or loans unless they be of the same kind and quality or relate to the same transaction or series of transactions or unless the document evidencing the same refers to the mortgage as providing security therefor.’
“Based upon the facts of this case and law as stated, I find as follows:
“1. That the note dated April 12, 1976, not only consolidated numerous notes and accurred [sic] interest, but also included a further advance of $18,000.00 to ‘pay interest, purchase feed and fertilizer, and gas, and . . . and general operating expenses.’
“2. That the note dated April 12, 1976, consolidated not only numerous notes, but consolidated the collateral securing those notes including the mortgage dated January 30, 1976.
“3. That the note dated April 12, 1976, specifically refers to the mortgage dated January 30, 1976, as part of the security therefor.
“4. That all the notes consolidated on April 12, 1976, were related to the farming and cattle operations of the Defendants Lygrisse as opposed to the business of Butler County Implement, Inc.
“5. That the consolidation and subsequent renewals, including the additions of interest, constituted advances of the same kind and quality, and related to the same transaction or series of transactions as the principal obligation secured.
“6. That there was no evidence presented of any intention by the parties to exclude the mortgage from the other collateral listed on the November 15, 1977, note; and conclude that it wasn’t included due to error or inadvertence.
“For the above reasons, I find that the indebtedness evidenced by the November 15, 1977, note is secured by the mortgage dated January 30, 1976; and Plaintiff should be given judgment in the amount due and owing on said note; and that the security represented by the mortgage dated January 30, 1976, constitutes the first and prior lien upon the real estate subject only to the two mortgages of Eureka Federal Savings & Loan Association which has hereinbefore been stipulated to by the parties, and to the property taxes due and owing to Sedgwick County, Kansas, as also stipulated to by the parties herein.”
The trial court found that the total principal and interest owing on the November 15, 1977, note was $206,413.91. That amount was held to be secured by the mortgage. The trial court found that certain other loans from the Bank to the Lygrisses were not secured by the mortgage; no appeal has been taken from that portion of the court’s order, and we are not concerned with it here.
Mr. and Mrs. Lygrisse were divorced during the pendency of the foreclosure proceedings, and the homestead (the mortgaged property) was awarded to Mrs. Lygrisse. She appeals from the judgment of foreclosure.
The Court of Appeals noted that the controlling case is Emporia State Bank & Trust Co. v. Mounkes, 214 Kan. 178, 519 P.2d 618 (1974). It quoted various portions of that opinion, including the following:
“In summary, we hold that in the absence of clear, supportive evidence of a contrary intention a mortgage containing a dragnet type clause will not be extended to cover future advances unless the advances are of the same kind and quality or relate to the same transaction or series of transactions as the principal obligation secured or unless the document evidencing the subsequent advance refers to the mortgage as providing security therefor.” 214 Kan. at 184.
The Court of Appeals then held:
1. That the primary issue involves a determination of the intention of the parties.
2. That the quoted portion of the Mounkes opinion establishes a rebuttable presumption that the parties did not intend the transaction in question to be covered by the dragnet clause.
3. That antecedent debts may be secured by a mortgage con1 taining a dragnet or other advances clause only if the antecedent debts are clearly identified in the mortgage.
4. That part of the debts refinanced and thus represented by the April 12, 1976, and later notes, were antecedent debts; these antecedent debts were not specifically mentioned in the mortgage and thus were not secured by it.
5. That subsequent debts may be secured under' a dragnet clause in either of two ways:
a. by specifically stating in the new note that it is secured by the prior mortgage; or
b. by showing that the subsequent debt is of the same kind or character as, or part of the same transaction or series of transactions with, the mortgage.
6. That the evidence does not support a finding that the parties intended the subsequent notes to be secured by the mortgage.
7. That the evidence is insufficient to support the trial judge’s finding that subsequent notes covered advances of the same kind and quality, and related to the same transaction or series of transactions as the principal obligation secured.
8. That the statement on the face of the notes, “NOTE SECURED BY R. E. Mtg. dtd. 1/30/76,” was not a sufficient reference to the mortgage to subject the mortgage to the full amount of the subsequent notes.
We agree with the substance of the Court of Appeals holdings capsulized in paragraphs 1, 3 and 5 above; we disagree with its other enumerated holdings and with its somewhat narrow interpretation of Mounkes. In that case, it must be remembered, the court was faced with a claim by the bank that a subsequent note which made no reference to the mortgage fell within the terms of the dragnet clause and was thus secured. The note indicated in plain terms that it was a “signature” loan, normally meaning that the loan was unsecured. The court was thus required to go far beyond the reaches of the written documents to determine what the parties intended. With this in mind, we will examine the issues raised here.
We should first point out that mortgages given to secure future advances have long been held to be valid and enforceable in Kansas. See Potwin State Bank v. Ward, 183 Kan. 475, 491, 327 P.2d 1091 (1958), 80 A.L.R.2d 166, and cases cited therein.
Promissory notes and mortgages are contracts between the parties, and the rules of construction applicable to contracts apply to them.
In Simpson on the Law of Contracts (2d ed. 1965), p. 210, it is said:
“The cardinal or fundamental rule of interpretation of contracts, to which all others are subordinate, is that a contract [should] receive that interpretation which will best effectuate the intention of the parties. . . . [I]t is the intention that is expressed in the contract that controls, not an intention secretly cherished by one of the parties. . . .
“Where the intention clearly appears from the words used, there is no need to go further, for in such cases the words must govern; or, as it is sometimes said, where there is no doubt, there is no need for interpretation.”
The rule is expressed in 17AC.J.S., Contracts § 296(1), in these words:
“The intention, or purpose, of the parties to a contract is to be ascertained and determined primarily, or largely, or if possible, from its terms, expressions, or provisions, and from the words, or language, employed by them .... This has been called the fundamental or primary rule in the construction of contracts, the sole duty of the court being to ascertain what was meant by the language of the instrument. The parties’ intention must be derived from the language of the contract in the first instance.”
In 17 Am. Jur. 2d, Contracts § 245, it is stated:
“If the language used by the parties is plain, complete, and unambiguous, the intention of the parties must be gathered from that language, and from that language alone, no matter what the actual or secret intentions of the parties may have been. Presumptively, the intent of the parties to a contract is expressed by the natural and ordinary meaning of their language referable to it, and such meaning cannot be perverted or destroyed by the courts through construction. . . . [T]he court must look to the agreement as a whole, to its nature, purpose, and the subject matter with which it deals . . . .”
In Martin v. Edwards, 219 Kan. 466, 473, 548 P.2d 779 (1976), we stated the rule simply and clearly:
“The intention of the parties and the meaning of the contract are to be deduced from the instrument where its terms are plain and unambiguous.”
The rule has been followed in many cases. See Duffin v. Patrick, 212 Kan. 772, 778, 512 P.2d 442 (1973), and cases cited therein.
The consolidation note signed by Mr. and Mrs. Lygrisse on April 12, 1976, as the trial court found, “specifically refers to the mortgage dated January 30, 1976, as part of the security therefor.” The note recites: “NOTE SECURED BY . . . R. E. Mtg. dtd. 1/30/76.” It is not disputed that this recital was on the face of the note when it was executed. This language clearly “refers to the mortgage” as providing “security therefor,” and expresses the intention of the parties that the debt represented by that note was secured by the mortgage. Since the expressed intent of the parties is specifically stated in writing on the note, the courts need look no further to determine the intention of the parties. We think it of no moment whether the reference to the mortgage be contained within the body of the note or by written endorsement at the beginning, in the middle, or at the end thereof; such reference is sufficient evidence of intent where, as here, it is clearly set forth upon the document at the time of execution.
Does the Mounkes opinion establish “a rebuttable presumption that the parties did not intend the transaction in question to be covered by the dragnet clause”? We think not. Mounkes holds that when there is no clear, supportive evidence that the parties intended a particular transaction to be secured under a future advances clause, courts will not find the transactions to be secured unless (1) the advances are the same kind and quality, or (2) unless the subsequent document refers to the mortgage as providing security for the later advance. Stated conversely, courts may find subsequent transactions to be secured under a dragnet or future advances clause where the later document refers to the mortgage as providing security, or where the later advances are of the same kind and quality or relate to the same transaction or series of transactions as the original obligation secured. In the absence of both of the foregoing, clear, supportive evidence of an intention to secure the later transaction is necessary. We see this rule as giving rise to no presumptions of fact. Clearly, where, as here, the subsequent document states on its face that it is secured by the mortgage, there can be no presumption that it is not.
Does the note of April 12, 1976, represent a “future advance” or is it an “antecedent debt”? In view of the fact that this note makes specific reference to the mortgage as providing security therefor, this point, though the only one raised by appellant, is perhaps academic. The rule against extending a mortgage containing a dragnet clause to secure antecedent debts, absent reference thereto in the mortgage, has no application where subsequent notes specifically indicate that certain antecedent debts were intended to be secured. See Kamaole Resort Twenty-one v. Ficke Hawaiian Inv., Inc., 60 Hawaii 413, 426-27, 591 P.2d 104 (1979).
Here the Rank on April 12, 1976, loaned the Lygrisses money to pay existing notes and interest to other banks; it loaned them “new money” in the amount of $18,000; and it consolidated the $47,000 note of January 30, 1976, and one or more other notes of the Lygrisses that it held. All of the notes thus consolidated were paid, and a single new obligation, specifically secured by the real estate mortgage, was created. This was not an antecedent debt, but a future advance.
We turn next to the conclusions of the Court of Appeals that certain findings of the trial court were not supported by the evidence. Certain long-standing rules of appellate review are applicable:
1. The rule of this jurisdiction is that a presumption of validity attaches to a judgment of the district court until the contrary is shown and that before this court will set aside a judgment it must be affirmatively made to appear that such judgment is erroneous. Klepper v. Stover, 193 Kan. 219, 220-21, 392 P.2d 957 (1964); McClelland v. Barrett, 193 Kan. 203, Syl. If 3, 392 P.2d 951 (1964).
2. The burden is upon an appellant to designate a record sufficient to present its points to this court, and to establish the claimed error. Farmers Ins. Exchange v. Schropp, 222 Kan. 612, Syl. ¶ 8, 567 P.2d 1359 (1977).
3. On appeal, error below is never presumed and the burden is on the appellant to make it affirmatively appear. Kohn v. Babb, 204 Kan. 245, 248, 461 P.2d 775 (1969); Gladney v. Sheriff of Leavenworth County, 3 Kan. App. 2d 568, 598 P.2d 559 (1979).
4. It is incumbent upon the appellant to include in the record on appeal any matter upon which he wishes to base a claim of error. Frevele v. McAloon, 222 Kan. 295, 299, 564 P.2d 508 (1977); Gladney v. Sheriff of Leavenworth County, 3 Kan. App. 2d 568.
5. Where an appellant has failed to procure an official transcript or abstract the testimony of record or reconstruct it in some accepted manner, this court will not review any action of the trial court requiring an examination of the evidence. Osborne v. Fakes, 178 Kan. 373, 376, 286 P.2d 156 (1955).
The case now before us was tried to the court without a jury. The testimony was electronically recorded. Due to malfunction of the equipment, the testimony of one of the principal witnesses, Lowell Lygrisse, was not preserved. His testimony is not included within the official transcript. Appellant made no effort to reconstruct the testimony, as may be done under our Rule 3.04 (228 Kan. xli). Under the circumstances, and following the rules discussed above, it is impossible for an appellate court to review the evidence and determine whether it is sufficient to support the findings made by the trial judge.
In conclusion, we note that the best and most persuasive evidence of the intention of parties who enter into a written agreement is that which is expressed by the terms of that agreement. In all of the notes before us, with the exception of the last one, the parties declared the notes to be secured by the mortgage of January 30, 1976. The trial court specifically found that the final note omitted reference to the mortgage not because of any intention to exclude the mortgage from the listed collateral, but because of error or inadvertence. We find no error in the findings and conclusions of the trial court.
The judgment of the Court of Appeals is reversed; the judgment of the District Court of Butler County is affirmed. | [
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The opinion of the court was delivered by
McFarland, J.:
This is a direct appeal by the prosecution upon a question reserved pursuant to K.S.A. 22-3602(b)(3).
The issue presented in this appeal is whether the statutory justification for the use of deadly force in defense of a person contained in K.S.A. 21-3211 is to be determined by the trier of fact using a subjective standard (from the viewpoint of the accused’s state of mind) or by using an objective standard (from the viewpoint of a reasonable man in the accused’s position).
The instruction given herein on self-defense was PIK Crim. 54.17 as follows:
“A person is justified in the use of force to defend himself against an aggressor’s imminent use of unlawful force to the extent it appears reasonable to him under the circumstances then existing.” (Emphasis supplied.)
The statutory authority for any instruction relative to use of force in defense of a person is K.S.A. 21-3211 which provides:
“A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force.” (Emphasis supplied.)
The Judicial Council Comments to K.S.A. 21-3211 provide in relevant part:
“The section defines the right to defend one’s person against unlawful aggression. It attempts to define the phrase ‘reasonably believes.’ A reasonable belief implies both a belief and the existence of facts that would persuade a reasonable man to that belief.
“Illinois Criminal Code, 7-1, and Restatement of Torts, 11, were relied upon in drafting the section.”
Restatement (Second) of Torts § 11 (1965), referred to in the Judicial Council comment provides:
Ҥ 11. Reasonably Believes
“The words ‘reasonably believes’ are used throughout the Restatement of this Subject to denote the fact that the actor believes that a given fact or combination of facts exists, and that the circumstances which he knows, or should know, are such as to cause a reasonable man so to believe.”
The State contends K.S.A. 21-3211 requires the trier of fact to determine the reasonableness of the accused’s actions by an objective rather than a subjective standard. The State further contends PIK Crim. 54.17 improperly instructs the jury to utilize a subjective standard in determining the reasonableness of the accused’s actions. We agree with both contentions.
We note that of all the times self-defense instructions have been involved in appeals before us, this is the first time this precise issue has been raised. Most commonly, issues relating to self-defense instructions involve the propriety of the trial court’s refusal to give any instruction on self-defense.
In State v. Childers, 222 Kan. 32, 48-49, 563 P.2d 999 (1977), this court reasoned as follows:
“Defendant next claims error in the trial court’s refusal to give an instruction on self-defense. Self-defense as a defense in a prosecution such as at bar is defined in K.S.A. 21-3211:
‘A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force.’
The phrase ‘reasonably believes,’ as it is used in the statute, is clarified by the advisory committee in its notes following the statute. The committee states:
‘. . . A reasonable belief implies both a belief and the existence of facts that would persuade a reasonable man to that belief.’
“We agree with the advisory committee’s interpretation of the phrase in question. In other words, in order to rely on self-defense as a defense, a person must have a belief that the force used was necessary to defend himself and, also, show the existence of some facts that would support such belief ....
“In response to defendant’s contention, the state says that even though defendant might have believed he was in danger there was absolutely no evidence to support such belief. We have carefully examined the defendant’s testimony, which is the only evidence on the point and, viewing it in the light most favorable to him, we are, nevertheless, compelled to agree with the state’s position. . . .
“There is nothing shown that would persuade a reasonable man to believe that he was in imminent danger. We find no error in this regard.”
This court in Childers recognized reasonableness of actions in self-defense is to be gauged by an objective standard. This is, however, the first time it has been brought to this court’s attention that PIK Crim. 54.17 alters the test of reasonableness from an objective to a subjective standard.
The significance of this alteration is graphically demonstrated by a review of the case before us. Defendant is an elderly homeowner in Wichita. Steffen Wong, a young man of Oriental extraction, rented half of the duplex next door. By virtue of Mr. Wong’s racial heritage, defendant assumed he was an expert in the martial arts. Defendant was afraid of Steffen Wong, and heated words had been exchanged between the two. Defendant was fearful because more “Orientals” were moving into the neighborhood, and one had expressed interest in purchasing defendant’s home.
On May 27, 1981, Mr. Wong was fired upon as he attempted to enter his own duplex. Shortly thereafter Rickey and Brenda Douglas, the residents of the other half of the duplex, pulled into their driveway and were fired upon by the defendant. Police officers arrived a few minutes later and defendant fired a number of shots at the officers who had previously identified themselves. Defendant was charged with two counts of aggravated assault (K.S.A. 21-3410) for firing at Steffen Wong and Rickey Douglas. At trial defendant testified as to his general fear of Mr. Wong and that Mr. Wong had walked toward him cursing just before the incident started. The defense called a clinical psychologist who testified defendant was a “psychological invalid” who was very tense and fearful. The psychologist stated defendant’s mental condition permitted him to “misjudge reality” and see himself under attack. The tentative diagnosis was “anxiety neurosis.”
The jury was instructed:
“A person is justified in the use of force to defend himself against an aggressor’s imminent use of unlawful force to the extent it appears reasonable to him under the circumstances then existing.”
Defense counsel argued to the jury that the evidence showed defendant believed Mr. Wong was an imminent threat to him and that the firing of the gun appeared reasonable to the defendant. The jury acquitted defendant on both counts. Under the totality of the circumstances, one must assume the acquittals were occasioned in large measure by the improper instruction on self-defense.
We hereby disapprove the giving of PIK Crim. 54.17 as being an incorrect statement of the law of Kansas as set forth in K.S.A. 21-3211. Although the issue is not before us, we note that the same problem appears to exist in PIK Crim. 54.18 which deals with use of force in defense of a dwelling.
We conclude that the jury should properly have been instructed in the following language or its equivalent:
A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force. A reasonable belief implies both a belief and the existence of facts that would persuade a reasonable man to that belief.
This instruction combines the language of K.S.A. 21-3211 with the necessary definition set forth in the Judicial Council Comments following the statute, and results in setting forth the requisite objective standard.
The appeal is sustained. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
The plaintiffs, as landowners, brought an action in the District Court of Sedgwick County, Kansas, seeking an order directing the defendant City of Wichita to reassess special improvement costs for street repaving within the Forest Hills Special Improvement District or, in the alternative, an order enjoining the city from apportioning costs for the street improvements within the district under City of Wichita Ordinance No. 36-697. The lower court denied both the reassessment and the injunction. Plaintiffs appeal.
The facts are stipulated. Residents of the Forest Hills addition petitioned the city for a repaving of the streets in their area in 1975, but the City Commission disapproved the petition. In 1976 the Commission approved a repaving plan and set about implementing it. Plaintiffs’ single objection is to the manner in which costs were apportioned among properties within the improvement district as drawn; therefore, only the details relative to assessment are pertinent to this inquiry.
The Forest Hills Special Improvement District, a residential area in Wichita, Kansas, contains a relatively few large lots in the western portion of the district and many substantially smaller lots throughout the rest of the district. Many of the lots, both large and small, are irregularly shaped. Plaintiffs’ residences are located in what we will designate as Block 1 on four of the larger lots in the western part of the district. Many of the lots in Block 1 extend through the block, abutting Linden Drive on the east and West Parkway on the west.
The total improvement cost for the district was $1,045,297.32, allocated 64.9% to the benefit district and 34.1% to the city at large. Plaintiffs do not challenge this percentage allocation. To determine the special assessment of each landowner in the district, three appraisers were appointed to determine the fair market value of the land in the improvement district without regard to improvements thereon as authorized by K.S.A. 12-6a08 which provides in pertinent part:
“The portion of the cost of any improvement to be assessed against the property in the improvement district as determined in K.S.A. 12-6a04, shall be apportioned against said property in accordance with the special benefits accruing thereto by reasons of such improvement. Said cost may be assessed equally per front foot or per square foot against all lots and pieces of land within such improvement district or assessed against such property according to the value of said lots and pieces of land therein, such value to be determined by the governing body of said city with or without regard to the buildings and improvements thereon or said cost may be determined and fixed on the basis of any other reasonable assessment plan which will result in imposing substantially equal burdens or shares of the cost upon property similarly benefited.”
For reasons which do not appear in the record, the Commission found the method used to assign values to the lots in the benefit district invalid and rejected the proposed assessments. New appraisers were appointed and their proposed assessments approved by the City Commission over objection by some landowners. The plaintiffs then challenged those assessments in the district court. As noted above, the district court ruled adversely to the plaintiffs, denying reassessment and denying an injunction against the assessment as approved. On appeal, the plaintiffs contend the assessment plan violates the legal requirement that assessments for special improvement costs be fairly and substantially related to benefits accruing to assessed properties by reason of the special improvements. By virtue of that alleged violation, plaintiffs contend the assessment constitutes arbitrary and capricious action and an abuse of discretion requiring that the assessment plan be set aside. The defendant City of Wichita raises an issue on cross-appeal, alleging the trial court erred in overruling the city’s motion for an order compelling plaintiffs to post a bond with one or more sufficient sureties securing to the city damages it might sustain.
Special assessments are often challenged in the courts. As a result, we deal with a well-developed body of law in this area although much depends on the facts of the individual case.
Special assessments are charges “imposed by a local government upon the owners of property specially benefited by a ‘local’ public improvement.” 2 Antieau, Municipal Corporation Law § 14.00 (1982). The assessments are levied against property in proportion to the benefits conferred. Davies v. City of Lawrence, 218 Kan. 551, 557-58, 545 P.2d 1115 (1976); Mullins v. City of El Dorado, 200 Kan. 336, 341, 436 P.2d 837 (1968); Gilmore, County Clerk v. Hentig, 33 Kan. 156, 167, 5 Pac. 781 (1885). The extent to which property has received special benefits from a public improvement is a question of fact, legislative or administrative in nature, for determination by the authorized governing body, in this instance the Wichita City Commission. Board of Education v. City of Topeka, 214 Kan. 811, 819, 522 P.2d 982 (1974); Mullins v. City of El Dorado, 200 Kan. at 342; 70 Am. Jur. 2d, Special or Local Assessments § 23. That determination of benefit is presumed equitable and just and is ordinarily conclusive on the property owners and the courts. Bell v. City of Topeka, 220 Kan. 405, 420, 553 P.2d 331 (1976); Mullins v. City of El Dorado, 200 Kan. at 342; 70 Am. Jur. 2d, Special or Local Assessments § 23. Only if it can be shown so arbitrary and capricious that assessments are entirely disproportionate to benefits received will courts grant relief. Board of Education v. City of Topeka, 214 Kan. at 819; Mullins v. City of El Dorado, 200 Kan. at 342; Giddings v. City of Pittsburg, 197 Kan. 777, 783, 421 P.2d 181 (1966); Schulenberg v. City of Reading, 196 Kan. 43, 52, 410 P.2d 324 (1966); Hurley v. Board of County Commissioners, 188 Kan. 60, 65, 360 P.2d 1110 (1961); Note, Municipal Corporations — Special Assessments - Assessment Plan Levying Special Assessments for Sidewalk Construction Against Non-Abutting Property Ruled Invalid, 25 Kan. L. Rev. 286 (1977). To overcome the presumption of validity which attaches to the determination of the governing body, the plaintiff shoulders a heavy burden. Snyder Realty Co. v. City of Overland Park, 208 Kan. 273, 276, 492 P.2d 187 (1971); Mullins v. City of El Dorado, 200 Kan. at 342; 70 Am. Jur. 2d, Special or Local Assessments § 82.
The theory underlying the special assessment is that an owner does not pay in excess of what he receives by virtue of the improvement having been made. Norwood v. Baker, 172 U.S. 269, 278-79, 43 L. Ed. 443, 19 S.Ct. 187 (1898); Davies v. City of Lawrence, 218 Kan. at 557-58; Mullins v. City of El Dorado, 200 Kan. at 341. While it is universally accepted that the amount of the special assessment cannot substantially exceed the benefit ( 2 Antieau, Municipal Corporation Law § 14.32 [1982]; 14 McQuillin, The Law of Municipal Corporations § 38.124 [3rd ed. 1970]), the assessment-benefit rule does not contemplate mathematical precision.
“The most that can be expected of a governing body . . . is to estimate the benefits to each tract of land upon as uniform plan as possible so that the assessment against a particular piece of property is substantially proportionate to the benefits received.” 200 Kan. at 347.
See also 2 Antieau, Municipal Corporation Law § 14.43 (1982).
Valuation of land without regard to improvements is a generally accepted method of estimating benefits to individual tracts. 2 Antieau, Municipal Corporation Law § 14.41 (1982); 70 Am. Jur. 2d, Special or Local Assessments § 89. This court has recognized the validity of the valuation method as well as the consequence that under the valuation method the most valuable property is taxed the most. Koerner v. City of Wichita, 190 Kan. 663, 664-65, 378 P.2d 42 (1963). This court has also recognized that, while it is a “fair and legal” mode of assessment, the valuation method “might in particular instances work injustice or hardship, and not be legal or valid . . . .” Gilmore, County Clerk v. Hentig, 33 Kan. at 173. See also Mullins v. City of El Dorado, 200 Kan. at 343. Plaintiffs in this action vigorously attack the validity of the valuation method for the street development project in question.
At trial, the plaintiffs argued a front footage method should have been used to calculate their portion of the street repaving assessment. They relied heavily on the expert testimony of a mathematics professor from Wichita State University who compared the amount assessed under the valuation method with the cost of paving those portions of the streets in front of plaintiffs’ residences to arrive at the conclusion the plaintiffs had been over-assessed. The trial court addressed the argument and found as a matter of fact that had the improvement cost been calculated on a front footage basis the average cost per frontage foot would have been $22.30. The assessments on plaintiffs’ property substantially exceeded that average and a number of parcels within the district were assessed improvement costs at a race substantially below that average. Viewed from another perspective and considering all parcels in Block 1, the landowner portion of the actual cost of paving the abutting streets was 16% of the project pavement cost; whereas, the assessment to Block 1 owners was 29% of the project pavement cost. At first blush, this argument that each landowner pay only for the cost of the pavement in front of his property is appealing. In this case, the configuration of plaintiffs’ lots was such that a front footage calculation would have resulted in a lower assessment than the valuation method used. Further testimony revealed, however, that distortions occur under the front footage method when lots are of an irregular shape as the lots in this district admittedly are. Computational allowances must be made for corner lots which have extraordinary exposure as well as for those lots located in cul-de-sacs which have the advantage of minimal street exposure. While the front footage method would have been the most advantageous method for these plaintiffs in that it would have been the least expensive, it would not necessarily have equated with the benefits received.
The lengthy discourse at trial on determining special assess ments as a percentage of paving costs obscures the fact that K.S.A. 12-6a08 provides first and foremost that the assessed cost of an improvement reflect the special benefits accruing to the property by reason of the improvement. The plaintiffs’ second witness, a real estate appraiser, stated the measure of benefit is roughly parallel to the cost of laying the asphalt in front of the property. The trial court found, however, that because of the irregularly shaped lots in this district no assessment formula could accomplish a direct relationship between benefit and cost of paving. That finding is supported by the evidence.
Through testimony presented at trial, plaintiffs in this action have shown that the front footage method of assessment would have resulted in a lower assessment on their property than the valuation method used. They have also shown that the property owners in Block 1 were assessed a greater sum than the average cost of paving their front footage. The evidence presented, however, does not support a finding that the city acted arbitrarily and capriciously in using the valuation method to estimate benefits. The trial court found that the plaintiffs had failed to sustain their burden of proof. Plaintiffs own large irregularly shaped lots, three of which extend through an entire block with potential, if not actual, access from two streets. There is not in this situation the kind of substantial disparity between assessments and benefits which has led this court to find arbitrary and capricious action by governing bodies in other special assessment cases. See, e.g., Bell v. City of Topeka, 220 Kan. 405; Davies v. City of Lawrence, 218 Kan. 551; Hurley v. Board of County Commissioners, 188 Kan. 60. The findings of the trial court are supported by the record.
We turn to the cross-appeal of the defendant City of Wichita. Prior to trial, the defendants moved for an order compelling plaintiffs to post a bond to secure damages that might be sustained by the defendants, including interest on temporary notes accrued as a result of defendants’ inability to issue general obligation bonds during the pendency of this litigation. The motion was overruled. In upholding that decision of the trial court, we note that specific statutory provision is made for unanticipated additional interest on temporary notes to be assessed against the city at large. K.S.A. 10-114a. To do otherwise and subject plaintiffs to liabilities larger than the amounts of their protested assessments would severely curtail the right of citizens to challenge the actions of governing authorities.
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The opinion of the court was delivered by
Fromme, J.:
The State appeals from the dismissal of charges following a preliminary hearing. K.S.A. 22-3602(h)(l). The defendants, Big 3 Auto Products, Inc., its president, Morton Colby, and two sales representatives were charged with three violations of the Kansas Securities Act. These charges were for selling securities without prior registration (K.S.A. 17-1255), failing to register as brokers (K.S.A. 17-1254), and making untrue statements of material fact (K.S.A. 17-1253). The lower court dismissed these charges after finding the agreement to sell and purchase mini warehouses and automobile repair and tune-up parts did not constitute an “investment contract” controlled by the provisions of the Kansas Securities Act.
We are confronted with a single issue. Did the agreement used by the defendants constitute an “investment contract” controlled by the Kansas Securities Act?
The contract in question provided:
“This agreement made and entered into this_day of_19_, by and between Big 3 Auto Products, Inc., hereinafter designated as ‘Big 3’ and NAME_ ADDRESS_ PHONE NUMBER_ CITY_ STATE_ZIP CODE_ hereinafter designated as the ‘Distributor’, upon the following terms and conditions:
“1. Big 3 agrees to supply the above named Distributor with the following items:
A. Uni-Sets, Point Sets, Condensers, Rotors, Distributor Caps, Spark Plug Wire sets, Spark Plugs, PCV Valves, Gas Filters, Air Breather Elements, Modules, Coils, Air Filters, 10 Mini Warehouses.
“2. Big 3 acknowledges receipt of $1000.00 representing payment only to the locator who, solely at Distributor’s request obtains 10 Service Station and/or Repair Shop accounts at $100.00 per account, approved as to sales volume and location by the distributor in writing, in the following non-exclusive area:
“3. [Here was set forth numbers and description of various repair and tune-up parts which the distributor was to receive from Big 3 listing the cost for such items and totaling $5,766.57.]
C. Amount due upon acceptance by Big 3 $10,131.67
Payments to be by Certified check or Cashiers check made payable only to Big 3 Auto Products, Inc.
D. The balance due for delivery of items in paragraph 3 ‘B’ shall be at the then current wholesale price, less the deposits. In the event that the Distributor decides not to order delivery of the aforementioned items, Distributor shall not be liable for any balance due in excess of prepaid deposits.
E. All shipments shall be made at F.O.B. nearest Big 3 Distribution center. “4. Distributor is engaged in an independent business and is solely responsible for his own employees, taxes, insurance, and the acts and omissions, of his agents and employees. As such, Distributor is not and shall not represent that it is an agent for Big 3, AC Delco, or Motorcraft; nor use the name Big 3, AC Delco or Motorcraft, AC Delco’s or Motorcraft’s trademarks and/or designs and markings in advertising, catalogs, promotional literature or other material without the prior written consent of Big 3, AC Delco, or Motorcraft, as the case may be.
“5. Distributor is not required to pay any fee to Big 3, as Big 3 does not sell or grant any rights to engage in a business but hereby sells only automotive parts to Distributor at the total sum set forth in Paragraph ‘3’. Distributor is free to engage in any other business and sell any other products and is not required to operate his business under any marketing plan or system prescribed by Big 3.
“6. Any dispute, controversy or claim arising out of or relating to this agreement or the breach thereof, shall be settled by the American Arbitration Association, 140 W. 51st Street, New York, N.Y. 10020.
“7. This agreement shall be effective only upon written acceptance by an Officer of Big 3 and is for an initial period of one year commencing from the delivery of merchandise at locations and shall remain in effect each year thereafter unless terminated by the Distributor.
“8. This agreement comprising of 2 pages is complete within itself and may be changed only in writing signed by the Distributor and an Officer of Big 3. The Distributor has read and understands the contents of this agreement and agrees that there are no warranties, representation, guarantees of profits or sales volume, grants of exclusive territories, promises or statements, expressed or implied, in connection therewith other than stated in writing herein. Big 3 makes no earning claims. Big 3 will not and does not represent that it will provide any service or assistance other than specified in this agreement. This agreement is made in and shall be interpreted according to the laws of the State of Florida and shall be binding upon Big 3 and shall go into effect only when signed by an Officer of Big 3.”
The foregoing agreement was signed at the end by the distributor, and an acceptance was noted by affixing the signature of an officer of Big 3.
There was a second agreement denominated “Repurchase Agreement” available to those who were to become distributors. We need not set forth that agreement. Suffice it to say, under this agreement, if the distributor desired to terminate the distribution agreement at the end of the initial period Big 3 agreed to buy back the inventory then on hand at original purchase prices.
After the preliminary hearing in these criminal cases, the trial court made the following findings on which it based dismissal:
“1. Big 3 Auto Products, Inc., referred to herein as Big 3, is an auto parts wholesaler in Florida and Morton Colby is its President.
“2. On or about January 29, 1981, Wayne Brock, Wichita, entered into a contract (State’s Exhibit 4) with Big 3 to purchase from it various auto parts for distribution at various locations in and around Wichita, Kansas, the nature and extent of this contract is evidenced by State’s Exhibits 1 through 6, inclusive.
“3. At the time Mr. Brock signed the contract, he intended to make a profit between what he paid Big 3 for the parts and what he charged to the independent garages and auto repair shops where ‘mini-warehouses’ had been placed by an independent contractor, called a ‘locator,’ who Big 3 had procured at the request of Mr. Brock.
“4. Under the contract Mr. Brock signed with Big 3, he paid $1,000.00 for the locator’s services. He relied on the judgment of the locator, who placed ten mini-warehouses in locations which the locator recommended, but he had the right to install mini-warehouses wherever he desired and to remove any warehouses from the places the locator had recommended.
“5. Neither Morton Colby nor Big 3 ever registered to sell securities in the State of Kansas.
“6. Mr. Brock did not have any expertise as an auto parts jobber, although he had bought and sold new and used cars with a local auto dealer.
“7. To carry out the intent of the contract, Mr. Brock would have had to make a material effort toward the project if he were to realize a profit.
“8. Defendant Big 3 furnished Mr. Brock a suggested price list showing what he would pay Big 3 and indicating prices that he in turn could charge to dealers and the prices that the dealers could then charge their customers.
“9. The enterprise of Mr. Brock did not become profitable.
“10. The same facts comprising the Brock transaction with defendants Colby and Big 3 generally existed with respect to the contracts entered into between those two defendants and Gary and Mary Iverson and Glen Brichacek and the contract negotiations entered into between defendants and Ruth Hoadley.
“11. Therefore, the Court concluded that as a matter of law, State’s Exhibit 4 is not a security as contemplated by the Kansas Securities Act, K.S.A. 17 (252 C.J.). Accordingly, the twelve counts charging defendants Big 3 and Morton Colby with violating the Kansas Securities Act should be dismissed.”
The Kansas Securities Act is patterned after the Uniform Securities Act which is itself a copy of the Federal Securities Act of 1933. As a part of the web of the Uniform Acts throughout the nation and because of the common history and theories behind both the state and federal experience in the field of securities regulation, the Kansas Act should be developed by court decisions which are firmly grounded on prior state decisions and upon prior decisions of the federal courts, and the courts of our sister states.
In formulating the “proper” test for “investment contracts,” it is useful to reflect upon this court’s earlier decision on the proper definition of another term found in subsection (j) of K.S.A. 17-1252, “evidence of indebtedness.” See State v. Hodge, 204 Kan. 98, 460 P.2d 596 (1969). The Hodge case should set the tone of the present case as it demonstrates the position Kansas has taken in the regulation of speculative securities.
In Hodge, the matter was submitted upon stipulated facts. The State sought to prosecute Mr. Hodge on charges of violation of the securities act. Mr. Hodge sold two promissory notes each entitled “Receipt in Lieu of Promissory Contract.” That note, called a receipt, obligated the Tomal Company to issue to the purchaser a promissory contract in the face amount of twice the value of the receipt. The court found that under the stipulated facts, this “evidence of indebtedness” was a security as contemplated by 17-1252(j). The court went on to discuss the securities act and the possible purpose the legislature sought to serve by its enactment. As pointed out in Hodge the purpose of the Kansas Securities Act is to place the traffic of promoting and dealing in speculative securities under rigid governmental regulation and control to protect investors, thereby preventing, so far as possible, the sale of fraudulent and worthless speculative securities.
The Hodge court reviewed the prior Kansas decisions and the federal decisions and approved of the remedial nature of the securities acts. The court in addition to a reference to the definition of “security” found in 17-1252(j), cited another definition of “security” in the following language:
“Another definition of the term ‘security’ which has received judicial approval is the investment of money with the expectation of realizing a profit through the efforts of persons other than the investor. [Citations omitted.]” 204 Kan. at 103.
Speculative securities include those, the value of which materially depends upon proposed or promised future promotion or development, rather than on present tangible assets or conditions.
Under the Kansas Securities Act, 17-1252(j), the definition of a “security” includes the term “investment contract.”
In S.E.C. v. Howey Co., 328 U.S. 293, 90 L.Ed. 1244, 66 S.Ct. 1100 (1946), the United States Supreme Court reviewed a case involving the sale of units of orange groves in Florida. The facts in that case showed that the Howey Company had offered to investors units of orange groves and also sold service contracts for the cultivation, harvesting and marketing of the units and the fruit. It was clear that land sales contracts and service contracts were part and parcel of the investment and that the success or failure of the investment rested upon the shoulders of the Howey Company. The investors were found to be persons of little or no experience with citrus trees who were attracted by the expectation of substantial profits. The court reviewed the law relating to its definition of “investment contracts” and stated:
“The test is whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others. If that test be satisfied, it is immaterial whether the enterprise is speculative or nonspeculative or whether there is a sale of property with or without intrinsic value.” 328 U.S. at 301.
One does not have to read too far to discover that the last portion of the foregoing definition has given rise to some questions. The requirement, that the profit in “investment contracts” come solely from the efforts of others, has been under occasional attack by courts recognizing the economic realities of investments, and this has resulted in modifications of the test in some jurisdictions. See Silver Hills Country Club v. Sobieski, 55 Cal. 2d 811, 13 Cal. Rptr. 186, 361 P.2d 906 (1961).
A later case critical of the Howey test, which directly challenged the “solely from efforts of others” requirement, is State v. Hawaii Market Center, Inc., 52 Hawaii 642, 485 P.2d 105, 47 A.L.R.3d 1366 (1971). That case concerned a “founder-member” agreement in which persons became founder-member distributors by purchasing either a sewing machine or a cookware set for an inflated price. An investor’s membership entitled him to earn money in several ways, all of which were dependent on activities of others. The Hawaii Market court criticized the Howey test and went on to state that the basic economic reality of a security transaction is the subjugation of the investor’s money to the risks of an enterprise over which he exercises no managerial control.
Much has been written concerning investment contracts under securities acts. See Annot., Blue Sky Laws - Investment Contracts, 47 A.L.R.3d 1375; Annot., Securities - “Investment Contract,” 3 A.L.R. Fed. 592; 69 Am. Jur. 2d, Securities Regulation - Federal §§ 25,26 and 28, pp. 610-614; 69 Am. Jur. 2d, Securities Regulation - State §§ 27, 28, pp. 1089-90; Comment, What is a Security? Howey, Turner Enterprises, and Franchise Agreements, 22 Kan. L. Rev. 55 (1973); and Comment, Definition of a “Security," 12 Tex. Tech. L. Rev. 911 (1981).
Generally, the term “security,” which has no precisely defined legal definition aside from statutory provisions, has reference to a written instrument. Such instruments are usually for the payment of money or to evidence a debt. They are more than a mere promise of the debtor to pay a general liability and have as collateral to such instruments pledges of property or some additional obligation. By common usage, however, the term has acquired a much broader meaning. It is now generally used to refer to instruments for the payment of money, or evidencing tide or equity, with or without some collateral obligation, and which are commonly dealt in for the purpose of financing and investment. Instruments, whether secured or unsecured, which are used for the purpose of financing enterprises and promoting a distribution of rights in or obligations of such enterprises, and which are designed as a means of investment, are termed “securities.” State v. Hodge, 204 Kan. at 103.
In Kansas we are favored with a general statutory definition of the term “security” in the Act, as heretofore paraphrased. The language defining a security in 17-1252(/) presently under consideration is similar to the language of the federal act. 15 U.S.C.A. § 80a-2(a) (36). .
It has been said of the federal securities act that it is remedial in nature, to be liberally construed, and that in appraising contracts for the purpose of determining the applicability of the statute, courts readily look through form to discover the real nature of the transaction; that labels affixed by the parties are of little moment. State v. Hodge, 204 Kan. at 103.
To determine whether a particular financial relationship constitutes an “investment contract” within the meaning of K.S.A. 17-1252(j), the test to be applied is whether the contractual arrangement involves an investment of money in a common enterprise with profits to come from the efforts of others. This test is to be applied in light of the economic realities of the particular contractual arrangement, rather than accepting the terminology employed by the parties in the investment contract.
After examining the above test, which we now adopt, to determine whether the present arrangement falls into the category of an investment contract covered by the Kansas Securities Act, and looking through the form of the document used by the defendants in authorizing distributorships to discover the real nature of the transaction, we are of the opinion the agreement does not constitute an investment contract as envisioned by those who enacted the statute.
The present contractual arrangement is clearly distinguishable from the pyramid scheme described in State, ex rel., v. Koscot Interplanetary, Inc., 212 Kan. 668, 512 P.2d 416 (1973). It does not fit into the category of a franchise agreement. We have not embraced the “risk capital” test discussed in Silver Hills Country Club v. Sobieski, 58 Cal. 2d 811. In arriving at a decision to affirm we consider the following facts:
Big 3’s parent corporation, Wayco Distributing Corporation, began selling automotive brake shoes to customers throughout the United States in early 1976. Eventually it branched into the sale of other auto parts, such as water pumps, alternators, voltage regulators, starter drives and spark plugs. Big 3 was created as a subsidiary in 1979 for the purpose of selling a “tune-up” line of parts. No auto parts are identified by the Wayco or Big 3 name. Big 3 does not manufacture parts. It sells brand name parts as well as nonbrand name parts on a wholesale basis to its customers who also sell them wholesale to garages and service stations. Big 3 has no trademark, logo, symbol, or other identifiable sign. It does not advertise its products but limits its advertising to the solicitation of wholesaler customers such as Mr. Brock.
The Big 3 sales system is simple and perhaps unique in eliminating several layers of middlemen in getting auto parts to its customers who sell to repair shops. Generally, Big 3 eliminates the major distributor, warehouse distributor, and the warehouse jobber, the middlemen who add to the cost of auto parts. It does so by buying directly from the manufacturer or, in the case of Ford, GM and Chrysler, from their major distributors. Big 3 then sells to its customers, sometimes on a direct shipment basis from Big 3’s supplier, who is paid by Big 3. The wholesaler-customer, in turn, sells at a marked-up wholesale price, generally on consignment to his or her own customers, usually garages and service stations. Big 3 stays competitive. by buying in lárge volume directly from manufacturers which on order ship direct to distributors. This eliminates substantial warehousing costs, utilizes independent commission sales representatives to solicit wholesaler-customers, and enables sales on a cash or C.O.D. basis.
There is no tie-in linking the wholesaler-customer’s business success to Big 3. Big 3 is in the business only of selling auto parts as a wholesaler to smaller wholesalers. In other words, there is no common enterprise upon which the Big 3 customer relies. While it is true that if Big 3 were to go bankrupt the customers would lose some benefit on account of future sales orders, that is true of any business. For example, Chrysler auto dealers face a problem if the manufacturer, Chrysler Motor Products, eventually goes into bankruptcy, or if its cars do not sell as well as competitive cars. But, that does not put the auto dealer into the same enter prise as Chrysler Motor Products. Paragraphs 4 and 5 of the agreement make that clear.
Big 3 argues that it is obvious that the wholesaler-customer’s success is entirely dependent on his or her own efforts. Even the State admits that there were no set prices which the investors were to charge their customers and each investor was free to choose the number of hours he wanted to work each week and the time necessary to service each of the accounts. The investor could hire help if he chose to. He could add additional locations. He could sell repair parts out of the back of his truck. He has a great deal of discretion. Use of the locator service was optional. Mr. Brock, however, testified it was not made entirely clear to him when he entered into the agreement that locator service was optional. Mr. Brock further testified that his locator was in town for two days and he “basically dumped” the cabinets any place anyone would take one. It doesn’t appear any great amount of managerial effort was undertaken by Big 3 in finding the locations.
There may have been misrepresentations made by Big 3 in its contacts while locating and contracting with distributors. However, fraud and misrepresentation, if any, did not subject Big 3 to criminal action under the Kansas Securities Act because the contractual arrangement agreed on did not constitute an investment contract controlled by the Kansas Securities Act.
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The opinion of the court was delivered by
Holmes, J.:
The City of Topeka, a defendant in a comparative negligence action, appeals from an order dismissing its cross-claim against Kansas Power and Light Company (KP&L), a codefendant. Both parties, along with several other defendants, settled with the plaintiff and he, along with the other defendants, are not parties to this appeal.
On September 26, 1977, at approximately 6:45 a.m., plaintiff David Baker was proceeding south on Topeka Boulevard in Topeka when he was involved in a collision which has left him incapacitated. The collision involved the motorcycle ridden by Baker and an automobile driven by Coleen Chisham, and occurred at the intersection of Topeka Boulevard and Croix Street.
The intersection is supposed to be controlled by an automatic traffic signal. On the morning of the accident, however, the signal was malfunctioning. As Baker approached the intersection he faced a steady green signal. Ms. Chisham, on Croix Street, was becoming impatient on her way to work because she had waited an unusually long time at a steady red light. Believing the lights to be malfunctioning, Ms. Chisham proceeded through the intersection against the red signal, whereupon her automobile collided with Baker’s motorcycle.
About one-half hour before the accident occurred, a Shawnee County Sheriff’s Deputy had gone through the intersection and had reported to his dispatcher that the traffic lights were cycling unusually fast. Since traffic was light at the time, he did not feel the situation required him to stop and direct traffic.
About fifteen or twenty minutes before the accident, a Topeka Police Officer, Robert Lee Burkhardt, went through the intersection in his private automobile. On his way home after finishing his shift, Officer Burkhardt observed the signal at the intersection was stuck and noticed some traffic congestion. Since he was off-duty and had no emergency equipment or two-way radio in his car, he did not stop to direct traffic. When he reached home, he telephoned the Topeka Police Dispatcher to report the stuck signal.
About eight minutes before the accident, Topeka Police Officer Mark W. Meier also proceeded through the intersection. He was heading for the station house to conclude his tour of duty which, technically, had already ended. After sitting on Croix Street at the red signal for approximately three minutes, Officer Meier determined that the light was stuck. He decided there was no hazard and that he did not need to stay there and direct traffic. He proceeded through the red light onto Topeka Boulevard toward downtown, reporting the stuck signal by radio to his dispatcher, Randy Carver.
The dispatcher contacted KP&L, informed them of the malfunction and requested repairs. He was advised it could take as much as one hour for the repairman to get to the intersection. Dispatcher Carver did not deploy any Topeka police officers to the intersection to direct traffic pending the arrival of KP&L’s repairman. Shortly thereafter he was informed by the Shawnee County Sheriff’s office that the Baker-Chisham traffic accident had occurred.
Seeking redress for the serious personal injuries he sustained, plaintiff, by his conservator, filed claims for damages against numerous defendants including the City, KP&L, Ms. Chisham, Officers Meier and Burkhardt, the signal light manufacturer and its parent companies, the distributor, the State of Kansas, and the Kansas Secretary of Transportation. Then, among the defendant parties, various cross-claims were filed seeking indemnification for damages which plaintiff might recover against the cross-claimant. Eventually, all of the defendants either settled with the plaintiff or were dismissed from the lawsuit. The settlement totaled $1,175,500.00, of which KP&L paid $675,000.00 and the City $178,000.00. The settlements negotiated by KP&L and the City were for the negligence and liability of each defendant only and in each release executed on behalf of plaintiff, he reserved the right to pursue his claims against the remaining defendants. In addition, in the settlement agreement executed by plaintiff and the City, the City reserved the right to pursue its cross-claim against KP&L. KP&L was not a party to the City’s release and had no part in the settlement negotiated between plaintiff and the City. The City had filed a cross-claim against KP&L seeking indemnity for any amounts it might ultimately have to pay the plaintiff but after all the defendants had settled, individually, with plaintiff or been otherwise dismissed from the action, the court dismissed plaintiff’s case with prejudice as to all defendants and terminated the litigation. The City has appealed, asserting it has a right to indemnification from KP&L based upon an express written contract or, in the alternative, on common law principles of indemnity.
On the 5th of June, 1962, the City of Topeka and KP&L entered into an express contract, adopted as City Ordinance No. 10646, whereby the City agreed to purchase from KP&L its requirements for street and alley lighting, and the operation and maintenance of traffic and school signal lights, including the signal light located at the intersection of Topeka Boulevard and Croix Street. The pertinent portions of the contract provide:
“3. The Company shall operate the above lighting facilities and signal systems according to the scheduled hours of burning, and shall maintain the same. . . . Traffic signal lights shall be operated twenty-four (24) hours each day or upon such reduced schedule as may be designated by the City.
“6. The Company shall use reasonable diligence to provide regular and constant service according to schedule, but does not guarantee that the service will at all scheduled times be continuous. In case Company is unable to render or is prevented from rendering continuous service by accidents, suspension or interruption of transportation facilities, fires, explosions, cyclones, tornadoes, floods, earthquakes or other revulsions of nature, strikes, lockouts, or other cessation of work by operating personnel, picketing, riots, war, insurrection, inability to procure cars, fuel, or other material or commodity necessary for the delivery of such lighting service, federal, state or other governmental laws or regulations, or other contingencies beyond its control, Company shall not be obligated to render street lighting, traffic signal lighting or school signal lighting service during such period, and shall not be liable to City for any damages in the premises. Nothing herein contained shall be construed as permitting City to refuse the said service as soon as the cause of interruption is removed.
“8. The Company in the construction, maintenance and operation of the facilities provided for herein shall use reasonable care to avoid damage or injury to persons or property and shall save and hold harmless the City of and from any and all damages, injuries and expenses caused by the negligence of the Company, its agents or employees, or by reason of the failure of the Company to comply with the provisions of this agreement.”
By its terms, the express contract was for a ten-year period from the date of its execution. Although the contract term expired in 1972, some five years before the traffic accident, KP&L and the City continued to perform in the same manner as they had under the written contract. Services were performed and bills were paid by the respective parties even though no memorial of their agreement was redrafted and no new ordinance was adopted. It is the City’s contention that the original contract has been extended as to all its terms by the actions of the parties, while KP&L acknowledges that there is some sort of an informal agreement or understanding but that the indemnity provision is no part of whatever arrangement may exist. It appears that KP&L has performed its duties in the same manner as it did during the ten-year term of the contract and the City has been paying for services in the same manner as under the written agreement, including periodic increases in the amounts paid when the same aré authorized by the Kansas Corporation Commission.
At the outset it should be pointed out that the settlements made by the City and KP&L were for the individual liability, or fault or negligence of each party and in no way purported to be a settlement of all plaintiff’s claims or of any claims other than the claim of plaintiff against each defendant separately. In other words, KP&L settled with the plaintiff for its negligence only and the City settled with the plaintiff for its negligence only. In this respect this case differs considerably from Ellis v. Union Pacific R.R. Co., 231 Kan. 182, 643 P.2d 158 (1982), and Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788 (1980).
Did the contract or franchise between the City and KP&L continue after its expiration date in 1972? We think so.
Generally, upon the expiration of a municipal franchise granted to a public utility there is no longer any contractual relationship between the municipality and the utility. 36 Am. Jur. 2d, Franchises §59, p. 788. The exception to this general rule occurs, however, when the parties to the franchise agreement continue to perform after the expiration of the franchise in the same manner as they did when the franchise was still formally in effect. A number of cases to this effect are summarized in 17 Am. Jur. 2d, Contracts §520, p. 1007, as follows:
“The doctrine has been advanced that where an agreement expires by its terms, and, without more, the parties continue to perform as before, an implication arises that they have mutually assented to a new contract containing the same provisions as the old; and ordinarily the existence of such a contract is determined by the ‘objective’ test, that is, whether a reasonable man would think the parties intended to make such a new binding agreement.”
A number of decisions have applied this principle to contractual relationships existing between municipalities and franchisees, when both continue to accept benefits and burdens of the franchise after the term of the franchise has expired. In Incorporated Town of Pittsburg v. Cochrane, 195 Okla. 593, 159 P.2d 534 (1945), the plaintiff was a holder of a franchise granted by a city under which the franchise holder was to furnish water and lights to the inhabitants of the town for a period of twenty years. After the expiration of the twenty-year term, neither party did anything to continue or discontinue their relationship. The utility continued to furnish water and lights and the town inhabitants continued to pay for such services. The utility defaulted on its taxes, and Cochrane acquired the utility’s property at a sheriff’s sale. The city brought an action to enjoin Cochrane from removing the assets of the utility. The court held that Cochrane acquired no greater rights than the original franchise holder, and that the utility’s assets could not be removed without first giving the town reasonable notice in which to obtain a new water system. The court stated in effect that the contractual relationship that existed prior to the expiration of the express franchise continued on the same terms and conditions after the date of expiration and said:
“If after termination of the franchise the company continues to furnish and the town accepts the service, an implied contract of indefinite duration arises and the company functions as a quasi-public utility subject to the terms of the former franchise and the rules and regulations of the Corporation Commission. Such arrangement may be terminated by either party by the giving of such reasonable notice as would be consistent with the duty owed by both to the inhabitants of the town. See Ann. 112 A.L.R. 635, 43 Am. Jur. sec. 79, page 622.” pp. 596-597. (Emphasis added.)
In Bowers v. Public Service Co., 328 Mo. 770, 41 S.W.2d 810 (1931), the Missouri Supreme Court was faced with an expired franchise agreement between Kansas City, Kansas, and the Kansas City Railways Company. The court held that despite the expressed term of the agreement, a twenty-year period, the obligation created under the contract remained valid after the expiration of the term where the benefits were still derived:
“In other words, they acted as though the franchise was still in existence, and for that reason they should not be heard to say that they were not exercising it. Since the receivers treated the franchise as a live instrument, acted thereunder and received its benefits, they should not be permitted to avoid the obligations it created.” p. 775.
KP&L, on the other hand, asserts that the indemnity clause of the agreement was dropped and relies upon cases and authorities which require that indemnity agreements which are exculpatory in nature should be strictly construed. However, in the cases cited by KP&L the factual situations did not involve the continued performance of the parties under an agreement in which the term had expired. We do not believe that KP&L could continue to reap the benefits of the 1962 agreement after its expiration in 1972 yet be relieved of the burdens of the same agreement. We hold that the parties by their actions and performance continued the terms of the 1962 agreement past the expiration date.
Having determined that the terms of the 1962 agreement continued, is the City entitled under those terms to indemnity from KP&L? We think not. The agreement specifically provides that KP&L will hold the City harmless in two situations: (1) from loss caused by the negligence of KP&L, its agents and employees, and (2) from loss due to the failure of KP&L to comply with the provisions of the agreement. Nothing in the agreement indicates any intent that KP&L will hold the City harmless from the negligence of its own agents and employees. The City in this case settled with the plaintiff for what the City determined was a reasonable amount to cover its own negligence and fault. Nowhere is there any indication that the settlement by the City contemplated payment for the fault or negligence of any of the other defendants, including KP&L. Likewise KP&L settled for its negligence, fault and liability and not for that of any other defendant. In Missouri Pacific Railroad Co. v. City of Topeka, 213 Kan. 658, 518 P.2d 372 (1973), we had occasion to review certain principles to be applied in the construction of indemnity agreements and held:
“An exculpatory agreement is to be construed strictly and its terms are not to be extended to situations not plainly within the language employed.” Syl. f 3.
The first alternative under the agreement clearly does not apply and the City, having settled its own liability for its own acts, likewise does not have a right of indemnity under the second alternative which applies only to breach of contract by KP&L.
Next, the City asserts that it has a common law right to indemnity based upon the theory that KP&L was the real wrongdoer and primarily liable for the injury. Insofar as the City attempts to assert a common-law right to total indemnity based upon the active-passive, primary-secondary or real wrongdoer dichotomy, that issue has been determined adversely to the City’s position in Ellis v. Union Pacific R.R. Co., 231 Kan. 182, and Kennedy v. City of Sawyer, 228 Kan. 439. The City, however, also asserts what appears to be a claim for partial indemnity or comparative im plied indemnity as enunciated in Ellis and Kennedy. In seeking recovery upon the common law theory of indemnity, the City relies upon City of Fort Scott v. Penn Lubric Oil Co., 122 Kan. 369, 252 Pac. 268 (1927), and City of Topeka v. Sash & Door Co., 97 Kan. 49, 154 Pac. 232 (1916). The City’s reliance on Fort Scott and Sash & Door Co. is misplaced. In Sash & Door Co., the City of Topeka was compelled to pay a judgment obtained against it by a pedestrian who fell and was injured on a defective sidewalk. The City sued Central Sash & Door Co. alleging the defects in the sidewalk were caused by defendant’s use thereof. The court held that the petition stated a cause of action based upon the active fault of the defendant in producing the defective condition of the sidewalk. In Fort Scott the injured party brought suit against the City of Fort Scott and Penn Lubric Oil Co. for injuries received from a fall on a defective sidewalk. The oil company settled with the injured plaintiff who specifically reserved his right to proceed against the City, and in doing so obtained a judgment. The City in turn sought indemnity from the oil company on the basis that it was the oil company that created the dangerous and defective condition in the sidewalk. The court held that the city could recover against the oil company because the active negligence of the oil company as opposed to the passive negligence of the city breached an implied contract that the oil company would exercise due care and protect the public and the city from loss. The court stated that the primary liability rested with the oil company because it was the “real wrongdoer” and that the city was only secondarily liable. Obviously, Fort Scott and Sash & Door were decided long before the adoption of comparative negligence. We have held that under K.S.A. 60-258a each party in a comparative negligence action is only responsible for its own percentage of negligence and is not entitled to indemnity from another based upon an active-passive, primary-secondary or real wrongdoer classification. Kennedy v. City of Sawyer, 228 Kan. 439. Therefore the basis for finding implied indemnity in Fort Scott and Sash & Door is not viable under the facts in this case. Any right to implied indemnity can only arise when one has paid the obligation of another which was not the case here. The City specifically settled with the plaintiff for all of plaintiff’s claims against the City and there is no showing that the City was in any way paying the plaintiff for any negligence or fault of KP&L.
In addition, there was no written contract in Fort Scott and Sash & Door which would control the rights of the parties. Here the City of Topeka and KP&L were operating under an express written agreement which established their obligations each to the other. Any indemnity between the parties would be limited to that provided by the terms of the written agreement.
We have carefully considered all points raised by appellant and conclude the action of the trial court in dismissing the City’s cross-claim was correct. In view of the foregoing, the issue raised by KP&L on its cross-appeal is moot and need not be addressed.
The judgment is affirmed. | [
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WHEREAS, on the 2nd day of February, 1982, Arno Windscheffel, Disciplinary Administrator, filed a disciplinary complaint against Lowell C. Wriston, an attorney admitted to the practice of law in the State of Kansas; and
WHEREAS, this Court has been advised by the United States Department of Justice that Lowell C. Wriston was charged in the United States District Court for the District of Kansas, with the offenses of conspiracy to embezzle funds of a savings and loan association contrary to 18 U.S.C. 651 and 18 U.S.C. 371, and one count of mail fraud contrary to 18 U.S.C. 1341; and
WHEREAS, the charge of mail fraud was dismissed by the government prior to trial; and
WHEREAS, Lowell C. Wriston was found guilty by a jury of conspiracy to embezzle funds of a savings and loan association, such violation being a felony; and
WHEREAS, Lowell C. Wriston notified the Clerk of the Supreme Court and the Disciplinary Administrator that he desired to voluntarily relinquish his license and privilege to practice law in the State of Kansas; and
WHEREAS, after due consideration, the Court finds that respondent’s certificate to practice law should be cancelled and declared void and the voluntary relinquishment of his right to practice law be accepted.
NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that Lowell C. Wriston be, and he is hereby disbarred from the practice of law in the State of Kansas and the privilege of Lowell C. Wriston to practice law in the State of Kansas is hereby revoked and the Clerk is directed to strike the name of Lowell C. Wriston from the roll of attorneys in the State of Kansas.
IT IS FURTHER ORDERED that the certificate of Lowell C. Wriston 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 Lowell C. Wriston.
RY ORDER OF THIS COURT dated this 25th day of May, 1982.
IT IS FURTHER ORDERED that this order shall be published in the official Kansas Reports and that the Cleric shall comply with the requirements of Rule 217. | [
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The opinion of the court was delivered by
Prager, J.:
This is an action brought by the plaintiff, Board of Education of Unified School District No. 512, to quiet its title to certain real estate located in Johnson County on which certain school buildings are located. The action was brought against the defendants, Vic Regnier Builders, Inc., Dennis L. Steele and Frances Steele, former owners of the real estate who had been divested of title in eminent domain proceedings in 1956 and 1959. The basic issue to be decided is whether the eminent domain statute, G.S. 1949, 72-4701 (1955 Supp.), under which title was acquired by the district, authorized the taking of a fee simple title. The district court held that the school district acquired fee title and that the plaintiff’s title should be quieted against the claims of the defendants as former owners. The defendants appealed to the Court of Appeals which reversed the district court in a published opinion in Board of Education of U.S.D. 512 v. Vic Regnier Builders, Inc., 6 Kan. App. 2d 888, 636 P.2d 802 (1981). The Supreme Court granted the school district’s petition for review.
The undisputed facts are set forth in the decision of the Court of Appeals and are as follows: In 1956, the predecessor of U.S.D. 512 acquired the property of the defendants, Dennis L. Steele and Frances Steele, for a school site by right of eminent domain under G.S. 1949, 72-4701 (1955 Supp.). The parties do not question the regularity of those proceedings, only the extent of the title acquired. The pleadings in the condemnation action merely alleged it was necessary to appropriate and acquire the private property for use for a site for a school building. The appraisers appraised the land and assessed damages both for the value of the tract and for severance. The journal entry provides that upon payment of $15,000, plus court costs and appraiser’s fees, the title to said lands shall immediately vest in the school district. The amount was paid into court and the school district proceeded to construct a building thereon.
In 1959, three years later, the predecessor of U.S.D. 512 commenced a similar proceeding to acquire certain property of defendant Vic Regnier Builders, Inc., which was adjacent to the property previously acquired from the Steeles. The eminent domain proceedings were undertaken pursuant to the authority of G.S. 1949, 72-4701 (1955 Supp.), as before, and the petition alleged the necessity for appropriating the property for the lawful purposes of the school district. The journal entry recited that the district had the right of eminent domain for the purpose of appropriating the land described in its petition to be used as an addition to and an extension of its present school building site. The appraisers valued the land and set damages at $10,500. The amount was paid into court and the school district has since held possession of the property. The parties do not question the regularity of these proceedings, only the extent of the title acquired.
As a result of these two condemnation proceedings, the plaintiff’s predecessor acquired the property, constructed a school building, and added to the school building site. It appears from the briefs in the case that the school district expended in excess of $850,000 for construction and additions to the school building. The property so condemned became part of the Marsha Bagby Grade School Attendance Center.
Thereafter, the number of students attending at this attendance facility dropped, and in 1978 the electors within the area voted to close the school since it was no longer needed as an attendance facility. Plaintiff alleges in its petition that the building continues to be used for school purposes, including the offices for the Special Education Department of the district, and that the school board now desires to clear title to the real estate so that the property may be sold or otherwise disposed of. The defendants answered and alleged that the school district acquired only the right to use the two parcels of land as a site for school buildings and for other school purposes. They further allege that the property has been abandoned, that it is no longer being used for the purposes authorized, and that, when abandoned, the title to the property reverts to the former owners, the defendants.
Simply stated, the basic issue presented in the case is whether the plaintiff school district acquired the fee title to the property in the two condemnation proceedings held in 1956 and 1959. As noted above, the district court held that it did, and the Court of Appeals held that it did not. As will be obvious in the course of the opinion, the issue presented is not without difficulty and there is a fair and reasonable argument to be made on both sides.
Before turning to a solution of our problem, it would be helpful to consider some of the basic principles of law recognized and applied by the courts in determining the extent of the interest acquired by a condemner in an eminent domain proceeding. There is an extensive discussion on the subject of the title acquired by eminent domain in Chapter 9 of 3 Nichols on Eminent Domain (3rd ed. rev. 1981) commencing at Section 9.1. In that chapter, the author cites many cases throughout the country, including Kansas cases, recognizing the following general principles:
(1) The general rule is that only such an estate in the property sought to be acquired by eminent domain may be taken as is reasonably necessary for the accomplishment of the purpose in aid of which the proceeding is brought. Carpenter v. Fager, 188 Kan. 234, 361 P.2d861 (1961); Sutton v. Frazier, 183 Kan. 33, 325 P.2d 338 (1958); Federal Farm Mortgage Corp. v. Smith, 149 Kan. 789, 89 P.2d 838 (1939); County of Shawnee v. Beckwith, 10 Kan. *603 (1873).
(2) Unless there is a constitutional inhibition upon the power of the legislature in this respect, the latter has the sole power to determine what shall be acquired both as to the quantum and quality of estate. The Kansas Constitution places no limitations or restrictions on the title of land which may be acquired by the process of eminent domain. Thus, the legislature has the full power to determine the nature of the title to be so acquired by the condemner. Devena v. Common School District, 186 Kan. 166, 348 P.2d 827 (I960); Sutton v. Frazier, 183 Kan. 33; State, ex rel., v. State Highway Comm., 163 Kan. 187, 182 P.2d 127 (1947).
(3) The general rule is that eminent domain statutes will be construed to authorize only the taking of an easement on or title to land sufficient for the public use intended rather than a fee title, unless the statute clearly so provides, either expressly or by necessary implication. Sutton v. Frazier, 183 Kan. at 41; State, ex rel., v. State Highway Comm., 163 Kan. 187. No precise words are necessary in a statute to authorize condemnation of a fee simple absolute, nor is it necessary that the authority to take a fee be given in express terms. Devena v. Common School District, 186 Kan. 166; Buckwalter v. School District, 65 Kan. 603, 70 Pac. 605 (1902).
(4) In the absence of express or precise provisions, the intention of the statute and the construction to be put upon its terms may be gathered from its general scope and tenor, and the nature of the public use for which the condemnation is authorized. If the legislative intention to vest the fee is thus made clear, and this intention is consistent with the language employed, effect will be given to the intention. This is especially true where a remaining private ownership is inconsistent with the use for which the land is taken, and where the purposes of the condemnation will not be satisfied by the taking of a lesser estate or easement. Wood v. City of Mobile, 107 F. 846 (5th Cir. 1901); United States v. 635.76 Acres of Land, Etc., Arkansas, 319 F. Supp. 763 (W.D. Ark. 1970).
(5) If a public easement has been taken which is subsequently discontinued or abandoned, the land reverts to the owner of the fee, free from any rights of the public. Federal Farm Mortgage Corp. v. Smith, 149 Kan. at 791; Skelly Oil Co. v. Kelly, 134 Kan. 176, 180, 5 P.2d 823 (1931).
(6) When a fee simple title, free from any easement or conditions, is acquired by the exercise of the power of eminent domain, if the use for which the land was condemned is lawfully discontinued or abandoned, there is no reversion and the condemner may devote it to other uses or sell it in the same manner as an ordinary private owner. Skelly Oil Co. v. Kelly, 134 Kan. 176.
(7) As a general rule, where land is taken for construction of a public building, the fee is taken, but for other public uses only an easement is deemed to have been acquired. 3 Nichols on Eminent Domain § 11.209. In cases involving schoolhouses, the decisions in other states disagree. Some hold that the school district acquires a fee simple title; other cases hold to the contrary. For example, see Carter v. Davis, 141 Okla. 172, 284 Pac. 3 (1929), and Valentine v. Lamont, 13 N.J. 569, 100 A.2d 668 (1953). The only Kansas cases involving schoolhouse sites held the school district acquired the fee title. Buckwalter v. School District, 65 Kan. 603, and Devena v. Common School District, 186 Kan. 166.
From the general principles stated above, it is obvious that the various courts confronting the issue have been primarily concerned with the statutory construction and the legislative intent in each particular case. Likewise, in the present case, we must construe the various statutes on the subject in arriving at a solution to our problem. In so doing, we must keep in mind that the fundamental rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute, even though words, phrases or clauses at some place in the statute must be omitted or inserted. Farm & City Ins. Co. v. American Standard Ins. Co., 220 Kan. 325, Syl. ¶ 3, 552 P.2d 1363 (1976). In determining legislative intent, courts are not limited to a mere consideration of the language used, but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. Brown v. Keill, 224 Kan. 195, Syl. ¶ 3, 580 P.2d 867 (1978). In order to ascertain the legislative intent, courts are not permitted to consider only an isolated part or parts of an act but are required to consider and construe together all parts thereof in pari materia. 224 Kan. at 200.
Another principle of law well recognized in Kansas is that a statute should never be given a construction that leads to uncertainty, injustice or confusion if. it is possible to construe it otherwise. Coe v. Security National Ins. Co., 228 Kan. 624, 620 P.2d 1108 (1980); Whitehead v. State of Kansas Labor Department, 203 Kan. 159, 162, 453 P.2d 11 (1969). Furthermore, courts are not bound to an examination of the statutory language alone, but may properly inquire into the causes which impel the statute’s adoption, the objectives sought to be attained, the statute’s historical background, and the effect the statute may have under the various constructions suggested. State, ex rel., v. Kalb, 218 Kan. 459, 464, 543 P.2d 872 (1975); State, ex rel, v. City of Overland Park, 215 Kan. 700, 527 P.2d 1340 (1974).
Ordinarily, there is a presumption that a change in the language of a statute results from the legislative purpose to change its effect, but this presumption may be strong or weak according to the circumstances, and may be wanting altogether in a particular case. The presumption is fairly strong in the case of an isolated, independent amendment, but is of little force in the case of amendments adopted in a general revision or codification of the law. Confinement Specialists, Inc. v. Schlatter, 6 Kan. App. 2d 1, 626 P.2d 223, rev. denied 229 Kan. 669 (1981); Hauserman v. Clay County, 89 Kan. 555, 558, 132 Pac. 212 (1913).
We turn now to the question of the power of a school district in this state to acquire fee title to land taken by eminent domain. There is no question that prior to 1951 a school district which condemned land for the purpose of constructing a school building acquired a fee title to the property. Public ownership of school lands has been deeply ingrained in the fabric of Kansas law as the public policy of this state since the beginning. We believe that, in order to properly determine this case, we should review the Kansas law on the subject, commencing in 1854 when the subject of public ownership of school lands was provided for in Section 34 of the Act to Organize the Territory of Kansas enacted by Congress in that year. Organic Act of May 30, 1854, ch. 59,10 Stat. 289. Section 34 reserved sections 16 and 36 in each township in the Kansas territory for the purpose of being applied to schools in the territory and in the state thereafter to be erected out of the same. There was a similar provision in Section 3 of the Act for the Admission of Kansas into the Union, Act Jan. 29, 1861, ch. 20,12 Stat. 127. In State v. Stringfellow, 2 Kan. *263 (1864), it is stated on page *320 that the object of the provision in § 34 of the Organic Act was to furnish the basis of a perpetual fund for the benefit of the people who should inhabit the country for the use of schools. It is further stated that a sale of these lands, or at least a portion of them, must have been contemplated. The proceeds of such sales were to be applied to the use of schools in the township in which the lands sold might be situated.
Chapter 122, Laws of Kansas 1874, and Chapter 174, Laws of Kansas 1885, provided for the condemnation of land for schoolhouse sites by providing, in substance, that in case any school district cannot, by purchase at reasonable rates, or by donation or otherwise, obtain title to the site selected by such school district, upon written application of the district board of the school district, it shall be the duty of the probate judge of the county in which such school district is situated to appoint three disinterested freeholders to condemn and appraise such site or additions thereto. Following the filing of the report of the appraisers, the school district board was required to pay to the county treasurer of the county in which the condemned land was situated the amount of the appraised value. The statute then provided that, upon such payment being made to such county treasurer by such district board, the title to such land shall vest in such school district. This provision was later incorporated into § 6131 of the General Statutes of Kansas of 1901.
In the case of Buckwalter v. School District, 65 Kan. 603, in 1902, the Supreme Court interpreted that section to afford a school district the power of acquiring the fee interest in land taken by condemnation for a school site..The court, in reaching this decision, relied upon the provisions of the law that, upon payment being made by the district board, the title to such site “shall vest in such school district.” In the case of Devena v. Common School District, 186 Kan. 166, in 1960, the issue presented was whether a common-school district in the exercise of the power of eminent domain in a suit filed for the purpose of acquiring a schoolhouse site filed in 1893 under this same statute, vested in the school district the fee simple title to the land taken. In an unanimous decision, this court held that it did, leaving no reversion or other interest in the landowner. The court in Devena relied on the prior decisions in Buckwalter v. School District, 65 Kan. 603, and Skelly Oil Co. v. Kelly, 134 Kan. 176, a case involving condemnation of land by a city for a park. The court, in Devena, recognized that the extent of the interest which the school district acquired must be determined by the empowering statute then in force and effect. It is important to note that this 1889 statute declared not only the authority for the school district to exercise the power of eminent domain but also provided, within the statute itself, the procedure for condemnation of a school site. It was the procedural section of the statute which provided that, upon payment of the appraised value, the title to the site should vest in the school district.
Since the decisions of this court in Buckwalter and Devena, there has not been a single case in the Kansas appellate courts holding that a school district which condemns property for a school site does not obtain fee title to the land condemned, until the decision of the Court of Appeals was filed in this case on November 25, 1981. This is true in spite of numerous statutory changes involving the powers of school districts. It would be helpful to review these various statutory amendments.
The legislature in Chapter 86, Laws of 1909, Section 1, conferred the right of eminent domain upon certain boards of education. Sections 2, 3, and 4 of the same act provided the procedure to be followed in the exercise of that right. Section 4 provided that within 30 days after the commissioners’ appraisal report was filed, the school board could pay the county treasurer, for the use of the owner of such land, the amount of the appraised value and the title to such land so condemned and appropriated shall immediately vest in such board of education and it shall have the right to take possession or occupy and use the same. It must be emphasized that in this 1909 statute, as in the 1874 and 1885 statutes, the power of eminent domain was given to school boards and the procedure for its execution was included as different sections in a single enactment. Chapter 86 of the Laws of 1909, §§ 1, 2, 3, and 4, was included in G.S. 1909 as §§ 7859 through 7862. These same sections were again included in G.S. 1915 as §§ 9408 through 9411.
In 1921, the legislature, by Chapter 207, Laws of 1921, directed the Supreme Court to appoint a commission of three members to supervise the revision, compilation, and printing of the General Statutes of Kansas in one volume. This commission’s product was the Revised Statutes of 1923. New chapters were added and other chapters were dropped or changed from the general compilation of the statutes. A new Chapter 26 was created on the subject of eminent domain for the purpose of covering all the provisions relating to the condemnation of private property for public use. R.S. 1923, 26-101 was the general condemnation law, stating that “[a]ny corporation, having the right of eminent domain, except railroad and interurban railway corporations, shall exercise such right” in accordance with the procedure prescribed in that section. In paragraph three of 26-101, provision was made for the payment of the appraised price into the office of the clerk of the district court and, upon so doing, the title to the property condemned should immediately vest in the petitioner. The statutes, which previously had been §§ 1 and 2 of Chapter 86 of Laws of 1909, were placed in R.S. 1923, 72-4701 and 72-4702. It is interesting to note that although these two sections conferred upon school district boards the right of eminent domain, there is no specific reference to the interest which could be acquired, whether fee simple or otherwise, and there is no language to the effect that the title condemned should be vested in the school district.
What had been Section 1 of Chapter 174 of the Laws of 1885 was placed by the commissioners at R.S. 1923, 72-503. That section provided that in case any school district cannot purchase a school site at a reasonable rate it may proceed “to condemn and acquire title to such real estate, as provided by law.” The magic word “title” is still used, and it appears that no one at that time questioned the power of a school district board to condemn property for a school site and to acquire the fee interest.
Sections 72-503, 72-4701, and 72-4702 were included with the same section numbers in the General Statutes of Kansas of 1935 and again in the General Statutes of Kansas of 1949. It is of interest to note that 72-503 had been modified by the 1943 legislature by authorizing a common-school district board to appropriate private property for a site or for any other school purpose and that the board may proceed to condemn and acquire title as provided in Article 1 of Chapter 26 of the General Statutes of 1935 and acts amendatory thereof and supplemental thereto. Thus the sections in Chapter 72 pertaining to the power of eminent domain in school boards, instead of setting out the procedure in that chapter, simply authorized the board to condemn by proceeding as provided in Article 1 of Chapter 26.
The statutory changes which brought about this lawsuit occurred in the legislative session of 1951. In that session, the legislature enacted Chapter 395, Laws of 1951. That chapter was a complete clarification and codification of the laws governing schools in this state. It covered such matters as the powers and duties of the county superintendent of schools, school meetings, the duties of common-school district officers, registration of teachers’ certificates and school bonds. The statute had specific sections covering boards of education of common-school districts, community high schools, and rural high schools. As a part of this complete reorganization of the school laws of Kansas, additional provisions were also enacted in Chapters 396 through 428. These were special statutes covering such matters as common schools in Johnson County, payment of tuition of elementary pupils in certain cases, creation of building funds in certain districts, school employees’ retirement systems, high school extension courses, and other matters affecting only certain specific school districts. There was no legislation which purported to have as its purpose the diminution of the power of eminent domain previously vested in school boards.
Section 74 of Chapter 395, Laws of 1951, repealed §§ 72-503, 72-4701, and 72-4702 of the General Statutes of 1949. Section 72 amended G.S. 1949, 72-7401, to provide as follows:
“Sec. 72-4701. Right of eminent domain. The right of eminent domain is hereby conferred upon common-school districts, rural high-school districts, community high-school districts and the boards of education of cities of the first and second class, to be exercised in the manner provided by article 1 of chapter 26 of the General Statutes of 1949 and acts amendatory thereof and supplemental thereto. Such right of eminent domain may be invoked for the purpose of appropriating private property for use for sites for school buildings, playgrounds, agricultural, vocational or athletic purposes, or any addition or extension to any school building site or playground, or for any other school purpose for which property may be lawfully acquired.” p. 629.
It is important to note that the magic word “title” has now been eliminated and is no longer contained in the new 72-4701. G.S. 1949, 72-503, which had previously authorized a school district board to “condemn and acquire title” to property by condemnation had now been eliminated. The gut issue present in this case is whether the elimination of the magic word “title” had the effect of taking away from all school district boards the power to acquire fee title to land condemned for school sites, which had been the law of Kansas since 1874.
It must be emphasized that G.S. 1949, 72-4701 (1955 Supp.) specifically refers to Article 1 of Chapter 26 of the General Statutes of 1949 and acts amendatory thereof. This is known in legislative parlance as “legislation by reference.” It is a procedure which has been followed in Kansas for many years. Statutes which refer to other statutes and make them applicable to the subject of the new legislation are called “reference statutes.” It is said that the purpose of such practice is to incorporate into the new act the provisions of other statutes by reference and adoption, and thereby to avoid encumbering the statute books by unnecessary repetition. 73 Am. Jur. 2d, Statutes § 28. The adoption of an earlier statute by reference makes it as much a part of the later act as though it had been incorporated at full length.
In Griffin v. Gesner, 78 Kan. 669, 670-71, 97 Pac. 794 (1908), the Supreme Court made the following comment on legislation by reference:
“Legislation by reference to other acts sometimes produces decidedly crude statutes and frequently occasions confusion and uncertainty in the law. Such legislation is prohibited by the constitutions of some of the states, but the method is not entirely condemned by the constitution of this state. (Wichita v. Telephone Co., 70 Kan. 441, 447, 78 Pac. 886.) When the references are as blind as they are in the primary election law it becomes a very difficult and perplexing thing for the people, for public officials and for the courts to know what the statutory provisions are upon the subjects involved.”
The procedure of legislation by reference is also recognized in Board of County Comm'rs v. Robb, 166 Kan. 122, 136, 199 P.2d 530 (1948); State, ex rel., v. Davis, Governor, 116 Kan. 663, 229 Pac. 757 (1924); State v. Shawnee County, 83 Kan. 199, 203, 110 Pac. 92 (1910).
The most recent case on the effect of the reference of one act to another statute is Johnson v. Killion, 178 Kan. 154, 283 P.2d 433 (1955). Syllabus ¶ 2 of Johnson states that the adoption of an earlier statute by reference makes it as much a part of the later act as though it had been incorporated at full length. Applying the legal principle of Johnson to the new 72-4701 as amended in 1951, the eminent domain procedure section contained in Article 1 of Chapter 26 of G.S. 1949 is to be considered a part of 72-4701 as if it was set forth therein in full. G.S. 1949, 26-101, in the second paragraph, specifically provides:
“If the petitioner desires to acquire the land at the appraised price it shall within thirty days deposit with the clerk of the district court the total amount of such appraisement, shall pay the court’s costs and the fees of the appraisers, to be fixed by the court or the judge thereof, and the title to all such lots and parcels of ground thereupon shall immediately vest in the said petitioner, and the said petitioner shall be entitled to the immediate possession thereof and all remedies provided by law for the security of such title and possession. If the petitioner shall not within thirty days comply with all of the terms of such condemnation or appeal therefrom, judgment for the costs of such proceeding, including appraisers’ fees, shall be entered against the petitioner as in other cases.” (Emphasis supplied.)
We, thus, again have the magic words, “the title shall vest,” contained in 26-101 made by reference a part of 72-4701 which confers upon school district boards the power of eminent domain. This logically would seem to place us back in the same position we were in 1874 and in the same position were were in when Buckwalter (1902) and Devena (1960) were decided. At this point, since the phrase “title shall vest” is used by reference in 72-4701, it would appear that school district boards had the power to condemn land for a school site and to acquire fee title in condemnation proceedings.
Before leaving the statutory changes contained in Chapter 395 of the Laws of 1951, we should note certain other sections of that chapter. Section 17, covering the subject of joint school buildings, provides that “[l]egal title to the site or sites upon which such joint building or buildings are located may be taken in the name of either or both of such districts, . . .” Section 37 states, without equivocation, that the school board shall hold the title to, and have the care and keeping of all school buildings and other school properties belonging to the city-school district. That section further provides that school buildings and other school property not needed by the city-school district may be sold by the board, at private or public sale upon the affirmative vote of two-thirds of the board members. Section 55, which has to do with the power and duties of a board of trustees of a community high-school district, declares that they shall have the power “[t]o sell at private or public sale, any school building, real or other property belonging to the high-school district when the same is no longer necessary for the use of the district.” Section 71 authorizes the sale of school property of a disorganized school district by the county superintendent and for a division of the proceeds among the various school districts involved. We believe that all of these sections are extremely important and should be read together with Section 72, covering the subject of eminent domain. These sections clearly recognize the power of a school board to hold the legal title to school building sites and to sell such real estate when it is no longer needed by the school district.
As noted above, the property which is in dispute in this case was the subject matter of condemnation actions filed by the predecessor of the plaintiff in 1956 and 1959. At that time the statutes provided as follows:
G.S. 1949, 72-4701 (1955 Supp.).
"Conferral of right; how exercised; purposes. The right of eminent domain is hereby conferred upon common-school districts, rural high-school districts, community high-school districts and the boards of education of cities of the first and second class, to be exercised in the manner provided by article 1 of chapter 26 of the General Statutes of 1949 and acts amendatory thereof and supplemental thereto. Such right of eminent domain may be invoked for the purpose of appropriating private property for use for sites for school buildings, playgrounds, agricultural, vocational or athletic purposes, or any addition or extension to any school building site or playground, or for any other school purpose for which property may be lawfully acquired.” (Emphasis supplied.)
G.S. 1949, 26-101 provided for vesting of title as discussed above. Construing these statutes together along with the other sections of Chapter 395 of the Laws of 1951 and relying upon Buckwalter and Devena, we have concluded that the predecessor of the plaintiff school board in this case acquired fee title to the land condemned in the condemnation proceedings in 1956 and 1959. In our judgment, comparable statutory language is present which requires the same result as was reached in Buckwalter and Devena.
We have noted above the rules of statutory construction which the courts are required to apply in determining legislative intent. We are especially impressed with the holding in Coe v. Security National Ins. Co., 228 Kan. 624, that a statute should never be given construction that leads to uncertainty, injustice, or confusion, if possible to construe it otherwise. A construction of the statutes in this case to the effect that school districts, as a matter of law, have not had the power to acquire fee title in any condemnation action since 1951 would produce an extremely unjust result and could cause great financial hardship to many school districts owning school sites taken by condemnation and private citizens who have purchased abandoned school sites from school districts in the past. It was during the 1950’s and 1960’s that the schools of this state were inundated as a result of the baby boom which occurred immediately after World War II. This was also the period of widespread school unification when in the interest of more efficiency and better public education many school districts in the state were disorganized and consolidated with others.
It would be reasonable to say that several hundred pieces of private land were condemned for school building sites by school boards in Kansas from 1951 until the beginning of the 1980’s. Thousands of dollars of public funds derived from the sale of school bonds were expended to construct public buildings and other improvements on condemned land. All of these actions were taken under statutory authority. It is difficult to believe that it was the intent of the legislature that these school districts were not authorized to receive the fee title to the lands condemned.
Furthermore, in these condemnation actions, both the school district condemning the land and the landowners- assumed that the school district was taking a fee title. Under Kansas eminent domain procedure, where the entire tract of land was taken, the landowner was compensated by payment of the full value of the land at the time of the taking. If a part of a tract was taken for a school site, the landowner was paid the full value of the land taken' and the severance damage to the remainder of the land not taken. The judges and the attorneys and the litigants assumed that the school district was taking the land in fee and was paying full value therefor. If the judgment of the Court of Appeals is to stand in this case, the result will be that the heirs and grantees of the original owners in the condemnation cases will get an unjust and substantial windfall. The effect would be that a landowner or his grantee would be paid twice the fair value of his property. As noted above, this court has the duty to construe legislation in such a manner that the construction will not lead to uncertainty or injustice or confusion, if possible to construe it otherwise.
The present controversy on the nature of the title acquired by the school district in this case, apparently, stem's from the decision of this court in Sutton v. Frazier, 183 Kan. 33, where the court held that an improvement district, although it sought to acquire fee title in a condemnation action, did not acquire title to the mineral estate in the land. The Court of Appeals also relied heavily on Kansas Gas & Electric Co. v. Winn, 227 Kan. 101, 605 P.2d 125 (1980), which involved the taking of land by an electric power company. It is important to note that neither Sutton nor Winn involved the taking of property for a school site by a school district. We, therefore, do not consider either Sutton or Winn controlling in the present case.
In finding an answer to the issue presented in this case, we have deemed it essential to consider the public policy of this state for the past one hundred years with respect to school lands and their importance in providing a sound financial basis for the public schools. We have considered the legislative history and the background of the various statutory changes which brought about this litigation. We cannot find anywhere even a suggestion that the legislature intended to change the well established principle of law that school districts which condemn land for a school building site acquire the fee title to the property so taken. We have considered the unjust result from a contrary construction of the statute, considering both the financial disruption which would inevitably result to some school districts and the injustice in paying public money to citizens whose predecessors in title were paid the full value of the property taken in the condemnation case.
For the reasons set forth above, we hold that the district court reached the correct result in this case and that its. judgment should be affirmed. The judgment of the Court of Appeals reversing the district court is reversed.
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal from convictions of aggravated burglary (K.S.A. 21-3716), two counts of aggravated rob bery (K.S.A. 21-3427), and two counts of kidnapping (K.S.A. 21-3420). This case arose out of the armed robbery of a private residence in Wichita on January 20, 1980. The evidence showed that on that date at about 7:30 p.m. Bobby Joe Carr and Billy Hill robbed the owner of the residence and her daughter at gunpoint, tied them up, and confined them to one of the rooms. Hill and Carr then left the residence in a car stolen from the home and drove to a shopping center where they met defendant, Chester Irving. There the stolen car was abandoned. The defendant, acting as wheelman, then drove Hill and Carr to the Executive Inn motel where the proceeds of the robbery were sorted and divided among the parties. The police, having been previously made aware of the robbery by an informant, appeared at the motel where Hill and Carr were arrested. Two days later on January 22, 1980, defendant Irving’s car was searched and a pistol and some jewelry taken in the robbery were recovered. Defendant Irving was actually charged as a participant in the crime on February 20, 1980, although in the intervening period he had employed counsel in anticipation of the charge.
The facts in this case are somewhat unusual because of the involvement of Francis Edward Calvert, an informant and agent of the district attorney’s office. The evidence showed that on January 19, 1980, the day before the robbery, Hill and Carr had a conversation with Calvert and told him of their plans and intentions regarding the robbery. Calvert promptly notified the police authorities of the impending robbery. Following the robbery, Calvert advised the police that the robbery had been completed and he directed the police to the Executive Inn motel where Hill and Carr were arrested. In the conversation with Hill and Carr, Calvert was advised that defendant Chester Irving was to participate in the crime as wheelman by furnishing the transportation discussed above.
On January 21, 1980, Calvert telephoned defendant Irving and engaged him in conversation. The purpose of the telephone call was to obtain information from Irving regarding his knowledge of and participation in the robbery. It was undisputed that, when the telephone call was made, Calvert had been serving as an informant and agent for the Sedgwick district attorney’s office for several months, and Calvert was aware that the defendant had employed counsel when the telephone call was made although he had not yet been charged with the crime. The telephone conversation between Calvert and Irving was taped by Calvert. This tape contained damaging admissions by Irving which established his participation in the robbery. This taped conversation was admitted into evidence and played to the jury at the trial where Irving was convicted.
At the trial, the evidence of guilt presented by the prosecution witnesses was overwhelming. Carr testified fully as to defendant’s participation in the robbery. Calvert, the informant, testified as to his conversation with the defendant and the tape of the incriminating conversation was played to the jury. Additionally, the pistol and jewelry stolen in the robbery and recovered from Irving’s car were admitted into evidence. It is fair to state that the admission of the tape of defendant’s voice in which he discussed his participation in the robbery was devastating to the defense. The case for the defense consisted primarily of the testimony of Billy Hill, who denied defendant’s participation in the robbery. The other evidence presented by the defense shed little light on the circumstances of the crime. As could be expected under these circumstances, the jury found defendant Irving guilty as charged. The defendant has appealed to this court claiming trial errors.
The defendant’s first point on the appeal is that the trial court erred in unduly restricting defense counsel in his cross-examination of the witness, Calvert. Specifically, the trial court refused to allow defense counsel to elicit from Calvert his present address and the fictitious name he was then using. It appeared that Calvert was a participant in the Federal Witness Reidentification Program and had been relocated with a new identity in order to protect him from criminal elements because of his undercover work. The court, in its discretion, decided that such inquiry would not be appropriate under the circumstances. Calvert’s previous criminal record and the fact that he was a paid informant were clearly presented to the jury. The evidence indicated that Calvert’s assumed name and present location could not be revealed if he was to be protected from extinction. The rule in Kansas is that it is within the discretionary power of the trial court whether to compel a witness to reveal his identification and location where undercover work has been involved. State v. Hutchinson, 222 Kan. 365, 368, 564 P.2d 545 (1977); State v. Burgoon, 4 Kan. App. 2d 485, 488, 609 P.2d 194, rev. denied 228 Kan. 807 (1980). Under all of the circumstances, we find that the trial court did not abuse its discretion in limiting the cross-examination of Calvert.
The defendant next contends that the trial court erred in admitting into evidence the taped conversation between defendant and the informant, Calvert, held on January 21, 1980. The tape of the conversation was played for the jury over objection by defense counsel during the direct examination of Calvert. In his motion to suppress the tape, the defendant stated that he had employed counsel in anticipation of being charged with the crime and that Calvert knew defendant had counsel. The telephone conversation between Calvert and defendant took place the day following the commission of the crime. Calvert at that time was and for several months had been a paid informant and agent for the Sedgwick district attorney’s office. The evidence indicated that Calvert had not been specifically directed by the district attorney or federal authorities to tape a conversation with Irving, and, in fact, had received no specific instructions as to the crime involved in this case.
Defendant first maintains that the taped conversation was inadmissible because its admission deprived the defendant of his constitutional right to counsel as guaranteed under the Sixth Amendment to the United States Constitution. Defense counsel, in substance, argues that, since the State through Calvert was aware that defendant was represented by counsel at the time the telephone conversation was recorded, the prosecutor was required to inform Irving’s counsel prior to any questioning by a government agent. In support of his position, the defendant relies on Massiah v. United States, 377 U.S. 201, 12 L.Ed.2d 246, 84 S.Ct. 1199 (1964), and State v. McCorgary, 224 Kan. 677, 585 P.2d 1024 (1978). It should be noted that in both Massiah and McCorgary the defendant had actually been charged with the offense at the time the defendant’s conversation with the police informant was recorded. In the case now before us Irving had not been charged with any crime at the time the conversation with Calvert was recorded. Furthermore, Calvert had not been given instructions to tape a conversation with Irving but indirectly got information about Irving’s participation in the crime while seeking to obtain evidence to convict another well-known criminal in Sedgwick County.
The rule is now well established that the right to counsel under the Sixth Amendment does not attach prior to the initiation of adversary judicial proceedings against an accused. Kirby v. Illinois, 406 U.S. 682, 688, 32 L.Ed.2d 411, 92 S.Ct. 1877 (1972). Where a case is still in the investigative stage, or in the absence of a person being charged, arrested, or indicted, such adversary proceedings have not yet commenced, and thus no right to counsel has attached. In the recent case of United States v. Kenny, 645 F.2d 1323 (9th Cir.), cert. denied 101 U.S. 3059 (1981), the factual circumstances were quite similar to those in the present case. It was held that a tape recording of the conversation was admissible since the right to counsel did not attach prior to the initiation of adversary judicial proceedings. The rule in Kenny is supported by our own decisions in State v. McConico, 4 Kan. App. 2d 420, 426, 607 P.2d 93 (1980), and State v. Estes, 216 Kan. 382, 385, 532 P.2d 1283 (1975). We hold that the taped conversation between defendant and Calvert was not barred by the Sixth Amendment guarantee of the right to counsel.
Defendant next contends that the taped conversation was not admissible because it was obtained in violation of DR 7-104(A)(l) (228 Kan. cxv) of the Code of Professional Responsibility, which provides as follows:
“DR 7-104 Communicating With One of Adverse Interest. (A) During the course of his representation of a client a lawyer shall not:
“(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.”
Defendant argues that the prosecutor, through his agent Calvert, made a prohibited direct contact with Irving, whom Calvert knew was represented by counsel. Hence, the product of misconduct, the tape, should have been excluded at the trial. This same point was raised under similar circumstances in United States v. Kenny and rejected. Kenny followed United States v. Lemonakis, 485 F.2d 941, 955-56 (D.C. Cir. 1973), cert. denied 415 U.S. 989 (1974), and held that, in view of the noncustodial environment, prior to the defendant’s charge, arrest, or indictment, there was no violation of DR 7-104(A)(l). In the court’s view, the government’s use of such investigative techniques at this stage of a criminal matter did not implicate the ethical problems addressed by the code. For a similar holding, see State v. Wolf, 7 Kan. App. 2d 398, 643 P.2d 1101 (1982). We have concluded, in accordance with the rationale of Kenny, that the admission of the taped conversation in this case was not precluded by DR 7-104(A)(l) of the Code of Professional Responsibility. United States v. Thomas, 474 F.2d 110 (10th Cir. 1972), cited by defendant, is not applicable here, because in Thomas the interview of the defendant by the government agent took place after defendant was charged and counsel had been appointed to represent him.
In his supplemental brief, the defendant argues that the taped recording should have been excluded under the provisions of K.S.A. 22-2514 et seq., which restricts the wiretapping of telephones and other wire communication facilities. In State v. Farha, 218 Kan. 394, 544 P.2d 341 (1975), the legal background and history of wiretapping or, as it has sometimes been called, “eavesdropping,” is discussed in depth. The primary and controlling statute is Title III of the Omnibus Crime Control and Safe Streets Act of 1968, codified in 18 U.S.C. § 2510 et seq. All state statutes, including the Kansas statutes, must conform to that federal statute. As noted in Farha, “a State statute would be preempted where the State law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” The federal statute found at 18 U.S.C.A. § 2511 (2)(c) and (d) (1970) specifically provides as follows:
“(c) It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.
“(d) It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State or for the purpose of committing any other injurious act.” p. 472.
In United States v. Turk, 526 F.2d 654 (5th Cir. 1976), it was held that, although the action of a party to a telephone conversation in recording the conversation with the defendant was an interception within the statutory definition of the federal act, it was not violative of the act in view of 18 U.S.C.A. § 2511 (2)(d) which specifically exempts situations in which one party to the conversation is himself the interceptor. The Kansas statute, K.S.A. 22-2515, provides in part as follows:
“22-2515. Order authorizing eavesdropping; persons authorized to make application; crimes for which order may be issued; disclosure and use of contents of wire or oral communications; effect on privileged communications. . . .
“(3) Any investigative or law enforcement officer who, by any means authorized by this act or by chapter 119 of title 18 of the United States code, has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may use such contents to the extent such use is appropriate to the proper performance of his or her official duties.
“(4) Any person who has received, by any means authorized by this act or by chapter 119 of title 18 of the United States code or by a like statute of any other state, any information concerning a wire or oral communication, or evidence derived therefrom, intercepted in accordance with the provisions of this act, may disclose the contents of such communication or such derivative evidence while giving testimony under oath or affirmation in any criminal proceeding in any court, or before any grand jury, of this state or of the United States or of any other state.”
It is important to note that, under these sections, any information or evidence derived from a telephone conversation which was obtained by any means authorized by chapter 119 of title 18 of the United States Code (which would include 18 U.S.C. § 2511 [2][c] and [d]) is admissible in any criminal proceeding in Kansas. Applying those sections to the factual circumstances in the case at bar, it follows that the taped communication between Calvert and defendant Irving was admissible under both the federal wiretapping statute and the Kansas statute, K.S.A. 22-2515, since Calvert was one of the parties to the telephone communication and thus outside the prohibition of those statutes.
This same result was reached in the recent case of State v. Johnson, 229 Kan. 42, 45, 621 P.2d 992 (1981), where this court held that K.S.A. 1979 Supp. 22-2516 was not applicable, since the taped conversation between the defendant and his wife was made with the knowledge, consent, and cooperation of defendant’s wife, a party to the conversation. For the reasons set forth above, we have concluded that the taped conversation between the informant, Calvert, and defendant Irving was admissible and was not barred under the provisions of the Kansas wiretapping statutes (K.S.A. 22-2514 et seq.).
The defendant next maintains that the trial court erred in refusing defendant the right to waive his right to counsel and to proceed pro se in his own defense, relying on Faretta v. Califor nia, 422 U.S. 806, 45 L.Ed.2d 562, 95 S.Ct. 2525 (1975). In Faretta, the defendant unequivocally advised the court weeks before the trial that he wanted to represent himself and that he did not want counsel. It was held that it was error to deny him that right. The record in the present case discloses that at no time did the defendant request the right to proceed pro se. Defendant did complain on the record as to the performance of his attorney, and his attorney asked leave to withdraw during the testimony of the final defense witness. The trial court, in its discretion, denied the motion under the circumstances. The court noted that the defendant’s attorney had done a good job and that counsel would not be permitted to withdraw at that stage of the trial. There was no showing that the attorney-client relation had deteriorated to the point where appointed counsel could no longer give effective aid in providing a defense. State v. Banks, 216 Kan. 390, 532 P.2d 1058 (1975); State v. Henderson, 205 Kan. 231, 468 P.2d 136 (1970). Under the circumstances, since no good cause for permitting the withdrawal was shown and since the defendant at no time requested the right to proceed pro se, we find no abuse of discretion by the trial court.
The defendant complains of a number of alleged trial errors in the rulings of the trial court pertaining to the cross-examination of certain witnesses, the failure of the prosecutor to correct certain statements made by Calvert, and the failure of the court to strike from the evidence certain statements in the testimony of deputy district attorney Connolly. The jury was fully informed as to the extensive criminal records of Calvert, Carr, and Hill. Calvert and Carr admittedly were testifying because of promises made to them of either immunity or reduced prosecution. Although the trial court did not compel the prosecutor to disclose fully Calvert’s financial arrangements with the federal authorities for serving as an informant, the evidence indicated Calvert was being paid $20 per day and that, in exchange for his testimony, the State had agreed to dismiss a robbery charge. In view of the tape recording containing defendant’s admissions of his participation in the crime, we are convinced that none of these matters could have influenced the outcome of the trial in any event.
The defendant next complains that the trial court erred in giving its instruction No. 17, the so-called “Allen instruction.” The instruction given was based upon PIK Crim. 68.12 (1971) and was given at the same time as the other instructions in the case. In State v. Scruggs, 206 Kan. 423, 479 P.2d 886 (1971), this court, approved a similar instruction when given prior to the commencement of the deliberations of the jury. We find no error in this regard.
The defendant’s final point is that the trial court abused its discretion in sentencing defendant on the four counts to a combined term of 150 years to life. Prior to imposition of sentence, the prosecutor invoked the habitual criminal act (K.S.A. 21-4504[2]). In its motion to invoke the act, the State directed the court’s attention to the fact that defendant Irving had been previously convicted of burglary, receiving stolen property, aggravated weapons violations, unlawful possession of a firearm, second-degree burglary, larceny, and aggravated robbery. These prior felonies occurred during the years from 1967 through 1974. The trial court made the four sentences run consecutively. We note that the defendant did not include in the record on appeal the transcript of the sentencing proceedings. There is no evidence in the record of mitigating circumstances which would justify this court in holding that the sentences imposed constituted an abuse of discretion by the trial court. We, therefore, find no error on this point.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Horton, C. J.:
On March 24,1881, two citizens of Greenwood county made complaint in writing to M. J. Werner, as-sheriff of that county, that , there were at Bachelor creek, within the county, wild or undomesticated cattle infected and diseased with what is commonly known as Texas, splenic, or Spanish fever, and requested the sheriff to take them into custody until the charges in the complaint could be investigated in accordance with the provisions of ch. 161, Laws of 1881, Thereupon the sheriff took possession of the cattle, and immediately gave notice thereof to one F. H. Clark, a justice of the peace of that county; whereupon the justice immediately summoned three resident citizens of the county to appear, on March 26,1881, before him for the purpose of inspecting the cattle. When the persons so summoned appeared, they were sworn by the justice to faithfully discharge their duties as inspectors of the cattle aforesaid, and without delay to make report to him of their findings in the premises. The inspectors proceeded to examine the cattle in custody of the sheriff, and after examination they reported in writing to the justice that the cattle, comprising a lot of forty-seven head, were of the kind commonly known as Indian or Texas-cattle; that they were owned by one C. C. Bosworth and Joseph Willard; and that the condition of the same was such as to endanger the health of other cattle in the vicinity, by reason of probable contagion. The justice forthwith issued to the sheriff his order in writing, commanding him to keep the cattle in his custody and under his control until the first day of November next ensuing, at which time he was directed to deliver them to their owners upon payment -to the county treasurer of Greenwood county of all costs and expenses which might occur by reason of the taking and detaining them; and in case the costs and expenses were not paid within ten days after the first day of November ensuing, the sheriff was commanded to advertise and sell the cattle, or so many thereof as might be necessary to pay the costs and expenses. On the 28th day of March, 1881, C. C. Bosworth and R. P. Willard filed their petition in replevin against M. J. Verner, (the sheriff,) to recover possession of the cattle. Verner thereafter filed his answer, justifying his possession of the cattle under the proceedings had upon the complaint made to him. Upon the trial, the court permitted plaintiffs below to prove that at the time the complaint was made to the ■sheriff the cattle were not diseased; that they were not liable to communicate any contagion to other cattle; and that they were not wild or undomesticated cattle. Counsel of plaintiff in error (defendant below) complain of this ruling, and contend that the1 report of the inspectors was of the 'nature of a •verdict of a jury; that the order of the justice thereon operated as a judgment; and that it cannot be attacked or impeached in any collateral proceeding. Conceding that §§ 3, 4 and 5 of ch. 161 are constitutional, on the ground that the state may enact sanitary and police laws for the purpose of preventing the spread of infectious diseases, and may establish reasonable inspection regulations, including the taking into custody of wild or undomesticated cattle alleged to be infected with disease, yet we cannot hold that the proceedings had upon the complaint made to the sheriff are conclusive with respect to the animals themselves, or upon the owners thereof. The owners of the cattle cannot be deprived of their title, nor of the right of possession, by proceedings which did not give them opportunity to have their rights adjudged, and of which proceedings they had no notice, and to which they were not parties. In this country in times of peace there is no royal road to the condemnation or confiscation of a man’s property irrespective of his interest and his right to be heard. Here the law proceeds upon inquiry, hears before it condemns, and renders judgment only after trial. Sec. 5 of ch. 161 merely provides that the inspectors shall examine the cattle, and makes no provision for any trial or defense on the part of the owner before judgment and sentence. •Counsel claim that the proceedings under the statute “are proceedings in rem; that thereby the justice, as a court, fixes the status or condition of the property proceeded against, and .a"judgment founded upon such proceedings is a solemn declaration upon the status or condition of the thing, and ipsa facto renders it what it declares it to be.” In all proceedings in rem, whether against things guilty, things indebted, or things hostile, except the last, notice of seizure and libel must be given to the world, if the world is to be bound by the decree. In this way, the owner gets notice •along with the rest of the world, and may appear for his property or not. Notice in actions in rem is doubly given by seizure and by publication, and notice is the life of the action, as citation or subpena is in a personal case. (Waples •on Proceedings In Rem, 88.) Some of the decisions treat the publication as of little importance, and hold that the law •regards the seizure of things as constructive notice to all the world, and all persons concerned in interest are considered as affected by this constructive notice, and that the seizure and not the publication gives jurisdiction. (The Mary, 9 C. R. 126, 144; Bradstreet v. The Neptune Ins. Co., 3 Sumner, 609; Nations v. Johnson, 24 How. 205; Hollingsworth v. Barber, 4 Pet. 475.) Yet no decision goes so far as to decide that things guilty may be seized and condemned without notice, and without giving a party having a right in or to the thing an opportunity to have his right tried and adjudged. It would be an unjustifiable hardship, an act of real robbery, to debar such a party of this right and yet construe the order of seizure and condemnation against him as con-elusive. While therefore we may assume that cattle complained of and proceeded against under the provisions of said §§ 3, 4 and 5 may be lawfully taken up and kept in custody, we must further hold that the report of the inspectors and order of the justice are at most only prima facie evidence of the facts therein set forth. They are not conclusive as a judgment until the owner has his day in court to contest the-charges' of the complaint whereby it is sought to deprive him of the possession of his property, and make such property liable for costs and expenses. Therefore he has his action of replevin from the very moment that the sheriff takes possession of the cattle, until the statute of limitations bars such an action, to try the legality and validity of the proceedings whereby his property is taken. If any irregularity or injustice should intervene that would render the-taking of the property void, the same would also render the possession by the sheriff, and all other proceedings connected therewith, void. If the cattle are not, at the time the eom.plaint is made to the sheriff, wild or undomesticated cattle,, infected or diseased with the Texas, splenic, or Spanish fever,, the owner thereof would be entitled to restoration of the same-by judicial proceedings. (Gilchrist v. Schmidling, 12 Kas. 263.) Thus, if wild or undomesticated cattle, infected or diseased with Texas, splenic, or Spanish fever, are in a condition to-endanger the health of other cattle in the vicinity, by reason, of probable contagion, where they are running at large, citizens interested may have them taken up and placed in the custody of the sheriff under the provisions of the statute. But these proceedings, being ex parte, do not determine absolutely the owner’s rights. If upon a judicial hearing it shall be ascertained that the complaint was made without cause, and that the cattle complained of are not within the terms of the statute, the owner thereof would clearly be entitled to have them returned to himj and thus he has his remedy by due course of law, notwithstanding the proceedings in the first instance are ex parte.
Counsel suggest that the owner of cattle taken up under the provisions of this statute has notice prior to the sale for costs and expenses, and that no other or further notice is necessary or required in order to give him an opportunity to have his rights adjudged. This notice comes too late to benefit the owner in contesting the complaint, if the report of the inspectors and the order of the justice are conclusive. Such notice, being subsequent to the alleged proceedings condemning the property, is not notice of the action against the property, and does not debar an owner from his right to try the legality and validity of the proceedings by an action in replevin.
Again, it is urged that some evidence was admitted upon the trial, relating to the condition of the cattle subsequent to the commencement of this action. As this evidence was merely a continuation of other evidence tending to show that the cattle were domestic cattle and not infected or diseased with Texas, splenic, or Spanish fever at the time the complaint was made under which they were taken from their owners, it was not wholly irrelevant or incompetent.
The judgment of the district court will be affirmed.
* All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was action brought by M. J. Koons, and Eva Koons, his wife, to set aside certain deeds of conveyance. The facts are substantially as follows: In 1871, the plaintiffs were married in the state of New York, where they resided. A few months afterward the husband left New York, with the intention of changing his place of residence, and came to Kansas, where he settled upon a piece of government land containing 160 acres, with the intention of procuring it under the government homestead laws, and making it his permanent home. At the time he left New York, and afterward, it was the intention of both the husband and wife to reunite in Kansas as soon as the husband had procured a permanent home. The husband 'made improvements upon the land, and otherwise complied with the government homestead laws, and finally obtained a patent from the government for the land, and has occupied the same, or at least one-half thereof, ever since. The plaintiffs have no children, nor any family except themselves. In 1876, Eva Koons started for Kansas, her husband having sent her money for that purpose. She came as far as Illinois, and while there visiting friends became sick, and returned to New.York. About this time, the plaintiff M. J. Koons conveyed by deed of general warranty eighty acres of said land to the defendant Daniel Ainsworth, and Ainsworth afterward, together with his wife, Charlotte E. Ainsworth, conveyed the same by deed of general warranty to the defendant H. j. Rittenh^use. The plaintiff M. J. Koons, while making proof of his improvements for the purpose of securing a patent, represented himself to be a single man, and the certificate of the notary public before whom the acknowledgment of the deed from him to Ainsworth was taken also certified that he was a single man.. In 1877, Eva Koons came to Kansas, and joined her husband upon the land. During the time that she was in New York she did not keep house, but worked out by the week; and during all that time intended as soon as possible to join her husband in Kansas, and her husband intended all the time that she should so join him. The wife knew nothing of the making of the deed to Ainsworth, and neither Ainsworth nor Bittenhause ever took actual possession of the property.
Upon these facts the court below rendered judgment in favor of the defendants and against the plaintiffs for costs, and refused to set aside said deeds.
We think this' case is virtually decided by the case of Farlin v. Sook, 26 Kas. 398. About the only difference between the two cases is, that in the case of Farlin v. Sook there was no intention on the part of the owner of the land that his family should ever reside upon the same; while in this case there was a secret intention and understanding all the time existing between the husband (who was the owner of the land) and his wife, that she at some time should come from New York to Kansas, and should then reside upon the land. Except for this secret understanding and intention on the part of Koons and his wife, the two cases are identical; and we do not think that this secret understanding and- intention can make any difference in the case. No person can hold property under our homestead exemption, laws, unless the property is “occupied as a residence by the family of the owner.” (Const., art. 15, § 9; Comp. Laws of 1879, p. 437, § 1.)
Now prior to the execution of the deed by Koons to Ainsworth, the family of Koons had never occupied the property, as a residence or otherwise. Koons, the owner of the property, had “occupied” the same, but his family never had; and Koons, the owner of the property, had “occupied the same as a “residence,” but his family never had. This did not meet the requirements of the homestead exemption laws. It is the family of the owner, and hot merely the owner, who-must occupy the homestead; and it is the family of the owner, and not merely the owner, who must occupy the same as a residence. Such are the requirements of the homestead exemption laws of Kansas. In many states the homestead exemption is given to the owner who has a family, or to the head of the family; but in Kansas it is given with special reference to the family, and must be occupied by the family as a residence.
It is said by counsel for defendants that Kansas is the only state which requires both occupancy and residence, and occupancy and residence by the family. We suppose that this is true; and if true, then the decisions from other states, holding that a husband alone may occupy and hold a homestead, could have but little weight in this state. We refer to the brief of defendants in error, as showing the language used by the constitution and laws of various states defining who may have the benefit of the homestead exemption laws. Also, see Thompson on Homesteads, §§40, 41. When the plaintiff M. J. Koons executed the deed for a portion of his land to Ainsworth, we do not think it was a homestead “occupied” as a “residence” by the “family” of the owner. It was a homestead occupied, by the owner alone, and therefore it does not come within the provisions of the homestead exemption laws. When Koons executed the deed to Ainsworth, he had occupied the land for over four years; and yet his wife, who was all the family that he had, still remained in New York, and had never been in Kansas; and she did not come to Kansas for nearly another year after the deed was executed, and until Ainsworth and wife had conveyed the property to Rittenhjiuse.
The judgment of the court below will be affirmed.
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The opinion of the court was delivered by
Hokton, C. J.:
Action brought in the court below by Wilson against Larkin, to quiet title to the land of which plaintiff below claimed to be in possession, and to which he claimed title under a conveyance executed November 20, 1866, by Samuel A. Williams and wife. Williams obtained his title under a tax sale made on the 3d-day of May, 1864, for the delinquent taxes of the previous year, and a deed ex ecuted therefor May 15, 1866, and recorded the next day. Larkin answered, first, by a general denial; and second, by a counterclaim in the nature of ejectment. To the answer, Wilson filed a reply consisting of’a general denial. Larkin demanded a jury trial, which was denied; and after the court had rendered judgment against him, he claimed another or second trial, under § 599 of the code. This was refused, and these rulings are complained of. The complaints in this regard are not well made. The action brought was an equitable one, and the answer setting up a counterclaim in ejectment did not alter the case. The action brought was not one for the recovery of real property, and the counterclaim was not,, within the letter of the statute, an action for the recovery of real property. Hence Larkin was not entitled to a jury trial, or a second trial. (Smith v. Anderson, 20 Ohio St. 76; Code, § 599.
Another question in the case is, whether the tax deed of the grantor of Wilson is void upon its face. Counsel for Wilson submits that the reasons why the deed is void upon its face were not specifically pointed out upon the trial, and therefore that the objections to the deed were not well taken. It appears from the record that when the tax deed was offered in evidence, “the defendant objected to the introduction thereofj because the deed was void upon its face for several reasons, then given and enumerated.” The objection therefore was something more than a general one. The court's-attention was called directly to the face of the deed. It further appears that the court adjudged that Wilson's title was-good against Larkin, by possession under the tax deed for more than five years. Under these circumstances, it is evident that the trial court held that the five-years possession by Wilson under the grantee of the tax deed, even if the deed were void on its face, barred Larkin from any right to the land. Therefore we think the objection made to the deed was sufficient to demand at our hands a consideration of the ruling of the court in admitting it as testimony. This court has already held that a tax deed, to be sufficient when recorded to- set the statute of limitation in operation, must of itself be prima facie evidence of title; that a tax deed void upon its face will not start the statute of limitations; and also that a tax deed void upon its face will, not protect a person in possession of the premises for two years thereunder. (Shoat v. Walker, 6 Kas. 74; Sapp v. Morrill, 8 Kas. 682; Waterson v. Devoe, 18 Kas. 223.) Counsel for Larkin claim that the tax deed is void, first, because it recites that the county, through the county treasurer, entered the list at the tax sale as a competitive bidder; second, that the county of Bourbon assigned the certificate of the tax sale. In regard to the sale of the land, the deed reads as follows:
“ Whereas, the treasurer of said county did, on the 3d day of May, 1864, by virtue of the authority in him vested by law, at the sale begun and publicly held on the first Tuesday of May, 1864, expose to public sale at the county seat of said county, in substantial conformity with all the requisitions of the statute in such case made and provided, the real property above described, for the payment of the taxes, interest and costs then due and remaining unpaid upon said property ; and whereas, at the time and place aforesaid, the treasurer of the county of Bourbon, state of Kansas, having offered to pay the sum of $30.58, being the whole amount of taxes and interest and. costs then due and remaining unpaid on said property, . . . and there being no other bidder, the said property was struck off to it at that price, which was the least quantity bid for.”
Within the decisions of this court, the claim of plaintiff in error, that the county was a competitive bidder, must be sustained, and the tax and the tax deed founded thereon are both void. The recitations in the deed show that the county, through the county treasurer, made the first bid on the land, offering itself to pay for the land the sum of $30.58, being the whole amount of taxes, interests and costs then due and remaining unpaid. There is nothing in the deed that shows, or tends to shpw that the land could not have been sold to some other party for the same price, provided the treasurer had not made his bid, or offer. If the treasurer had not made his bid, perhaps some other party might have been willing to offer and pay the amount of the taxes, penalty ánd charges for the land; but as the county, through its treasurer, made that offer first, it thereby prevented others from making that bid, or indeed from making any bid as advantageous to themselves as that bid would have been. (Norton v. Friend, 13 Kas. 533; Magill v. Martin, 14 Kas. 67; Babbitt v. Johnson, 15 Kas. 252.)
The other objeotion to the deed is more doubtful, and with the conclusion obtained it is unnecessary to pass upon it. Regardless of that objection, the deed is void on its face. Entertaining these views, we must declare that the tax deed is void; and even if counsel had attempted to contradict the fatal defect apparent in the recital, showing the county to have been a competitive bidder, by the introduction of evidence aliunde, the trial court would have been compelled to exclude it. (Cartwright v. McFadden, 24 Kas. 662.) Counsel for Wilson contends that the equities of the case are all in favor of his client, as Larkin knew that the land had beeo sold for taxes, and for fifteen years had permitted Wilson to occupy and improve it, and also to pay the taxes upon it. In- answer to this, we need only reply that Wilson is somewhat protected by the statute, as he is entitled to the benefit of the oecupying-claimant act, and also to §142 of the tax law. (Stebbins v. Guthrie, 4 Kas. 353; Smith v. Smith, 15 Kas. 296.)
The judgment of the district court must be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action of forcible detainer, brought on the 3d day'of September, 1881, by Chauncey S. Kellogg against Charles A. Lewis, under art. 13 of the justices’ act, to obtain restitution of the Damon breeding and training stock farm, situate in Dickinson county. The defendant made a verbal lease with the plaintiff in the month of October, 1878, for the lease of the farm, and on the 6th day of September, 1880, the agreement of the parties was put in writing, and by its terms the lease was to terminate March 1, 1882. The plaintiff claimed a termination of the lease by an agreement with the defendant, and also that the defendant had forfeited his right to hold possession under the lease by a violation of its terms. The case was tried before a justice, and then appealed to the district court. Upon the trial in that court, plaintiff sought to show that the defendant had forfeited all right of possession under the lease, by being guilty of waste to the premises, by failing to. keep up-the repairs on the farm, by wrongfully selling and converting to his own use a large amount of the undivided stock and property of the plaintiff, and also-by neglecting to keep and care for the stock. All of this evidence was objected to by defendant, and the objection was sustained by the court-. This ruling is complained - of. - An action of forcible detainer does not involve the exercise of equitable jurisdiction, but is a law proceeding, and the evidence rejected was inadmissible. It did not tend to establish that the lease had expired by limitation, or that the lease had been terminated by the agreement of the parties. At most, it was evidence tending to show that in a proper action brought therefor, the plaintiff would be entitled to a judgment of forfeiture of the lease. No question of title was involved in the case, and the action was triable in the district court in the same manner as before the justice. A .justice has no equity jurisdiction or power, and can therefore only determine the rights of parties as they appear at law. To maintain this action, the plaintiff .must have a perfect right of possession at the time the notice to quit is given, and it is not competent in such an action, where a lease has not expired by limitation or agreement, to contest for a forfeiture of the lease on account of violations thereof by the lessee, and thus demand the exercise, on the part of the justice or the court, of equity jurisdiction. The defendant testified that about the 21st of July, 1881, he said to the plaintiff “he wanted to quit the farm because his health was not good;” and upon the inquiry of the plaintiff, “if he wanted to quit now,” answered, “Yes, as soon as we can settle,” but no settlement was had between the parties. The failure so to do was occasioned by reason of disputes between them about matters pertaining to-the settlement. Upon this evidence plaintiff contends that if a settlement was not had by reason of the fault of the defend ant, or his unreasonable refusal to settle, the plaintiff was entitled to recover possession, notwithstanding there was no settlement between the parties. We do not concur in this view. At the time the action was brought, the lease had not expired by limitation. According to the evidence of the defendant, he had agreed to quit the farm as soon as he and the plaintiff could settle. This agreement was a conditional one. Until the settlement was made, either by mutual agreement or through the courts, the lease would still continue to run. Whether the failure to settle was the fault of plaintiff, was not material in the trial, and any instruction thereon out of place.
It was developed on the trial, from the testimony of plaintiff, that the sale of the increase of stock upon the farm was made pursuant to defendant’s agreement to quit, and in accordance with the terms of the lease at defendant’s suggestion. In the argument to the jury, counsel for plaintiff dwelt upon this evidence as tending to support the claim of plaintiff, that the lease had terminated before the action was commenced, by the mutual agreement of the parties. After the arguments had closed, at the request of defendant, the court instructed the jury that plaintiff and defendant might, by mutual agreement, sell any portion of the stock named in the' lease before its termination or revocation. This ruling is also made a matter of serious objection. Notwithstanding the provisions of the.code require the instructions to be given to the jury before the arguments of counsel, the court in its discretion, after argument, to prevent the jury from being misled, may correct or qualify the statement of counsel; and we do not think that in this case the court abused its discretion in making the comments to the jury it did after the argument had closed. Considering all the evidence of defendant, there was sufficient testimony to justify this statement.
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
Horton, C. J.:
The facts in this case are briefly as follows : The plaintiff is the owner of a quarter-section of land in Johnson county. The defendant railroad company instituted proceedings to condemn and assess the damages for a right of way for its railroad track through said land. Commissioners were duly appointed therefor by the judge of the district court, and on the 5th day of September, 1881, they filed their report with the county clerk, assessing the damages to the land in the sum of $444.38. On the 14th day of September, 1881, and within ten days after the filing of the report, the plaintiff attempted to take an appeal from the award of the commissioners. In pursuance of this attempt, he deposited with the clerk of Johnson county the sum of $50, in lieu of an appeal bond. Afterward, on December 31, 1881, the defendant, appearing for that purpose only, moved to dismiss the appeal and strike the action from the docket, because no appeal bond had been filed; and further, because no appeal had been taken from the award of the commissioners as required by law. Afterward, on March 13, 1882, the plaintiff made application to the court to file an appeal bond and withdraw the sum of $50 theretofore deposited by him. At the March term following, the motions of the several parties came on for hearing, and thereupon the court sustained the motion of defendant to dismiss the appeal and strike the cause from the docket, and overruled the application of plaintiff for leave to file a new. and amended appeal bond. In this case no appeal bond was filed by the plaintiff, therefore it cannot be urged that the appeal bond was simply irregular or defective. The deposit was intended as a substitute for a bond, but the statute makes no provision for a party to deposit money as security in lieu of the undertaking or bond. On the other hand, the statute specifically enumerates what the undertaking shall contain, and the conditions thereof. (Comp. Laws 1879, ch. 23, § 86; id., ch. 81, §§ 121, 122.) As the plaintiff wholly failed to enter into an undertaking as required by the statute, and as the statute nowhere authorizes money to be deposited in lieu of an undertaking for an appeal, in such cases as this, the rulings of the district court were correct. (Lovitt v. Rld. Co., 26 Kas. 297.) Counsel for plaintiff refer to the difficulty of obtaining personal security on a written undertaking for an appeal, especially where an appellant is a non-resident, and urge at great length that this court should declare that money deposited may be accepted in lieu of a written undertaking. The law is otherwise, and we cannot legislate. If the hardship of the law is-as great in these particular cases as counsel contend, the argument presented to us might properly be addressed to the legislature. We cannot change the law, and we simply perform our duty in declaring the law as it exists. Counsel for plaintiff represent, however, that the defendant appeared in the district court, subpenaed witnesses, and consented to a continuance of the cause, and thereby made a voluntary appearance in the court to the merits of the case and waived the filing or giving of an appeal bond. An examination of the record shows that a precipe for witnesses was filed by the counsel for the railroad company, December 19, 1881. The motion to dismiss was filed December 31, 1881. There was no continuance of the cause prior to the 'filing of the motion to dismiss, and this motion sets forth clearly that the defendant appeared for the motion only, and for no other purpose, and therefore the record shows that there was no voluntary appearance by the defendant to-the merits or that the appeal bond was waived. (Dowell v. Caruthers, 26 Kas. 720.)
• The orders 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.:
The affidavit filed in this case to obtain an order of attachment against the property of defendants, Danford and Smith, was defective, as it failed to set forth the nature of the plaintiffs’ claim. The question therefore occurs, whether the district judge should have granted the plaintiffs’ request for leave to amend the affidavit. This court long ago decided that an affidavit for an order of attachment may generally be amended. (Burton v. Robinson, 5 Kas. 287.) Counsel for defendants contend, however, that a judge at chambers . has not this power. It is true that this court, in the case of Burton v. Robinson, supra, referred to § 1, ch. 55, Laws of 1865, as authority to amend affidavits filed to obtain attachments. This section was an amendment to § 147 of^he code of 1'859, and is identical with § 139 of our present code; but § 147 of the code of 1859, prior to the amendment of 1865, was sufficiently broad in its terms to authorize defective affidavits in attachments to be amended upon the order of the court. The code of 1859 did not confer upon a judge of the district court the power to dissolve an attachment in vacation. The power under that code was limited to the court. (Reyburn v. Bassett, McCahon, 86.) Subsequently, the legislature conferred this power on the judge in vacation. (Comp. Laws 1862, ch. 68, § 3; Comp. Laws 1879, ch. 28, § 2.) Under this subsequent, legislation, a judge of the district court has power at chambers to discharge an attachment, and to grant . . . all necessary interlocutory orders, (Shedd v. McConnell, 18 Kas. 594.) Conferring this power upon a district judge at chambers also carried with it the power previously conferred on the district court for the like purpose. The statute giving the judge in vacation or at chambers the authority to discharge attachments, and to grant all necessary-interlocutory orders, necessarily carries with-it the right to hear and dispose of all intermediate questions arising upon such a motion. Thus a judge at -chambers has the right to hear and determine upon a motion to dissolve or discharge an attachment, and the question of the continuance of the,hearing, and likewise of an application for amendments. The proper order to be made before the judge upon a motion to discharge an attachment on the ground of a defective affidavit, is that the attachment shall be dissolved unless the plaintiff within a designated time file a sufficient .amended affidavit. As the district judge hearing the case at chambers had the right to permit the defective affidavit to be amended, and as the allowance of the amendment asked to be made by plaintiffs was in the furtherance of justice, such application should have been granted. (Gaylord v. Stebbins, 4 Kas. 42; Robinson v. Burton, 5 Kas. 293; Ferguson v. Smith, 10 Kas. 396; Brown v. Holmes, 19 Kas. 567.)
The order of the district judge dissolving and setting aside the order of attachment'on the motion of the defendants must be reversed, and'the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The facts of this case are as follows: In August-, 1875, R. A. Phelps was the owner of one hundred and twenty-two and forty-five hundredths acres of land in the southwest quarter of section 22, township 28, range 20, in Neosho county, Kansas. This tract was of irregular shape, and described in the deeds of conveyance to said Phelps partially by metes and bounds. In that month Phelps borrowed of the Rollingsford Savings bank. $1,100, to be secured by a mortgage on said tract; the mortgage was prepared, executed and delivered, but by a mistake of the scrivener who drew the mortgage the following portion of said tract was omitted, to wit:
“Beginning at the southwest corner of the northeast quarter; thence north ten and eighty-five one-hundredths chains; thence east six and fifteen one-hundredths chains; thence south ten and seventy-five one-hundredths chains; thence west six and fifteen one-hundredths chains, to the place of beginning; containing six and sixty-seven one-hundredths acres.”
The mortgage, however, recited that it conveyed 122.45 acres, which was in fact all that Phelps owned in said quarter-section, and to make which amount required the tract of 6.67 acres, whose specific description was omitted. The 122.45 acres constituted a single farm, and the land was so situated that the line dividing the 6.67 acres from the balance of the farm ran through and divided the dwelling-house and orchard, leaving part of each on each side of the line. The note and mortgage were subsequently indorsed to the plaintiff. On the 6th day of August, 1877, said Phelps executed to the First National bank of Parsons a mortgage to secure a past-due and precedent debt, which mortgage included said tract of 122.45 acres,.and also several other parcels of land. On the 24th day of October, 1879, the bank commenced an action to foreclose its second mortgage, in' which action the present plaintiff was made defendant, who appeared and set up his mortgage. A decree of foreclosure was thereafter entered, in which plaintiff’s mortgage was adjudged a prior lien; but by mistake the same omission in description was carried into the decree, and the 6.67-acre tract was left out from that portion of the lands upon which plaintiff’s mortgage was adjudged the first lien. Upon this decree an order of sale was issued and placed in the hands of the sheriff to execute, and while so in his hands for the purpose of execution, the mistake in the mortgage decree and order of sale was discovered, and the plaintiff brought this action to reform all papers and proceedings, including the mortgage decree and writ, so as to make them include specifically the 6.67-acre tract. This petition was filed in the office of the clerk of the district court of Neosho county, on the 6th day of November, 1880. On the 23d day of December, 1880, the bank filed a general demurrer. On the 8th day of April, 1881, at the regular term of said court, the bank filed its petition, affidavit and bond for a removal of the case to the U. S. circuit court, and the removal was ordered. At the June term of the circuit court, the bank having failed to file a transcript by the first day of the term, the case was by order of the circuit court remanded to the district court of Neosho county. The July term of the district court commenced on the 12th day of July, and in preparing the docket for that term this case was set down for trial by the clerk on the docket for the first day. When the case was called on the first call of the docket on that day, the defendant did not appear, and the case was passed. In the afternoon of the same day the case was called a second time, and peremptorily. The defendant still failing to appear, the case was submitted by the plaintiff upon the petition and demurrer. The demurrer was overruled, and judgment entered in behalf of the plaintiff, decreeing the reformation as prayed for. On the morning of the 13th, the second day of the term, the defendant, National bank, appeared by its attorney and moved to set aside the judgment and open the case for answer and trial. Affidavits were filed on both sides, upon the hearing of which the district court overruled the motion; and now the bank brings the case here for review.
Obviously two questions are presented: First, Was the demurrer properly overruled? Second, Upon the showing made, did the district court err in refusing to set aside the judgment and open the case for answer and trial?
Upon the first question we have little doubt. It is one of the unquestioned powers of a court of equity to correct mistakes; "it reforms instruments whenever it satisfactorily appears that by mutual mistake such instruments do not express the agreements of the parties; and this power is not limited to the mere reformation of instruments executed by the parties. It extends to judgments, decrees, and in fact almost every, if not every, paper or document by which the rights of parties are affected. In this case the intent of the parties, the fact of the mistake, and the manner in which it originated, were distinctly stated. Not only that — the fact of the mistake is rendered more clear by the statement in the mortgage of the number of acres conveyed, by the relation of the tract omitted to the balance of the farm, and the situation of the building and orchard. Counsel for the bank argues against this, claiming, first, that the plaintiff is not only seeking to reform a mortgage, but to overturn a judgment and gain for himself that which by such judgment was given to another party. He claims that a judgment cannot lightly be disturbed, and that after a party has had his day in court he must abide by the judgment rendered, except for extraordinary reasons and upon the fullest showing. In support of this, he cites Freeman on Judgments, and other authorities. But a distinction must be recognized between the mere correction of a mistake and the setting aside of a judgment. Where it appears that a distinct question has been presented to the consideration of a court, its ruling had thereon, and that ruling passed into judgment, it is one thing for a party to apply thereafter to have that judgment set aside, and a different niling made by the court upon that question; but it is an entirely different thing when a party avers that by some mistake the judgment which was entered does not in fact express the intention of the court in respect to its adjudication of the rights of the parties, or - that by mistake a matter has been by the language of the decree apparently adjudicated by the court, to which its attention was not called, and upon which it did not intend to make any ruling. Take this very case: if the answer in the foreclosure action filed by the plaintiff had set up the fact of a mistake, and asked an adjudication of plaintiff’s rights based upon such a mistake, and the court upon such an answer had made the decree which it did, then an application at this time to correct the decree would require something more than the mere showing that there was a mistake in the mortgage, but would require a further showing of some equitable reasons why the decree of the court once rendered against the claim of a mistake should now be disturbed. We all know that the most careful men make mistakes; that oftentimes those mistakes are not discovered for years. In such case, if application is made immediately upon discovery of the mistake, and it is shown that it was simply a mistake, and no rights of third parties are prejudiced, then it is the duty of courts to intervene and correct the mistake. And it matters not through how many papers or in how many proceedings the mistake has been carried and appears. See upon this, Blodgett v. Hobart, 18 Vt. 414; Davenport v. Scoville, 6 Ohio St. 459; Cummings v. Freer, 26 Mich. 128; Quivey v. Baker, 37 Cal. 465; 1 Jones on Mortgages, § 98; 2 id., § 1464.
Again, counsel for the bank contends that whatever might be right if the proceedings were against the mortgagor alone, it ought not to be sustained against the bank, because in ignorance of any mistake it has acquired rights upon this property by virtue of its mortgage. It is doubtless a general proposition, that where rights of third parties have intervened a mistake cannot be corrected to their prejudice.But that proposition cannot avail the bank in this case, because, as alleged, the bank parted with nothing. It simply took its mortgage as security for a debt already due. Whether its mortgage was good or bad, covered much or little, this was not a mortgage for which it parted with anything. It would be in no- worse condition if its entire mortgage was adjudged void than it was before it took it. It stands, therefore, in no better position than it would if a voluntary grantee from the mortgagor. Having parted with nothing, it cannot say that it has lost anything, or that its rights are prejudiced if the plaintiff’s mortgage is made to conform to the actual agreement. Further than that, the petition alleges that the bank took its mortgage with the full knowledge of the plaintiff’s mortgage, and expressly agreeing to take its mortgage as a second and subsequent mortgage and subject and in subordination to the previous mortgage given to plaintiff.
We conclude, therefore, that the demurrer to the petition was properly overruled.
The other question is one of more doubt. Counsel contends that the case was improperly set down on the docket for the first day of the term. The statute provides (Code, §313,) that “actions shall be set for particular days in the order hereinafter stated, and so arranged that the cases set for each day shall be tried as nearly as may be on that day, namely: First, issues of fact to be tried by a jury; second, issues of fact to be tried by the court; third, issues of law.” It appears that the clerk in making out the docket for that term set all the cases for three days. On the first day were placed something over thirty cases standing on default — this case, and a case to be submitted ou an agreed statement of facts. On the two subsequent days were placed cases for trial on issues of fact and issues of law. Counsel construes this section of the statute to require that all cases standing upon issues of fact to be tried by a j ury must be placed first upon the docket, and that cases standing on issues of law must be placed last on the docket, and that no case standing upon issues of law can be properly called for hearing until after all the cases standing upon issues of fact have been-called. We do not so understand the scope of the statute. We are inclined to agree with the views expressed by the district court, that the order of arrangement prescribed is for the setting of each day rather than for the docket as a whole. But be that as it may, a mistake of the clerk in arranging the docket does not vitiate the setting of a case upon any particular day, or render illegal a trial upon the day to which it is assigned. Evidently some discretion is given to the clerk in the arrangement of the docket. He is not called upon to set all the docket in its exact numerical order, but he is authorized to break up that order and distribute the cases to different days. This docket must be made out at least twelve days before the term, and when the docket has been so made out, if the case is triable at that term, it is triable on the day to which it is assigned, even though in the assignment the clerk has placed a case standing upon issues of law in advance of one standing upon an issue of fact. If any mistake has been made by the clerk in the order of assignment, it may be corrected upon application by the court; but if no application is made to correct the assignment, and the docket is called in the order in which the cases are assigned, the trial of any'case in such order must be held good. The purpose of preparing the docket twelve days before the term is to give parties notice of the days upon which their cases are placed. They are bound to take notice of such assignment, and if they do not challenge its correctness until after the trial the objection is too late. Therefore the claim that the case was improperly tried on the first day of the term cannot be sustained.
Further, was there such a showing of diligence and merit as rendered the refusal of the court to open judgment and permit answer and trial erroneous? Upon this the facts are, that it had been the custom of the present clerk, as well as of his .predecessor, in preparing the docket to set down only default cases and uncontested motions for hearing on the first day of the term, and that inadvertently in preparing this docket he had included in the first day’s assignment, with the default cases, this case and the one on the agreed statement; that he had frequently before the commencement of a term sent to non-resident attorneys papers containing the docket as prepared, but failed to do it in this case; that on Sunday morning, July 10th, the defendant’s attorney wrote to the clerk inquiring upon what day the case was set; that he resided at Parsons, a place only twenty miles distant from the county seat of Neosho county; that between the two places a daily mail passed; that the letter reached the clerk about 6 o’clock on the evening of the 11th, and was immediately answered, the answer reaching the attorney about 4 o’clock on the evening of the 12th, and after the case had been tried and disposed of; that upon receiving this reply the attorney at once repaired to the county seat, and was present at the opening of the court on the morning of the 13th, and immediately thereafter presented his application for the opening of the judgment. On the other hand, it appears that the demurrer was filed in December; that at the first ensuing term in April the bank took steps to remove the case to the federal court, which of course carried the case over the April term; that after having secured an order of removal, and thus a postponement of any hearing, the bank failed to file a transcript in the federal court before the next ensuing term. This of course worked a further postponement, and a remanding of the case to the district court; though it may be remarked here, that the reason given for not filing the transcript in the federal court was, that the transcript, though delivered to the bank, was retained by some one of its employés, and did not go into the hands of the attorney until after the opening of the federal court. Further, the docket was duly prepared twelve days before the commencement of the July term, was published in all the six newspapers of the county, and though the bank was situated and its attorney lived in Parsons, only twenty miles away from the county seat of Neosho county, no effort was made to ascertain the day upon which the case was set for trial until Sunday, -the second day before the commencement of the term, and then only in the manner heretofore mentioned.
Upon the merits, the affidavit of the attorney not disputing the fact that the mortgage to the bank was given to secure an antecedent debt, alleged that there were guarantors on that indebtedness; that in consideration of the mortgage, without the consent of the guarantors, the bank extended the time of payment, and thereby released them from all liability; that the mortgagor, Phelps, had become insolvent, and that rely ing upon the security afforded by this 6.67 acres, the bank had suffered other portions of the real estate mortgaged to be sold at less than their real value, and that now, without this tract, the security would be insufficient for the balance of its claim; that also, relying upon this security, it had refused at one time an offer from Phelps to convey several hundred acres of land in satisfaction of this debt, and that since such refusal said land had been sold or incumbered. On the other hand, it is said that the bank could not have been" misled as to the extent of the plaintiff’s lien, because the mortgage expressly declared that it covered 122.45 acres, which, including this 6.67 acres, was all that the mortgagor then owned in that quarter-section. Further, the record of the foreclosure suit showed that there was but one guarantor, Joel Barnhardt; that he filed an answer alleging an extension by the bank and a consequent discharge of himself, to which answer the bank filed a reply containing a general denial, and the deci'ee found against this defense, and continued the case as to the guarantor. The language of the decree is as follows:
“And it is further considered and adjudged that the answer interposed by the (jefendant Barnhardt does not state facts constituting any defense to plaintiff’s cause of action; but .the plaintiff, and if said defendant consenting, it is ordered that the said defendant Barnhardt shall within thirty days from the entry hereof, pay the costs of issuing the summons, and of serving same on said defendant Barnhardt, and in addition thereto, all costs made by said defendant, that thereupon said action shall be dismissed as to said defendant; but if he shall fail to make such payment, the action shall stand continued, and the plaintiff be entitled to judgment against said defendant at the next term of the court as on default.”
These, briefly stated, are all the facts bearing upon the questions of diligence and merit. Ought the court to have set aside the judgment and permitted an answer and trial? We have considerable hesitation about this question. If the ■court had sustained the motion, we do not think it could have been held erroneous. There was such a showing as, appealing to the discretion of the trial court, would have justified the granting of the motion; and yet on the other hand, we are constrained to hold that it does not appear that there was such an abuse of discretion as compels us to reverse the ruling. It cannot be said that there was a pi ear showing of diligence. On the contrary, the facts indicate dilatoriness and negligence. The bank was clearly not watchful and active in consummating the removal of the case to the federal court. Nearly two months intervened between the order of removal and the commencement of the term of the federal court. The bank and its attorney were within twenty miles of the office of the clerk of the district court. A very little effort and care on its part would have enabled it to have perfected the removal by the filing of the transcript with the clerk of the federal ■court. This it did not do, and after putting the counsel for the plaintiff to the trouble of coming to Leavenworth to attend a session of the federal court, and finding no case there, of himself obtained a transcript and an order remanding the case, it ought to have been careful to watch the case in the district court. It knew when the term of the district court commenced. It knew that the docket was to be made out at least twelve days before the term. It knew that the clerk might place all the cases on a single day, and would be apt to do so if the docket was small; and yet, being within twenty miles of the clerk’s office, it made no effort to ascertain its place on the docket until the Sunday before the Tuesday on which the term commenced. If it relied on any habit or understanding with the clerk, it did so at its peril, (M. K. & T. Rly. Co. v. Crowe, 9 Kas. 500.) See also upon a question somewhat similar the cases of Masters v. McHolland, 12 Kas. 25; Mehnert v. Thieme, 15 Kas. 370; Green v. Bulkley, 23 Kas. 130.
Again, as to the merits, the description in the plaintiff’s mortgage, while it did not specifically include this tract of 6.67 acres, was clearly such as to intimate to any person making inquiry what the mortgage was in fact intended to cover. The bank’s mortgage was simply to secure an antecedent debt, and the guarantor upon that debt was not in fact discharged by any extension; and while the bank may have permitted property upon which it held a mortgage to be sold at less than its real value, this, at least, does not present very strong grounds for equitable relief.
Upon the whole case, therefore, our conclusion is that there is not such a showing of an abuse by the trial court of its discretion as justifies us in reversing its ruling. (Spratley v. Insurance Co., 5 Kas. 155.)
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 action was brought by B. F. Stout against H. L. Ennis, to recover the sum of. $400, alleged to be due on the following instrument in writing, to wit:
“For- a valuable consideration, I hereby agree to pay to L. L. Orwig, for the benefit of B. F. Stout, $700, as follows; $100 one year from date.; $200 two years from date; $400 three years from date, and the last specified sum to bear interest at the rate of six per cent, per annum from date.
This agreement to be void at the death of either Stout or Ennis.— November 20, 1878. — Napoleon, Ohio.
H. L. Ennis.”
The sole question involved in this cáse is, whether this instrument in writing is valid, or not. Prima facie, it is legal and valid, and founded upon a sufficient consideration; and before we can hold that it is illegal or invalid or not founded upon a sufficient consideration, its illegality or invalidity or want of consideration must be made to affirmatively appear by something outside of the instrument itself, something extrinsic thereto. Is there anything in the case showing affirmatively that this instrument is not legal, or not valid, or not founded upon a sufficient consideration?
It appears from the petition in the case that the plaintiff and defendant entered into three separate contracts, at three different times. The first contract was, in substance, that if the plaintiff would support the defendant for nomination and election to the office of auditor of Henry county, Ohio, that 'the defendant would, if nominated and elected to such office,, employ the plaintiff as his deputy during the term of such office. Such contract was of course illegal and void, being in contravention of public policy.
The second contract was made after the election, and after the defendant had been both nominated and elected to such office. This contract was, in substance, that the defendant would employ the plaintiff as his deputy for the term of three years, and would pay to the plaintiff for his services one-half of the net salary and fees of the office. Now this contract is not necessarily illegal or void. It was not a sale or a “farming” of the office within the meaning of the decision in the case of Outon v. Rodes, 3 A. K. Marshall (Ky.), 432; 13 Am. Dec. 193. There is no pretense that the defendant was to abandon the office, or to give it up to the plaintiff. The contract was simply an agreement to employ the plaintiff as a deputy, and to give him a portion of the-fees and salary as compensation. The defendant would of course still retain the possession and control of the office, and the plaintiff would have nothing to do but to perform the ordinary duties of a deputy. There is nothing inhering in the contract itself that would render it illegal or void, and nothing has been shown outside of the contract that would necessarily render it illegal or void. The defendant however claims' that it is void for two reasons: First, that it is-founded upon the original and illegal contract made prior to the defendant’s nomination and.election; and second, that it is void on account of the sixth section of the statute for the prevention of frauds and perjuries. (Comp. Laws of 1879, p. 464, § 6.) Now it is not shown that the second contract was founded upon the first illegal contract, nor is it shown that it has any necessary connection therewith. It is not even shown that one was the inducement for the other. Each might have a separate and independent existence, and either might exist if the other had never been made.. We do not think that the first necessarily vitiates the second; and it is certainly not shown that the first has such a necessary connection with the second as to vitiate it. '
As to the question with reference to the statute of frauds and perjuries, we would say, that this contract was made in Ohio, and not in Kansas; and it is not shown what the provisions of the statutes regarding this subject are in Ohio. Of course, the statutes of Kansas cannot vitiate a contract made in Ohio. The contract may have been valid in Ohio, notwithstanding the statutes of Kansas. But supposing they have the same kind of statutes in Ohio for the government of this class of cases as we have in Kansas: then will the statutes in either state, or in both combined, render this second contract void? We think not. The statute referred to by the defendant does not purport to render-such contracts void. The statute, so far as it may be supposed to have any application to this case, provides that “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.”
It is claimed that this second contract is void because it was not to be performed within one year, and was in writing. Now there is nothing appearing in the case that shows that it was not in writing; and, as we have before stated, unless it be made to affirmatively appear that the contract sued on was illegal or void (it being prima fade valid), the contract sued on cannot be held to be void. Besides, when a contract is pleaded, it will usually be held to be valid, unless it affirmatively appears on the face of the contract, or by allegations in the pleading, to be invalid. But, as we have said before, the statute does not attempt.to make the second contract either illegal or void, even if it was not to be performed within one year and was not in writing. All that the statute .attempts with reference to this subject, is simply to enact that no action shall be brought on such a contract. The statute leaves the contract valid for all other purposes, unless it is void for some other reason than merely that it is not to be performed within one year and is not in writing. (McCampbell v. McCampbell, 5 Littell [Ky.], 92.) Such a contract is valid for all purposes except for the mere purpose of suing thereon. It is valid, for instance, as a consideration for some other contract; Now in the present case the plaintiff did not sue upon this second' contract. He sued upon the third contract, which was “in writing, and signed by the party to be charged therewith.” It will be seen that the statute of frauds and perjuries has really nothing to do with this ease.
The third contract, and the one sued upon in this case, appears to be valid in every respect, and, as we think, there is nothing outside of it and nothing in the record showing it to be invalid. It is true that the rescission of the second contract is the foundation, the basis, and the consideration for the third contract; but while it is possible that the second contract is void for the purpose of commencing an action upon it, yet it is valid for the purpose of making it a consideration for the third contracts The third contract, we think, is valid — or at least it is prima facie valid; and there being nothing in the case showing it to be void, it must be held to .be valid. The authorities will be found cited in the briefs of counsel.
The judgment of the court below will be reversed, and cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action in which the defendant in error, plaintiff below, recovered judgment against the rail way company for certain stock killed. The action was brought under the law of 1874. But two questions are presented, and they arise on these facts: The track of the railroad company runs through the city of Ogden and along Eleventh street, and on that street the animals were injured. A plat of the city was offered in evidence, which shows that Eleventh street runs directly through the city, and is crossed by five streets at right angles. The plaintiff testified that the injury did not take place where any of these streets crossed Eleventh street. He further testified that Eleventh street had been vacated for the railway. This testimony was received without objection. There was no other evidence of any action of the city council or of any other authority vacating such street. The night herd law was in force in Ogden township. Plaintiff turned his stock loose, and sometime between 6 o’clock p.-m., June 25, and 8 o’clock A. M., June 26, the animals were struck by the train of defendant, and injured. The jury, in response to certain special questions, answered that they did not know whether the animals were injured in the night-time, or about what hour they were injured. The district court charged the jury that the burden of proof was on the defendant to show that the animals were injured in the night-time. Now upon these facts the railway company makes two questions: First, that it is under no obligations to fence at the place of injury, and therefore that the law of 1874 does not apply; second, that the burden of proof is on the plaintiff to show that the animals were injured in the day-time, and when he was violating no law in permitting them to run at large; and that in fact the testimony proves that they were-injured in the night-time — the verdict of the jury declaring ignorance, to the contrary notwithstanding.
' In reference to the first question, the company insists that it is under.no obligations to fence its track within the limits of an incorporated city, or at least within that portion of such limits which is laid off into lots and blocks. And again, that if it is under obligations to so fence anywhere within such limits, that it is not bound to fence where its track runs along the public street, and that there was no competent evidence in this case that Eleventh street, where the injury took place, had ever been vacated. The first proposition of the railroad company we think is too broad. The act of 1874 is general in its terms, declares that the railroad company shall be liable to pay the owner for all stock injured or killed by its trains, with . , , ¶ . ¶ n •, single proviso that the act shall not apply to any company “whose road is inclosed with a good and lawful fence, to prevent such animal from being on such road.” This language on its face requires the inclosing of the entire line of road, but construing this statute in connection with others, the courts have interpolated certain exceptions upon its general language, and have held that wherever superior obligations forbid a fence the act is inapplicable. (Rld. Co. v. Jones, 20 Kas. 527.) Wherever there is a public crossing the railroad company may not fence. So also where there are depot grounds, and generally wherever the necessities of its business or of those dealing with it require free access to its track, the obligation to fence does not exist; and there may be in cities, outside of its depot' grounds and yards, and along. its track, stores, warehouses, mills, factories, etc., whose business relations to the company are such that free access between them and the track is indispensable. But it is also true that the track may run through other portions of a city used simply for residences where access to the track is beneficial to no one, and in such places the obligation to fence may exist as fully as outside the limits of incorporated cities. See as authorities sustaining this, Rld. Co. v. McConnell, 26 Ohio St. 57; Rld. Co. v. Lull, 28 Mich. 510; Rld. Co. v. Howell, 38 Ind. 447; Rld. Co. v. Owen, 43 Ind. 405; Rld. Co. v. Parkhurst, 34 Ind. 501.
The other proposition of the railroad company we think is correct, and that there was no proper evidence before the jury from which they could find that Eleventh street had been vacated or was not yet an established highway. The ‘ plat of the city was in evidence, from which it appears that this street had been regularly laid out and dedicated to the use of the public, and as long as it # ' 0 so remained, whether there was much or little travel upon it, whether used by the public for purposes of travel or not, the company had no right and was therefore under no obligations to fence. (Meyer v. Rld. Co., 35 Mo. 352.) After a street has thus been dedicated by the filing of á plat or laid out by condemnation proceedings, it is vacated only by some affirmative action on the part of the city council or other public authority. Such action, is evidenced by a record, and by that alone. But it may be said that this testimony was received without objection; no motion was made to strike it out, and the attention of the court was not directed in any special way to its insufficiency. Without stopping to inquire how much of force there is in these considerations, and simply remarking that the testimony is not the kind required to prove the vacating of streets, we pass to an examination of the other question.
The jury answered that they did not know whether the animals were injured in the night or in the day-time, and then, as the court instructed that the burden of proof was on the railway company, they found against the company, because they held that it had not shown that the animals were injured in the night-time. We think the court’s ruling as to the onus probandi was right. A party suing under the law of 1874 is only required in the first instance to make out a case within the terms of the statute, and then if there be any reason why the statute does not apply, it is incumbent on the railroad company to show it. If, when the plaintiff rests his case, it appears that the railroad company has not fenced its track, apparently it is liable, and if no further testimony were introduced, verdict and judgment would properly go against it. Thus, where a party sues for personal injuries, when he shows negligence on the part of the company he has made a prima faoie case. If there is a claim of contributory negligence, such as to defeat his action, it is matter of defense, and for the company to prove. (Railroad Co. v. Pointer, 14 Kas. 37.) So, that the night herd law is in force at the place of injury is a matter for the railroad company to show. In this case, when plaintiff rested, no testimony had been offered in respect to the night herd law, and there was no presumption that that law was in force; and unless the company had offered some evidence in respect to it, the case would have probably gone to the jury as though it were not in force. But if the company is called upon to prove that it applies to the case at bar, can the plaintiff be required to prove more than he alleges in his petition, and must he in that petition negative the operation of the night herd law, or if in operation, its application to his case? In the case of Railroad Co. v. Pence, 68 Ill. 524, it was held that it was sufficient if plaintiff in his case negatived the exceptions named in the statute, and that it was incumbent on the company to prove any other exceptions given by other statutes. It has also been frequently held, that where the plaintiff shows that the railroad company had not fenced its track at the place of injury, that the onus probandi is on the company to show that it had no right to fence at such place. (Rld. Co. v. O’Connor, 37 Ind. 95; Rld. Co. v. McClure, 47 Ind. 317; Rld. Co. v. Penry, 48 Ind. 128.) Though the contrary rule seems to be laid down by Mr. Justice Cole, in the opinion in Comstock v. Rld. Co., 32 Iowa, 376. In Indiana, in a recent case, it was held that “The general rule deducible from the authorities may be thus stated: Whoever asserts a right dependent for its existence upon a negative must establish the truth of the negative by a preponderance of the evidence.” (Goodwin v. Smith, 72 Ind. 113.) This case was cited approvingly by this court in the recent case of The State v. Kuhuke, 26 Kas. 409, in which the question was, whether the state, in a prosecution for selling liquor without a license, was called upon to prove the non-existence of the license; and upon that question, this court, by Mr. Justice Valentine, said: “If the possession of the license is a purely extrinsic defense, and the want of a license does not constitute any ingredient of the offense charged, then we would think it would devolve upon the defendant to prove the license; but where the want of a license inheres in the offense itself, and where the offense cannot be committed except where the supposed offender has no license, then we think it devolves upon the state to allege and prove the want of the license.”
The reasoning of that case applies here. The night herd law is not named in the statute. There need be in the petition no allegation as to its wants of operation or application. It is something whose operation and application will not be presumed and must be shown; and generally wherever a fact is beneficial to a party, it must be proved by him, or its existence may be ignored. We think therefore the court ruled correctly in respect to this matter.
But upon the testimony, coupled with the answers returned by the jury, we think it affirmatively appears that the animals were in fact injured in the night-time. It is clear that the animals were injured between 6 o’clock p. M., June 25th, and 8 o’clock A. at., June 26th, and so the jury found. The plaintiff’s testimony is absolutely silent as to when during this period, and by what train, these animals were injured. The jury also found that the engineers who ran trains along there by daylight during this time were Hosp and Stevens, and the testimony supports this finding. The entire testimony also shows that the animals were killed by a train going east, and Stevens was the only engineer who in the day-time ran such a train. The animals were found on the south side of the track, and must have been thrown off on the right-hand side of the train going east. Both Hosp and Stevens testified that they did not strike any animal that morning, and the entire testimony shows that when running in the day-time an engineer will almost certainly know if the engine strikes an animal and throws it off on the right side of the train. Bohner, who ran an engine along the road there, saw an animal which had been struck lying on the south side of the track, and other witnesses testified to hearing the train going east whistle for stock near midnight. Three trains went east at or about midnight, the second of which was run by Bohner. So that the case stands about thus: The plaintiff’s testimony is absolutely silent as to whether the cattle were injured in the night-time or day-time. The defendant’s testimony shows clearly that the animals were not injured in the day-time. The testimony thus offered by it was entirely uneontradicted, and it was not for the jury to disregard it, and say in the absence of any counter testimony that they did not know when the stock were inj ured. This is not a case of conflicting testimony.
The only testimony offered — and there was an abundance of it — shows that the stock must have been killed in the night-time. The jury should have so ° J found, and because they did not so find, the verdict was against the evidence, and cannot be sustained. The judgment of the district court will therefore be reversed, and the case remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
Six different actions were commenced in the district court of Jewell county, by five different firms— one firm commencing two actions — against Pleasant W. Hod-son. An attachment was issued in each action, and was levied upon property belonging to the defendant, or supposed to belong to him. Afterward the defendant filed a motion to set aside each attachment, on the ground of defective papers, and on the ground that the facts set forth in the affidavits for the attachments were not true. All these motions were heard at the same time and upon the same evidence, and the court overruled all the motions and sustained the attachments. The defendant excepted to such ruling, and made a case for the supreme court, and now brings such case to this court. The case brought to this court contains all the rulings complained of, but only one “case-made” and one petition in error have been filed in this court. We shall consider all the questions presented in each of the several cases; and taking.all the evidence introduced on the hearing, we cannot say that the ruling of the court below was erroneous in any one of such cases. It is true that some of the papers in some of the cases were defective; but the subsequent papers filed and the subsequent evidence introduced cured all such defects. For- instance, the plaintiff' in error (defendant below) claims that the affidavit for the attachment in the ease of Tootle, Shireman &-Co. was defective in being entitled “Milton Tootle, et al., plaintiffs, v. Pleasant W. Hodson, defendant,” and was also defective for the reason that some of the grounds for the attachment were' stated therein in the alternative. Now under all the facts and circumstances of this case, we think that these defects are wholly immaterial. The true title to the action was as follows: “Milton Tootle, John Shireman, jr., Harry M. Tootle, De Forrest W. Herrick and Henry D. Eóbinson, partners under the name of Tootle, Shireman & Co., plaintiffs, v. Pleasant W. Hodson, defendant;” and the body of the affidavit showed clearly in what case the affidavit was made and filed; and the facts set forth in the affidavit were clearly proved by competent written and oral evidence on the hearing of the motiops to discharge the attachments. Besides, an amended and more perfect affidavit was afterward filed by leave of the court.
The plaintiff in error (defendant below) also claims that the attachment undertaking, in this case was also defective in the same manner that the affidavit for the attachment was defective. This question, however, was not submitted -to the court below, and hence we shall say nothing further with reference thereto.
It is also claimed that in one of the two cases brought by E. L. McDonald & Co., the affidavit for the attachment was not made by any one of the plaintiffs, nor by their agent or attorney. Now it is not shown on the face of the affidavit that the affidavit was made by one of the plaintiffs, or by their agent or attorney; but the affidavit was, nevertheless, in fact made by an agent of the plaintiffs; and the affidavit for the attachment in the other case brought by E. L. McDonald & Co., which was made by the same person and filed on the same day, shows that the person who made the two affidavits was the agent of the plaintiffs, R. L. McDonald & Co. Both affidavits were before the court, and in evidence on the hearing of the motions to discharge the attachments; and it is unquestioned that the plaintiffs R. L. McDonald & Co. adopted both the affidavits as their own, and ratified and confirmed the same. (Dresser v. Wood, 15 Kas. 344.)
The only other question involved in the case is, whether the grounds stated in the several affidavits were sufficiently proved on the hearing. Taking all the grounds together alleged in the several affidavits, and they are substantially as follows: That the defendant has assigned, sold, conveyed, removed and disposed of his property, or a par.t thereof, with the intent to hinder, delay and defraud his creditors; and also that he is about to do these things, and conceals his property for the same purpose. The evidence was principally oral, though a part of the same was written; and hence we have not the same opportunity of deciding with regard to the credibility of the witnesses that the court below had; and for this reason, among others, it is not necessary for us to determine whether the decision of the court below was in accordance with the preponderance of the evidence or not. All that is necessary for us to determine is, whether there was sufficient evidence to uphold and sustain the decision of the court below. We think there was; but as the evidence is voluminous, and as a correct determination from the evidence depends upon a vast number of minor circumstances, we think that nothing could be gained by entering upon a commentary upon the evidence; and therefore we shall do nothing more than simply to say that we think there was sufficient evidence to uphold the decision of the court below. The decision and order of the court below overruling the defendant's motions and sustaining the attachments 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.J. W. Ferry against the Atchison, Topeka & Santa Fé railroad company, before a justice of the peace of Chase county, for damages alleged to have been caused through the negligence of the railroad company to a car-load 'of potatoes and cabbages. The plaintiff alleged in his bill of particulars that he entered into a contract with the defendant as a common carrier, by which it agreed to and did carry said potatoes and cabbages from Chicago, Illinois, to Cottonwood station, Chase county, Kansas; but that said potatoes and cabbages, by reason of the negligence of' the defendant in carrying them, and in not giving plaintiff due notice of their arrival at said station, were injured and damaged. Judgment was taken against the railroad company by default, and it duly appealed to the district court, where the case was tried de novo by the court without a jury, and judgment was again rendered against the defendant, for $269.90. The defendant now brings the case to this court for review.
The first assignment of error in this court is, that the court below refused to make special findings, and refused to state ids conclusions of fact found, separately from its conclusions of law. -
It appears from the record in the case that at the trial of the case before the court below, before any evidence was introduced, the defendant, in open court, requested the court to state in writing its conclusions of law, separately from its conclusions of fact. It also appears that defendant again, at the conclusion of the evidence, renewed its request to the court. ,
To which request the court responded, “That it would pass and find upon any findings of fact which the counsel for the defendant might prepare and submit to it, but that it would not take the time from the business of the court to perform the clerical labor of drawing up questions to be answered. Thereupon the counsel for the defendant stated that they would not prepare or submit any findings of fact to the court for it to pass or find upon, but that they demanded of' the court that it should state in writing its conclusions of fact separately from its conclusions of law,' which request the court refused to comply with; and to the refusal of the court to state in writing its conclusions of fact separately from its conclusions of law, the defendant at the time duly excepted; and thereupon the court found generally in favor of the plaintiff upon all the issues, and found that the plaintiff was damaged in the sum of $373.90, and that he was indebted to the defendant on freight in the sum of $104, which, deducted from the amount due to the plaintiff, left a balance in his favor in the sum of $269.90, for which the court ordered judgment.”
Did the court below err in refusing the request of the defendant below? This question, we think, must be answered in the affirmative. Section 290 of the code reads as follows:
“Upon the trial of questions of fact by the court, it shall not be necessary for the court to stale its finding, except generally, for the plaintiff or defendant, unless one of the parties request it with the view of excepting to the decision of the court upon the questions of law involved in the trial; in which case the court shall state in writing the conclusions of fact found, separately from the conclusions of law.”
This section provides in substance, that in all cases tried by the court without a jury, if either party requests it, the court shall state in writing its conclusions of fact, separately from its conclusions of law; and there is not the slightest intimation in the section that the party making the request shall prepare for the court, or submit to it, any statements of fact or any propositions of law, with a view to having the, court make findings thereon, or state conclusions with reference thereto. It does not appear however in this case, that the court below desired the defendant to prepare for it, or to submit to it, any questions of law for it to consider; but it was merely questions of fact which the court desired that the counsel should prepare and submit to it. It would often, of course, be very convenient to have the desired or anticipated conclusions of fact prepared for the court and submitted to it; but the statute does not seem to contemplate the necessity for any such thing. Besides, the facts upon which the court is to decide are always presented to the court in writing by the pleadings in the case, and it may generally be presumed that the facts are as well stated in the pleadings as they could be stated anywhere else; and if so, it would hardly seem necessary to require the parties, or either of them, to restate the facts of their case when the case is finally submitted to the' court for its final conclusions upon the pleadings and the evidence. Every pleading which states new matter should contain “a statement of the facts constituting the cause of action, [or defense,] in ordinary and concise language, and without repetition.” Every other pleading amounts to nothing more than a mere denial of the facts previously set forth in the pleadings alleging new matter. The facts set forth and alleged in one pleading and denied by another, or considered denied, (as is the case with reference to facts set forth and alleged in the reply,) are the facts with reference to which the court should make its findings or conclusions of fact. . These facts'are often called the issuable facts, and the court should make special findings or conclusions with reference to them whenever either party so requests, and without either party being under the necessity of restating the facts, or stating them again in any other-paper than in the pleadings. The fact that all the issuable facts, the facts upon which it is desired that the court shall make findings or conclusions, are-once stated in the pleadings, renders it wholly unnecessary that such facts should be restated by the parties in some other paper. It is not uncommon however in practice, for the court to announce its •decision orally before putting the same in writing, and then to permit the.party in whose favor the court finds, to prepare the written and formal statement of the decision. But there is no necessity for even this, and no law requiring it.
We think this case has already been substantially decided by this court in other cases: Briggs v. Eggan, 17 Kas. 589, et seq., and cases there cited; Lowry v. Stewart, 5 Kas. 663; McCandliss v. Kelsey, 16 Kas. 557. See also Lee v. Marsh, 19 Mich. 11; Stancell v. Corning, 21 Mich. 242; Howerter v. Kelly, 23 Mich. 337; Hunt v. Patterson, 38 Mich. 95; C. & T. Rld. Co. v. Johnson, 10 Ohio St. 591; Levi v. Daniels, 22 Ohio St. 38.
In some states, like California and New York, it is made imperative upon the court to state its findings of fact and conclusions of law separately in all cases, without any request from either party; but in this state the court may find generally, unless such a request is made. But when a request is made, then the compliance with such request becomes imperative.
We think the court below erred in refusing the request of the defendant in this case; and for such error 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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